Wanger backs out of representing Westlands Water District

Wanger backs out of representing Westlands Water District

by Dan Bacher

Spurred by public outrage and negative newspaper and internet editorials, recently retired federal judge Oliver W. Wanger announced his decision to withdraw from representing the Westlands Water District in a lawsuit filed against it by fishing and environmental groups and the Winnemem Wintu Tribe.

“Recent media comment has raised confusion about the cases upon which former Judge Oliver W. Wanger may work as a private attorney," Wanger's law firm, Wanger Jones Helsley, said in a statement dated Monday, December 5, but not released until Tuesday, December 6.

"He cannot work on cases involving matters he heard as a judge," according to the statement. "The rules do not prevent him from taking cases involving parties who previously appeared before him. No conflict or violation of any rule has occurred."

However, to avoid "misperception and diversion of attention from the merits of the case," the statement said Wanger and his firm "have substituted out of the pending state appellate case involving the Westlands Water District."

"Neither he nor the law firm has provided any legal service whatsoever to the Westlands Water District in the state appellate case or in any other matter, nor is Westlands a client of Mr. Wanger or the firm," the firm emphasized.

In response to Oliver Wanger’s decision, Westlands Water District General Manager Thomas W. Birmingham said in a statement that "the Westlands Water District regrets that we will not have the benefit of Oliver Wanger’s assistance in connection with this case."

"But we have the highest respect for his integrity and appreciate his strict adherence to the most exacting standards of legal ethics," Birmingham stated. "His decision not to proceed with this matter is entirely consistent with the meticulous attention he applied to all aspects of the law during his long career in the federal judiciary."

Birmingham made it clear that although Wanger withdrew from the current case, "We hope to work with him on other issues in the future."

Wanger's decision to represent Westlands, the largest water district in the U.S., in the case was met with outrage by environmentalists, Indian Tribes, fishermen, Delta residents and environmental justice advocates that are working to restore Central Valley salmon and Delta fish populations. After a series of editorials appeared in mainstream and alternative media throughout the state, Wanger and his law firm apparently decided to withdraw from the case.

A San Francisco Chronicle editorial on December 1 (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/12/01/EDP91M71BI.DTL), said Wanger's "switch from jurist to courtroom litigant doesn't appear to violate judicial rules. But it's a disappointing mistake in judgment. It undercuts the credibility of his past rulings, and it's another setback for the trust badly needed to work through issues of delta water flows, water rights and safeguards for jeopardized fish."

Members of fishing organizations, environmental groups and Tribes celebrated Wanger's decision, under political pressure, to back out from representing Westlands in the case as a victory.

"Wanger's decision to withdraw is an inspiration to all of us who are attempting to influence public opinion through the media," said Tom Stokely of the California Water Impact Network. "It shows that the court of public opinion is still a legitimate venue for changing public policy."

"I think Wanger is being cautious - and rightfully so - although it's not clear that he actually violated any rules," commented Steve Evans, the Wild Rivers Project Consultant for Friends of the River. "Being retained by Westlands certainly looks improper, given that he made court rulings and judgments that benefited Westlands."

On August 25, the California Sportfishing Protection Alliance (CSPA), Friends of the River, North Coast River Alliance, Save the American River Association and Winnemem Wintu Tribe filed their lawsuit against Westlands and its two water distribution districts over the renewal of six interim water service contracts.

The groups and Tribe say water exports out of the Sacramento-San Joaquin River Delta are a key reason for the dramatic decline of Central Valley salmon and Delta fish populations, while Westlands claims the contracts are exempt from the California Environmental Quality Act (CEQA).

The lawsuit asks for: "injunctive relief, restraining the defendant from carrying out the project; a writ of mandate, setting aside contract approval; and declaratory relief, declaring the contracts to be unlawful," according to Bill Jennings, Executive Director/Chairman of CSPA.

"The environmental devastation wrought on the Sacramento-San Joaquin River Delta by Central Valley Project operations generally and Westlands' diversions specifically has become patent in recent years," the petition states. "The importation of over 1,000,000 acre feet of water from the Delta to Westlands has caused substantial harm to the Delta's imperiled fisheries. Boron, selenium and salt pollution in the Delta originates in part from return flow discharged by Westlands and surrounding water contractors."

Key fish species imperiled by Delta water exports and contaminated return flows include winter, spring and fall runs of Sacramento River chinook salmon, Central Valley steelhead, Delta smelt, longfin smelt and threadfin shad, according to the petition.

Westlands has a long history of opposing fish restoration on the Sacramento-San Joaquin River Delta and Trinity River. It has launched a series of lawsuits and has often used its political muscle at the state and federal level to lobby for for more water exports from the Delta and to strip Endangered Species Act protections for imperiled fish species. The district, located on the west side of the San Joaquin Valley, irrigates drainage-impaired land laced with boron, selenium and other salts.