Federal Judge Oliver Wanger issued a ruling May 19 challenging the federal biological opinion protecting Sacramento River chinook salmon, Central Valley steelhead, green sturgeon and southern resident killer whales.
Wanger, known for his pro-agribusiness bias, claimed that the Delta Mendota Water Authority and Westlands Water District have, “by a preponderance of evidence, shown legal and equitable grounds for injunctive relief.”
Environmental, fishing and tribal groups said the ruling was bad news for collapsing populations of salmon and other species and the coastal and inland communities that depend on healthy fisheries, while agribusiness advocates celebrated the ruling as a victory of “farmers over fish.”
“We are disappointed by today’s ruling, which is bad news for anyone who cares about California’s wild salmon,” said Doug Obegi, Natural Resources Defense Council attorney, on his blog. “However, we will continue to urge the court to uphold these protections, as they are critical to protecting California’s wild salmon, the fishing and tribal communities that depend on them and the health of the Bay-Delta estuary, which supplies drinking water to millions of Californians.”
Obegi said Wanger found on a preliminary basis that the federal agencies had not strictly adhered to all of the necessary procedures in the biological opinion that protects salmon, steelhead, sturgeon and orcas from the impacts of the State Water Project and the federal Central Valley Project.
“The court declined to issue the injunction waiving the protections of the biological opinion, finding that no alternative measure had been offered that would adequately protect the species, and has ordered a hearing tomorrow to discuss how to proceed,” Obegi said. “The court recognized that pumping restrictions are necessary to avoid jeopardizing the continued existence of wild California salmon and steelhead.”
In its ruling, the court found that unrestricted pumping, as some of the plaintiffs had proposed, could cause “irreparable harm” to California’s wild salmon and steelhead, as well as the fishing and tribal communities that depend on healthy salmon runs, according to Obegi.
Wanger recently concluded “the economic pain and hardship has been no less to the fishing industry that relies on salmon than has been the economic consequence to the Central Valley agricultural community.”
In April, the court also recognized the significant harm to Winnemem Wintu Tribe and its spiritual and cultural foundations, finding that these interests are irreparable and protected, and that there are extreme hardships on all sides.
“However, out of the numerous actions and requirements in the nearly 800 page biological opinion, the court concluded that specific numeric flow restrictions in two of the biological opinion’s protective measures were not adequately explained by the agency,” Obegi said. “The court found that it could not conclude if these measures ‘are adequately protective, too protective, or not protective enough.’”
The court ordered a hearing May 20 – and possibly additional hearings – to determine if “some other level of pumping levels would be safe for the species,” said Obegi.
Attorneys from the Pacific Legal Foundation, a right wing property rights group, applauded Wanger’s issuance of a preliminary injunction against a federal regulatory action that the organization claims has “contributed to devastating water cutbacks for farms and communities in Central and Southern California.”
PLF has been representing some San Joaquin Valley growers that the organization contends “have been hard-hit by the federally imposed water cutbacks.” The case is Stewart & Jasper v. Salazar.
“Judge Wanger recognized that federal regulators had not taken account of how water cutoffs could damage the human environment, and they did not use the best available science,” said PLF attorney Brandon Middleton.
“This is a powerful, excellent ruling. The judge is telling the feds that they can’t ignore the harsh human and environmental impacts of cutting off water to farms, workers, businesses, and communities. The judge is also saying the feds can’t get away with using slippery science to justify environmental restrictions that rob communities of their lifeblood – water.”
Members of commercial and recreational fishing groups are appalled that the judge favored corporate agribusiness and junior water rights holders over fish and fishermen in his ruling.
“I was extremely disappointed by Wanger’s ruling,” said Zeke Grader, executive director of the Pacific Coast Federation of Fishermen’s Associations, one of the plaintiffs in the case. “It’s as if fish and fishing jobs and communities don’t count.”
“Also, this ruling affects only a small subset of all the biological opinion, albeit some of the most important ones for maintaining Delta flows,” said Glen Spain, the Northwest director of the PCFFA. “So this setback is not the end of the struggle to restore collapsing salmon populations by any means.”
Earthjustice Attorneys Erin Tovin and Mike Sherwood, who received legal assistance from NRDC attorneys, are the lead attorneys in this case.
To read a copy of the decision, visit www.scribd.com/doc/31556079/Salmon-Findings-of-Fact-Judge-Oliver-Wanger.