Judicial temperament

Sacramento River - Photo by Steve Martarano, USFWS

” Wanger didn’t stop there. His comments, covering page after page of the court transcript, can accurately be described as a rant or a diatribe.”

The last thing you want in a federal courtroom – any courtroom – is a testy judge. But that is precisely what federal scientists confronted in the latest legal fight over the tiny Delta smelt, which needs fresh water to thrive in its increasingly saline marshy habitat.

“Testy” may be too kind a description. Fresno U.S. District Judge Oliver W. Wanger, who steps down this month after more than two decades on the bench, excoriated the scientists – one from the Bureau of Reclamation, the other from the Fish and Wildlife Service – for what he characterized as deliberately deceiving the court with inconsistent testimony. The FWS scientist, he said was a “zealot;” the other was “”untrustworthy as a witness.”

“I have spent my life in courtrooms. This is my life. I have never seen anything like this,” he thundered last week, according to a transcript of the proceedings.

Wanger didn’t stop there. His comments, covering page after page of the court transcript, can accurately be described as a “rant” or a “diatribe.” His pique apparently was enflamed because the scientists, he said, “accuse the court of using the wrong legal standards, not, in effect, knowing the law, misapplying it and not understanding it.”

Wanger, in language that was unusual even for California courtrooms, then went on at length dissecting the scientists’ testimony and announcing a finding that the government acted in bad faith. It was an odd, sustained tongue-lashing.

The FWS’ Jennifer Norris, he said, “has not been honest this court. I find her to be incredible as a witness. I find her testimony to be that of a zealot. And I’m not overstating the case. I’m not being histrionic. I’m not being dramatic. I’ve never seen anything like it. And I’ve seen a few witnesses testify.”

Norris, he added, “never varies from her answer, because she is a true believer. And she never – there is nothing that will shake her belief. There is nothing that will move her to an answer except that justifies the result and the end that is achieved.”

As for the Bureau of Reclamation’s Frederick Feyrer, he showed “absolute incredibility” and “absolute unreliability,” and “finally, the most significant finding, the court finds him to be untrustworthy as a witness,” Wanger stated.

Norris and Feyrer did not comment on Wanger’s statements, but the Interior Department through a spokesman defended the scientists’ work, calling it “consistent and thorough.”

“The Department of the Interior has been diligent responding to the varying matters before Judge Wanger’s court, including in the formation of the delta smelt biological opinion, first in 2005, which was then rewritten at the judge’s request in 2008. We stand behind the consistent and thorough findings by our scientists on these matters and their dedicated use of the best available science,” said spokesman Adam Fetcher.

The underlying issue of the case is the government’s plan to tap the Sacramento River to retain some fresh water supplies in the Delta, rather than let it be shipped south, a move that by some estimates could cut water to San Joaquin Valley irrigation districts by some 300,000 acre-feet, perhaps more. Wanger blocked the move, at least temporarily.  A detailed description of the issue can be found here.

The Delta, an estuary fed by several rivers, is at the heart of California’s water system and provides about half the state’s drinking water.

2 Responses to Judicial temperament

  1. David Scott says:

    Wanger ends his tenure on the bench disgracefully with these unprecedented personal attacks. Should scientists in Federal court have to fear personal retribution from the presiding judge, as a consequence of offering truthful testimony about their scientific findings? Certainly Wanger’s now widely publicized remarks have caused real damage to the professional reputations of the two Interior Department biologists.

    Wanger derides Dr. Norris for being both inconsistent in her testimony (court records prove otherwise) and for never varying in her answers. Both things can’t be true–but truth seems to be the least of Judge Wanger’s concerns. Dr. Norris’s job was to present the facts of biology as determined by the Fish and Wildlife Service, in support of agency policy decisions made at higher levels of authority. She did so. She could not have testified other than she did, without failing to meet her professional responsibilities–and Judge Wanger knows it. Yet he chose to attack not just the message but the messenger, and in doing so to put forth a demonstrably false characterization of her testimony.

    Was this really just an outburst of colorful language by a cranky judge on the verge of retirement? In fact, Judge Wanger is not ending his legal career anytime soon. He is just days away from joining the corporate legal practice of Jones Helsley PC, (to be reconfigured as Wanger Jones Helsley), where he has stated his role will be to expand the firm’s practice in the areas of water and environmental law. In that capacity, whatever Wanger has accomplished in discrediting two of the top government scientists in the delta smelt proceedings may soon work to his and his clients’ advantage. If so, questions about Wanger’s conduct may have less to do with judicial temperament than with abuse of judicial authority.

  2. Mike Wade says:

    It is inconceivable that a bureaucrat would hold himself above the law and discount a legal ruling by a federal judge. The words spoken in the courtroom to characterize the testimony offered by two federal scientists as “unlawful” and “misleading” are a part of the public record. Ignoring these comments and others by the judge is tantamount to writing one’s own law. A greater concern is the biological opinions that govern the flow of water through the Delta are being rewritten by these same federal agencies and scientists. Will the results of this rewrite be destined once again for the courtroom in order to provide a safeguard for farmers and 25 million Californians?

    Mike Wade
    California Farm Water Coalition

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