Tag Archives: Smelt

Aftermath

Sacramento National Wildlife Refuge, near Willows, CA. Photo by Dan Cox, USFWS

 “A federal judge leaving the bench to quickly turn up as the lawyer for an entity that has come before him numerous times over the years raises eyebrows.”

Former U.S. District Judge Oliver W. Wanger, who spent two decades as a jurist deep in the Central Valley, is shaping up as something of a courtroom nemesis for environmentalists. And he’s not even on the bench.

Wanger, who has ruled on numerous water cases, retired at the end of September – but not before he blasted the government’s environmental assessments of flows and fresh water in a case involving Delta smelt protections. Wanger’s sharp language, in which he denounced experts from the Bureau of Reclamation and the Fish and Wildlife Service, drew national attention.

The Westlands Water District, the nation’s premier farm irrigation district and a major political player in the Central Valley, sought more flows south from the Delta; the government’s position would have limited them. In the end, Wanger’s decision was favorable to Westlands.

And that would have been that, except that Wanger has now surfaced less than two months after his earlier decision as an attorney in a state case representing – you guessed it — Westlands.

Wanger was listed in a routine court filing on Nov. 22 in Fresno County Superior Court as an attorney representing Westlands in a state case against pitting the district against environmental groups and the Winnemem Wintu Tribe. Wanger and representatives of his law firm were identified as the new lawyers representing Westlands, replacing the district’s own staff attorneys. The U.S. Bureau of Reclamation is also a defendant.

There is nothing illegal or improper about Wanger entering private practice. But the perception of a federal judge leaving the bench to quickly turn up as the lawyer for an entity that has come before him numerous times over the years raises eyebrows.

As for the outspoken Wanger, he went to public events just after stepping down, including a fundraiser, and he appears to be unconcerned about the latest flap over his new role as Westlands lawyer.

“I would love to hear what Westlands would say if we had hired [Wanger],” Zeke Grader, executive director of the San Francisco-based Pacific Coast Federation of Fisherman’s Associations, told the Fresno Bee’s John Ellis. That would be fine with him, Wanger said.

“I’d love to work for them,” he said, including environmental groups and the federal government in his list of prospective clients.

In September, shortly before he retired, Wanger said FWS scientist Jennifer Norris “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.”

He also said 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.”  His language – it was part of a lengthy diatribe – surprised legal observers for its intensity. The Department of the Interior, meanwhile, is investigating the judge’s allegations.

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

The underlying issue of the case was 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.

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.

 

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.

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