Good Government Takes the Scare Away From Mad Scientists and Lawyers
Posted October 31, 2011 in Living Sustainably, Saving Wildlife and Wild Places, U.S. Law and Policy
It’s shaping up to be a happy Halloween for California’s fishermen, boaters, birdwatchers, and drinkers of water – in other words, all of us who rely on a healthy Delta ecosystem.
First, the Supreme Court today denied the Pacific Legal Foundation’s request to hear PLF’s argument that fish who don’t manage to swim across state lines don’t deserve our protection. PLF’s argument was mad lawyering at its best. Every single court to hear their claim has denied it.
But neither PLF nor their corporate cronies who joined in the request for Supreme Court review let a silly little thing like the law and legal precedent stop them. Don’t let the clever names of these organizations fool you – in this case, the Pacific Legal Foundation, the National Federation of Independent Business Small Business Legal Center, the Mountain States Legal Foundation, the National Water Resources Association, and the Center for Constitutional Jurisprudence were advocating pure greed at the expense of the rest of us and the healthy natural resources that are our right, our children’s legacy, and a vital part of a healthy economy. As the Eleventh Circuit explained in rejecting a claim almost identical to PLF's here: "All of the industries we have mentioned – pharmaceuticals, agriculture, fishing, hunting, and wildlife tourism – fundamentally depend on a diverse stock of wildlife, and the Endangered Species Act is designed to safeguard that stock." Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1271-77 (11th Cir. 2007).
The second good news on this Halloween is that, thanks to high flows and the protections provided by hardworking scientists at the Department of the Interior and National Marine Fisheries Service in the Delta biological opinions, fish counts are way up this year as compared to the last several. Here are some recent graphs prepared by FISHBIO showing early fall run Chinook returns in the San Joaquin and Sacramento basins:
These hopeful numbers reflect the numbers of several other Delta fish species, including delta smelt and longfin smelt, whose early fall abundance numbers indicate that their populations are beginning to recover after the extinction-threatening beating that they took in the early 2000s, when pumping from the Delta hit historic highs and fish were killed at the export pumps by the tens of thousands. This year, thanks to the protections of the biological opinions, low numbers of smelt were killed in the pumps, and the water projects provided decent habitat in the fall by allowing more freshwater to flow through the Delta.
This confluence of increasing fish numbers is not surprising – not only do big fish eat little fish (just one of the fundamental deficiencies in PLF’s argument that we should ignore the little fish), but healthy flows and a healthy ecosystem provide good habitat for all fish that depend on the Delta. We, in turn, reap the benefits of that healthy ecosystem, including a revived salmon fishery in California and better drinking water quality in the Delta. That’s a Halloween treat.
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Comments
Mike — Nov 1 2011 01:47 PM
This author's attempt to credit the "hardworking scientists" for creating biological opinions that resulted in "low numbers of smelt...killed in the pumps" is an attempt to rewrite history. First of all, these scientists along with the biological opinions have been found to be utterly lacking by a federal judge. Their testimony supporting the biological opinions was labeled by the judge as an attempt to mislead the court. The agencies formulating the biological opinions were found to be in violation of the National Environmental Protection Act by failing to consider the cost to humans. As a result, the biological opinions were ordered to be rewritten.
Secondly, this year's weather conditions may have resulted in increased exports because much more water was in the system. What is important to recognize is that the results of the weather conditions, including the ability to increase exports cannot be duplicated by operations of the State and federal water supply systems. From 2010 to 2011 an additional 15 million acre-feet of Delta outflow went to the ocean. In a normal year that would consume the entire flow into the Delta. For a factual look at Delta inflow, exports and outflow, visit www.farmwater.org/Res0911.pdf.
Mike Wade
California Farm Water Coalition
Kate Poole — Nov 1 2011 04:50 PM
Mike,
You need to check your facts. Judge Wanger actually validated the fundamental conclusions of both the delta smelt and salmon biological opinions that the operations of the state and federal water projects jeopardize the existence of these and other fish, and adversely modify their critical habitat. The few discrete areas where the Judge requested more explanation don't affect these fundamental conclusions. The Judge also specifically rejected your statement that the agencies formulating the biological opinions violated NEPA. He found, instead, that the operator of the federal water project, the Bureau of Reclamation, violated NEPA. Finally, Reclamation and DWR -- not the weather -- control the Delta export pumps and the amount of water being released from Shasta, Folsom, Oroville, and New Melones reservoirs. These operations have a substantial impact on flows, and therefore on water quality, fish habitat, and a host of other factors that determine the health of the Delta.
Kate