Court rules greenies told a whopper of a smelt fish story

July 19 2012

By Wayne Lusvardi

Mark Twain once wrote: “Don’t tell fish stories where people know you; but particularly, don’t tell them where they know the fish.”

The farmers in the California Central Valley know that environmentalists have been making up a big fish story for quite some time about agricultural water contracts negatively impacting the purportedly endangered Delta smelt fish.

The farmers know the fish better than the environmentalists.  You can’t tell any big whopper fish stories around farmers.  But you can try to get away with them in court.   But even a liberal court didn’t fall for such yarns.

The liberal U.S. 9th Circuit Court of Appeals ruled Tuesday that 41 federal water contracts in the Central Valley Water Project did not violate the Endangered Species Act.  Chief Judge Procter Hug ruled in the case, National Resources Defense Council vs. Ken Salazar, Secretary of the U.S. Department of the Interior, that the U.S. Bureau of Reclamation did not have to consult with the Fish and Wildlife Service over any alleged negative impacts to the purported endangered Delta smelt fish in renewals of agricultural water contracts.

According to Brandon Middleton, attorney for the Pacific Legal Foundation, Section 7 of the Endangered Species Act requires federal agencies to consult with the Fish and Wildlife Service before undertaking an action that may negatively affect a protected species.  Relying on legal precedent, Hug ruled that Section 7 only applies to discretionary federal actions.  Because prevailing law mandates the renewals of water contracts, the bureau had no obligation to consult with the Fish and Wildlife Agency.

To further squash this big fish tale, the court also ruled the environmentalists had no legal standing to even challenged the water contracts on such grounds.  Standing is defined as: “the ability of a party to demonstrate to the court sufficient connection to and harm from the law of action challenged to support that party’s participation in the case.” The water contracts in question even contained a “shortage” clause that provided for the Bureau of Reclamation to provide more water for the smelt.

Middleton said, “The farmers had much to lose even though they didn’t gain that much in this ruling.”  If the ruling had gone against the water contractors, farmers might have had to give up water already under contract and on which agricultural production loans and other financial obligations had been made without any re-compensation.  Middleton elaborated that, what the environmentalists were trying to do was go beyond challenging any physical impacts on the smelt by large pumps in the Delta as part of the Federal Central Valley Project.  The environmentalists wanted to penetrate to the legal contracts that lay behind the water pumping.

No Bearing on Repealing Feinstein’s Water Grab Act

However, Middleton doubted this ruling would have any bearing on the provision in Democratic Calif. Sen. Dianne Feinstein’s H.R. 146, the San Joaquin River Restoration Act of 2009, to “mandate” agricultural water contractors to go through an environmental clearance process as a condition of renewing their long-term water contracts.  Such a clearance could permit the environmental mitigation shakedowns of farmers.

Feinstein’s act was a grab of water from Central Valley farmers for commercial fishing, recreational and real estate development interests in the San Joaquin Valley area.  Feinstein’s Democratic Party controlled both houses of Congress and the presidency in 2009.  Nevertheless, she could not overcome the farm lobby in Congress in her own party to get the San Joaquin River Restoration Act passed.  Eventually, Feinstein’s bill was attached as a “rider” on the Omnibus Lands Act of 2009 and ramrodded over opposition in her own party.

Recently, Rep. Devin Nunes, R-Tulare, authored H.R. 1837, the San Joaquin Valley Water Reliability Act, to repeal Feinstein’s one-sided law. The bill is still sitting in the U.S. Senate, where it has been blocked by Feinstein and Sen. Barbara Boxer, D-Calif., and opposed by Pres. Obama.

Farmers know that, if it weren’t for the Central Valley Water Project providing water to agricultural water districts, the Delta smelt fish wouldn’t have as much reliable water or habitat.  And that is no fish story.

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