Judge says water problems won't be solved in court

Issue Date: February 24, 2010
Steve Adler

His rulings play a crucial role in determining the operation of federal and state water projects in the Sacramento-San Joaquin Delta. But Judge Oliver Wanger said last week that court rulings aren't to blame for drastic reductions in water deliveries.

Wanger, a U.S. District Court judge for the Eastern District of California, gave the keynote address during the annual Madera County Farm Bureau Water Conference.

He has been instrumental in several recent court cases relating to Central Valley Project and State Water Project water deliveries that have been severely restricted by the Endangered Species Act and other federal laws. Most of those cases revolve around protected species such as the threatened delta smelt, as well as threatened and endangered species of salmon, steelhead, sturgeon and even killer whales—"because they feed on salmon," Wanger said.

Wanger let it be known at the beginning of his talk that he was speaking as "a private citizen and not on behalf of the United States District Court where I serve," and that his views were not intended to be a comment on any pending cases.

"I am going to touch on subjects that relate to these cases, but I am going to try to not comment on the cases themselves, because we have issues which have been submitted for a decision or will be very soon," he said.

The Fresno-based federal judge said he finds it remarkable that there is, what he called, so little accurate information about how the California "water wars" were created and whether there are any solutions to the dilemma.

"I will start by saying one thing: The one place where there can be no solution is in the courts. That is where these cases are at present, but there is no question that the courts don't have resources, the courts don't have expertise, the courts don't have political authority or executive authority to do anything to solve the issues that are presented," he said.

Many of the current cases in court can be traced back to the passage of the Central Valley Project Improvement Act in 1992, which gave high priority to fisheries restoration and protection of the environment, he said.

"So that was the day the world changed: Oct. 30, 1992, when the CVPIA took effect. Since that time, we have had what I am going to call the environmental lawsuits. One area of contention is the annual use of water and its effect on what are called listed species under the Endangered Species Act," he said.

Three laws—the ESA, the National Environmental Policy Act and the Administrative Procedures Act—play pivotal roles in how all of these cases are being presented and are being decided, he said. Wanger added that as a judge, he is limited in what he is allowed to do in making rulings from the bench.

"One thing that is required for our system to work is that whether I have a personal opinion about what is right and what is wrong, my duty is to follow the law. I took an oath under the Constitution of the United States to apply the law to the best of my ability," he said. "Judges don't make the laws. Our elected representatives—the Legislature and the Congress of the United States—make the laws. Judges don't have that right. Our job is to interpret and apply the law honestly, competently and to the best of our ability."

Wanger said there are no court orders in effect that limit the amount of water being delivered through the Central Valley Project. What limits the deliveries, he said, are the biological opinions written by federal scientists relating to the potential harm that might befall the protected fish.

"Congress intended that endangered species are irreplaceable and their loss is irreparable. That issues an automatic ticket to an injunction if an endangered species is threatened," he said.

"The second thing the Congress did is to remove the balance," he said. "My inclination and my duty is to be impartial and to be fair. How are you fair? You are fair when you balance and consider each interest that is before you. That law says there is no balancing of hardship in Endangered Species Act cases."

Adding to Wanger's challenge as judge, he said, is that under the ESA, he is required to defer to the opinions of the scientists and not substitute his own judgment as to what is the best science or what is the best method to resolve the problem. Rather, he said, he must accept the agencies' scientific views and their decisions, unless they are arbitrary and capricious or contrary to law.

In his 19 years on the federal bench, Wanger said he has heard more than 70 water cases, and there were several cases prior to that, he said.

"These cases were there 15 years before I got there, and unless something is done by the agencies and the institutions that are responsible, they are going to be there for the next 30 years," he said.

"As a citizen, I can ask the rhetorical question: If there isn't a way to apply balance under the ESA, would it be appropriate to find a way to balance? And I'm sure that there is an answer to that and it wouldn't be too hard to find," he said. "But it's not for the courts to provide that answer. We can't write the law. We can't rewrite the law. We can only follow the law."

Wanger said that in the final analysis, these problems are complex beyond belief in terms of the harm that is being done.

"If this is your lifeblood, if this is your existence, how can a fish or an environmental interest receive higher priority than human health, safety or your economic interest? You have invested your life, you have invested your resources, you have invested everything that you have into your farms or the activities that are dependent on these projects," he said.

"There is only one place the problem can be solved, and if Congress can't even agree as to when they are in session and when they are not, what hope do we have for any action to address these problems?" Wanger asked. "It can be done, but whether or not we have reached the point of legislative gridlock that it is no longer possible, I can't tell you because, thank God, that is not my area of endeavor."

(Steve Adler is associate editor of Ag Alert. He may be contacted at sadler@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.