Today a federal judge threw out portions of the federal government’s plan to protect several fish species, including some salmon and steelhead in California, under the Endangered Species Act for the second time.
The Fresno Bee reports:
U.S. District Judge Oliver Wanger invalidated parts of the U.S. National Marine Fisheries Service’s so-called biological opinion, calling the plan “arbitrary, capricious, and unlawful.”
Wanger still held that pumping operations negatively impact the fish and adversely modify their critical habitat, but his decision means the agency will rewrite its plan again.
In the 279-page decision, Wanger wrote that some of the agency’s analyses relied on “equivocal or bad science” and didn’t clearly demonstrate why the measures it imposed were essential.
The opinion is quite critical of the scientists who helped develop the federal government’s biological opinion. [For those who don't want to wade through the entire opinion (I sure didn't), the concluding summary is posted here.] But the opinion in this case is nothing compared to what the judge reportedly said from the bench about the federal government’s biological opinion for delta smelt after the federal government sought to stay the judge’s injunction against some of its protective measures. E&E News (subscription required) reports:
“I have never seen anything like what has been placed before this court by these two witnesses,” U.S. District Judge Oliver Wanger said in his ruling on the smelt case, according to a transcript obtained by E&ENews PM. “The only inference that the court can draw is that it is an attempt to mislead and to deceive the court.”
Wanger did not use the term “scientific misconduct,” or “lying,” but he used nearly every other adjective that describes deception by scientists as he built the record in his ruling for a finding of “bad faith.” He called their testimony “false,” “outrageous,” “incredible,” “unworthy of belief” and more. . . .
Wanger called a Fish and Wildlife Service scientist who had testified in the case a “zealot” who did not let facts get in the way of her goals.
“She may be a good scientist. She may be honest, but she has not been honest with this court,” he said.
He called a Bureau of Reclamation scientist “untrustworthy as a witness.”
“And I will note that he is a government agent,” Wanger said. “And the United States, as a sovereign, has a duty not only in dealing with the court, but in dealing with the public to always speak the truth, whether it’s good or bad.” . . .
“Protecting endangered species is crucially important,” Wanger said. “But when it overwhelms us to the point that we lose objectivity, we lose honesty, we’re all in a lot of trouble. Serious, serious trouble.”
Despite these conclusions, Judge Wanger still upheld large portions of the government’s plan. Here is another link to the transcript, and here and here are some more background on the judge’s prior finding in the delta smelt case.
UPDATE: In my original post I accidentally conflated the judge’s opinion in one case — involving the biological opinion for salmon, steelhead, and other fish species — and the judge’s comments in another case, involving the biological opinion for the delta smelt. I’ve revised the post to correct this error.