Fresno court weighs the future of fish and farms

Issue Date: August 29, 2007

By Kate Campbell
Assistant Editor

Chris Scheuring, left, CFBF Natural Resources and Environmental Division managing counsel, confers with Farm Bureau's outside counsel Chris Buckley about possible effects on farming of a federal judge's pending decision relating to the delta smelt.

A trial that is currently under way in federal district court in Fresno could have a major impact on what crops are produced in California next year and how much drinking water is available for 25 million Californians. The trial aims to find interim measures for protecting threatened delta smelt, with environmentalists urging curtailment of pumps that supply water to federal and state delivery systems.

Because of the importance of this trial to farms throughout the San Joaquin Valley, farmers pulled off during harvest and took turns sitting in the courtroom so there would be continuous monitoring of the proceeding.

Frank Coelho, who grows a variety of crops on the West side in Fresno and Kings counties, said, "It's important to be here because depending on the court's ruling we could be facing a catastrophe. If water deliveries are curtailed, farms will have to shut down and so will the surrounding towns."

Court proceedings were halted last Friday due to a participating attorney's personal emergency. The trial resumes this week before U.S. District Judge Oliver W. Wanger and is expected to last several days.

Wanger has indicated that he may rule from the bench at the conclusion of the trial, rather than waiting to issue a written opinion some weeks later, contrary to what experts had predicted.

Because the court found the U.S. Fish and Wildlife Service's 2004 biological opinion on protections for the smelt was invalid, this new trial is focusing on interim remedies to address the problem. The tiny fish, whose population is diminishing, can be drawn in with the pumped water and killed.

In addition, the State Water Project had relied on the federal biological opinion to cover its delta pumping operations. The state's operation is being questioned in state court. The delta smelt was listed as threatened under the Endangered Species Act in 1993.

Compliance with the ESA is at the heart of the current federal proceeding, spawned by a lawsuit brought by the Natural Resources Defense Council, California Trout, BayKeeper and DeltaKeeper, Friends of the River and Bay Institute. These same groups filed an emergency request in in March to have the species listed as endangered under the state ESA.

"Since the court has already determined the federal biological opinion is invalid, the question now is what to do about it? Experts said whatever the court's ruling the measures it dictates will likely determine how the state's major water projects are operated well into the next crop year.

The California Farm Bureau Federation, along with Westlands Water District, California Department of Water Resources, the State Water Contractors and several other water agencies, are participating as intervenors in the trial and will be presenting expert witnesses to help the court determine its course of action in protecting the smelt.

In his opening remarks last week, Wanger said it's estimated by the U.S. Fish and Wildlife Service that they may be able to get a new biological opinion completed by next August and that may control what remedies to the current inadequate biological opinion the court finds appropriate.

Wanger said that he wants to keep the scope of the remedies trial tightly focused, but "this case is far from over. Will it prevent another 34 or 35 actions from being filed? No. As in all matters concerning water, this continues to be a fluid situation."

During testimony and questioning in federal court last week, fisheries experts displayed a high degree of uncertainty about the science surrounding the delta smelt and what measures will prevent its extinction. Experts testifying for the environmental groups, however, repeatedly called for curtailing delta water pumping.

During opening remarks, Dan O'Hanlon, representing Westlands Water District, said, "This case is about a paradigm shift. People used to say that the water pumps were the cause of the delta smelt's decline, but over time there's been growing recognition that many other factors are involved.

"We've learned that blaming the pumps is an out-dated paradigm and yet the plaintiffs insist on shutting down the pumps," O'Hanlon told the court. "Current proposals make the same assumptions. We don't believe the data supports this paradigm. Changing the operations of the state and federal water projects is dealing with the problem of declining smelt populations on the margins."

Environmental groups have submitted recommendations they think should be adopted by the court to protect the smelt. The U.S. Fish and Wildlife Service also has submitted a "matrix" of actions it thinks should be taken.

Wanger noted the court is faced with competing proposals based on competing science and the current trial is aimed at resolving that competition and coming up with an interim plan that will really benefit the species.

In questioning Peter Moyle, University of California, Davis professor of fisheries, who testified for the plaintiffs, Wanger asked: "If you don't know how many delta smelt there are, how can you say the species is endangered?"

Moyle's response: "I have to reach conclusions based on declining indices. At some point the species will drop to extinction."

Wanger also acknowledged that the State Water Contractors have raised the question of the economic impacts of interim decisions to protect the delta smelt. He said it's clear any decision must take into account the need to provide for human health and public safety.

Wanger said the court would hear evidence on this aspect of the situation, but would continue to keep the trial focused on measures specific to preventing further jeopardy of the smelt.

Michael Wall, representing the Natural Resources Defense Council, said, "Much about the species is not known, but there are certain things we do know. The delta smelt population has declined, the delta pumps have changed operations and there is increased pumping. At the same time there has been a drastic change in habitat."

Moyle said he did not have a population estimate he considered reliable, but is "20 percent to 50 percent certain of the likelihood of delta smelt extinction in the next 20 years."

Chris Scheuring, CFBF Natural Resources and Environmental Division managing counsel, said "Our position in this trial is that the smelt population has declined because of a variety of factors, but there does not seem to be a significant relationship between that decline and the operation of the pumps.

"But, what could happen is that farmers in the San Joaquin Valley could lose delivery of more than 1 million acre-feet of water next year. I'm afraid farmers could find themselves desperate for water.

"We know the delta smelt numbers are declining, but what we don't know for sure is the cause," he said. "Part of the problem is the debate about the science. It's just not clear enough to make good decisions. Farm Bureau, along with water agencies throughout the state, realizes we must find the right solutions to this problem because too much is at stake to get it wrong."

Kings County farmer Ted Sheeley, who is a director of Westlands Water District, said, "We're harvesting right now, but I feel it's important to be here. Everything I own is invested in Westlands. I honestly feel the fish aren't as endangered as I am.

"This trial is important--not just for Westlands Water District--but for me and my family. The operation of the delta is complex and there are many scientific disciplines that come into play. A specialist in a single discipline could not possibly make recommendations that would address the needs of the entire ecosystem."

(Kate Campbell is a reporter for Ag Alert. She may be contacted at kcampbell@cfbf.com.)

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