Endangered Species Law & Policy

On September 16, 2011, in litigation challenging a biological opinion and reasonable and prudent alternative issued with respect to the effects of the Central Valley Project and State Water Project in California on the threatened delta smelt, the United States District Court for the Eastern District of California made a finding of agency bad faith by the U.S. Fish and Wildlife Service.  The finding was incorporated into the court's ruling from the bench on motions to stay filed by federal defendants and intervenor environmental groups after the court issued a decision on August 31, 2011, enjoining implementation of a component of the reasonable and prudent alternative referred to as the Fall X2 Action.  That Action requires a combination of reservoir releases upstream from the Delta and reductions of water exports south of the Delta to maintain a monthly average location of two parts per thousand salinity (X2) no greater (more eastward) than 74 kilometers (km) from the Golden Gate Bridge.

We reported on the decision to issue the injunction here.  The court's findings of fact and conclusions of law in support of the injunction can be accessed here (pdf).

The motions for stay were filed at the same time defendants filed notices of their intent to appeal the court's decision to the United States Court of Appeals for the Ninth Circuit.  Plaintiffs the State of California, public water agencies, and agricultural interests, who sought the injunction of the Fall X2 Action, opposed the motion to stay.

With respect to the issue of bad faith, the court made extensive findings including the following statement:

I'm going to be making a finding in this case of agency bad faith. There is simply no justification. There can be no acceptance by a court of the United States of the conduct that has been engaged in in this case by these witnesses. And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the Court can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science.

The court also indicated its intent to lift the injunction until October 16, 2011, on the grounds that during that period plaintiffs would suffer no injury.