Fall Out Continues from Bad Faith Finding in Delta Smelt Case
Posted in Litigation

Recently, we reported on an unusual bad faith finding made by the United States District Court for the Eastern District of California in litigation challenging the 2008 biological opinion issued by the U.S. Fish and Wildlife Service (Service) regarding the effects of the Central Valley Project and State Water Project on the delta smelt (Hypomesus transpacificus).  Thus far, the Department of the Interior has reacted to the bad faith finding by expressing its confidence in agency personnel involved in the matter.  Mike Taugher of the Contra Costa Times reported that Department of the Interior spokesman Adam Fetcher issued the following statement: "We stand by the consistent and thorough findings by our scientists on these matters and their dedicated use of the best available science."  He also reported that, in an internal agency communication, the Service's Regional Director Ren Lohoefener has given the relevant Interior personnel his vote of confidence.

Congress does not appear to be satisfied with the Obama Administration's handling of this divisive matter.  In a letter (pdf) to Secretary Salazar, Democratic Congressman Jim Costa characterized the conduct of the Department of the Interior's personnel as "nothing less than outrageous."  Republican Congressman Devon Nunes called for an immediate investigation into Secretary Salazar and other Department of the Interior personnel in response to the court's ruling.  Even prior to the court's bad faith finding, in response to the court's decision to issue an injunction this fall (which we reported on here), Senator Feinstein stated that it is increasingly clear "that key biological opinions done by the Department of the Interior are not based on sound science."

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    Paul Weiland is chair of Nossaman’s Environment & Land Use Group.  He focuses his practice on litigation, permitting, and compliance counseling.  Paul’s clients include public agencies, publicly regulated utilities, private ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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