Appellate Justices Bow To Fish Agencies, Reverse Smelt Decision

A March 13 ruling in the San Francisco-based 9th U.S. Circuit Court of Appeals that  reversed a crucial U.S. District Court decision has sided with the U.S. Fish and Wildlife Service in finding the Central Valley Project and State Water Project are imperiling the endangered Delta smelt.
The  court acknowledged  its action would have “enormous practical implications” for California’s water management.
“We are acutely aware of the consequences of this proceeding,” Judge Jay Bybee wrote. “As a court, how-ever, we are limited in our review of matters within the expertise of the agency.” Bybee said the court was bound by the Endangered Species Act and court precedents that justify the government’s actions even if results seem unfair.
Bybee wrote that the ESA prohibited the court from balancing “the smelt’s interest against the interests of the citizens of California” in upholding a highly controversial and complex 2008 USFWS biological opinion that placed severe limits on Delta water export pumping.
Now retired U.S. District Judge Oliver Wanger’s ruling threw out the biological opinion, holding that it relied on faulty science.
The USFWS and environmental community assert the tiny three-inch fish, which has no commercial or sport value, is nearing extinction.