Last week, a federal court in Fresno, California heard arguments on the U.S. Fish and Wildlife Service’s Delta smelt “biological opinion” case. No formal ruling has been made as of this writing, however the Pacific Legal Foundation believes they have reason for encouragement.
The good news is that Judge Oliver Wanger showed that he understands the devastating impact of the feds’ policies. As The Fresno Bee reported , the judge appears to already have concluded that the smelt plan has hurt the environment. He said it has caused dust to rise from dry fields, possibly reducing air quality. And increased ground-water pumping has caused land to sink, he said.
“‘How could this not affect the human environment?’ Wanger asked … of the … biological opinion. ‘It has had catastrophic effects.’”
In a tentative ruling, Judge Wanger stated that the feds failed to comply with federal law requiring environmental impact analysis when major federal actions affect the environment.
There was no indication that Judge Wanger will rule against the Endangered Species Act and how it has been administered but time will tell. It appears his preliminary ruling shows the feds failed to study and/or recognize the total environmental impact of their actions. Whether such an analysis would have prevented the listing of the delta smelt as an endangered species, we’ll never know.
The Pacific Legal Foundation awaits the formal ruling of the court and in the meantime will contemplate whether to proceed to an appellate court on issues involving the Endangered Species Act and the Commerce Clause.
Tom Remington
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