Friday, September 16, 2011

Court Denies "Fall X2" Motions and Finds Agency Bad Faith

Judge Oliver Wanger conducted a hearing today on the motions filed by the United States Fish and Wildlife Service and the Natural Resources Defense Council (collectively, "Defendants") to stay his August 31 order.  In that order, Judge Wanger enjoined the federal government from implementing the “Fall X2” measure under the Delta smelt biological opinion.  Absent the injunction, the Fall X2 measure would have restricted California’s water supply by many hundreds of thousands of acre feet.

At today’s hearing, the court denied Defendants' motions to stay the August order.  In announcing its decision, the court incorporated its prior findings of fact and conclusions of law regarding the request for injunctive relief.

Significantly, the court made an express finding of agency bad faith, describing the testimony of witnesses for the federal government, Mr. Frederick V. Feyrer and Dr. Jennifer M. Norris, as "riddled with inconsistency."  The court found both witnesses to be incredible, discounting their testimony that the injunctive relief previously granted would jeopardize the continued existence of the Delta smelt.

The court modified the injunction so that it will become effective October 16, 2011, based on evidence that natural conditions and other operating parameters will keep the location of X2 at approximately 74 kilometers until that date.

For more information regarding this matter, please contact Rebecca Akroyd, Hanspeter Walter, Daniel O’Hanlon, Eric Adair, or the KMTG attorney with whom you normally consult.

Update: Additional analysis of today's hearing may be found at the PLF Liberty Blog and on the ACWA website.

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