Judge seeks fairness in ESA
Like most Americans, we have long believed that endangered species deserve protection. We have never believed, however, that efforts to preserve those species should come without consideration of their impact on essential human activities.
Those considerations aren't allowed under the Endangered Species Act. Once a species is deemed in need of protection, under the act there is no limit to the measures that must be taken -- humans be damned. And farmers and ranchers, who make their livelihoods off the land and the water, too often bear the brunt of extreme measures undertaken in the name of species preservation.
The ongoing controversy surrounding efforts to preserve the Delta smelt and the water woes they have created for farmers in California's Central Valley is the prime example of the problem.
The tiny smelt lives in the Sacramento-San Joaquin Delta. Federal courts have established that it deserves protections under the Endangered Species Act.
But the Delta, the estuary created at the confluence of the southern-flowing Sacramento and the northern-flowing San Joaquin rivers, serves as the hub of California's water distribution system. The U.S. Fish and Wildlife Service says the pumps that move water from the Delta south into the Central Valley endanger the smelt, and has restricted pumping to save the fish.
Farmers and urban water districts south of the Delta have rightfully cried foul. Without water, thousands of acres of cropland have been fallowed. The cost of water in thirsty cities is soaring, even with severe conservation measures. The pumping restrictions prompted six separate lawsuits.
Last week a federal judge in Fresno acknowledged that the big diversion pumps kill the tiny smelt, but said federal regulation went too far.
U.S. District Judge Oliver Wanger, in a 225-page opinion, ordered the Fish and Wildlife Service to rewrite the biological opinion, the guidelines used to protect the smelt and regulate the flow of water in the Delta.
"The 2008 (biological opinion findings) are arbitrary, capricious, and unlawful, and are remanded to Fish and Wildlife for further consideration in accordance with this decision and the requirements of law," Wanger wrote.
He also blamed the federal agency for conducting "sloppy science and uni-directional prescriptions that ignore California's water needs."
In other words, farmers who need water for their crops and urban water authorities that serve 25 million thirsty Californians shouldn't be unnecessarily harmed. Yes, the smelt must be protected under ESA, but the government should not take steps that go above and beyond what is necessary.
Wanger has previously lamented the limitations the act puts on judges, forcing them to inflict harm for which the injured have no remedy.
The need for a bit of balance should be obvious to those who believe the law should treat all parties fairly. Balance is essential for those at risk of losing their livelihood or the use of their property without their arguments being considered.