E&E News PM

Published: Tuesday, September 20, 2011

A federal judge in California excoriated Interior Department scientists for dishonesty last week, even as he largely granted the government's wishes for preserving the threatened delta smelt.

"I have never seen anything like what has been placed before this court by these two witnesses," U.S. District Judge Oliver Wanger said in his ruling on the smelt case, according to a transcript obtained by E&ENews PM. "The only inference that the court can draw is that it is an attempt to mislead and to deceive the court."

Wanger did not use the term "scientific misconduct," or "lying," but he used nearly every other adjective that describes deception by scientists as he built the record in his ruling for a finding of "bad faith." He called their testimony "false," "outrageous," "incredible," "unworthy of belief" and more.

Still, he gave federal lawyers much of what they had sought. The Interior Department is seeking to push encroaching salt water back in the Sacramento-San Joaquin Delta to help the tiny fish that is at the heart of the delta's water wars.

"The court finds agency bad faith here. There simply is no explanation. There is no justification," Wanger said. "And again, the government wins."

Wanger found that there is support to keep encroaching salt water west of the confluence of the Sacramento and San Joaquin rivers. The federal government had sought to push the encroaching salt water back to a point about 46 miles from the Golden Gate Bridge. Instead, Wanger's ruling pegged the spot at no closer than about 49 miles from the Golden Gate.

The fish was first federally protected as an endangered species in 1993. It has low fertility rates and favors a narrow zone of water with the right salinity levels that shifts locations in the delta depending on freshwater flows. Where the fish spawn is still a mystery: To date, only one delta smelt egg has been found in the wild.

But the species' fate reflects another problem -- California's dependence on the ailing delta for much of its water. Other fish that use the delta, including the chinook salmon and green sturgeon, are also in trouble.

On Monday, Interior Secretary Ken Salazar attended the dedication of a stimulus-funded project for the delta and delivered a speech about the California water situation.

"We have to invest in and rely upon the best science available to guide us," Salazar said. "If we are to succeed, we need the best science from inside and outside of government. And we should not hesitate to have independent scientists review and validate what is planned. We have to get this right."

'Serious, serious trouble'

Wanger called a Fish and Wildlife Service scientist who had testified in the case a "zealot" who did not let facts get in the way of her goals.

"She may be a good scientist. She may be honest, but she has not been honest with this court," he said.

He called a Bureau of Reclamation scientist "untrustworthy as a witness."

"And I will note that he is a government agent," Wanger said. "And the United States, as a sovereign, has a duty not only in dealing with the court, but in dealing with the public to always speak the truth, whether it's good or bad."

Last year, the Fish and Wildlife Service determined that a reclassification to "endangered" was warranted for the delta smelt, but it did not take action because of a backlog.

Wanger, who was nominated for the bench in 1991 by then-President George H.W. Bush, has cut a larger-than-life figure on the California bench with outspoken opinions on some of the major issues of the state.

The ruling could be one of his last. Late last month, he announced that he is retiring at the end of September to re-enter private practice.

"Protecting endangered species is crucially important," Wanger said. "But when it overwhelms us to the point that we lose objectivity, we lose honesty, we're all in a lot of trouble. Serious, serious trouble."

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