(Adds comments by attorney Paul Weiland)
By Dan Levine
SAN FRANCISCO, March 13 A California appeals
court sided with environmentalists over growers on Thursday and
upheld federal guidelines that limit water diversions to protect
Delta smelt, in a battle over how the state will cope with its
worst drought in a century.
The 9th U.S. Circuit Court of Appeals ruled that a lower
court should not have overturned recommendations that the state
reduce exports of water from north to south California. The plan
leaves more water in the Sacramento Delta for the finger-sized
fish and have been blamed for exacerbating the effects of
drought for humans.
Reaction from both sides was swift in the national political
issue. In a blog post, Damien Schiff, an attorney for growers,
said the ruling "bodes ill for farmers, farm laborers and
millions of other Californians dependent on a reliable water
Efforts to save the Delta smelt, which lives only in the
wetlands stretching north of San Francisco, have been described
as a humans versus fish battle.
Kate Poole, a senior attorney for the Natural Resources
Defense Council, said growers' hopes of taking more water out of
the Delta wouldn't solve California's problems.
"It's the drought, not the Delta, that's affecting the water
supply this year," Poole said in a statement. "While we can't
make it rain, we can take charge of our water use by investing
in smart water practices that protect and preserve our water
At issue is a 2008 report by the U.S. Fish and Wildlife
Service, which concluded that the fish's existence was
threatened and recommended limited exports of water to farmers
and southern California. Farmers and allies sued, and a lower
court called the federal biological opinion "arbitrary and
However, in the opinion on Thursday, 9th Circuit Judge Jay
Bybee ruled that the lower court should have been more
deferential to the Fish and Wildlife Service.
Bybee, an appointee of President George W. Bush, is
considered a consistent conservative voice on the 9th Circuit.
"We recognize the enormous practical implications of this
decision," Bybee wrote. "But the consequences were prescribed
when Congress determined that 'these species of fish, wildlife,
and plants are of esthetic, ecological, educational, historical,
recreational, and scientific value to the Nation and its
A spokesman for the U.S. Department of Justice, which
represented wildlife regulators, said it was pleased with the
Paul Weiland, an attorney who represented Kern County Water
Agency and a coalition of Central Valley water users in the
case, said he hopes the ruling will clear the way for all sides
to come together and make progress on the Bay Delta Conservation
The plan seeks to restore the Sacramento-San Joaquin Delta
ecosystems and secure California water supplies into the future.
A draft of the plan is currently open for public comment.
"While these cases are pending it is difficult for the
parties to make concessions," he said. "To the extent that this
hits the reset button, it works to everyone's advantage in the
sense that the parties don't have to be sticking to their
litigation positions anymore."
That progress could be delayed if one or more of the parties
in the case ask the 9th U.S. Circuit Court of Appeals to rehear
the case or ask for a Supreme Court review, Weiland said.
Thursday's ruling could also pave the way for a ruling in a
pending case involving the water needs of wild salmon and
steelhead trout in the state, which involves many of the same
players. A February hearing on that case was postponed until
after the Delta smelt decision was handed down.
The Delta smelt case in the 9th Circuit is San Luis &
Delta-Mendota Water Authority et al. vs. Sally Jewell et al.,
(Reporting by Dan Levine; Additional reporting by Rory Carroll;
Editing by Stephen Powell, Peter Henderson and Richard Chang)