Despite Becerra’s assertion that science was on the state’s side, it seems the lawsuit is based on speculation and Judge Drozd’s presumption that the trout population will decline permanently as a result of allocating extra water for farmers in dry years.
Front Story: Trout Threatened by Farm Water Allocations
On Monday May 11, an Obama-appointed federal judge issued a temporary injunction requested by the California Natural Resources Agency (CNRA) and California Environmental Protection Agency (Cal-EPA) to block Pres. Trump’s policy of sending more seasonal spring water to Central Valley farmers. The two California agencies contend that the new rules for allocating water were intended to support Trump’s campaign promise to provide more water for farmers in dry years to the detriment of wildlife.
This lawsuit comes after six California Republican congressmen sent a letter on May 6 to Gov. Newsom requesting he withdraw the lawsuit. The head of the federal Bureau of Reclamation, Brenda Burman, also sent a letter to Sen. Feinstein stating “to embrace the tactics of litigious interest groups” would undo the progress made under the Obama administration for science-based allocation of water and voluntary agreements rather than court orders.
The injunction issued by Judge Dale Drozd of the Eastern District federal court stops the Bureau of Reclamation from increasing water deliveries to the Central Valley.
State attorney general Xavier Becerra, California’s point man opposing Trump policies, claimed victory by stating: “We have the facts, the science, and the law behind us”. But Becerra never mentioned that the previous arrangement between the federal and state government for allocation of farm water under Obama was also supposedly based on “science” and “law”.
Judge Drozd cited the WIIN Act (Water Infrastructure Improvements for the Nation Act) that was enacted by Congress and signed by Pres. Obama in 2016. Drozd’s temporary ruling stated: “Given that it appears to be undisputed that Central Valley steelhead (trout) are declining, the court has serious concerns as to whether this reasoning satisfies the National Marine Fisheries Service obligations under the Endangered Species Act to evaluate whether the (rules) would jeopardize the species or destroy or modify crucial habitat”.
Drozd is not greatly concerned that short-term increases in farm water would cause “extinction level harms” but longer-term impacts could be severe. The judge dismissed the federal government’s justification of the new rules that measured the number of fish lost that go through the huge pumps on the Sacramento Delta Pumping Plant under the Obama WIIN Act. The judge claimed those rules were not effective in boosting the steelhead trout population.
But Trout Declines are “Normal” in Dry Years
But the judge failed to consider the typical drought cycle in California is one wet year followed by 3 to 4 dry years. In other words, drought in California is normal and wet years are the exception. During dry years fish populations have always naturally declined only to flourish again in wet years (see here and here).
In fact, as recently as 2018, California Trout claimed that steelhead trout were making a “recovery.” Moreover, California Trout reports on its website it has five major trout recovery projects in the Central Valley, but there is no mention in the complaint or injunction whether those projects were failing or would fail if farmers got more water during a dry year. So, despite Becerra’s assertion that science was on the state’s side, it seems the lawsuit is based on speculation and Judge Drozd’s assumption that the trout population is declining permanently.
Backstory: Unfilled Judgeship
On February 7, Judge Drozd, an Obama appointee, declared a “judicial emergency” that his heavy caseload would preclude him hearing civil cases because of the failure of the U.S. Senate and President Trump to fill the seat of Judge Lawrence O’Neill who retired.
The Eastern District of the U.S. Court has not been granted a new judge since 1978. The court is composed of 6 judges, 3 of which are Democrat appointed and 3 Republican, with the chief judge a Democrat who has control over case assignments, and 14 magistrates. Magistrate judges hear civil, but not criminal, matters.
Pres. Trump and California’s two U.S. senators Feinstein and Harris have been embroiled in a dispute over the confirmation of federal judges in the state. Under the Trump administration, the U.S. Senate, which confirms judgeships, has ended what is called the “blue slip” process whereby the presiding senators could block a presidential judicial nominee in their state.
Reportedly, senators Feinstein and Harris are “working to ensure that qualified, mainstream jurists are confirmed” to the Eastern District’s vacancies. Eastern District Judge McGregor Scott, a Republican, said it is not a partisan issue.
There are over 1,000 civil cases backlogged in the Bakersfield federal court purportedly due to the failure of the Trump administration to appoint new judges to the Eastern District. But no mention is made as to why magistrates cannot be appointed to help with the backlog in civil cases or if the backlog was exaggerated for political purposes.
Judge Drozd’s injunction stopping water for farmers obscures a background struggle between California’s two California U.S. Senators Feinstein and Harris to block the Trump administration from appointing a new judge to the Eastern District of the Federal Court. Judge Drozd has not been asked, nor has he offered, to recuse himself from the farm water case because of the longstanding dispute with the Trump administration over filling the vacant seat on the court.
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