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Opening moves in Striper trial favor DFG and CSPA

by Jerry Neuburger
July 17, 2008. The opening salvos were fired in the Coalition for a Sustainable Delta vs. the California Department of Fish and Game and the California Fish and Game Commission on Monday, in the Fresno federal district court. The presiding judge, Judge Wanger, accepted CSPA's petition to intervene in the case on behalf of the NCCFFF and the California Striped Bass Association. The intervener status allows CSPA's attorney, Mike Jackson, to "intervene" to defend the Department of Fish and Game and the California Fish and Game Commission. In addition to CSPA, the firm of Nomellini, Grilli and McDaniel, have also been accepted as interveners.

The arguments of whether the striped bass is one of the many delta species that is victim to excessive pumping and delta water quality degradation or a voracious predator, responsible for the demise of vast numbers of Chinook salmon and Delta Smelt did not get to the floor. Instead, as soon as court convened, DFG's attorneys filed a motion to dismiss, claiming that the Coalition for a Sustainable Delta had no valid standing and therefore could not file a suit in federal court. The argument was strong enough that Judge Wanger, took the motion under submission, adjourning the court so that he could give the motion adequate consideration before ruling.

Prior to leaving courtroom the judge asked some brief questions regarding the Central Valley Project Improvement Act passed by the U. S. Congress in 1992. (Public Law 102-575 ) One of Congress's mandates to the state of California was to double delta fishery populations within ten years of the law's enactment. Unfortunately, the judge gave no hint as to why he raised the issue.

While DFG has been unsuccessful in increasing fisheries populations, the question still needs to be asked, how does DFG get sued for following or attempting to follow the direction of the Congress of the United States? If the judge finds that the Coalition does have standing or allows them to modify their complaint to give them standing, the issue of Congress's mandate will probably become much more than a quick comment before the courtroom clears.

Court will convene again in September.