The complete court decision: Coalition for a Sustainable Delta and Dee Dillon vs. DFG, F&G Commission, CSPA, Central Delta Water Agency. We're just waiting for the fat lady to sing!
By Jerry Neuburger
The Coalition alleged in the suit that the striped bass was a voracious predator of salmon smolts and delta smelt and therefore should not be managed by the State of California as a beneficial, intentionally planted game fish but treated as a harmful invasive species.
In opening moves on July 7, DFG attorneys asked that the suit be dismissed because of lack of standing by the coalition. To have standing (paraphrasing the court), a plaintiff must show three elements. They must have suffered an injury, there must be a connection between the injury and the conduct complained of and it must be likely that the injury will be redressed by a favorable decision.
After considering the request the judge found that the Coalition did meet the first part of the requirements for "standing" in that they did suffer injury because of the reduced water deliveries caused by the attempt to protect the endangered and threatened species, further the court recognized that there was more than a casual connection between the reduction of water and the injury. However, the court found that the question of redressability was at issue.
In its finding, the court found that, "standing also requires a showing that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." And further, that, "the court has the ability to remedy the alleged harm."
To redress the injuries suffered by the Coalition, "those water deliveries that have been reduced as a result of actions taken to protect the Delta smelt would need to be restored,"
Judge Wanger continued, "Similarly, even assuming, arguendo, that Plaintiffs are entirely successful in this lawsuit and that the striped bass regulations are invalidated as a result, it is speculative to assume that the FWS and/or NMFS would materially alter their conclusions regarding the status of the Listed Species and the measures required to prevent jeopardy and adverse modification to their habitat."
Considering the above, the judge then gave his decision, "Here, the Coalition lacks standing to sue because, even if it were to prevail in this case, its injury would not necessarily be redressed. If the regulations were invalidated, even if the striped bass population were reduced to a level that measurably protected salmonid species on which they prey, there are other predators (the pikeminnow) and other causes: operation of the Projects, toxics, in-Delta diverters, alien invasive species, all of which contribute to the species' jeopardy. The present Delta smelt and salmonids jeopardy findings are based on drought conditions and Project operations, as primary causes. The extent to which all other cooperative causes will continue to operate is unknown. There remains total uncertainty whether reduction in the threat of some predators will have more than minimal effect on the protected species. The State Defendants motion for judgment on the pleadings that the Coalition lacks standing is GRANTED, WITH LEAVE TO AMEND."
The court additionally ruled that the individual the coalition cited as being harmed, a Mr. Dillon also did not have standing because, "he has not satisfied the injury in fact requirement. Mr. Dillon is GRANTED LEAVE TO AMEND his complaint."
Finally, the court ruled in the coalition's attempt to sue the individual members of the California Fish and Game Commission that, "the State Defendants' motion for judgment on the pleadings is GRANTED. Neither the Coalition or Dee Dillon have alleged facts sufficient for standing and the claims against the Commission and its individual Members and Executive director are barred by both legislative and immunity and the Eleventh Amendment. Plaintiffs are GRANTED LEAVE TO AMEND
So, the question remains, is the issue finished? Judge Wanger did grant the coalition the leave to amend within 30 days of his judgment, July 23, 2008. That date would be August 22, 2008. However, it would seem that the judge also left some writing on the wall that the coalition should heed before considering a second filing, "The present Delta smelt and salmonids jeopardy findings are based on drought conditions and Project operations, as primary causes."
We're just waiting for the fat lady to sing!
Judge Wanger's decision http://www.calsport.org/7-23-08.pdf