Water Archives · Oliver Wanger interview

Title

eng Oliver Wanger interview

Description

eng Former federal judge handling more water cases than any other judges in the United States. Was the presiding judge in many of the Delta Smelt cases.

Creator

eng Wanger, Oliver

eng Holyoke, Thomas

Relation

eng Water Archive Oral Histories

Coverage

eng California State University, Fresno

Date

eng 2/29/2012

Format

eng Microsoft Word 2003 document, 15 pages

Identifier

eng SCMS_waoh_00023

extracted text

>> Thomas Holyoke: We are interviewing Mr. Oliver Wanger, former Federal
District Judge for the Eastern District, it's called?
>> Oliver Wanger: Eastern District of California, Fresno Division.
>> Thomas Holyoke: Let's just start off with just a little bit of personal
history. Are you a native Californian?
>> Oliver Wanger: I am. I was born in Los Angeles and spent my first 17 years
there. I attended college at the Colorado School of Mines for two years, then
entered the United States Marine Corps, the reserves. I returned to college a
year later at USC in Southern California. Graduated with a BS in finance and a
minor in accounting, and then attended law school at what is called Boalt Hall,
which is the University of California, Berkeley Law School.
>> Thomas Holyoke: Okay. And after you graduated from law school, did you go
into private practice?
>> Oliver Wanger: My first job was as a prosecutor for the Fresno County
District Attorney's Office. I spent 18 months there, had about 70 jury trials. I
tried a death penalty case and had a very, very active practice. There were only
16 lawyers, including the DA for the entire county, although it's a different
world now. There were only 300 lawyers in Fresno when I started practicing in
1967 in Fresno.
>> Thomas Holyoke: Just tell us a little bit about becoming a federal judge, how
that happened.
>> Oliver Wanger: The process of becoming a federal judge is equal parts of
luck, a small dash of politics and qualifications. At the time that I went
through, which was in the 1990 to 1991 timeframe, politics were not what they
have become. The politics of judicial selection have become an unseemly and an
unfortunate process in which the candidates are the casualties, and the public
indirectly because qualified and dedicated people are simply being dissuaded
from serving because of the in -- unpredictability, really inaccuracy,
unfairness of the process, and it is today viewed by some as no longer drawing
what was the standard. An attorney or a judge would have a career either in the
private sector or in the state or a local court, and then a federal judgeship,
which is a lifetime appointment for life of good behavior, and requires the
vetting through the United States Department of Justice through a senator who is
usually the nominating force, through the White House evaluation and check, and
then a separate and comprehensive study and evaluation by the Senate Judiciary
Committee leading to a nomination, and then testimony before the Senate
Judiciary Committee. That process which used to take on the average of about 120
days, this is before 1995, has now turned into a sometimes years long average,
at least 12 to 14, 15 months with no certainty whatsoever how the process is
going to conclude because of the exceedingly political and partisan nature that
judicial selection has now become.
>> Thomas Holyoke: So your confirmation was never in doubt.
>> Oliver Wanger: You can never say it's never in doubt. When I was nominated,
there was only eight weeks left in that session of Congress, and it was a
session of Congress and I was told then that there would not be time for the
Senate Judiciary Committee to do the background check, and so my nomination
lapsed. I was told in December that in the new Congress I would be nominated,
re-nominated, and so in January, January the 4th of 1991 I was re-nominated.

Luckily a Judge Robin Cauthron from Oklahoma, and Richard Goldberg who was a
candidate for the U.S. Court of the International Trade and me, the three of us
were the first nominees who had a hearing before the Senate Judiciary Committee
and that was in March 13th of 1991 at which time my nomination was recommended
for action by the full Senate, and then on the 23rd of March the Senate voted
unanimously to confirm me, and I actually took office on May the 30th of 1991.
>> Thomas Holyoke: Okay, could you just say a few words about the jurisdiction
of a federal district judge? What kinds of cases come to your court?
>> Oliver Wanger: The United States District Courts are granted what is called
limited jurisdiction. It is a court of limited jurisdiction and the primary
subject areas in which jurisdiction is exercised in cases arising under the laws
of the United States, meaning the United States Constitution and all statutes.
It arises in cases that are called in the vernacular diversity cases the parties
are diverse in their citizenship. Either they are from different states or from
a different state and nation, in other words, involving foreign nations other
than the United States. The amount in controversy must exceed $75,000 exclusive
of interest and costs, and then there are additional reserved areas where
federal jurisdiction is unique such as bankruptcy, maritime, admiralty, patent
where those are uniquely the province of the United States and the United States
courts. That's what determines what we call federal jurisdiction. Federal judges
then have unlimited criminal, civil and appellate jurisdiction in cases
involving appeals from Social Security, administrative law judge decisions,
appeals from bankruptcy courts, from bankruptcy judges, appeals from all
magistrate judge decisions and appeals of recommendations on such matters as
petitions for writs of habeas corpus. There are hundreds of those, every judge
has hundreds pending from state and federal prisoners who have either exhausted
their remedies up to the Supreme Court of the United States and/or up through
the state system, depending upon whether it's what's called a 2254 petition -petition under Title 28, meaning you are appealing from a state court
conviction, or 2255, which is under Title 28, an appeal by habeas from a federal
court criminal conviction and those are -- the habeas petitions themselves are
civil cases even though the underlying subject matter's criminal.
>> Thomas Holyoke: So cases involving water would come to your courtroom if they
dealt with like the Department of the Interior or the Army Corps of Engineers
involving some piece of the federal government?
>> Oliver Wanger: Exactly right, federal water cases arise under the laws of the
United States and so, as you know, the Central Valley Project is authorized by
Congress, it was funded, its construction and maintenance and operation is
funded by the United States. Corps of Engineers could be involved in
construction. Now with the Endangered Species Act and many others, the U.S. Fish
and Wildlife Service, the National Oceanic and Atmospheric Administration called
NOAA Fisheries, they take jurisdiction over anadromous fishes, meaning fish
which are in the salt waters, and then you have the U.S. Fish and Wildlife
service that has jurisdiction over fishes that are in streams and rivers, fresh
water fishes. And so there is no federal ownership of water except as permitted
by the state law and under Section 8 of the United States Reclamation Act of
1902, the rule is that federal judges dealing in water law issues follow the law
of the state where the water is located, except if it is inconsistent with the
law of the United States, where there is a conflict, federal law governs.
>> Thomas Holyoke: There's always –- well it's been said by many people I've
talked to that you had more water cases on your docket than any other federal
judge in California. I don't know if that's true, but --

>> Oliver Wanger: Anywhere in the United States, I have had approaching 100
water cases that I've heard and decided as a district judge.
>> Thomas Holyoke: Any particular reason why you would have an excessive number
of water cases as opposed to any federal judge?
>> Oliver Wanger: Yes. After the first years, a special expertise was recognized
in the Ninth Circuit, and essentially I was allocated additional law clerks.
Normally if you have a judicial assistant you have two law clerks per district
judge, or if you forego having a judicial assistant, you can have three law
clerks. I had five law clerks because of the intensity, the complexity and the
number of water cases that were assigned here, and what happened is that whether
they were in Sacramento in San Joaquin, Sacramento River Delta or whether the
cases were as far north as Lake Shasta, the Trinity Unit of the CVP, all the way
down to the Los Angeles County Line through the Kern Water Agency and Kern
County, the cases were related to other cases I worked on, so they all got
transferred here. That's another reason why I had so many of the water cases.
>> Thomas Holyoke: The judges on the Circuit Court, the Court of Appeals, they
decide where the cases go -- who the cases go to in the District Courts?
>> Oliver Wanger: They may if there's a dispute about it, but what happens is we
have what are called related case rules and normally the district judges decide
that. If the parties file a notice of related case, the district judge to whom
that case is assigned makes the decision if it's related, and if it is related,
if it will serve the interest of the parties by providing special judicial
knowledge and experience, if it will result in economy both judicial and party
economy and it will, quite frankly, produce a more consistent series of results
not inconsistency, not conflict in decisions because people are seeing things
different ways, rather you get a uniformity and a predictability of decision,
that's how the cases get assigned. The Ninth Circuit, however, allocates
resources to the inferior court, meaning the District Courts, and so the
assistance with more law clerks came through the Ninth Circuit.
>> Thomas Holyoke: Is that -- part of the reasoning behind that because court
systems are supposed to operate on precedent, and by and large, would be
consistent precedent if you were deciding most of the cases involving water?
>> Oliver Wanger: That's one of the reasons, to avoid inconsistency, conflicting
decisions which result in uncertainty for water constituents or for water
litigants who have issues and want to have, quite frankly, some way to conduct
their affairs with regard to the allocation, the use, the storage, and
ultimately, the consumption of water.
>> Thomas Holyoke: Well, let's talk about a few of these cases. I'm just
scratching the surface, I'm sure. I guess sort of the first -- I guess it's
probably a series of cases. The name I have down here is the San Luis and DeltaMendota Authority versus Interior, but it was about the amount of water
allocated for environmental purposes under the Central Valley Project
Improvement Act of 1992 which is, as I understand, something that's always been
a fairly contentious issue, especially along with the area irrigation and water
districts. As I understand, there was a conflict or confusion over just how many
acre feet of water CVPIA allocated for environmental purposes?
>> Oliver Wanger: Very definitely, the CVPIA is one of the most consequential
statutes in the field of water law and for agribusiness that has ever been

enacted in the history of our nation. It was highly contentious; its authors
were Howard Miller of Contra Costa County and Bill Bradley, a former NBA New
Jersey Net basketball player who was a Senator from New Jersey. And they
reordered the world of water by making a co-equal purpose of the Central Valley
Project under the United States Reclamation Act that has actually amended and
supplemented the Reclamation Act, the restoration and doubling of fish
populations that were threatened and endangered, and made broader environmental
protections a co-equal purpose so that the statute dedicated expressly 800,000
acre feet of what was called Central Valley Project yield for environmental fish
doubling and other purposes of the CVPIA. That then led to the need to define
Central Valley Project yield. And Congress chose the following definition.
Central Valley Project yield is the capacity of the Central Valley Project, its
storage and holding capacity, as would have existed in the temporal period 1928
through 1934, which is the driest period on record in California for that 100year interval. And normally in water engineering events are measured in 100-year
intervals. In other words, it's 100-year storm, or it's a 100-year event. And so
here the question was, how do we quantify that and the case you've mentioned
which came to my court first, and then was ultimately decided in the Ninth
Circuit, and cert was denied in the United States Supreme Court, it's also
referred as to the Bay Institute Case because the Bay Institute which is based
in San Francisco was one of the plaintiffs in that case. San Luis and DeltaMendota Water Authority was not. They were, quite frankly, an intervener
defendant, not a plaintiff. But what we determined as a matter of accounting,
water accounting is that remember that in that period, the Central Valley
Project didn't exist. The first work on any unit of the Central Valley Project
did not begin until 1937, and so that period there was no project yet you are
taking a hypothetical project that ultimately came to exist as if it existed in
that drought period, how much water would there be under those conditions, and
the determination in that case was 5,280,000 plus feet that’s Central Valley
Project yield. And so there were all kinds of issues in that same case where the
court was asked to decide well, how do you count water if it is multi-use water?
If it's used to reduce the temperature of a river. If it's used to benefit a
fish. Should it then flow into the ocean or maybe recapture it for reuse and
send it south of the Delta or send it into the East Bay where water districts,
emergency service districts, hospitals, schools, communities use that water for
consumptive use? When it's coming down the river, can it be used for power
generation purposes, and in that context, the court decided yes. Although the
environmentalists argued no, that the only purpose that water could have was
environmental and once it had served that purpose, it should go out into the
ocean. The logic of that is somewhat hard to understand and that was not the
decision that I made when it came to that issue. There were other complicated
issues, probably too complicated for our discussion, that were decided in that
case, but that case definitely established that when we look at the commitments,
contractual commitments by the Department of the Interior, through it's Bureau
of Reclamation, which is one of the co-operators along with the California
Department of Water Resources of the Central Valley and state water projects,
which are operated cooperatively under a cooperative operating agreement which
has also been the subject of much litigation, it was determined that the
contractual commitments exceed by close to a million acre feet Central Valley
Project yield. In other words, as we start the world, if the first day is
November 1st of 1992, more water is contracted than exists in the system. And so
it doesn't get any better from there, it only gets more difficult.
>> Thomas Holyoke: Okay the cases that arose
have a whole series of cases wrapped up with
let's put it this way, are those cases still
water actually available and what the use of

then, and this is -that even up through
being litigated over
that water is, or is

I guess they
-- is that -the amount of
that ...

>> Oliver Wanger: They are not being litigated, different issues about the use
of the water being litigated. The first cases that followed 1992 arose in 1993
and 1994, and those were allocation cases where, because there wasn't enough
water to go around, the bureau started imposing percentage reductions under a
water shortage provision that's contained in the federal contracts and that
produced the first battle between the west side -- Westlands Water District, and
the east side, Friant Water User's Unit of the CVP and the O'Neill case was
first decided in my court which basically said that those shortage provisions
give you one remedy. If you don't get all your contracted water, your remedy is
not to pay for the water you don't get. That's the end of the story. And the
position of Westland's was, let's share the pain. Let's have a ratable sharing
and the answer to that was that could not be done because the east side
contractors are what is called exchange contractors. They exchange pre-1914
appropriated rights, riparian rights, other senior water rights to the United
States for contracts that had different provisions in them and those provisions
said that you have senior water rights and if we don't deliver you your water,
you can take your water rights back. You can imagine what chaos that would
create in operating the CVP. But the Sacramento settlement contractors who have
even equally senior rights in the north, north of the delta and in the northern
regions of the CVP, we just finished a case last year in which their theory was
we are counties of origin, we have senior rights, therefore, in any short water
year, not one drop of water should go south of the Delta unless we have 100% of
our contractual obligations, and if we don't get that, then get to pick up our
marbles and go home because our contracts provide the same thing. One
interesting overlay, and I don't know how complex and technical you want to get
here, but three terms ago in the Supreme Court, the National Home Builder's case
was decided, and that is an Endangered Species Act related case that has been
applied, it was under a different federal law, but essentially that case stands
for the proposition that win by statute or regulation, an administrative agency
is removed of its discretion when it has got to follow the law. Then if it has
no discretion, it doesn't have to comply with the Endangered Species Act, it
doesn't have to comply with either conflicting or other federal laws. And so
because the settlement, the reason it's called Sacramento Settlement Contract is
that there were huge disputes among all the Sacramento Basin water users,
between downstream users and units of the CVP, and between the city and county
of Sacramento, Yuba County, other holders of water rights, and state water
rights, the State Water Resources Control Board, Department of the Interior and
its Bureau of Reclamation, the California Legislature and the United States
Congress said to all these water constituents, you have two choices, you either
settle on what your water rights are by way of a settlement, which will be
different from a stream adjudication, it will not be a legal decision, but
rather it will be your agreement that this fixes the water world in the
Sacramento-San Joaquin Delta, and for renewals of those contracts and for the
foreseeable future normally in 40-year intervals, the renewals of the contract
now 20 because quite frankly of all the uncertainty engendered by the
environmental cases, but essentially the state and the national legislatures
said, we don't want a stream adjudication, it's going to take 15 or 20 years,
we're going to have chaos in the water world, reach a settlement. A settlement
was reached and these quantities are allocated and I found that that removed any
discretion from the bureau, the Department of the Interior, the Department of
Water Resources, or the State, on how much water they allocate because they've
agreed in that settlement. And so I found that it was not necessary to comply
with the ESA or to do environment impact statement under federal law for that
and the other side argued the case is on appeal now. Well, what if? And I said
the what if is speculation, it's hypothetical. If we get there, the water world
is going to fall apart because everybody's going to pick up their water rights

and go home, and where they going to go? They're not going to go home and go to
bed, they're going to go home and go to court. And so we're going to end up with
a stream adjudication, so that case we'll find out what the Court of Appeal -that case was argued in May, they still haven't made a decision.
>> Thomas Holyoke: A couple points in there I want to clarify. Could you talk
just a little bit more about the County of Origin Statute, you referenced that.
I want to make sure the people who hear this would understand what that means.
>> Oliver Wanger: The state law provides that water which originates in any
water shed contained within a county, thereby called a county of origin, that
that water shall first be beneficially used within that county, and preferably
within that water shed before it is devoted to other use. And so that case also
I decided within the last eight or nine months, it’s on appeal, and I found that
by a long history of what was in effect waiver acquiescence and performance that
the county of origin, if you will, water users had seeded their right to the
United States and had ordered the water world under the settlement contracts
such that they are not entitled to county of origin priority.
>> Thomas Holyoke: Also just a quick explanation about the importance of the
seniority of water rights that you had mentioned a few times.
>> Oliver Wanger: Again, we are turning back to the state law because remember
the state law governs unless federal law is in conflict and there are no common
law federal water rights, there are common law state rights and the water code
in the State of California was enacted in 1914 and that defined most of the
water rights that we recognize and that we apply in these cases. Senior water
rights means ordinarily that you are first in time, you are first to appropriate
and use, you are first to be in a location where there's a water course and by
being contiguous to a water course, a stream or a river, you have what are
called riparian rights which permit you to take water from that water course
because you are next to it, you are adjacent to it and through seepage and other
physical phenomena, the water is under your land, may even be on your land, and
so when you have preexisting in time and first used conditions, you gain in the
water world what is called senior water rights.
>> Thomas Holyoke: And this applies to surface water as opposed to ground water?
>> Oliver Wanger: It applies to surface water, meaning surface which -- I'm
sorry, water which is on the service of the earth either from rainfall, from
overflow, from streams and river channels. It may also be on the surface of the
land because it has been applied to the surface. Ground water is normally
thought of as water which percolates below the surface of the earth, and then is
accessed by wells and pumps and other means and then, of course, we have water
courses and by the water which are streams and lakes and those are different
types of water rights.
>> Thomas Holyoke: Great. Okay, moving onto something closely related,
is water allocated under the CVPIA for environmental purposes, in this
fish, particularly the delta smelt cases that you've spent I suppose a
amount of your career on. Although, I guess you've also had cases with
and maybe bass.

and that
case
fair
salmon

>> Oliver Wanger: Striped bass, salmonid species, winter run Chinook, spring run
Chinook, fall run Chinook. Fall run are not threatened or endangered, meaning
they're not listed under the ESA. We've also dealt with the Central Valley
steelhead, both hatchery produced and natural wild fish. We have dealt with the

green sturgeon and we have dealt with orcas, which are out in the ocean, but
because they depend on salmon, that's their primary prey, the environmentalists
are arguing that the orcas are being adversely affected by the joint operations
of the CDP and the SWP, and therefore, they need to be protected as well. And so
the delta smelt is yet another species that was first threatened and has been
recommended for uplifting to endangered, but there are so many endangered that
have even higher priorities, that the U.S. Fish and Wildlife Service has not
gotten to doing that even though they've recommended it to the Department of the
Interior, but candidly, there aren't enough resources to complete that process
and it has not been completed. So the starting point for the protection of fish
is they have to be listed under the Endangered Species Act, and then there are
two tests under the law. The first is that no federal action by a federal agency
can be taken that would jeopardize the continued survival and recovery, two
different objectives of any listed species, and the second aspect of the ESA is
that no federal action may change adversely or impair the critical habitat of
the species, and for every listed species, part of that listing process is to
define a critical habitat. For the delta smelt it is the entirety of the San
Joaquin-Sacramento Delta, meaning both rivers out in the Suisun Bay which is
near Albany in the East Bay across from the San Francisco Bay.
>> Thomas Holyoke: Does the ESA preempt state law?
>> Oliver Wanger: The ESA acts conjunctively and concurrently. There is a state
ESA, but it does preempt state law if state law is inconsistent with the ESA.
>> Thomas Holyoke: Okay. And how has ESA been come down into, I guess, really be
a major part of the big battles that have gone on in your courtroom and other
places regarding water coming out of the Delta and the timing of the pumping of
the water out of the Delta and concerns over species deterioration, if you could
sort of start into...
>> Oliver Wanger: It's an immensely complicated question and to understand it we
have to go back in time to 1958 when the Tennessee Valley Authority built a dam
in Tennessee. And there was a species that was called a snail darter. And that
species was threatened by the construction and the existence of that dam to the
extent that the evidence in that case accepted by the United States Supreme
Court was that it would extirpate, meaning extinguish the species. Therefore,
the United States Supreme Court issued an injunction, which is an order
prohibiting activity and said, you can't use this dam, you can't let the water
fill the area that was going to be storage behind the dam and engage in releases
because it will devastate the species, and they enacted by judicial fiat through
their decision some rules that are driving what is happening in all these cases.
First, Congress in enacting the ESA, has declared that the species is
irreparably precious in the sense that it is irreplaceable, which gives rise
automatically to injunctive relief. So instead of having to show that you have
something that money or a remedy at law could compensate or satisfy, that all
you have to do is show you have an endangered species and that is, per se,
irreparable harm. Second, normally in equity before you stop the operations of
water projects or stop delivery of water to water users under contract, or do
any of the things that have been the subject of injunctive relief, injunctions
that had been issued in these cases, you ordinarily have to balance the
hardships and say, who's going to get hurt the most, and if the balances equal,
then you probably don't do anything. The Supreme Court said, no, these species
are so uniquely protectable; the court does not balance the hardships. You
automatically prefer the species and finally the evidence in that case showed it
was $15 million in 1958 terms, it would probably be $150 million in today's
terms, but they said a third thing you don't do in an ESA case is if you are

endangering, threatening, you don't consider economic consequences, you don't
put dollars, livelihoods, income, expense, the whole equation of agribusiness,
that doesn't even get on the scales, you don't consider it. And so in our cases,
the ultimate question became and I have made decisions and it is now in the
appellate courts. What about people? Do we consider them on the scale, or are
the fish preeminent? And I said that if major federal action is taken that has
an adverse effect on the human environment, under a separate statute, the
National Environmental Policy Act called NEPA, you've got to scope that. And
you've got to prepare an environmental assessment and in an environmental impact
statement, if there is going to be adverse consequence, then you've got to deal
with it. That wasn't done by any of the agencies in these cases. So we'll find
out now whether people even get a seat at the table.
>> Thomas Holyoke: How do you -- I'm curious how you make that determination
whether ESA or NEPA is controlling in the case or how ->> Oliver Wanger: That's the question. At first NEPA wasn't in the case and then
quite frankly when we asked some questions about it, the complaints were amended
and the claims under NEPA were brought. The parties have to bring the claims or
else it isn't before me and I don't go out looking for issues to decide, and I
don't help the lawyers nor do I frame or create the claims. That's up to them.
And so in terms of which predominates and which takes precedence over the other,
that's the Supreme Court's call and they're both environmental statutes. Species
are the focus of one, humans are the focus of the other. It's going to be an
interesting question. I've already decided it, but we'll see what happens in the
Appellate Court. I think I know what'll happen in the Ninth Circuit, it's going
to end up in the United States Supreme Court.
>> Thomas Holyoke: Just back under ESA, determination that a species is in
danger, that is -- that is performed by the Fisher and Wildlife Service, the
National Marine Fishery Service?
>> Oliver Wanger: There are regulations which are found in the Code of Federal
Regulations and there are internal agency rules that define a hugely complex
protocol for how you go about determining that a species is threatened or
endangered for the listing decision. It's only when the species is listed that
it gets the protection. And so as an unlisted species like the [inaudible] and
[inaudible] they don't have standing under the ESA because they're not listed.
But here's what the ESA says, the agency is required as it is engaging in any
kind of an expenditure and application of federal resources, such as the
coordinated operations, a new 20-year plan for joint operation with the state of
the Central Valley Project moving the water all over sending it, pumping it. The
law, that is the ESA says, you shall evaluate in an environmental assessment
what effect the project is having on the continued survival and recovery and the
continued existence of the critical habitat and you don't make any decisions.
You don't commit any federal resources to doing that until you have determined
whether there's any adverse effect. If there is an adverse effect, then the law
requires that there are two agencies normally involved, what is called the
consulting agency and what is called the action agency under the ESA and it's
really under the United States Administrative Procedure Act which is Title 5,
United States Code Section 702 ed. Sec. and following that means a lot. And the
principle says that, principle's law, if there is this adversity, then you have
to prepare what is called the biological opinion, which then scopes from a
scientific standpoint and an operational standpoint in every way what is good,
what is bad, what's happening with the species, and its habitat, and if the
adverse affect has been found, then the biological opinion must -- the action
agency is normally doing the biop. In our case, the action agency is the U.S.

Bureau of Reclamation because it operates the consulting agency has all the
scientists and that's the U.S. Fish and Wildlife Service in the case of Delta
smelts, or NOA Fisheries in the case of salmon because they're [inaudible] they
start in the fresh water where they're born, they immigrate to the ocean, they
spend two to three years there, then they migrate back for spawning to the fresh
water and most salmon die, steelhead do not, they survive and can have more than
one lifecycle and reproduce young. But in the final analysis, the biological
opinion must contain what are called RPA and, of course, pneumonic devices in
environmental law are the order of the day. It is alphabet soup and without the
alphabet and pneumonics, we'd all be lost. So you develop the reasonable and
prudent alternatives which is in the vernacular the RPA, and so that's what got
all the controversy about the federal scientists in September, last September in
the Delta smelt cases where I found two federal scientists could not be
credible, and that's because the reasonable and prudent alternative, one of
them, there were four in all, but one of them -- well, actually there were six,
but four active ones that were at issue in the Delta smelt case, one of them
said that the isohaline standard called X2, which is the number of parts per
billion of salinity in the water and if it reaches two then X2 is exceeded and
that means that you've got to start pumping more water not to farmers, but into
the rivers to reduce the salinity because there's two things that are not fish
friends, temperature, the warmer it gets, the worse it is for the fish, and
salinity. At five they're stressed, at seven to nine they're dead, parts per
billion of salinity. And so what happened was this, the consulting agency NOA
Fisheries and U.S. Fish and Wildlife Service both recommended that X2 be
established at a .74 kilometers east of the San Francisco Bay, Golden Gate
Bridge actually. And they said, it is our view that if you establish this here,
we will have a 100% gain in population. We'll double smelts by doing that.
What's the water cost of doing that? About 990,000 acre-feet, a million acrefeet, 20% of the entire Central Valley Project yield. Okay, great. How urgent,
how necessitive is this, because you're saying it's going to be 100% recovery.
Would less than 100%, but still 50%, 60%, would that help? Oh, yes, that'll
help. And I had these scientists under oath, they're testifying. All right, tell
me what if we move X2 from 74 kilometers to the east and put it at 79. One, what
would the cost in water be, and two, what's the effect on the species? The cost
of water, it would cost us about 20,000 acre-feet to have X2 at 79 kilometers.
Species, we'd have about a 70% improvement. We'd gain 70% instead of 100%. Could
this be done? Yes, it could be done. They didn't want say it could be and at
first they hadn't made the calculations, they tried to say they couldn't make
the calculations and candidly, I'm not a part of this, and I don't have any -I've ruled 80% of the time for the environment in these cases because the law
requires it. But in their offices, these government servants who represent the
public of the United States, we represent the species, those are the signs in
their offices. So understand that that's what I'm told at the end of August when
they're in the courtroom. So I make my ruling and I said, for this year, this
RPA putting X2 at 74 is going to operate through November, then it's done, and
we're just about to September, three month period. And because it's a long water
year, because we had lots of water last year, we're not even going to start it
before the 15th of October. So we'll go another 45 days. So in effect what we're
going to have is -- we're going to have 45 days of this million acre-feet of
water. And so I issue that injunction and set the X2, I prohibit them from
moving it anywhere to the west of 79 kilometers. I get two decorations from both
these scientists, Dr. Norris, who's with NOA Fisheries, she's the Director of
the Sacramento region, and a fellow named Mr. Beemer, who is fish biologist for
the Bureau of Reclamation, and these two declarations say that if the judge's
injunction is in effect, it will end the existence of the species. And I said,
that's a lie. You're a zealot, I don't believe you, you lack credibility in this
court. How can you tell me in August that all we're going to get is game, and

we're going to save water, we can accomplish both objectives, we just won't have
as much, we won't have 100%, we'll have 70%. So they convene a panel to do an
independent study to see who's right about this. Did anybody tell you that the
head of that panel is the former president and leader of Greenpeace, and that
all the members of that scientific panel that did the evaluation of my decision
finding that, yes, there were inconsistencies and the judge probably got off
track because they didn't explain their inconsistencies. There were
inconsistencies all right, and I understood them and that's the truth, and my
job is to call them the way it is, to make those determinations, that's the
business of a judge, credibility, who's telling the truth. And that decision
will stand.
>> Thomas Holyoke: I wondered, in terms of your dealing with a federal agency,
what level of deference would you normally give federal agency and agency
scientists?
>> Oliver Wanger: Excellent question. Under the Administrative Procedure Act,
because there are no self-executing remedies under the ESA or NEPA, I use
administrative law standards, here they are. The court owes great and
substantial deference to the agency and its expertise. And I've always respected
the agencies and I've always given that difference. Second, the court is not
expert, I'm not trained in fish science, in hydraulics, in hydrology, in water
engineering, in the complicated calcium models that account and move water
literally by the minute out of everyday, ever water year, and so the call always
goes to the agency and the judge is not to intervene, the judge is not to
manage, the judge is to be deferential, substantially and significantly
deferential and I've always said that, it's written in my decisions for you to
see and the world to see, and I've also said I wouldn't presume to assume that
role because I would be leaving the function of the judiciary and I would be
invading illegally, unconstitutionally the province of the executive who
administers and enforces laws, and the legislature who enact and says what our
laws are and that what they intend them to be, and my job is interpretive and
that it is. So the answer, the direct and simple answer to your question is
total deference, except if the agency's action is arbitrary, capricious,
unlawful, unreasonably delayed or in bad faith, I don't defer. And I found that
X2RPA and the way it was being applied in this water year was in bad faith, and
I didn't follow up the agency's recommendation.
>> Thomas Holyoke: Now you're describing sort of the latest, I guess, in the
series of concerns you've had with some of the plans produced by agencies, at
least with the Delta smelts for years you had been finding biological opinions
at least lacking.
>> Oliver Wanger: Yes.
>> Thomas Holyoke: If we could sort of go back a little earlier in time to some
of these earlier cases when you sent biological -- well, I'm not quite sure what
the terminology is, but you had been dissatisfied with biological opinions.
>> Oliver Wanger: Well, again, it's not for a judge to be satisfied or
dissatisfied, it is for a judge to evaluate under the legal standard arbitrary,
capricious, unlawful, unreasonably delayed or in bad faith, and the other side
of the case, water users, in this case the Department of Water Resources
disagreed with the federal scientists. They took the side of the water users and
said, this isn't good science. There's another principle we hadn't discussed
yet. In biological opinions, NEPA or the ESA, there is a standard, a regulatory
standard called best available science. And in making their decision, it is the

duty and the legal responsibility of the agency to use the best available
science. That doesn't mean perfect science, that doesn't mean to the exclusion
of all error because under the law another standard exists that is corollary to
deference and that is the right to be mistaken. Our law is that the agency can
be mistaken. They're human, and so that's part of the operation of our
constitutional democracy and the way our government functions. But what happened
is ordinarily these cases are decided on the administrative record, so it's not
like a trial where we start de novo hearing evidence and making decisions and
listening to experts, here rather the claim was that the scientific study lacked
basis. There's no population models that have been developed which is a
fundamental foundation in fisheries science, in fish biology for determining
about what happens and how adversely affected a fish population is, you've got
to have a model. And so here it's not that we're making it up as we go along,
but we don't have good reliable statistics, and they brought up issue after
issue, a judge is entitled to hear expert testimony when subject matter is so
complex and so controverted and controversial that the judge needs help quite
frankly to understand and to be able to make informed decisions about it. So I
appointed court appointed experts who were neutral, they were recommended by the
parties, but they were neutral and they worked for me, for the court, and they
cut through some of this quite frankly controversy that was essentially so
intense, so conflicting that it was literally impossible to resolve without the
assistance of the outside expert.
>> Thomas Holyoke: When you were talking about with the X2, if I understand it
correctly, we're talking about the location of the estuary in the Delta where
the salt and fresh water mix.
>> Oliver Wanger: That's right. What happens is you have a fresh water river,
the Sacramento and the San Joaquin that converge finally in the Delta, and then
in the Delta, you have the ocean on the other side of it. And so depending upon
the tide and depending upon full regimes and levels, the more of that water that
moves upstream to the east, the greater the potential for the solidity increase
because that water has salt in it. And so when you pump water to the sea, you
push the salty water back to the sea to keep it from encroaching into the fresh
water.
>> Thomas Holyoke: Now a lot of the cases that at least have involved the Delta
smelts seem to be more about the operating times of the pumps more than the
estuary.
>> Oliver Wanger: That is because there is another hazard, and that hazard is
there are risk areas in the Delta. The east part of the Delta and going to the
north is safe, the south Delta, even some of the central Delta is hazardous, if
not toxic. And so what happens is when these pumps flow and you have 35,000 or
40,000 cubic feet per second, that's the rate of water flow that's coming down,
that the pumps are pumping, that causes what are called reverse flows that
changes the flow pattern of the rivers, and that also fish follow the flow when
they swim by instinct and that takes them into either the pumps where they're
eviscerated, or it takes them into the toxic areas where they can't get oxygen,
the salt poisons them or the temperatures kill them. So that is what we're
talking about when we're talking about operating the pumps and so I ordered
cutbacks in the pumping because of its lethal effect on the fish and there's a
huge scientific controversy over that and we've had all kinds of experts and
what we call in the water wars, the battle of the experts over all those issues.
>> Thomas Holyoke: As I understand many of the irrigation districts claim that
it's not the pumping, but plenty of other like toxic chemicals ...

>> Oliver Wanger: I found it was in art the pumping, so you see why I have no
friends in California.
>> Thomas Holyoke: Okay. I was -- I'd like at this point to move over to talking
about the Bureau of Reclamations obligations in terms of drainage over in the
Westside. Are there any other major issues concerned with the Delta or...
>> Oliver Wanger: Yes, it's happening right now. Congress when it enacted the
San Luis Act, which concerns the reservoir that was constructed on Highway 152,
called the San Luis Dam and the San Luis Reservoir in 1960, '61, '62, and John
F. Kennedy came to that site and said, here's water for you and the farmers came
in and said to me, that's a solemn promise, it's enforceable, it's water for us
in perpetuity. Well, the statement of a president isn't enforceable, it's not a
law, and under the law, the San Luis Act said the following, the San Luis unit
shall be constructed only upon the coordinate construction of drainage facility
and what happened, the San Luis unit was built, canals were constructed and
connected, but no drainage. And so from 1960 to 1986, the bureau delivered
water, the farmers applied it to their land and they applied pesticides,
herbicides, antacids, fungicides, rodenticides, and all the other toxic
substances that go into farming that isn't organic, and the effect is without a
drain, that condition of toxicity produced in 1986, the [inaudible] disaster
where selenium laden vernal pools and nesting sites for a number of nonindigenous migratory birds essentially were deformed, died, and that was being
used as a drain, quite frankly, with some local [inaudible] canal and the bureau
stopped the drainage, they shut it down. In the [Inaudible] and Wolfson lawsuit,
which was taken over by [inaudible] and San Luis Delta-Mendota Water Authority,
and the Sumner Peck Ranch, and it came to be known as -- the drainage case came
to be known as the Sumner Peck Case in the District Court, basically the farmers
sued and said, we don't have any drainage, the bureau's starting to tell us that
we can't have water because it is hazardous, it's toxic, and so they filed a
lawsuit to require the installation of drainage in accordance with the statute,
and there was a plan -- it was part of the statute and there were to be
appropriations, waters which Congress was appropriated the money, and the plan
basically said, we'll have a drain that is in effect pipeline that will carry
all the agricultural what's called tail water return flow of affluent to Ship's
Island in and near the Suisun Bay, and that would be the terminus of the drain.
Well, that's George Miller country, Contra Costa County. And they said, no way.
So the government defended that case on two grounds representing the Department
of the Interior and the Bureau of Reclamation. They said, one, it is legally
impossible, the State Water Resources Control Board will never issue a drainage
permit given what has occurred in the last 30 years with the toxics and the
hazard that attend agricultural drainage affluence. Secondly, they defended on
the ground of factual impossibility. And this defense was in today's dollars, a
drainage system, even if it goes to Ship's Island, would cost billions and you,
judge, don't have the ability to tax and spend, you can't order the government
to build this and to pay that money. And so it's impossible. We had a trial. We
went out to the Westside, we walked the grounds, we looked at what was happening
and what the effects of this lack of drainage where. There were lawsuits within
lawsuits because lower owners who were getting drainage and their water tables
were getting perched and their permanent crops were being root bound and root
destroyed essentially said, we don't want the water, don't give us the water
because you're killing our operation, and they sued the [inaudible] beside the
bureau, so it's civil war. So our decision was, you won't know that you can't
get a permit until you apply. It's like saying the city council won't grant you
a zoning variance so you can put a theater, another one is the [inaudible]
district. Secondly, as far as faction possibility goes, they had economists,

they had engineers, they had contracting firms that showed you could build
these. It would cost hundreds of millions of dollars, but the farmers are going
to have to pay for it. The water users, not the government. So it's not
factually impossible. The case went up to the Ninth Circuit. The Ninth Circuit
said the District Court got it right, except for one thing, this wasn't argued
in the court to me, it was never presented, but the Ninth Circuit has a way of
doing that, they strike out on their own and they find ways to make cases more
interesting. Two out of three judges said by not making appropriations under the
appropriations riders to the bill, Congress has in effect defacto amended the
statute to enable alternative means of this drainage, not just a pipeline with
it's terminus at Ship's Island, but rather we envision that there are other ways
these lands could be drained. We send it back to the District Court, you figure
it out district judge. And the dissenting judge, Judge Steven Trott who lives in
Idaho, but he was a U.S. Attorney in Los Angeles, good solid judge. He says
there are political questions that are so far beyond the ability in the can of
judges to decide that they simply have to be resolved in the legislature, this
is such a case. There is no effective judicial remedy here. This case is nonjustitable [phonetic] which is, quite frankly, a ground, a constitutional ground
to abstain from deciding the case, hearing and deciding the case, but that
wasn't done. Seventeen years later, those cases were decided in about 1998.
There's no drainage. And in the Federal Court of Claims in Washington, D.C., the
Westlands Owners have just filed a case for a billion dollars in damages. Now
one thing that did happen in the drainage cases is that about 3900 acres were
purchased by the United States in a settlement for $139 million, and that was
authorized by the Congress, and those United States funds were paid to some of
the land owners to retire their land. So that's the drainage case. It's still
going, there's a brand new lawsuit in the Federal Court of Claims.
>> Thomas Holyoke: This is interesting the way you portray some of this both in
a sense you and the Bureau of Reclamation are in kind of a rock and a hard
place. As I understand it, this basically was a political problem. Congress
authorizes something basically, it requires something to be done, and then
chooses to appropriate the money for it.
>> Oliver Wanger: Right.
>> Thomas Holyoke: And then you and reclamation are in a situation where you're
being told to do something is, frankly, undoable. And the relationship between a
federal district judge and the Court of Appeals, you are obligated, as I
understand, to follow what they order.
>> Oliver Wanger: Absolutely. Your duty is to respect and adhere to precedent,
meaning the prior decisions in the area on the subject, to follow and apply the
law of the circuit, and we're in the Ninth Circuit so that's the circuit law
that takes precedence over any other circuit law. The only thing that the Ninth
Circuit defers to is Supreme Court, the United States Supreme Court law, and in
some cases state law, too complicated to get into but as a district judge, I do
what I'm told. Whatever the Ninth Circuit orders, whatever the Ninth Circuit
decides, that is my resond [phonetic] and pray, and that is what I do.
>> Thomas Holyoke: Where does that leave the Bureau of Reclamation in order to
do something you can't do?
>> Oliver Wanger: As you put it, between a rock and a hard spot. And what I say
as a judge, because a judge is a human being, a judge has personal views,
opinions, history, background, inclinations, and your duty when you take the
oath is to put those aside and to never follow your own predilection, your own

preference, your own view as to what the law should be. You can only apply the
law as it exists and that is where, quite frankly, the debate begins, because
what Congress is talking about in their excoriation of activist judges is judges
who in effect make the law in their mind's eye as to what should be, rather than
applying the law as it has been interpreted and as it exists, and that's why the
Supreme Court often straightens out a certain Court of Appeals that we've been
talking about.
>> Thomas Holyoke: Well, I know ...
>> Oliver Wanger: But I have nothing but respect for the Ninth
that they were there. I learned, they guide us and so whatever
perspective outlook, philosophies, politics, those individuals
they're all in good faith, they're doing the best they can and
don't agree, we respect them.

Circuit, I'm glad
the individual
are qualified,
so even if we

>> Thomas Holyoke: Now you said you became a federal judge in 1991?
>> Oliver Wanger: That's right.
>> Thomas Holyoke: So that was a year right before then CDPIA.
>> Oliver Wanger: Right.
>> Thomas Holyoke: So ...
>> Oliver Wanger: I got the first CDPIA gig, and all the ones that followed.
>> Thomas Holyoke: On that point to now have the politics and law of water here
in California become more or less complex?
>> Oliver Wanger: Much more intense, much more complex and so, quite frankly,
adversarial in the period like when that forum was held that you chaired in
2008, you saw 600 people, standing room only here in the amphitheater at Fresno
State University and as I said, they were hanging me in effigy, there were
wanted posters all over the west side. And so -- but the environmentalists
didn't want me any more than the farmers did. So, as I said, I have no friends.
>> Thomas Holyoke: I also remember though you saying very clearly at that time
that even though you were sort of being burned in effigy over your
interpretation of the Endangered Species Act that, you know, this just wasn't
your choice in the matter that, you know, as a judge you were bound to apply the
law.
>> Oliver Wanger: That's right. And I didn't say what my personal views were
because they were irrelevant.
>> Thomas Holyoke: In that case we are coming down to the end of things here.
Just one question more really on -- back to this question about the changes in
the judiciary more than on water. As I understand, you served out your last few
years at Federal District Court as the Senior Judge...
>> Oliver Wanger: That's right.
>> Thomas Holyoke:... somebody who's supposed to be in semi-retirement except
that you were not.

>> Oliver Wanger: You retire so that we could get another judge, and Judge
O'Neill was confirmed and took my seat, but I still had an 1800 case -- I should
say 1200, 1200 individual cases. I was working, I had approximately 35 to 40
jury trials a year, terminated 700 cases a year, spent on the average of 1600 to
2300 courtroom hours and so -- and I was working 80 hours a week week-in and
week-out, for free. Because at that point, my salary turned into an annuity and
I could go and do what I'm doing now, be in the private sector or be doing
different things.
>> Thomas Holyoke: Well, the taxpayers may have gotten the short-term bargain,
but is this a serious long-term -- is the federal judiciary in trouble?
>> Oliver Wanger: We have seen in the last seven years, for the first time about
one federal judge a month is leaving the federal judiciary, it's unprecedented.
Candidly, the federal judges that left the judiciary in senior status, it was
either death, it was illness, and there were so few voluntary departures that
you could probably count them on two hands. But now, it's a completely different
world.
>> Thomas Holyoke: Well, I'm at the end of my questions, is there anything you
would like to add?
>> Oliver Wanger: I think you've covered it all.
>> Thomas Holyoke: You've covered it all.
>> Oliver Wanger: And since it is six o'clock and we started at 5:00, and I seem
like I've been talking continuously here, I think we probably have accomplished
what we needed to, I hope. That's for you and history to decide.
>> Thomas Holyoke: Thank you very much then.
>> Oliver Wanger: You're most welcome.

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