Yes, the Deck Is Stacked in Favor of the Government

The public perception is that big, bad corporations can just spend as much money as necessary to win in court. Those of us in the trenches know that the reality differs. Indeed, at least with respect to actions brought by government environmental agencies, the most common defense experience is for the DOJ attorney to introduce him or herself by saying. “Good morning, your Honor, my name is ________. I represent the government, and I win.”

In a bench ruling earlier this month, in what are known as the “delta smelt” cases, Judge Oliver Wanger demonstrated – much to his own dissatisfaction, I may add – just how stacked the deck is in favor of the government. The issue in the case involved the terms of an injunction to protect the delta smelt and, specifically, where along the length of the Sacramento River, salt water intrusion has to be stopped. Not surprisingly, this question involves complex expert testimony.

The government had two experts, Mr. Feyrer, for the Bureau of Reclamation, and Dr. Norris, for the Fish & Wildlife Service. To put it mildly, Judge Wanger was not happy with either expert. He described Dr. Norris’s testimony as “false”, “outrageous”, and “contradicted by her own testimony.” With respect to Mr. Feyrer, Judge Wanger referred to his “absolute incredibility, his absolute unreliability, and finally, the most significant finding, the Court finds him to be untrustworthy as a witness.”

Here’s the Judge’s summary:

The conclusion that the Court reaches is that this testimony particularly with the contradictions, with the revisionist and opportunistic opinions that are now offered totally impeaching, it’s self-impeaching and contradictory, both Mr. Feyrer and Dr. Norris. They lack credibility. They are the equivalent of bad faith.

The Court finds agency bad faith here. There simply is no explanation. There is no justification. And again, the government wins.


I’m not going to just junk the … standard and in a peak [pique?] of disappointment with the government’s because just your scientists can’t be honest and can’t be straight and can’t serve the public interest, that we’ll just throw the baby out with the bath water. That’s not going to happen. This species is in trouble. It still needs to be protected.

So, Judge Wanger, tell us what you really think. Elsewhere in the opinion, Judge Wanger described Dr. Norris as a “zealot.” I don’t think that that term will surprise anyone who has worked on environmental cases. We have all seen lawyers and experts who knew God was on their side and that they were therefore justified in engaging in the kinds of behaviors described by Judge Wanger.

I am not involved in the delta smelt case and thus don’t know if Judge Wanger’s conclusions about the expert testimony are reasonable. I do know that, having reached the conclusions he did, it is admirable that he was still able to focus on the law and the facts and that he still left in place most of what the government wanted by way of an injunction.

If you’re on the defense side, just be prepared for that opening by the government.

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