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The man with his hand on California's spigot

U.S. District Court Judge Oliver W. Wanger's decisions determined how much water gets pumped south to fields and cities and how much stays behind to sustain fish species. At 70, he leaves the bench to return to private practice.

October 07, 2011|By Bettina Boxall, Los Angeles Times
  • U.S. District Court Judge Oliver W. Wanger poses in his chambers in Fresno. The jurist, known for his rulings in controversial water-usage cases involving farmers, environmentalists and urban interests, has retired from the bench and returned to private practice.
U.S. District Court Judge Oliver W. Wanger poses in his chambers in Fresno.… (Gosia Wozniacka / Associated…)

For more than a decade, the state's de facto water baron has been a man most Californians never heard of.

Oliver W. Wanger is not the archetypal power broker embodied by William Mulholland but a workaholic U.S. District Court judge whose Fresno courtroom was the forum for many of the state's fiercest water conflicts.

Last week was his last on the bench. At the age of 70, Wanger returned to private practice, leaving a record of long, complex rulings and a parting diatribe at federal scientists that has echoed across the country.

Wanger's decisions determined how much water gets pumped from the Sacramento-San Joaquin Delta south to fields and cities and how much stays behind to sustain fish species pushed to the edge of extinction by the state's thirst. He is known for delving deeply into the minutia, writing opinions that at times read like scientific papers.

"He has been hugely influential," said Richard Frank, director of the California Environmental Law & Policy Center at UC Davis. "I think he in many ways has been the most important public official when it comes to California water policy in the last 15 years."

A former Marine Corps sergeant, prosecutor and civil trial lawyer who grew up in Beverly Hills, Wanger was appointed to the bench in 1991 by President George H.W. Bush.

A year later Congress passed the Central Valley Project Improvement Act, altering decades of federal irrigation policy. Farmers who were used to getting plenty of cheap federally subsidized water had to pay more and give up some supplies for the benefit of fish and wildlife. In 1993, the delta smelt was placed on the endangered species list.

The ensuing, and still raging, war between fish protections and water exports sent a seemingly endless stream of lawsuits to Wanger's courtroom.

In a series of decisions, he handed victories to both sides. He found that the federal and state water-delivery systems imperiled native smelt and salmon. He ruled that fish protections issued by the George W. Bush administration were inadequate. Then he found that tougher pumping restrictions imposed later were not entirely justified.

"I have always been what I would call a down-the-middle person, calling things as I see them," Wanger, a Republican, said in an interview during his final week. "I feel I don't have many friends. That is a fact. Every constituency in these cases finds a reason to not like what I do."

It was neither his retirement nor one of his bulky opinions that recently set the water world buzzing, but his remarks from the bench last month. Ruling on a motion in the latest smelt case, Wanger let loose an uncharacteristic harangue, declaring the testimony of federal biologists Frederick Feyrer and Jennifer Norris so contradictory and inconsistent that it amounted to deliberate deception and "bad faith" on the part of the Interior Department.

"I've never seen anything like it," he said repeatedly, calling Norris, an assistant field supervisor in the U.S. Fish and Wildlife Service's delta office, a "zealot" who was "incredible as a witness."

"And I am going to make a very clear and explicit record to support that finding of agency bad faith because, candidly, the only inference that the court can draw is that it is an attempt to mislead and to deceive the Court into accepting what is not only not the best science, it's not science," he added.

A transcript of the hearing, circulated by water contractors, became ammunition in the politicized battles over science that have come to characterize environmental disputes.

U.S. Rep. Devin Nunes (R-Tulare) called for oversight hearings, comparing, in a Sept. 21 letter to Interior Secretary Ken Salazar, the agency's actions to those of "brutal dictators such as Robert Mugabe and Saddam Hussein who used water as a weapon against their own populations."

The Interior Department said it was standing by its scientists and their findings. In an internal memo, the regional director of the U.S. Fish and Wildlife Service called the biologists "outstanding public servants and scientists." Their defenders say that what Wanger saw as inconsistency was no more than scientific uncertainty. And they point out that his remarks echoed a brief filed in the case by water contractors.

Kate Poole, attorney for the Natural Resources Defense Council, has appeared before Wanger for seven years, representing environmental and fishing groups in the delta cases. "I think he tries very hard to be impartial, and many of his rulings reflect that," she said. But when Wanger "discussed the two scientists in personal terms — in my view he lost some of his impartiality there and he let his personal feelings intrude into that decision."

Wanger said he couldn't comment directly on the case, which is headed to an appeals court. "Of course, there is never anything personal and never intent to do any kind of harm to anybody."

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