thank you your honor to police the court my name is greg wilkinson i represent the appellant state water contractors i'd like to begin by thank you representing this case anybody who wants to represent in this case anybody know just the state water contractors i have trouble seeing how they get past the fourth prong of that test for intervention well that's the issue your honor is the fourth pran that was the only determination made by the trial court judge will can like other parties in there with the same interest well in fact to go to the party that was determined by the trial judge judge welcome to represent the interests of the state contractors is the farm bureau  federation and as i said judge well can determine that the other three prongs of the of the rules for intervention of as of right have been satisfied with just simply the fourth crying about adequacy of representation and what you find is that judge will can determine and the farmer was an adequate representative of the state water contractors based upon her belief that the farmer federation has legal interests in the state water project same ultimate objective now she said legal interest was the determination that she had made and in fact she concluded that they have a legal interest in the in the state water project in the state water pressure its water supply and in fact that is an error just a farmer a federation holds no contract for state water well let's say you're right it doesn't have the same legal interest but why wouldn't it have the same practical interest in the litigation and interest in raising the same arguments i think first of iowa the fende the biological well i suppose they would be defending the biological opinion but whether they would be raising that the same arguments that the state water contractors  others might raise is really the question and that we don't know at this point the farm bureau federation represents one thing we do this is is pretty much assume they'll have good lawyers and that you thell have good lawyers and look at whether good lawyers representing their client's interests would raise different arguments because of where they said and and that's what i'm having trouble  with and i understand that i think they do have good lawyers i think we have good lawyers as well what i have found over the years is that we differ with the good lawyers that the farm bureau federation employs on issues from time to time we don't encounter the farm bureau federation that frequently in the cases in which we participate they typically serve more of a function of being a lobbying organization then a letter getting organization although more recently they have become involved in litigation but we have found ourselves on the opposite side of the farm bureau in litigation recently involving one of the elements that is involved in this case which is the environmental water account it's a key part of the plan that's been developed by cal fed which is as you may know the joint powers authority that includes federal and state representation for the purpose of attempting to better manage the state and federal projects we found ourselves  at odds with the farm bureau federation on issues such as the envoy an environmental water account once this case was transferred to judge wayne ger judge wager concluded that the the involvement with lee environmental water count in fact was a factor which which authorized intervention by another party and could you get back to the church craft question wouldn't they both be defending the biological opinion we suspect that they might be taking different views about the biological opinion than we do litigation strategy doesn't normally justify intervention but there kake case also indicated your honor that in that circumstance there was a great agreement in effect that the party that had intervened going to consult with and would be well your honor i think that that there's certainly no guarantee that we could file a micus brief in this case that's a discretionary determination by the district court yes indeed i did he has not decided that issue but i think the larger question that your honor has is raising is economy which seemed to be the factor that was troubling judge welcome when she was confronted by the fact that we had several parties seeking to intervene as as defendants in this case judge wayne ger has dealt with that issue i thought rather effectively by saying we're going to have coordination on the briefing we're going to have consolidation of briefing we're going to have coordination of oral argument and we're happy to live by those same rules of course we think that's an appropriate way for this kind of case to be presented but the even larger issue i think that's involved here is that the folks that we represent are the vast majority of those people who do hold contracts with the state of california for the state water project supply  through the the entities that we represent all of whom are public agencies formed under the laws of the state of california something like twenty three million people get their water from the delta throughout california when when people take on these big projects these these critical projects that are just essential for the the well being of people is state there's an expectation i think that people are going to be trying to get into these cases to protect their interests and that's what's happened here and there are ways of dealing with the judicial economy issue that arises when you have so many people that are attempting to intervene i don't think the numbers are that exceptional here we've got essentially three interested parties plus the state of california who have who have moved to intervene and all of them have been granted intervention except us but the folks that we represent are substantial players in the operation of the state project the federal project they are involved at all levels in the in the planning and in the implementation of the various measures that are intended to to provide for the operations projects and also to to serve for the efforts to protect the delta environment what is the at argument that your parties would make that the  existing parties would not make we haven't seen the existing party's arguments your honor but i can tell you that the state contractors are not bound for example by the the same limitations that the state of california may be bound by in terms of the arguments that they can raise we also have because we represent in addition to the farming interests that receive water from the state water project the the vast number of you know support and industrial and commercial interests that receive that water we have interests in water quality and the timing of water deliveries that others may not have and what have you found something that is what all of your arguments would be to that they can declare whether they would make the same ones not at this point we have not no i mean what we have filed your honor under the intervention pleadings which included our answer an intervention that sets forth our units and i can tell you that the arguments because of the nature of the people that we represent who receive water for multiple purposes not just agricultural purposes but the arguments that we may be making with regard to the timing of deliveries and the water quality issues that arise with regard to the quality of the water which is extorted from the delta may be different from those that are raised by the farm bureau how everything you say is conditional may be different we haven't seen their arguments it seems like a lot awful lot of time has passed and time passed between the time of the filing of the complaint a motion to intervene where you might make sure that these arguments to be made and they said we're not making what did anything prevent you from doing that in the sense that we have not yet received the administrative record yes we have not had an opportunity to go through the record to determine what's there and what isn't and we're obviously going to you have not yet gotten if you talk to them at all no we have not what explains that we simply have not had that the reason you haven't talked in the so you can make the argument they might do it all i know your honor that's not the reason why we have had experiences with all of these entities previously including the farm bureau federation we do find ourselves on different sides they're hostile to your side of the sometimes they are yes sometimes they are in fact as i mentioned  said between lawyers i mean most three party cases are shifting conspiracies of two against one it's just what you do depends on the issues in the case i think and when it comes to the delta those shifting alliances are there all the time so somebody that's on your side today may not be on your side tomorrow and i are that we that i think that using the word maybe that's the phraseology that the decisions of this court have used where you see we're trying to get something concrete i understand that what is it that you would do that the parties in the case wouldn't do and we can't get it we're bringing to the case a perspective that is different from the people who are held to represent our interests by the judge well can we are not simply farm interests we ar interest as well the reason the difference here is what arguments you'd make and you haven't talked to the other to the parties that are in to see if they'd make the same ones or look at the administrative records to determine what your arguments would be it seems kind of lacking concrete we have your honor and an idea of what our arguments are going to be what i can't tell you is what the arguments that the other side is going to make what those arguments will be  and we simply have not had the opportunity to coordinate with them and since we're not involved in the litigation at this point no real reason to do that work our concern was simply the judge will can without taking oral argument without asking the environmental water account we support the south delta improvement program the south health improvement program which we've described in our briefs is one of the things that's been put at issue in this case by the by the plaintiffs south self improvement program involves two primary functions or elements one is to increase the pumping capacity of the state pumping plant from the existing sixty six hundred cubic feet per second per second to eighty five hundred cubic feet per second to give the state project additional flexibility in meeting the advance particularly of urban users who have year round advance for water the second part of that or second element of that program is a barrier program clued in the head of old river barrier barriers at grant line canal and also brand bridge which are intended to protect water quality within the delta and the state contractors are the principal funding entity that will make those projects happen we pay for the state project far doesn't so we're interested in actions that affect programs that we're going to pay for that we've been responsible for developing a farm girl hasn't been involved in those programs like we have they may have an interest in it they have been part of the planning process which has created those programs they opposed to the south built an improvement program i don't know whether they are pro opposed to that program or not they have interests in the delta that are farming interests that are also members of the f people that are are opposed to the south felt improvement program and so they got and so that's a split constituency there let me try something else on you is there anything that would prevent you from renewing your motion to intervene and a time when you see what the other side is doing and you come in with a kind of like a holy cow now look this demonstrates that we're not out of that we have a different interests and we have a different objectives is there something that would prevent you from renewing your must intervene once there's something on the table that's kind of maybe well certainly big the timing of the of the case in the court below judge wager has decided move this case rather quickly so there's now a briefing schedule in place on the merits but is there any legal rule or principle that says once you've made a motion to intervene and it feels that you shall never be heard to make another one well i'd be concerned about the art the argument of law the case and if this court's going to render an opinion that says we can do that we would certainly try to use that opportunity i don't want to face a circumstance where we've been asking if me i mean it sounds like if we did drop a footnote at it take care of the problem it i'm not i'm not sure that it would i fear here's part of the problem is that this case is going to set a precedent we intervene in a lot of these cases because of our interests in the state water project and more generally in the relationship between the state project in the central valley project if we were to get an opinion that says we're just out of luck because gosh the farm bureau or the center of some development go to people or the state of california already in the case and we can't get in we're stuck and that's really harmful to us because people frequently do not name us and frequent frequently we do have to intervene in these cases in order to participate and i believe the courts have generally found our participation to be helpful but you're batting average and i'm trying to intervene here and been very good it's been very very good sometimes we get it by stipulation when we have to fight our way and we've had a pretty good batting average and that's what that's what was so disturbing about this case is that the court is finding remember the context when when we sought to intervene in this case there was wasn't the same writer and we had unique different interests because of who we represent the fact that we do have legal interests in the state water project we hold the contracts for state water project supplies the farm bureau does not their members do not so if there's a legal interest involved here we're the ones who have that legal interest not the farm bureau and there may be fine folks represented by fine counsel they are not in these cases on this on the same basis that we are because we have that legal interest and they don't you're relying upon the interests of your members not your interests the organizational if you're asking about organizational intervention i believe we need to test for that as well yes we're right relying on the interests of our members we have twenty seven of the twenty nine folks who hold state water project contracts the only two we don't have but you don't i don't the state water contractors organization does not the members of the organization do benefit corporation like for example the r t c doesn't own anything either but they represent people who have interests and we are in the same position we represent people who own contracts for state projects plies  why can't they interviewed one of them is now attempting to do that as a result of the denial of intervention in our case i'm sorry it's not the face of the legal definition it was to protect and you don't possible but i your honor i don't believe that that anyone has argued that the contractors organization is is not an appropriate intervener here because they do not possess themselves the state water contracts they certainly do represent those who do have those contracts the alternative i think is what you're beginning to see in this case which is that individual contractors are now even their agents i'm sorry you're not even the agents of your members we are the agents remembers w when you have that right it's in our bylaws we can we can sue and be sued on their behalf according to our bylaws they've each agreed that we have that power through this court has any of the questions that we have to try to answer them i think you've covered most of what i had this case really centers on the validity of the biological opinion that will be decided according to the standards of the endangered species act in the ministry procedures act not according to who's getting water from where or how they use it in o c would obviously like to have as many parties on the other side excluded as possible and the more capable they are being affect the more important it is to exclude them so in our vitis pitch is not really the most persuasive what has been the position of the parties that are in the case toward the prospective intervener their position seems to be  encouragement of their intervention at least indifference so they didn't object or not opposing no not at all and the judged in the trial court has indicated there's going to be coordination so that the thing does not get out of control  he has indicated that there will be some coordination he hasn't said any specific page limits or specific method for that what's the harm of letting them intervene well i think that given that the parties are going to be arguing over the same issues over in the biological pinion and just taking a step back the plaintiffs of have made some very fundamental claims about biological pinioned their claims don't address one project or the other that rather they're addressing flaws such as the failure to use bust available science and that the biological pena doesn't use the most current data on the don't know what my question is what's the harm of having them in the case the harm is is that they don't offer any new element they don't offer any new argument that won't already be made by other parties would think that that would be good for in our d c because the more parties that get in the more parties are definitely barred by race judicata if you win well i think the concern here is really judicial fishnet see it's weather but the district courts can take care of that they do that all the time they tell the lawyers ok pick one word argue this point you know that i'm we've all been there they don't just don't just say free for all the way happen happened in the o j simpson case you know the federal district courts control these things quite well  least some practical interests that are distinct from the farm bureau it's very hard to predict these environmental cases because often you have negotiation and settlement and it's hard to predict how the various interests are going to be affected and why shouldn't it be enough that they do represent distinct interests that in some respects differ well i think there the question is really whether it that those interests really are relevant to the resolution of the claim i'm thinking here's what i'm thinking about i don't know if i understand what the case is really about because all this water stuff is kind of esoteric if you're not from california have but i think what it's about is at some point in the case everybody's going to sit around a table and negotiate who gets how much water under what circumstances and what provisions of the adequacy of the biological opinion but nobody cares about that just this theoretical matter we're not evaluating somebody's ph d thesis to see whether it's deserves to get the doctorate people only care about the strong feelings about biology the environment can go hang but you have intense concerns about biology and you want better opinions i mean it's kind of be about the water it's about it's about whether the fish and wildlife service took a real hard look at the amount of water that's coming out of the delta and what impact that has on the species you want more water coming out of the delta for the species we want more water left in the delta for is defective because it allows the farmers to have too much water for the fields now the biological opinion is defective because it failed to consider very fundamental issues such as whether you keep wanting to divert me so that we just talk about it like it's the ph a ph d thesis being submitted for approval why do you care about the biological opinion what is the ultimate concern that the biological opinion bears on the ultimate concern the ultimate concern is whether the the vile this no jeopardy opinion is valid whether the by remand with the practical consequences be if you succeed if we succeed the practical consequences that fish and wildlife service will have to take another look at you persuade them that you're right about the biology your scientists are better than their scientists have been they look it over and they say oh we made a mistake in our the scientists are right and they come up with a new opinion what effect does that have on the water well what effect it could have is leaving some more water in the delta so it could have an adverse effect on the clients of the organisation that's before us it could but what that the data fact of your scientists are right the farmers get less water that's a part of possibility and there's no harm in letting the men but it seems that it's the essence of due process when something is about to happen to you that significant that you'd be accorded a place at the table but i think the point the point is and i'm not trying to to avoid your point it's but that the court in remanding the biological tina is not going to be deciding whether there is any different allocation of water than currently exists council we understand that do you understand our questions i i believe that your your your your point is that their interests will be affected i'm thinking  this is it's a step in a process it's the first domino and you hope that sooner or later one will fall over where you really want to fall over certainly i mean the the effect man certainly could reduce water supplies could fall over on the organization's members it could affect their members and that is true it's in the same way that it could affect westlands numbers in the farm bureau as numbers and  you know it certainly affects the entire new membership is not identical and the farm bureau in some respects has different and preferences why shouldn't the perspective interveners be allowed to be heard well i also would just to point out that judge wilkins decision was not just that farm bureau represented the state water contractors interests but also that cumulatively along with west once both of them represented their interests and together they represent agricultural in municipal users public water agencies the they were present and the full spectrum of of interests that the state water contractors whole here's a problem that i have i'm thinking of this well and so i was still a district judge i guess i'm the one hand you have a strong motivation if you're district judge to make the case manageable at more parties you get in there the more difficult it is to try to get the case from the beginning to the end and to understand it all because here on the other hand when an environmental advocacy group ad brings a lawsuit often it has huge consequences for a vast range of interests and it can't be simple and still be fair to all those interests that's the dilemma and i'm just wondering whether there really is a difference in the interests here of the parties that are in the case in the parties that aren't allowed to be in and if the more concrete you get the more helpful you'll be ok well i think with with respect to to looking at their interest for one thing under rule twenty four it's important to look at their interest in this litigation not just in general and their interest in this litigation is the same as i'm not going through and fine with that narrowly because environmental litigation often results in some believe she decided that the intervenor should not be allowed to intervene yes your honor and i believe that she she engaged in that balancing of of the interest of the parties represented which no one no one is i think the you know the what the state water contractors have really set forth our individual interests that they hold that don't necessarily give them any any new arguments with respect to the validity of the biological pinioned which is the only issue before the court and  and they haven't identified a single argument that the existing parties in the case cannot or will not make they indeed the existing parties also cumulative you only represent the state project contractor's perspective in this case as a public water agency delivering water to agricultural and municipal users so it's difficult to see what what they really add either in protecting their own interests or to the courts understanding of the case and that's particularly the case when we also now have the department of water resources present in this case which operates the state water project certainly has a great deal of expertise in the project and has a very keen interest in maintaining and and expanding those water supplies to the users that it delivers the water to including the state water contractors  seems like what the state water contractors are really left with is a claim that they will defend certain aspects of the biological opinion more vigorously i'm thinking the biological opinion i haven't actually read the biological opinion so you educate me on it but if i think about other biological opinions that i've read from time to time it probably has a whole lot of subsections and it talks about the effect fish and it talks about the effect on salinity of the soil and that all kinds of other things in the facts that where the stream meets the ocean usually they have a lot of  subsections and i'm thinking you may be interested in some sections other parties may be interested in other sections and so other parties may be interested in other subsections actually this biological opinion is only pertains to delta smelt since it's the only case the only species it is you and that opinion and the via logical pinion looks at the the future joint operations of the central valley project and state water project as an as a set of of interdependent related operations and determines attempts to determine whether that set of operations will adversely impact the delta  smelt the two thousand and four operations criterion plan that the biological opinion and analyzes actually aims to integrate the the operations of the state water project in the central valley project even more than they operations that are extracting water from the very same water source the delta so i think it would be a difficult opinion to parse apart in terms of of the different projects just because they're pretty closely linked with one another as closely linked projects the not only do the existing parties have available to them all the same arguments that state water contractors do but they also have every motivation to make those arguments with respect to the whole via logical opinion because they need to do so in order to defend their own particular interest in their water supplies now i think for the reasons  that we've discussed and that you recognized in our earlier questioning we believe that the state water contractors are certainly adequately represented by existing parties i think that said if the court is that all inclined to reverse the district court denial of intervention we would suggest that it follows a suggestion even made by the state water contractors that rather than simply admitting the state water contractors that it remained to the district court to allow the gist of court to take it into consideration all existing parties one is looking at the application particularly in light of the department of water resources recent intervention and the separate move to intervene by their really wouldn't add anything to the court's understanding of the case or even to the protection of the contractors interest in the case but it would add is a burden to the court and plaintiffs and having to review and respond to repetitive arguments on the same issues the court has any other questions i'd be happy to answer them  just have three quick points first judge kleinfeld you're right the biological opinion in this case is divided in some sections it's a bit unusual in that it the sub sections are not so much species oriented as they are operational orientations the environmentalists are wrong no your honor i'm saying that the opinion is divided into sections but the sections are a bit different then the ordinary biological opinion one of the sections that is discussed in the biological opinion is the south wales improvement program which involves an increased capacity for pumping from the delta in the complaint that was filed in this case the point of sale among other things this is what they're complaining about among other things the proposed changes to the c b p s to give p r operations described in the ok and biological opinions project description would significantly increase water exports from the delta there will be an increase in water exports from the delta that's why we're interested in this case because we are in favor of that it's a project we have indorsed and are on the hook for painful who are the other defendants well i'm not so sure that the other defendants have been involved in which you're then why don't you make sure before you make a i am sure the judge the judge will can was wrong when she in her order denying intervention to us in this case the farm bureau has contractual rights to both c v p and s water wrong farm bureau doesn't have contractual rights to any water the people hold the contractual rights to water we know she's wrong and you're right well there's no support for her determination in the record work for us through either or yes there is we've got declarations that were filed in support of our motion to intervene sir that indicate that we do have contracts for water there are no comparable declarations that were filed for the farm bureau some of their people do have contracts not with the state of california and not for s w p water they have contracts with local water suppliers they don't have contracts for state project water and just truck or you i'm sorry our members do neither do you  members do it and the members that we are authorized to represent through the bylaws that we have to hold those contracts twenty seven of them just track your posts or my eyes that there is at least a settlement possibility is correct we're engaged currently in settlement discussions in another matter with with the in our d c plaintiffs involving the same joaquin river our concern would be that this case not be settled around us by people who have different interests than we do and there is certainly that possibility out there