Delta smelt keeps protection as Supreme Court declines to review case

McClatchy NewspapersOctober 31, 2011 

WASHINGTON — Federal protections for California's delta smelt will remain intact, but Western water controversies will keep on boiling, with a Supreme Court decision Monday not to hear farmers' ambitious challenge to a key environmental law.

The court's decision, issued without comment, effectively upholds the conclusion by a Fresno, Calif.-based trial judge and a lower appellate court that the Endangered Species Act can protect even those plants and animals that don't cross state borders.

"I'm not very surprised; I felt this was a very straightforward call," Oliver Wanger, the now-retired federal judge who issued the original ruling, said in an interview Monday. "Every circuit court in the country had previously ruled as we did."

Natural Resources Defense Council attorney Doug Obegi added in an interview that "it's always nice" to get such a straightforward, one-sentence decision.

"It reaffirms that we have the constitutional right to protect wildlife and the local communities that depend on them," Obegi said.

The Supreme Court's decision, though, frustrates farmers who have lost water supplies, as well as non-farmers who had hoped the California case could be used to whittle away at an environmental law they say has grown out of control.

"The delta smelt regulations are far from the only example of federal officials issuing regulations for local species without constitutional authority," declared Brandon Middleton, an attorney with the Sacramento-based Pacific Legal Foundation.

In California, the Pacific Legal Foundation represented Stewart & Jasper Orchards, based in the Stanislaus County town of Newman; King Pistachio Grove, based near Kettleman City in Kings County; and Arroyo Farms, based near Firebaugh in western Fresno County.

Each farm lost irrigation water because of delta smelt protections. The fish, roughly 2 to 3 inches in length, lives in the Sacramento-San Joaquin Delta and is listed as threatened under the Endangered Species Act.

The region's Westlands Water District and other irrigators equally unhappy with environmental protections had likewise challenged the delta smelt protections, but Westlands did not participate in the petition to the Supreme Court.

The endangered species protections remain under legal appeal in several separate cases, and lawmakers allied with the politically powerful water agencies still hope to loosen some of the environmental restrictions.

Underscoring the high stakes, the Metropolitan Water District of Southern California had likewise joined the initial legal challenge against the delta smelt protections. Water and business organizations from outside the state also had urged the Supreme Court to take up the case.

Put another way, the court's decision Monday amounted to a dodged bullet for the Endangered Species Act, which skeptics have tried to constrain for years.

"The law clearly recognizes that all species are important to the web of life, may have benefits to society yet to be discovered, and are fundamentally related to the nation's commerce," Earthjustice attorney Trent Orr said following the court's decision.

The commerce question was central to this case.

The commerce clause of the Constitution grants Congress the power to "regulate commerce ... among the several states." This includes activities that have a "substantial relation" to interstate commerce, but it has limits.

The Supreme Court, for instance, has ruled that the commerce clause gives Congress authority to criminalize marijuana within states, like California, where it's allowed for medicinal purposes. On the other hand, the court ruled Congress went too far with a law banning guns near schools.

Wanger and the 9th U.S. Circuit of Appeals both concluded that even a tiny fish with no commercial value could relate to interstate commerce, with the 9th Circuit stating "the protection of threatened or endangered species implicates economic concerns."

At least four of the Supreme Court's nine justices would have had to agree for the case to be heard.

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9th U.S. Circuit Court of Appeals decision

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