U.S. Supreme Court Allows Delta Smelt Protection to Stand

OAKLAND, California, October 31, 2011 (ENS) – The U.S. Supreme Court came down on the side of conservation groups today by refusing to review a lower court decision that ruled federal protections for delta smelt are constitutional.

In March, the Ninth Circuit Court of Appeals ruled in a challenge to the listing of the delta smelt under the Endangered Species Act brought by the Pacific Legal Foundation.

The PLF is challenging the listing because providing water for smelt survival has resulted in cutbacks to water deliveries for the agricultural San Joaquin Valley and for Southern California.

The PLF challenged the Endangered Species Act listing, claiming it violates the Commerce Clause of the constitution, which addresses interstate commerce. The challenge claimed the Commerce Clause does not apply since delta smelt have no commercial value and are only found in one state – California.

Delta smelt (Photo by Peter Johnsen courtesy USFWS)

The appeals court ruled in favor of the constitutionality of Endangered Species Act intrastate species protection, citing previous cases that demonstrated a connection between protections for endangered species and interstate commerce, including the value of biodiversity as an underpinning of economic enterprises.

Earthjustice, a national non-profit environmental law firm, joined the federal government in the U.S. District Court in Fresno to help defend the protections for the delta smelt.

The district judge agreed that federal protection of the smelt was constitutional, and Pacific Legal Foundation appealed.

Earthjustice attorney Trent Orr, who argued this case at the Ninth Circuit Court of Appeals in defense of smelt protection, today said, “After five lower courts found that it’s in the national interest to preserve all of America’s wildlife, including species that happen to exist only within the confines of a single state, the top court in the land agrees.”

Orr said, “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 fundamental to the nation’s commerce.”

Pacific Legal Foundation attorneys today pledged to continue fighting “unjustified federal restrictions on water deliveries for Central and Southern California and to keep litigating against federal abuses of power in violation of the Constitution’s Commerce Clause.”

“It is disappointing that the Supreme Court chose not to review the federal government’s intrusive and destructive Delta smelt regulations,” said PLF staff attorney Brandon Middleton. “But while we’re disappointed, we’re also determined. The legal fight against those regulations goes on, as PLF is active in other litigation over the federal biological opinions for the Delta smelt and other species.

“Those federal edicts were based on phony science, but their effect has been all too real,” Middleton said. “They’ve caused devastating water cutoffs that put businesses, farms, and communities on the endangered list.”

“We’ll also keep challenging the feds when they arrogantly ignore the constitutional limits on their power,” said Middleton. “The Delta smelt regulations are far from the only example of federal officials issuing regulations for local species without constitutional authority.”

“We will litigate this issue until the Supreme Court ultimately agrees to take it up,” he said. “This is a long-term battle to stop federal intrusion that robs people of their livelihoods and liberties, and undermines the basic framework of the Constitution.”

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