Suit filed challenging smelt restrictions

FRESNO
May 21, 2009 12:09pm

The U.S. Fish and Wildlife Service’s cutbacks on water pumping into California’s main water system violate the United States Constitution, contends a lawsuit filed in U.S. District Court in Fresno on Thursday.

The lawsuit was filed by Pacific Legal Foundation on behalf of Central Valley farms that the suit says are being “starved” of water.

The pumping cutbacks are designed to protect the delta smelt, a minnow-like fish designated as “threatened” under the federal Endangered Species Act (ESA).

But the lawsuit says the federal government has no constitutional authority to put the delta smelt on an ESA list, and therefore the Fish and Wildlife Service is barred from ordering pumping cutbacks to manage or “protect” smelt populations.

“Federal regulators are turning a recession into a depression for many agricultural communities by embracing an extremist agenda that puts fish before the well-being of millions of people,” says Damien Schiff, one of the attorneys filing the suit. “Big government’s policy of starving farms and communities of water is not just immoral – it is flat-out unconstitutional.”

The heart of the lawsuit argues that the delta smelt is found only in California and no other state. It says the U.S. Constitution’s Commerce Clause limits federal domestic regulatory power to persons, things, or activities involved in, or affecting, interstate commerce.

“There’s nothing ‘interstate’ about the delta smelt,” says PLF attorney Brandon Middleton. “The Fish and Wildlife Service admits that this fish is found only in California. The Service also admits that it has no commercial value – nobody buys or sells this fish. The courts need to tell the Service it has no business imposing any regulations whatsoever related to the delta smelt – let alone extreme water cutoffs that are creating a crisis in California and could threaten the nation’s food supply.”

“The same is true of the delta smelt as U.S. Chief Justice John Roberts, while on a lower court, wrote about the arroyo toad: It is ‘not a channel of commerce nor is it in one. It is not an instrumentality of commerce, nor is it a person or thing in interstate commerce,’” said PLF attorney Damien Schiff.

Filed in Federal District Court in Fresno, the lawsuit asks for an injunction against the “biological opinion” on delta smelt protection measures, which the Fish and Wildlife Service issued in December. The opinion’s required measures have the effect of requiring significant cuts in the pumping from the Sacramento-San Joaquin Delta into the aqueduct that serves the Central Valley and millions of urban residents in Southern California.

In addition to the constitutional cause of action, the lawsuit also challenges the biological opinion on statutory grounds. It argues that the Fish and Wildlife Service failed to follow its own regulations in developing and issuing the opinion.

For instance, it failed to adequately demonstrate (as its own regulations require) that pumping cutbacks would significantly benefit the delta-smelt population; and it failed to balance the economic impacts of the pumping cutbacks.

PLF attorneys represent three farms in California’s Central Valley that have been impacted by the water cutbacks ordered by the Fish and Wildlife Service: Stewart & Jasper Orchards, an almond and walnut farm near Newman; Arroyo Farms (an almond farm); and King Pistachio Grove (a pistachio farm).