Supreme Court turns back Delta water challenge

WASHINGTON, D.C.
October 31, 2011 8:16am

The U.S. Supreme Court on Monday refused to take on a case challenging federal rules allocating water n the Sacramento-San Joaquin Delta to save the Delta smelt, a minnow-like fish on the edge of extinction.

Pacific Legal Foundation had tried to get the nation’s highest court to hear their arguments against a 9th U.S. Circuit Court of Appeals decision that had upheld restrictions on pumping of Delta water to farmers and other users south of the Delta in the San Joaquin Valley and Southern California.

PLF contends the appellate court’s decision is an abuse of federal power in violation of the Commerce Clause of the U.S. Constitution that gives Congress exclusive power over trade activities among the states and with foreign countries and Indian tribes.

PLF’s lawsuit said that the federal government had no authority to issue regulations relating to the smelt, because the fish exists only in one state — California — and is not bought or sold in commerce.

“It is disappointing that the Supreme Court chose not to review the federal government’s intrusive and destructive Delta smelt regulations,” says 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.”

However, not everyone is disappointed.

"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," says Earthjustice attorney Trent Orr who defended the smelt’s ESA protections in the various federal courts where the matter was considered.

"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,” Mr. Orr says.

Because many smelt are chopped up when sucked into the giant pumps used by the State Water Project and the federal Central Valley Project, restrictions were ordered on the volume of water pumped in an effort to keep the species viable.

On Dec, 14, 2010, a trial court issued a decision favorable to farmers and other water customers. The trial court held that the Delta smelt biological opinion was invalid, violating the Endangered Species Act and Administrative Procedure Act.

Earlier this year, on March 25, the 9th Circuit Court of Appeals rejected PLF's Commerce Clause challenge to the delta smelt restrictions with the PLF then seeking Supreme Court review, which was denied Monday.