Suit filed challenging smelt restrictions; Group says feds have no authority to oversee the fish

From the Central Valley Business Times:

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.”

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From the Fresno Bee:

The Sacramento-based foundation’s suit also argues that a smelt management plan issued in December — which has resulted in a reduction of water deliveries to west side farmers and urban users in the Bay Area and Southern California — fails to show how the pumping reductions from the Sacramento-San Joaquin Delta would benefit the smelt, and did not take into account the economic effects of the ruling.

The foundation sued both the U.S. Bureau of Reclamation and the state Department of Water Resources. The lawsuit seeks to invalidate the smelt management plan, and asks the federal courts to “retain jurisdiction over this matter until such time as defendants have fully complied with the U.S. Constitution [and] the Endangered Species Act.”

“The federal government is imposing a depression on California’s agriculture industry,” said Pacific Legal Foundation attorney Damien Schiff. He said it is a “policy that puts people behind fish” and is “flat-out unconstitutional.”

But environmentalists say the Pacific Legal Foundation’s arguments are based on legal issues already decided by the nation’s federal courts. “This claim has been considered and rejected by at least four courts that I am aware of, and probably more,” said Greg Loarie, an attorney for the environmental group Earthjustice.

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From Stockton’s Record:

Delta smelt live in this estuary alone, and foundation attorneys said Thursday they believe that even if recovered, the smelt would have no value. It’s a new legal tack in the litigation-swamped Delta, where more than a dozen lawsuits are pending.

Elsewhere, however, about a half-dozen similar endangered-species cases have gone to the courts; in the most recent, a U.S. Circuit Court upheld the feds’ protection of the Alabama sturgeon, said foundation attorney Damien Schiff.

That didn’t stop the foundation from filing suit in the smelt case, advancing its long history of pushing for Endangered Species Act reform. “The courts need to tell (Fish and Wildlife) that it has no business imposing any regulations whatsoever related to the Delta smelt,” attorney Brandon Middleton said.

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