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Dan Bacher commentary: Pacific Legal Foundation launches new attack on Delta smelt

Posted by: Maven on May 24, 2009 at 11:02 am

From Dan Bacher at IndyBay.org:

The Pacific Legal Foundation, an organization that represents the wise use movement and property rights activists, has launched a new lawsuit against the Delta smelt, now on the verge of extinction, calling the federal government’s protection of the fish “unconstitutional” and “immoral.”

“The Delta smelt exists in only one state, so feds lack authority to regulate,” according to the attorneys filing the lawsuit on behalf of subsidized growers in the Westlands Water District.

The PLF said the U.S. Constitution’s Commerce Clause limits federal domestic regulatory power to persons, things, or activities involved in, or affecting, interstate commerce (Article I, Section 8) – and claims that their lawsuit points out that the delta smelt does not fall into any of those categories.

“There’s nothing ‘interstate’ about the delta smelt,” said 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.

The attorneys for the suit claim that the “fish-over-people policy” of the U.S. Fish and Wildlife Service is “immoral and flat-out unconstitutional.” 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); Arroyo Farms (an almond farm); and King Pistachio Grove (a pistachio farm).

Read more of Dan Bacher’s commentary by clicking here.

May 24, 2009 · Filed Under Delta Issues, Wildlife & Endangered Species

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