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Analysis: Pacific Legal Foundation complaint alleges that the Delta smelt biological opinion is unconstitutional

Posted by: Aqua Blog Maven on June 10, 2009 at 7:26 am

From Brian D. Poulsen of Somach, Simmons & Dunn:

Introduction

On May 21, 2009, the Pacific Legal Foundation (PLF), on behalf of three farms in the San Joaquin Valley, filed a complaint in federal court against the United States Fish & Wildlife Service (Service) challenging the validity of the Service’s December 15, 2008, Biological Opinion on the effects of operating the diversion facilities in the Sacramento-San Joaquin Delta Estuary (Delta) to the threatened delta smelt. The complaint alleges various violations of the Administrative Procedures Act (APA), but more fundamentally, it challenges the constitutionality of the Endangered Species Act’s (ESA) application to purely intrastate species. Such application, PLF asserts, violates the Commerce Clause of the United States Constitution. Given the current state of the case law on this issue, it is possible that this case could reach the United States Supreme Court.

Background

The delta smelt, Hypomesus transpacificus, is a tiny fish endemic to the Delta. The Service listed the smelt as “threatened” under the ESA in 1993. See 58 Fed. Reg. 12,854 (Mar. 5, 1993). The United States Bureau of Reclamation (Bureau) and the California Department of Water Resources cooperatively divert water from the Delta and convey it through extensive infrastructure to central and southern California. The ESA requires the Bureau to consult with the Service in order to ensure the Bureau’s water diversions do not jeopardize the continued existence of the delta smelt. Such a consultation results in the Service issuing a Biological Opinion (BiOp) regarding the Bureau’s impacts to the delta smelt.

Could this case make it all the way to the Supreme Court? More background and analysis from Brian D. Poulsen of Somach, Simmons and Dunn by clicking here.

June 10, 2009 · Filed Under Delta smelt, Judge Wanger delta smelt ruling

Comments

One Response to “Analysis: Pacific Legal Foundation complaint alleges that the Delta smelt biological opinion is unconstitutional”

  1. dfb on June 10th, 2009 4:42 pm

    The analysis and PLF’s constitutional arguments are weak. The delta smelt does not make a good case to challenge constitutionality of the Endangered Species Act (ESA). First, operation of the CVP is federal action. There are no constitutional issues when the federal government chooses to regulate itself. Second, the delta smelt is found entirely within interstate waters, which Congress has the power to regulate under the Commerce clause.

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