The right-wing majority on the U.S. Supreme Court has been using its muscle to cut back on the power of the Federal Government. In particular, there are concerns that it made invalidate some of the broad authority the government has assumed over the years under the Interstate Commerce Clause of the Constitution.
So it’s encouraging that the Court sided with environmental groups on October 31 by denying appeal of a challenge agribusiness had launched against the Endangered Species Act, using the commerce clause as a wedge. They tried the argument that “the federal government has no authority to issue regulations relating to the smelt, because the three-inch fish exists only in one state — California — and is not bought or sold in commerce.” But it is an indicator species for an entire aquatic system that includes many species that are commercially harvested, including chinook salmon and Dungeness crabs.
Earthjustice attorney Trent Orr, who argued this case at the Ninth Circuit in defense of smelt protections, praised the Supreme Court action.
“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,” said Orr. “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 fundamental to the nation’s commerce.”
In March, the appeals court ruled in favor of the constitutionality of ESA intrastate species protection, citing previous cases that “demonstrated a connection between ESA protections and interstate commerce, including the value of biodiversity as an underpinning of our economic enterprises,” according to Earthjustice.
The Pacific Legal Foundation (PLF), a property rights advocacy organization that represented three San Joaquin Valley growers in the litigation, brought the suit. Brandon M. Middleton, staff attorney for the PLF, said he was “disappointed but determined.”
“It is disappointing that the Supreme Court chose not to review the federal government’s intrusive and destructive Delta smelt regulations,” said 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. Those federal edicts were based on phony science, but their effect has been all too real: They’ve caused devastating water cutoffs that put businesses, farms, and communities on the endangered list,” he claimed.
Fishing groups applauded the denial of the PLF’s appeal. “We are pleased that the Supreme Court decided that the appeal by the Pacific Legal Foundation was clearly meritless litigation that would take up valuable court time,” said Zeke Grader, executive director of the Pacific Coast Federation of Fisherman’s Associations and vice-president of the Golden Gate Salmon Association.
He emphasized, “The Delta smelt is not just is any two inch minnow – it’s a key indicator species for the health of the most valuable estuary on the West Coast of the Americas.”
The Delta smelt’s decline in recent years occurs as part of the Pelagic Organism Decline (POD) of four fish species – Delta smelt, longfin smelt, threadfin shad and young striped bass. State and federal scientists have pinpointed three major factors in the decline – increases in water exports out of the California Delta, increases in toxics, and invasive species. More recently, ammonia discharges from sewage treatment plants have been cited by scientists as a factor in the POD.
The Supreme Court’s denial of the appeal takes place at a time when the state and federal governments are fast-tracking the Bay Delta Conservation Plan (BDCP) to build a peripheral canal or tunnel to export more water to corporate agribusiness and southern California. Delta advocates believe that the construction of the canal would result in the extinction of Central Valley steelhead, Sacramento River chinook salmon, Delta and longfin smelt, Sacramento splittail, green sturgeon and other species.
Earthjustice, a national non-profit environmental law firm, joined the federal government in the United States District Court in Fresno to help defend the protections for the delta smelt. The district judge agreed that federal protection of the smelt was constitutional, and PLF appealed.
For more information, go to: http://www.earthjustice.org