| 
PLF asks Ninth Circuit to strike down Delta smelt regulations that worsen drought
SACRAMENTO, CA; January 25, 2010: In an appeal filed today by attorneys with Pacific Legal Foundation, the U.S. Ninth Circuit Court of Appeals is being asked to strike down federal Delta smelt regulations that have led to devastating cutbacks on water pumping from the Delta to the San Joaquin Valley and Southern California. The pumping reductions amount to a "regulatory drought" that exacerbates the water shortages that are already plaguing much of the state, according to PLF. The case is Stewart & Jasper Orchards, et. al. v. Salazar.
Damien M. Schiff
PLF Attorney
Brandon M. Middleton
PLF Attorney | Pacific Legal Foundation is the nation’s leading litigator for property rights and a balanced approach to environmental regulations. In the Delta smelt litigation, PLF attorneys represent three San Joaquin Valley farmers who have been hard hit by the water cutbacks caused by federal Delta smelt regulations.
The pumping cutbacks, which are idling farmland, driving up unemployment, reducing our safe food supply, and raising water rates, have been imposed as part of a plan to help the Delta smelt, which is designated as "threatened" under the federal Endangered Species Act (ESA). But PLF’s lawsuit says the federal government had no constitutional authority to put the Delta smelt on the ESA list, and therefore federal officials are barred from ordering pumping cutbacks as part of a regulatory scheme for the Delta smelt.
"We are asking the Ninth Circuit to put the brakes on out-of-control federal bureaucracies that are depriving farms and communities of the most vital resource – water," said PLF Attorney Damien Schiff. "The court should reassert basic constitutional restraints on federal power. The Delta smelt has no role in interstate commerce, so federal regulators have no authority to issue any edicts about the Delta smelt, let alone draconian water-pumping reductions that threaten our economy and our food security."
Why the pumping cutbacks are unconstitutional: The feds lack Commerce Clause authority
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). PLF’s lawsuit, filed in federal district court last May and now appealed to the Ninth Circuit Court of Appeals, points out that the Delta smelt does not fall into any of those categories.
"The Delta smelt is not an interstate species," said PLF attorney Brandon Middleton. "It exists only in California. Likewise, it is not a commercial species. Nobody buys it or sells it. For these reasons, federal officials are exceeding their constitutional authority by imposing regulations for the Delta smelt."
Filed originally in federal District Court in Fresno, in May, 2009, PLF’s lawsuit asks for an injunction against the "biological opinion" and its Delta smelt protection measures, which the United States Fish and Wildlife Service issued in December, 2008. It is this biological opinion that resulted in cutbacks in water pumping to the San Joaquin Valley and Southern California.
Fresno-based Federal Judge Oliver Wanger found against PLF’s constitutional cause of action, issuing a final judgment on December 30, 2009. "We are appealing to the Ninth Circuit because the water cutoffs are so devastating to farm workers, and our food supply – and the federal regulatory abuses are equally devastating to constitutional principles of limited government," said Middleton. "If the courts are going to enforce the Constitution’s limits on federal power, then a good place to start – a necessary place to start – is to stop federal regulators from exceeding their power by imposing Delta smelt regulations that starve California farms and communities of water."
NRC meeting in Davis this week
This week, a National Research Council committee meets in Davis, California, as part of NRC’s review of scientific questions concerning the Delta smelt biological opinion and a separate biological opinion on Chinook salmon, steelhead, green sturgeon, and killer whales. "A rigorous scientific review of these biological opinions is welcome and necessary, because they are imposing ruinous water cutbacks on farmers, businesses, and communities," said PLF’s Damien Schiff. "However, our lawsuit argues that the Delta smelt ‘bio-op’ should not have been issued in the first place, because federal officials did not have constitutional authority to issue Delta smelt regulations."
The plaintiffs: San Joaquin Valley farmers
In the Delta smelt litigation, PLF attorneys represent three farms in the San Joaquin 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).
For instance, last year, Stewart & Jasper Orchards, a 60-year-old family-owned farm near Newman, was allocated only 10 percent of the water called for in its contract with its water district. "If these dramatic cuts in water continue into the future, it will very likely force our family farming business to shut down," said Jim Jasper, Stewart & Jasper Orchards’ owner-manager.
"I am grateful to PLF for moving forward with this litigation against unreasonable water cutbacks that are doing such damage in a region that is America’s breadbasket," said Larry Easterling, administrator and part owner of King Pistachio Grove.
The complaint: at PLF’s Web site
The case is Stewart & Jasper Orchards, et. al. v. Salazar. Read the complaint and background materials.
PLF: Nationally renowned watchdog for property rights
Pacific Legal Foundation is the leading public interest legal organization that litigates for limited government, property rights, and a balanced approach to environmental regulations, in courts across the country. Among PLF’s noteworthy victories: The federal court ruling that led to the bald eagle being removed from the ESA list. A brief video about PLF’s history and mission includes comments by former United States Attorney General Edwin J. Meese III.
|
|