FEDS’ DELTA SMELT WATER-PUMPING RESTRICTIONS ARE UNCONSTITUTIONAL,
SAYS PLF LAWSUIT

Delta smelt exists in only one state, so feds lack authority to regulate, says lawsuit on behalf of farmers; feds’ fish-over-people policy called “immoral and flat-out unconstitutional.”

Fresno, CA; May 21, 2009: The U.S. Fish and Wildlife Service’s devastating cutbacks on water pumping into California’s main water system violate the United States Constitution. So argues a federal lawsuit against the Service filed today by attorneys with Pacific Legal Foundation, on behalf of Central Valley farms that are being starved of water.

The pumping cutbacks, which are idling farmland, causing urban communities to consider rationing, and driving up unemployment in Central Valley rural areas, have been imposed to protect the delta smelt, a small fish designated as “threatened” under the federal Endangered Species Act (ESA). But today’s 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.

Damien M. Schiff PLF Attorney

“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,” said Attorney Damien Schiff. “Big government’s policy of starving farms and communities of water is not just immoral – it is flat-out unconstitutional.”

There’s nothing “interstate” about the delta smelt

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). Today’s lawsuit points out that the delta smelt does not fall into any of those categories.

Brandon M. Middleton PLF Attorney

“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.”

Delta smelt “biological opinion” is unlawful, for statutory as well as constitutional reasons

Filed in Federal District Court in Fresno, today’s lawsuit asks for an injunction against the “biological opinion” on delta smelt protection measures, which the Fish and Wildlife Service issued in December. The opinion’s required measures have the effect of requiring significant cuts in the pumping from the Sacramento-San Joaquin Delta into the aqueduct that serves the Central Valley and tens of millions of urban residents in Southern California.

In addition to the constitutional cause of action, today’s lawsuit also challenges the biological opinion on statutory grounds. The lawsuit points out that, in violation of administrative law, the Fish and Wildlife Service failed to follow its own regulations in developing and issuing the opinion. For instance, it failed to adequately demonstrate (as its own regulations require) that pumping cutbacks would significantly benefit the delta-smelt population; and it failed to balance the economic impacts of the pumping cutbacks.

The plaintiffs: Central Valley farmers

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).

For instance, Stewart & Jasper Orchards, a 60-year-old family-owned farm near Newman, has been allocated only 10 percent of the water called for in its contract with its water district. “If these dramatic cuts in water allocations continue into the future, it will very likely force our family farming business to shut down,” said Jim Jasper, the company’s president.

The complaint: at PLF’s Web site

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