High Court declines smelt case, but PLF's "save our water" fight continues

Sacramento, CA; October 31, 2011: Pacific Legal Foundation attorneys promised today to continue fighting unjustified federal restrictions on water deliveries for Central and Southern California — and to keep litigating against federal abuses of power in violation of the Constitution's Commerce Clause — after the U.S. Supreme Court announced that it will not hear PLF's constitutionally based challenge to federal Delta smelt regulations.

Those regulations have caused draconian cutbacks to water deliveries for the agricultural San Joaquin Valley and for Southern California. PLF's lawsuit said 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.

PLF's response to Supreme Court's announcement: "disappointed but determined"

Brandon M. Middleton Staff Attorney

"It is disappointing that the Supreme Court chose not to review the federal government's intrusive and destructive Delta smelt regulations," said PLF staff attorney Brandon M. 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."

"We'll also keep challenging the feds when they arrogantly ignore the constitutional limits on their power," said Middleton. "The Delta smelt regulations are far from the only example of federal officials issuing regulations for local species without constitutional authority. We will litigate this issue until the Supreme Court ultimately agrees to take it up. This is a long-term battle to stop federal intrusion that robs people of their livelihoods and liberties, and undermines the basic framework of the Constitution."

Notably, Commerce Clause limitations on federal power are also at issue in challenges to the new federal health-insurance mandate. PLF attorneys represent a small-business owner in one challenge, and PLF is amicus in support of several lawsuits that have reached the court of appeals stage.

"As with our Delta smelt lawsuit, our litigation against the health-care mandate asks whether the Commerce Clause imposes real restrictions on federal regulations, or whether the Founders' vision of limited government has been abandoned," said Middleton.

Commerce Clause limits are about individual liberty, not just federalism

The U.S. Constitution's Commerce Clause grants Congress only the power to "regulate Commerce . . . . among the several States." (Article I, Section 8).

"When a species falls outside the scope of interstate commerce, the state, not the federal government, has the job of protecting it, if it needs protection," said Middleton. "State environmental officials are fully up to the job of protecting species and the environment. For federal regulators to try to regulate local species is unjustified and, most important, unconstitutional.

"Principles of federalism exist to safeguard liberty, so when federal officials defy them, all our freedoms are less secure," Middleton continued. "This is why PLF will continue to litigate, wherever we have an opportunity, to enforce Commerce Clause limits on federal power."

The impact of the water restrictions: then and now

At the height of California's natural drought over the past several years, federal Delta smelt regulations exacerbated the state's water woes. Due to the cutbacks in water deliveries caused by the Delta smelt regulations, crops were destroyed, land was fallowed, and jobs disappeared throughout the San Joaquin Valley. And in a time of economic distress, water rates in Southern California increased by as much as 20 percent, creating in effect a "Delta smelt tax."

"California's water conditions have improved this year, but the harsh consequences of a regulatory drought are just around the corner if we don't stop the extreme regulations coming out of the U.S. Fish and Wildlife Service," said Middleton. "So, PLF is not going anywhere: We'll continue to fight the feds' fish-before-people regulations."

The petitioners: Central Valley farmers

In all of PLF's legal efforts against the federal Delta smelt regulations, PLF attorneys represent three farms in California's San Joaquin Valley that have been seriously injured 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).

The petition for certiorari: at PLF's Website

The case that was petitioned to the U.S. Supreme Court is Stewart & Jasper Orchards v. Salazar.

Pacific Legal Foundation: Nationally renowned watchdog for property rights

Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is the nation's leading watchdog that litigates for limited government, property rights, free enterprise, 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.

PLF attorneys are currently in front of the U.S. Supreme Court in a landmark challenge to federal power: Sackett v. EPA. Oral argument in that case is expected to take place early in 2012.