Water cutoff for Delta smelt is unconstitutional

Stewart & Jasper v. Salazar

Contact: Damien M. Schiff

Status: The Ninth Circuit Court of Appeals issued an adverse decision on Mar. 13, 2014.

Jim Jasper, PLF clientIn a misguided scheme to help a fish that’s on the Endangered Species Act list—the delta smelt—federal restrictions have severely cut the pumping into the water system that serves millions of people in Central and Southern California.

These are “the most drastic cuts ever to California water … the biggest impact anywhere, nationwide,” according to the California water agencies.

While farms and businesses are starved of water, more than 81 billion gallons of water have been allowed to flow out to the ocean—off-limits to human use or consumption, thanks to federal regulators’ environmental extremism. That’s enough to put 85,000 acres of farmland back into production.

In the Central Valley, California’s agricultural heartland, thousands of jobs are threatened by the pumping cutbacks. In some urban communities of Southern California, water rationing is a prospect. Moreover, in a real sense, national security is also at issue: By starving America’s breadbasket, the feds make us more dependent on foreign sources for the basic need of life: food.

Representing farmers affected by the water cutbacks, PLF’s federal lawsuit focuses on both statutory and constitutional causes of action:

  • In violation of administrative law, federal officials haven’t fulfilled their duty under their own regulations to show that the water cutoff will actually help the smelt, or to consider and weigh the economic costs.
  • Because the smelt is not sold in interstate commerce, the federal government has no Commerce Clause authority to regulate it. “In other words,” said PLF attorney Damien Schiff, “the regulatory drought is not just morally wrong—it is flat-out unconstitutional.”

On December 14, 2010 the trial court issued a favorable decision. The trial court held that the Delta smelt biological opinion was invalid, violating the Endangered Species Act (ESA) and Administrative Procedure Act (APA).

On March 25, 2011, the Ninth Circuit Court of Appeals rejected PLF's Commerce Clause challenge to the delta smelt restrictions that have resulted in water cutbacks for farmers in the San Joaquin Valley and Southern California. Although the decision is disappointing, the court agreed with PLF's threshold position that we have standing issue to pursue this claim. By giving PLF a clean merits decision, the Ninth Circuit has set this up well for the Supreme Court review.


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