Supreme Court asked to hear challenge to Delta smelt water-pumping restrictions
Fresno, CA; June 24, 2011: Attorneys with Pacific Legal Foundation announced today that they have just petitioned the U.S. Supreme Court to hear their constitutional challenge to the federal government’s Delta smelt regulations that have led to devastating water-delivery restrictions throughout two-thirds of California.
The Delta smelt is a three-inch fish in the Sacramento-San Joaquin Delta that has been declining for many years. Federal Endangered Species Act regulations haven’t halted the smelt’s decline, but they have crippled the San Joaquin Valley’s agricultural economy over the past three years by dramatically reducing water pumping from the Sacramento-San Joaquin Delta into the Valley and Southern California.
“With heavy snow and rain, Mother Nature’s drought is over. But Uncle Sam’s regulatory drought continues,” said PLF staff attorney Brandon Middleton. “The farm economy has rebounded from the low point during the natural drought. But even now, federal regulations for the Delta smelt keep San Joaquin Valley farmers and communities from getting their full, contracted allocation of water. On behalf of our clients — three farms in the San Joaquin Valley — we’re asking the U.S. Supreme Court to step in and stop the regulatory drought by striking down the unconstitutional Delta smelt regulations.”
Federal Delta smelt regulations are unconstitutional, under the Commerce Clause
PLF attorneys filed this lawsuit two years ago in Federal District Court in Fresno, and they are petitioning the Supreme Court after an adverse ruling from the Ninth Circuit Court of Appeals this spring.
“The Delta smelt water cutbacks aren’t just bad for the economy and ineffective at helping the fish,” said Middleton. “The point of our lawsuit is that they are flat-out unconstitutional.”
The Constitution’s Commerce Clause (Article I, Sect. 8) limits federal regulatory power to persons, things, or activities involved in, or affecting, interstate commerce. PLF’s lawsuit points out that the Delta smelt does not fall into any of those categories — it exists only in California and is not a commercial product.
The Ninth Circuit’s Delta smelt ruling embraces unlimited federal
power — so PLF is petitioning the Supreme Court
“The Commerce Clause limits federal regulation to interstate commerce,” Middleton said. “But the Delta smelt isn’t an interstate fish — it exists only in California. And it isn’t commercial — nobody buys it or sells it. Therefore, under a faithful reading of the Constitution, the federal government has no authority to put the Delta smelt on the Endangered Species Act list. It has no authority to issue any regulations at all that focus on the Delta smelt, let alone mandatory water cutbacks that have dealt a crippling blow to California’s farm economy over the past few years.”
In ruling against PLF’s lawsuit and upholding the water cutbacks, the Ninth Circuit implied that any regulation that could somehow be said to have a “substantial relation” to interstate commerce is constitutional. “That was a deeply disturbing ruling,” Middleton continued. “The Ninth Circuit was essentially saying there is no limit on the federal government’s regulatory authority. If a regulation is valid simply because it might have some hypothetical tie to interstate commerce — as opposed to a clear, definable connection — there’s no stopping point, no restraint on what the national government can do.
“From the moment that we filed this lawsuit, we always knew that we might ultimately have to seek review by the nation’s highest court,” said Middleton. “After all, we’re presenting constitutional arguments of the most fundamental kind. Our fight is to end the prospect of regulatory drought in California’s Central Valley, but it is also for larger stakes. We’re asking the Supreme Court to take this case and reaffirm the boundaries that the Commerce Clause imposes on the reach of federal power. We’re asking the Supreme Court to enforce core constitutional limits on the power of federal bureaucrats to intrude into people’s lives and take away people’s freedoms.
“We take encouragement from the fact that the current chief justice, John Roberts, while on the U.S. Court of Appeals for the D.C. Circuit, sided with a minority of that circuit’s judges who wanted to hear a similar constitutional challenge to dubious ESA regulations,” Middleton said. That case involved the Arroyo toad. Roberts argued that because this particular toad was confined to California, it was under state authority, not federal authority. He observed: “The Arroyo toad is not a channel of commerce nor is it in one. It is not an instrumentality of commerce, nor is it a person or thing in interstate commerce.”
The impact of the water restrictions: then and now
At the height of the natural drought over the past several years, the federal water-pumping restrictions had a devastating effect on the San Joaquin Valley’s agricultural economy. In the area served by the Westlands Water District alone, an estimated 200,000 acres of farmland were fallowed because of irrigation cutbacks, and steep job losses occurred up and down the San Joaquin Valley, with unemployment reaching 40 percent in some communities.
“Even with the natural drought over, the misguided fish-before-people regulations still cause headaches and hardships,” said Middleton. “Farming requires long-term planning, but farmers haven’t been able to plan with confidence because of the federal government’s arbitrary and unpredictable water policies. As late as March, when the Sierra snow packs were the deepest in years, farmers in the federal water system were still being told they would receive only 60 percent of their contracted water allocation. That figure rose by May, but that was much later than farmers needed to do the most effective planning.”
Indeed, a May 2 press release from the California Department of Water Resources made it clear that federal environmental regulations are still putting restrictions on what water users can get. The release said a 100 percent allocation is “difficult to achieve even in wet years due to [water] pumping restrictions” for ESA-protected fish.
“As long as the Delta smelt stays on the federal government’s ESA list, and pumping cutbacks are part of the federal government’s regulatory repertoire, we could return to dust-bowl conditions when we next have a shortage of snow and rain,” said Middleton.
The petitioners: Central Valley farmers
PLF attorneys represent three farms in California’s Central 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).
For instance, during the height of the drought in 2009, 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.
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.