Pacific Legal Foundation Launches New Attack on Delta Smelt

Pacific Legal Foundation Launches New Attack on Delta Smelt

by Dan Bacher

The Pacific Legal Foundation, an organization that represents the wise use movement and property rights activists, has launched a new lawsuit against the Delta smelt, calling the federal government's protection of the imperiled fish "unconstitutional" and "immoral."

"The Delta smelt exists in only one state, so feds lack authority to regulate," according to the attorneys filing the lawsuit on behalf of growers on the west side of the San Joaquin Valley.

The PLF said 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) - and claims that their lawsuit points out that the delta smelt does not fall into any of those categories.

“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.”

“The same is true of the delta smelt as U.S. Chief Justice John Roberts, while on a lower court, wrote about the arroyo toad: it 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,’” said PLF attorney Damien Schiff.

The attorneys for the suit claim that the "fish-over-people policy" of the U.S. Fish and Wildlife Service is “immoral and flat-out unconstitutional.” 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).

“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."

In spite of their spurious contentions, the battle to save the Delta smelt, along with Sacramento River chinook salmon, Central Valley steelhead, longfin smelt, green sturgeon, Sacramento splittail and other Delta fish species, is NOT a "fish versus people" scenario. The smelt, found only in the Delta, has declined to record low population levels in recent years, due to increases in water exports, toxic chemicals and invasive species in the imperiled estuary.

In fact, the conflict, rather than a case of "fish versus people," is a clear case of people employed in the commercial fishing and recreational fishing industries throughout the state and on Delta farms and businesses versus subsidized agribusiness on the west side of the San Joaquin Valley. It is in reality a battle between sustainable fisheries and farms versus keeping in production drainage-impaired, selenium-laced soil in the Westlands Water District, the "Darth Vader" of California water politics.

In fact, California has the highest amount of sales generated by the commercial fishing industry, $9.8 billion, and the most jobs, 47,000, of any state in the nation. California is also third in recreational fishing sales, $1.9 billion sales, and jobs, 23,000, according to NOAA's Fisheries Economics of the United States, 2006 (http://www.st.nmfs.noaa.gov/st5/index.html). Many of these jobs are directly dependent upon the health of the California Delta.

The Delta Protection Commission in 1995 estimated that over 6,000 jobs were directly tied to recreational fishing within the Delta itself, according Barrigan Parrilla, campaign director of Restore the Delta.

Farmworker jobs on the Delta are also directly threatened by water exports to west side agribusiness from the Delta. The 500,000 acres of farmland in the Delta is divided between the five Delta counties (San Joaquin, Solano, Contra Costa, Sacramento, and Yolo).

"A rough estimate from one of the Delta County Agricultural Extension Offices three years ago (before the rise in crop prices) put direct Delta agriculture revenues at $500,000,000 per year," said Parrilla. "A modest multiplier of six (which accounts for money made in subsequent related agricultural industries) would put related Delta agricultural revenues at $ 3 billion annually."

The PLF's claim that "there’s nothing ‘interstate’ about the delta smelt" and the smelt doesn't deserve federal protection is also completely false since Delta farmers and farmworkers and working fishermen and women do engage in interstate commerce - and their future is directly tied to the survival of the smelt!

The smelt, now under attack by the California Department of Water Resources and corporate agribusiness, is a key indicator species that demonstrates the health of the Bay-Delta ecosystem, although it has no commercial value itself. An environment where Delta smelt and Chinook salmon can longer exist in, due to massive water exports to Westlands and toxic drainage back into the San Joaquin River, is an environment where humans can longer survive. When the Delta smelt and salmon disappear, people will soon be next.

Those that claim that the Delta smelt's survival is not important are in denial of the vital role that indicator species play in the ecosystem. An ecosystem with water not fit for Delta smelt is also one that is no longer fit for people!

Pacific Legal Foundation describes itself as "the oldest and most successful public interest legal organization that fights for limited government, property rights, individual rights and a balanced approach to environmental protection." However, there is nothing "balanced" in their approach to "protecting" the Delta smelt and ecosystem and the thousands of jobs that depend upon a healthy Delta, since they are siding with San Joaquin Valley agribusiness against the interests of Delta farmers, Delta residents, recreational anglers, commercial fishermen and the Winnemem Wintu and other California Indian Tribes.

It is my hypothesis that the economic benefits of restoring the Delta and Central Valley fish populations far outweigh those of keeping in production land that should have never been irrigated. However, the Governor's Delta Vision and Delta Conservation Plan, as well as the Bechtel-funded PPIC report that recommended the construction of a peripheral canal to supply subsidized agribusiness with over-allocated water, have refused to do economic cost-benefits of analysis of keeping Westlands in production versus retiring the land and reallocating the water to fish and the environment.

An in-depth, truly independent analysis of the costs and benefits of continuing to irrigate drainage-impaired land versus reallocating the land and water to fish and the environment is desperately needed before the state of California begins planning the building of a peripheral canal and more dams to export even more water to Westlands and southern California.

Meanwhile, Mike Taugher, a well-respected investigative journalist, wrote a ground-breaking series of articles led by the feature, "Pumping Water and Cash from the Delta," in the Contra Costa Times on May 24. The articles detail how San Joaquin Valley agribusiness corporations are making big money off water pumped out of the Delta that they sell back to the taxpayers.

"As the West Coast's largest estuary plunged to the brink of collapse from 2000 to 2007, state water officials pumped unprecedented amounts of water out of the Delta only to effectively buy some of it back at taxpayer expense for a failed environmental protection plan, a MediaNews investigation has found," wrote Taugher. "The 'environmental water account' set up in 2000 to improve the Delta ecosystem spent nearly $200 million mostly to benefit water users while also creating a cash stream for private landowners and water agencies in the Bakersfield area."

"These articles highlight why folks down in the valley could care less about the Delta ecosystem or those that depend on a healthy Delta," commented Roger Mammon, from the California Striped Bass Association's West Delta Chapter and Restore the Delta, after reading the series. "They are getting rich off our water!"

"It is past time for those who care about the Delta to become outraged and fight back," said Mammon. "You can start by joining Restore The Delta, http://www.restorethedelta.org, and if you are already a member and haven't renewed, do so now."

Here are the links to Sunday's article. A second report is coming out on Monday:
http://www.contracostatimes.com/top-stories/ci_12439808
http://www.contracostatimes.com/top-stories/ci_12437335
http://www.contracostatimes.com/top-stories/ci_12437097
http://www.contracostatimes.com/top-stories/ci_12437262


Here's the PLF's press release:

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.

“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.

“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.”

“The same is true of the delta smelt as U.S. Chief Justice John Roberts, while on a lower court, wrote about the arroyo toad: it 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,’” said PLF attorney Damien Schiff.

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

The case is Stewart & Jasper Orchards, et. al. v. Salazar. Read the complaint and background material at http://www.pacificlegal.org.


PLF: Nationally renowned watchdog for property rights

Pacific Legal Foundation is the nation’s 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, including comments by former U.S. Attorney General Edwin J. Meese III, can be viewed at http://www.youtube.com/watch?v=HnBSlRQwxKU.