CONTACT US Sacramento Office: Fresno Office: Washington Office: 
FIRM PROFILE Somach Simmons & Dunn provides a unique combination of experience in the fields of water, natural resources, environmental, public land, public agency, toxics and hazardous waste, zoning, planning, and land development law. |
 | |
 |
PLF Complaint Alleges That The Delta Smelt Biological Opinion Is Unconstitutional June 9, 2009 by Brian D. Poulsen bpoulsen@somachlaw.com |
|
Introduction On May 21, 2009, the Pacific Legal Foundation (PLF), on behalf of three farms in the San Joaquin Valley, filed a complaint in federal court against the United States Fish & Wildlife Service (Service) challenging the validity of the Service’s December 15, 2008, Biological Opinion on the effects of operating the diversion facilities in the Sacramento-San Joaquin Delta Estuary (Delta) to the threatened delta smelt. The complaint alleges various violations of the Administrative Procedures Act (APA), but more fundamentally, it challenges the constitutionality of the Endangered Species Act’s (ESA) application to purely intrastate species. Such application, PLF asserts, violates the Commerce Clause of the United States Constitution. Given the current state of the case law on this issue, it is possible that this case could reach the United States Supreme Court. Background The delta smelt, Hypomesus transpacificus, is a tiny fish endemic to the Delta. The Service listed the smelt as “threatened” under the ESA in 1993. See 58 Fed. Reg. 12,854 (Mar. 5, 1993). The United States Bureau of Reclamation (Bureau) and the California Department of Water Resources cooperatively divert water from the Delta and convey it through extensive infrastructure to central and southern California. The ESA requires the Bureau to consult with the Service in order to ensure the Bureau’s water diversions do not jeopardize the continued existence of the delta smelt. Such a consultation results in the Service issuing a Biological Opinion (BiOp) regarding the Bureau’s impacts to the delta smelt. In 2005, a coalition of environmental groups filed suit in federal district court alleging that a newly issued BiOp regarding the delta smelt was defective on various grounds. On May 25, 2007, Judge Oliver Wanger invalidated the 2005 BiOp, holding that it did not satisfy requirements of the ESA and the APA. In December of that same year, Judge Wanger entered a remedial order requiring the Service to issue a new BiOp in conformance with applicable regulations. The remedial order simultaneously implemented Delta water flow restrictions designed to protect the delta smelt. On December 15, 2008, the Service issued a new BiOp, which included conditions that have the effect of reducing water deliveries to farmers and urban users in the San Francisco Bay Area and southern California. PLF’s suit challenges the validity of that BiOp. Analysis PLF’s complaint first alleges various violations related to the service’s failure to comply with the ESA in issuing the BiOp. For example, the complaint alleges that the Service failed to explain the scope of the Bureau’s authority and jurisdiction to implement water delivery reductions to protect the delta smelt, or show how the water delivery reductions are economically and technically feasible. The complaint alleges that the Service illegally reserved authority to make decisions on operating the coordinated projects and failed to provide sufficient evidence to support its conclusions regarding entrainment of delta smelt in the project facilities. The complaint also alleges that the Service failed to consider the economic impacts of reducing water deliveries. More fundamentally, however, the complaint alleges that the Service has unconstitutionally applied the ESA to delta smelt since the United States Constitution grants to Congress only the power to regulate “interstate commerce.” See U.S. Const. art. I, § 8. The complaint alleges that, since the delta smelt is endemic to California and has no commercial value in or outside the state, it does not constitute “interstate commerce.” Neither the Ninth Circuit nor the United States Supreme Court has addressed whether application of the ESA to protect purely intrastate species violates the Commerce Clause. But see United States v. Bramble, 103 F.3d 1475 (9th Cir. 1997) (upholding the Eagle Protection Act as constitutional under the Commerce Clause). In fact, within just days of one another, two Circuit Court cases addressed a nearly identical issue. Though reaching the same conclusion, these courts differed significantly in their approaches to the issue. In 2003, the Fifth Circuit upheld application of the ESA to purely intrastate species in GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622, 640-41 (5th Cir. 2003) (GDF Realty). That case dealt with the ESA’s application to restrict a commercial development from impacting certain spider and beetle species found only in subterranean caves located in two Texas counties. The trial court in that case had ruled that, because the ESA was effectively regulating the commercial development, it was a proper exercise of Commerce Clause power since commercial development is directly tied to interstate commerce. Id. at 633. The Circuit court disagreed, however, holding that the ESA regulates the taking of species, not commercial activity. Id. at 634-35. Nevertheless, the court upheld the ESA’s application, notwithstanding the intrastate nature of the species at issue, because the taking of the species at issue, when aggregated with the taking of other threatened or endangered species, could substantially affect interstate commerce. Id. at 644. The D.C. Circuit also upheld the ESA on a Commerce Clause challenge, although on opposite grounds, in Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003) (Rancho Viejo). In Rancho Viejo, the Service sought to restrict a commercial development because of the impact it would likely have to the Arroyo Southwestern Toad, which is endemic to California. Id. at 1065. In complete contrast to GDF Realty, the court in Rancho Viejo ruled that the ESA regulates the activities that will result in the take of endangered species, i.e., the commercial development rather than the take of the endangered species themselves. Id. at 1072. Since the commercial development, rather than the Toad, substantially affected interstate commerce, the court upheld the constitutionality of the ESA in that case. Id. at 1072-73. See also National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (holding that the ESA’s application to a construction project that would impact the Delhi Sands Flower-Loving Fly did not violate the constitution because (1) the loss of biodiversity has a substantial effect on the ecosystem and likewise on interstate commerce, and (2) the protection of the flies regulates and affects commercial development which is plainly interstate). After deciding Rancho Viejo, the D.C. Circuit denied a petition to rehear the case en banc. See Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003). Importantly, however, then-Judge John G. Roberts, now Chief Justice of the United States Supreme Court, dissented from the denial of rehearing en banc. See id. at 1160. In his dissent, Judge Roberts argued that the decision in Rancho Viejo is inconsistent with Supreme Court precedent (citing United States v. Lopez, 514 U.S. 549 (1995)), and the court’s approach conflicted with the approach taken by the Fifth Circuit in GDF Realty. Rancho Viejo, LLC v. Norton, 334 F.3d at 1160. Thus, Judge Roberts argued that rehearing was appropriate. Conclusions and Implications Given that (1) neither the Ninth Circuit nor the Supreme Court has ruled on this issue, (2) Rancho Viejo and GDF Realty conflict in their approaches to the issue, albeit reaching the same ultimate conclusion, and (3) Chief Justice Roberts has previously expressed his view that the ESA’s application to purely intrastate species violates the Commerce Clause, and his preference to rehear the issue, it is possible this case could ultimately make its way to the Supreme Court. In the meantime, the BiOp’s reductions in water deliveries from the Central Valley Project and State Water Project have significantly impacted agricultural operations in central California. A trial court decision in PLF’s favor could result in increased water deliveries, which could have substantial implications for farmers. Moreover, a decision invalidating the ESA’s application to purely intrastate species, especially one rendered by the Supreme Court, or even the Ninth Circuit, would extend far beyond California’s Central Valley. |
