Mar 25: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-15192. Appeal from the United States District Court for the Eastern District of California. The Appeals Court indicates that the appeal addresses whether application of sections 7 and 9 of the Endangered Species Act to the California delta smelt violates the Commerce Clause in the United States Constitution. The Appeals Court concludes that it does not, and it affirms the judgment of the district court.
The delta smelt is a small fish, 60-70 millimeters in length, that is undisputedly endemic to California. The United States Fish and Wildlife Service (Service) listed the delta smelt as a threatened species in 1993 under the Endangered Species Act (ESA) and designated critical habitat for the delta smelt. In 2010, the Service announced that the delta smelt should be re-listed as endangered but that it would forgo re-listing for the time being on account of higher priority listings.
Section 7 of the ESA requires federal agencies to consult with the Service before undertaking any action "authorized, funded, or carried out" by the agency that might "jeopardize the continued existence of any endangered species or threatened species" or might "result in the destruction or adverse modification of habitat" used by any endangered or threatened species. After the consultation, the Service provides the agency with a "biological opinion." If the Service concludes that the proposed action will likely jeopardize the species, then it may suggest "reasonable and prudent alternatives" for agency action that, the Service believes, will not result in violations of the ESA.
In 2008, the Service, acting under ESA § 7, 16 U.S.C. 1536(a)(2), issued a Biological Opinion to the Bureau of Reclamation (Bureau). The Biological Opinion concerned the Bureau's and the California Department of Water Resource's operation of the Central Valley Project and the State Water Project, two of the world's largest water diversion projects. The Biological Opinion concluded that "the coordinated operations of [the water projects], as proposed, are likely to jeopardize the continued existence of the delta smelt" and "adversely modify delta smelt habitat." Stewart & Jasper Orchards, et al (collectively the Growers) sued the Service, claiming that their almond, pistachio, and walnut orchards "experienced substantially reduced water deliveries as a result of the Service's decision to act on behalf of the delta smelt."
The district court denied the Growers' motion and granted the Service's and Environmental Parties' cross-motions. With respect to the issue of standing, the district court first noted that while the Growers' complaint challenges sections "7(a)(2) and 9" of the ESA, the motion for summary judgment "focuses exclusively on the theory that the application of Section 9's take prohibition to the smelt exceeds Congress' authority under the Commerce Clause." Nevertheless, the district court concluded, "[T]here is no dispute that Plaintiffs have standing to bring a section 7 claim." Id. at 931. But the court determined the Growers do not have standing to bring a § 9 claim. Id. at 929-31. It reasoned, "Given that there is no threat of imminent Section 9 enforcement in this case, there is no causal connection between Plaintiffs' injury and the conduct complained of, namely Section 9's application to the coordinated operation of the project."
The Appeals Court concludes that, "The Growers' as-applied Commerce Clause challenge to ESA §§ 7 and 9 fails because the ESA 'bears a substantial relation to commerce.' Gonzales v. Raich, 545 U.S. 1, 17 (2005). . . In summary, the Growers have Article III standing to challenge ESA § 9, and that claim is ripe for review. The district court properly concluded that the Growers' challenge to ESA §§ 7 and 9 fails under the Commerce Clause. We need not and do not reach any other issues urged by the parties."
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