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Smelt Protection Trumps Calif. Farms’ Water Woes

(CN) - Federal protection of the tiny delta smelt, a 3-inch-long fish that inhabits California's Sacramento-San Joaquin Delta Estuary, does not violate the Commerce Clause of the U.S. Constitution, the 9th Circuit ruled Friday.

The threatened fish, a California native that was once used for fishing bait but currently has no commercial value, has been the subject of much controversy of late, blamed by some for drying out the west side of the state's Central Valley.

Delta smelt was first listed by the U.S. Fish and Wildlife Service as a threatened species under the federal Endangered Species Act in 1993. In 2008, the agency issued a biological opinion finding that the operation of the Central Valley Project - which brings water from the state's wetter north to its southern agriculture lands - was contributing to the decline of the species.

The opinion led to a controversial plan to reduce water flows to and in the delta during certain times of the year - a move that three commercial growers from the San Joaquin Valley claimed hurt their operations.

Stewart & Jasper Orchards, Arroyo Farms and King Pistachio Grove, with help from the conservative Pacific Legal Foundation, sued Fish and Wildlife and other agencies under the Commerce Clause. They claimed that the government had no authority to protect the delta smelt because it exists only in California and has no commercial value.

The Commerce Clause allows Congress to regulate interstate commerce and activities that have a "substantial effect" on such commerce. Senior U.S. District Judge Oliver Wanger, after finding that the growers lacked standing to sue the agencies, ruled that the service's protection of the delta smelt was valid under the Commerce Clause.

A three-judge appellate panel in San Francisco agreed but split from the lower court on the growers' standing.

"The protection of threatened or endangered species implicates economic concerns," Judge Sidney Thomas wrote for the panel. "We conclude that the ESA [Endangered Species Act] is 'substantial[ly] relat[ed]' to interstate commerce and, thus, the growers' as applied challenge to ESA ... fails."

In a brief statement on its website Friday, the Pacific Legal Foundation vowed to appeal the decision.

"Although we are disappointed with the decision, we will continue to fight the regulatory drought, and we fully intend to ask the Supreme Court to review the constitutionality of draconian delta smelt regulations," the statement said.

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