Pacific Legal Foundation Appeals to U.S. Supreme Court Over Water Cutbacks Based on Delta Smelt Biological Opinion
October 1, 2014
On behalf of San Joaquin Valley almond, walnut, and pistachio growers, Pacific Legal Foundation (PLF) filed an appeal TODAY, asking the U.S. Supreme Court to review a Ninth Circuit decision this past March that upheld the Delta smelt “biological opinion” — an Endangered Species Act regulation that has caused devastating water cutbacks in Central and Southern California, worsening the effects of the current drought.
PLF’s petition for certiorari asks the High Court to reconsider — and reverse — the controversial precedent on which the Ninth Circuit relied: the Supreme Court’s 1978 decision in TVA v. Hill, which gives a blank check for onerous species regulations, “whatever the cost.”
PLF’s appeal: Regulators broke their own rules by ignoring economic impacts
Listed as “threatened” under the ESA, the smelt is a three-inch fish in the Sacramento-San Joaquin Delta. In a controversial strategy to help the smelt, regulations under the 2008 “biop” send vast quantities of fresh water directly to the ocean — instead of storing it behind dams or pumping south for use in cities and towns and on farms. However, the smelt hasn’t improved — but the economy has suffered, with even more severe effects as the natural drought has set in.
PLF has been battling the Delta smelt water cutbacks for many years, and once before sought Supreme Court review, in our separate challenge based on the Commerce Clause.
PLF’s current case is based on the fact that the U.S. Fish and Wildlife Service violated its own regulations in drafting the Delta smelt biop. Specifically, the biop’s drafters ignored the potential harms — even though they were supposed to take economic considerations into account.
“Under the U.S. Fish and Wildlife Service’s own rules, officials must consider economic impacts of proposed ESA regulations,” said PLF Principal Attorney Damien Schiff. “But with the smelt biop they bypassed this requirement. We’re asking the Supreme Court to call them out for not making good on their legal duty — and on their duty to the public interest.
“The economic impacts that regulators ignored have been tremendous — and tremendously negative,” Schiff continued. “Even before the drought, pumping restrictions fallowed hundreds of thousands of acres of farmland, contributing to unemployment of 40 percent in some rural communities. In Southern California, we saw what amounts to a Delta smelt tax, with water rates hiked by 17 percent or more in some areas.
“The biop has also worsened the impacts of the drought,” he added. “It reduced the amount of water that was stored when we had ample rainfall and should have been saving for the dry times.”
PLF asks Supreme Court to help drought-stricken Californiaby rejecting the Delta smelt biop — and the “anti-human” TVA v. Hill
In 2010, then-U.S. District Court Judge Oliver W. Wanger, of Fresno, struck down the Delta smelt biop, holding that it had been drafted “arbitrarily and capriciously,” with “sloppy science and uni-directional prescriptions that ignore California’s water needs.”
However, this past March, a divided Ninth Circuit panel reversed Wanger’s order that the biop be rewritten. Although the Ninth Circuit acknowledged that the biop is a “chaotic document,” poorly reasoned and written, the court cited TVA v. Hill in upholding it.
“The Ninth Circuit’s ruling was another example of the anti-human bias of TVA v. Hill and its staggering assertion that species protection takes absolute precedence over all other considerations,” said Schiff. “As California suffers a third year of drought, we are asking the Supreme Court for relief from illegal regulatory cutbacks on water — and from the pernicious judicial precedent that is used to justify them.
“TVA’s indifference to the welfare of human beings was a misreading of the Endangered Species Act from the first, but it’s more incorrect than ever today,” Schiff said. “Ironically, the Ninth Circuit’s decision undercuts Congress’ attempts to temper TVA’s extremism. Congress added a framework to the ESA requiring ‘reasonable and prudent alternative[s]’ when protecting species. The FWS’s rule for considering economic impacts furthers this purpose of bringing balance to the process. Yet the Ninth Circuit has permitted the agency to violate that rule and ignore the devastating impact of water cutbacks on families, farms, businesses, and the California economy.
“In recent years the U.S. Supreme Court has begun to back away from TVA,” Schiff noted. “The Delta smelt case offers the court an opportunity to help drought-scorched California — and to finally overturn this radical and harmful precedent.”
PLF represents Central Valley farmers
In all of PLF’s legal efforts against the Delta smelt regulations, PLF attorneys represent three farms in California’s San Joaquin Valley that have been seriously affected, since 2008, by the water cutbacks: Stewart & Jasper Orchards (an almond and walnut farm); Arroyo Farms (an almond farm); and King Pistachio Grove (a pistachio farm). PLF represents the clients in this case — as in all our cases — free of charge.
Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is a nonprofit public interest watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country. PLF represents all clients free of charge.