Supreme Court declines to hear PLF’s challenge to Delta smelt “biop”

Washington, D.C.; January 12, 2015: The U.S. Supreme Court announced TODAY that it will not hear Pacific Legal Foundation’s (PLF’s) challenge to the Delta smelt “biological opinion,” a harsh and unjustified Endangered Species Act (ESA) regulation that has led to dramatic water cutbacks for tens of millions of people — including thousands of farms and businesses — in Central and Southern California.

In appealing the case — Stewart & Jasper Orchards v. Jewell — to the Supreme Court, PLF represented San Joaquin Valley farmers who grow almonds, walnuts, and pistachios, and who have been hit hard by the water cutbacks mandated by the Delta smelt “biop.” PLF represents these clients — as with all PLF clients — without charge.

Statement by PLF Director of Litigation James S. Burling

“We are disappointed that the Court declined to review the federal government’s damaging and unjustified Delta smelt regulations,” said James S. Burling, PLF’s Director of Litigation. “These regulations have harmed farmers and farm workers in the Central Valley, along with tens of millions of Southern Californians, by diverting vast quantities of water away from human use and out to the Pacific Ocean — all to try to improve the habitat of the Delta smelt, a three-inch fish on the Endangered Species Act list. As a result, hundreds of thousands of acres of once-productive farmland have been idled, farm workers have lost their jobs, and farmers are losing their farms. Water users in Southern California have seen rates rise significantly. And the impacts of the state’s record-level drought have been much worse.

“The feds broke their own rules when they concocted these destructive Endangered Species Act regulations, because they ignored the punishing economic impact,” Burling continued. “And the Ninth Circuit was wrong to uphold the water cutbacks, because it relied on an old interpretation of the ESA that gave short shrift to the interests of human beings. If that anti-human interpretation — in the 1978 Supreme Court case of TVA v. Hill — was ever correct, it is obsolete now, after subsequent changes in the ESA. It is high time to formally reverse that ruling.”

“Unfortunately, the High Court will not hear the challenge to the Delta smelt water cutoffs,” Burling said. “But Pacific Legal Foundation is not giving up. We will return again and again to ask the Court to review — and reverse — the perverse and outmoded TVA precedent that is being used to justify policies that are literally anti-human. The protection of imperiled species is important, but so is the protection of jobs and the economy. PLF will continue to fight for that principle until it is fully embraced by the courts and fully implemented by the bureaucracy.”

PLF’s argument: Delta Smelt Regulators Wrongly Ignored 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, federal regulations under the 2008 “biop” sent vast quantities of water to the ocean — instead of storing it behind dams or pumping south for cities, towns, and farms. However, the smelt hasn’t improved — but the economy has suffered, and the effects of the drought have been made worse.

PLF’s legal challenge was based on the fact that the U.S. Fish and Wildlife Service violated its own regulations in drafting the Delta smelt biop. The agency ignored the potential harms — even though it was supposed to take economic considerations into account. “The economic impacts have been devastating,” noted Burling. “Pumping restrictions have fallowed hundreds of thousands of acres of farmland, and Southern Californians have seen water rates rise by as much as 20 percent. And once the drought set in, the impacts were more severe because of the Delta smelt regulations. By sending vast amounts of water directly to the ocean, the smelt regulations meant there was less water saved in reservoirs for the dry times.”

PLF’s case asked the Supreme Court to help drought-stricken California
by rejecting the Delta smelt biop — and reversing 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 upheld it by citing TVA v. Hill, a controversial 1978 Supreme Court ruling.

TVA v. Hill interpreted the ESA as giving a blank check for onerous species-protection regulations, “whatever the cost” for the interests of human beings. “TVA was always an extreme reading of the ESA,” said Burling. “But it is clearly obsolete now. After TVA, Congress made it crystal clear that regulators must take a balanced approach to ESA regulations, by requiring that any species-protection rules to restrict government projects must be ‘reasonable and prudent.’ The Supreme Court needs to reconsider TVA’s outdated perspective. Unfortunately, the justices declined to use the Delta smelt case as an opportunity to do so. But PLF will continue to litigate, on various fronts, until TVA is reconsidered, and the courts insist on balance and common sense in ESA regulations.”

PLF represents Central Valley farmers

In challenging the Delta smelt biop, PLF attorneys represented 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.

The case is Stewart & Jasper Orchards v. Jewell. PLF’s petition for certiorari, a video, and a podcast are available at: www.pacificlegal.org.

About Pacific Legal Foundation

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.

Patrick Cavanaugh2016-05-31T19:30:34-07:00January 13th, 2015|

California Water Cutbacks Are Not Saving Delta Smelt

U.S. Supreme Court to rule on ESA-mandated water curtailments to protect Delta Smelt regardless of the cost to humans and economy

A summary of the California Department of Fish and Wildlife (CDFW) Fall Midwater Trawl Survey (FMWT) reports the lowest index for Delta Smelt in the 48-year history of this survey. The FMWT is mandated by the Delta Smelt Biological Opinion for the coordinated operation of the Central Valley Project and the State Water Project.

Jason Peltier, Chief Deputy General Manager of the Westlands Water District, sees these results as the “latest evidence of a failed regulatory regime.”

The memorandum, sent from Steven Slater, CDFW Environmental Scientist, Region 3, to Scott Wilson, CDFW Regional Manager, Region 3, describes the Survey which annually measures the fall abundance of pelagic fish—fish which live neither near the bottom of oceans or lakes, nor near the surface, such as ocean coral reefs—since 1967. FMWT equipment and methods have remained consistent since the survey’s inception, which allows the indices to be compared across time.

According to the Memorandum, the FMWT annual abundance index is the sum of monthly indices from surveys conducted over the four months from September through December each year. During each monthly survey, one 12-minute oblique midwater trawl tow is conducted at each of 100 index stations used for index calculation and at an additional 22 non-index stations that provide enhanced distribution information.

The 2014 Delta Smelt index is 9, making it the lowest index in FMWT history. Delta Smelt abundance was highest in 1970 and has been consistently low since 2003, except in 2011.

Other fish also scored poorly. The 2014 age-0 Striped Bass index is 59, making it the third lowest index in FMWT history. Age-0 Striped Bass abundance was highest at the survey’s inception in 1967. The 2014 Longfin Smelt index is 16, making it the second lowest index in FMWT history. Longfin Smelt abundance was highest in 1967. The 2014 Threadfin Shad index is 282, which is the sixth lowest in FMWT history and the seventh in a series of very low abundance indices. Threadfin Shad abundance was highest in 1997. The 2014 American Shad index is 278, which is the second lowest in FMWT history and only slightly higher than the 2008 index of 271. American Shad abundance was highest in 2003. (Figures 2 through 6, below, illustrate these indices.)

In, “Delta smelt legal battle heads to Supreme Court,” published Wednesday in the LA Times, reporter David Savage, stated, “The delta smelt may be a small fish with a short life, but it has spawned a decades-long legal battle over water in California. At issue has been a series of orders under the Endangered Species Act that at times reduce water deliveries from the Sacramento-San Joaquin River Delta to San Joaquin Valley growers and urban Southern California.”

Citing the severe state drought, the article reports that the Metropolitan Water District of Southern California attorneys are asking the U.S. Supreme Court to reconsider a strict federal rule from the 1970s that calls for curtailing the water diversions to protect the threatened delta smelt and other imperiled species regardless of the cost to humans and the economy.”

Lawyers for the Natural Resources Defense Council (NRDC) and U.S. Solicitor Gen. Donald Verrilli Jr. urged the court to turn down the appeals, the article states, saying the 9th Circuit was correct in saying Fish and Wildlife officials must take reasonable steps to protect an endangered species, regardless of the economic effect.

Kate Poole, an NRDC attorney, said the water agencies have “a long history of exaggerating the impacts “of protecting endangered fish in the delta, including Chinook salmon,” per the LA Times. “The underlying problem in California is that our demand for water consistently exceeds our supply, even in non-drought years,” she said. “Wiping out our native fisheries will not solve this problem.”

In response to the NRDC comments, the California Farm Water Coalition electronically published the following Today:

Kate Poole’s remarks, that farmers have exaggerated the impacts of ESA-based water supply cuts, would be insulting to the thousands of farmers, farmworkers, and local business owners who face not just bankruptcy, but the loss of their way of life. Hundreds of thousands of acres of farmland have been permanently fallowed. Farmers have switched to higher value crops to justify higher costs for reduced water supplies. Farmworkers have moved away, seeking employment because of job losses in communities like Firebaugh, Mendota and Huron.”

Communities were developed on the faith that was placed in the federal government to keep its promise to deliver reliable supplies of water through the Delta. While the impacts of reduced water supplies seem insignificant to the lobbyists and lawyers from the kinds of powerful environmental organizations represented by Poole, for those whose very livelihoods are dependent on this water it is a constant struggle.

Patrick Cavanaugh2016-08-03T21:02:07-07:00January 9th, 2015|

Pacific Legal Foundation Appeals to U.S. Supreme Court Over Water Cutbacks Based on Delta Smelt Biological Opinion

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.

Damien M. Schiff, Principal Attorney, Pacific Legal Foundation’s National Litigation Center

“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.

The case is Stewart & Jasper Orchards v. Jewell. PLF’s petition for certiorari, a video, a blog post, and a podcast, are available at: www.pacificlegal.org.

About Pacific Legal Foundation

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.

Patrick Cavanaugh2018-04-23T12:23:43-07:00October 1st, 2014|

Central SJV Growers Frustrated Re: 100% Water Allocations in Northern California

Cannon Michael: There is a Complete Lack of Common Sense

Water Allocations Unfairly Distribute Suffering in the Central Valley

Feather River growers in Northern California have 100 percent water allocations and it’s very frustrating to Central Valley Farmers.

“True, it’s a drought year but there have been opportunities to get water south of the Delta that have been completely blown by mismanagement, over-regulation, a complete lack of common sense, and lack of understanding what the real needs are,” said Cannon Michael, a 6^th generation California farmer in Merced County.

“The California Water Resources Control Board, and the Bureau of Reclamation have sent more than 1.8 million acre feet of water out the Golden Gate only for a possible need for fish. When you have such a dramatic need for humans, it’s just insanity; and at a some point, it all has to catch up with a lot of people,” said Michael, who has had to set aside 15 percent of his farm due to no water.

“The people who are regulating and the people who are legislating have insulation from this for a little while, but it eventually is going to catch them,” Michael said. “The problem for me is that these regulations hurt the poorest of the people and the minority community, who are already having a tough time.”

“These regulations and low water allocations are taking away valuable fresh food and milk, and all the things people need for life. It’s taking away jobs and will displace thousands of workers who will have to get in food lines to survive. And this is completely unnecessary,” said Michael.

“There could have been way more water allocations exported safely this year. There were no fish at the pumps and we have the data to prove it,” said Michael.

“We had good storms in February, March and April, but the majority of that water went out the Bay; it wasn’t even close,” said Michael.

“There are too many left-leaning decisions from the California Water Resources Control Board to the 9^th Circuit Court in San Francisco, which made a recent ruling that hurt agriculture, agreeing that the Bureau of Reclamation did not consider the safety of the Delta Smelt several years ago when it exporter water south. And then on top of everything, Governor Brown pulls the funding from ag education. It is a constant barrage against agriculture, and when will it ever be enough?” asked Michael.

“There is no respect for California agriculture. There are so many people spinning lies about our industry. Do they want all the specialty crops that they enjoy eating coming from other countries? Again, it’s insanity,” he said.

And Michael said the farmer is always, always held accountable while the environmental community is never held accountable. “There is no accounting for what they use the water allocation for when it’s released it to the ocean. There is no report on what good it’s doing. They are not at all held to the same standards as California Farmers.”

Patrick Cavanaugh2016-05-31T19:35:33-07:00May 13th, 2014|

House Members Seek to Update Endangered Species Act

House Natural Resources Committee Chairman Doc Hastings (WA-04), Rep. Cynthia Lummis (WY), Rep. Randy Neugebauer (TX-19), and Rep. Bill Huizenga (MI-02) this week introduced four limited bills to improve and update the Endangered Species Act (ESA).

The bills are supported by all of the Members of the ESA Congressional Working Group, representing districts across the nation, and are based on the recommendations and findings of their report and input from a broad array of stakeholders, including the Western Governors‘ Association.

California Ag’s interest is on how the revised ESA would affect the Biological opinion on Delta Smelt and Salmon that has drastically cut contractual water supplies issued through the pumps.

The four bills focus on transparency and species recovery. The House Natural Resources Committee will hold a Full Committee legislative hearing on these bills on Tuesday, April 8.

“These are very simple, straightforward, and common sense bills and provide a good starting point as we begin the legislative process for improving the Endangered Species Act,” said Chairman Hastings.

“The bills are, by design, narrowly focused and something that both Republicans and Democrats can support. Increasing transparency; posting data online; enhancing state, local, and tribal participation; and reducing taxpayer-financed attorney’s fees to help direct taxpayer dollars towards recovery efforts are small, but important steps in making smart and sensible updates to the ESA.”

Patrick Cavanaugh2016-05-31T19:38:05-07:00March 31st, 2014|

PLF On 9th Circuit Biological Opinion

PLF statement on 9^th Circuit Upholding Delta Smelt Biological Opinion

Last Week, a panel of the Ninth Circuit largely upheld the federal government’s 2008 “biological opinion” for the delta smelt, a regulation under the Endangered Species Act has that triggered draconian restrictions on water deliveries from the federal and state water projects to the San Joaquin Valley and Southern California.

Pacific Legal Foundation (PLF) attorneys represent some of the farmers in the case who are challenging the biological opinion as an abuse of federal power based on questionable science and shoddy regulatory procedures.

Damien Schiff, a principal attorney with PLF who represents farmers in the case, issued this statement today, in response to the Ninth Circuit’s ruling:

“The Ninth Circuit has done a reverse rain dance for California, practically guaranteeing that the impacts of our current drought will be more devastating,” said PLF Principal Attorney Damien Schiff.

“The ruling gives judicial blessing to regulations that impose real punishment on people with only speculative benefits for a declining fish species. Under these draconian regulations, water is withheld from farms, businesses and communities from the Central Valley to San Diego based on sloppy science and ideological agendas.

“There’s a drought of common sense in the bureaucracies that impose these regulations – and in the perverse legal precedents that lead courts to uphold them. In one notorious precedent, TVA v. Hill, the U.S. Supreme Court said the Endangered Species Act gives absolute priority to species over everything else, including the general welfare of the human community.

“We must all hope that California’s water crisis – made worse today by the Ninth Circuit – can prod the U.S. Supreme Court to reconsider its past decisions that are leaving us so parched.

“Indeed, the one hopeful aspect of today’s ruling is there’s a possibility the smelt case could get to the Supreme Court. There, it might result in a decision that turns the tide of environmental law away from imbalance and zealotry, and back toward sanity.”

Patrick Cavanaugh2021-05-12T11:06:02-07:00March 17th, 2014|

Early Harvest Season for Almonds

2013 Almond Harvest To Start

Almond harvest should start in earnest in Kern County, most likely next week, given the 100-degree temperatures everywhere. This is very early for this year’s crop size.

“The Nonpareils are going like crazy,” said Vern Crawford, a long-time PCA for Wilbur-Ellis Co., Shafter Branch. “With the crop estimate down, prices are up, and that’s good since growers had to spend so much on mite sprays this year.”

“This is the worst mite year that we’ve ever had–across the whole county,” Crawford noted. “The reason for the high pressure is not exactly clear,” he said.

“But the biggest problem all growers are having is the lack of water,” Crawford said. “We need more dams and we need the cities along the coast to put up desalinization plants to cut their demand on the water we need for agriculture.”

“Many Kern County farmers are now extracting water at the bottom of their wells and will need to spend $250,000 each to go deeper. Those big deep wells on the West Side with 200 HP pumps are sucking the water from the East Side,” he said.

Crawford warned that the groundwater will not last long. “We are going to barely make it through this season with 30 percent allocations. And next season, if we do not get enough water for the vast orchards on the west side of Kern County, on beautiful ground and with every irrigation economy available, particularly drip, growers will go into survival mode,” said Crawford.

Growers will shake their trees at bloom to eliminate the crop and then give the tree a few sips of water so that that it doesn’t die. Hopefully that will get them to another good winter of rain. But still, it will take the trees two full years to recover.

“And it’s amazing that nearly all of these water problems are due to the Delta Smelt,” Crawford said.

Patrick Cavanaugh2016-12-07T15:53:34-08:00July 24th, 2013|

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