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 If that anti-human interpretation — in the 1978 Supreme Court case of TVA v. Hill — was ever correct, it is obsolete now, after subsequent changes in the ESA.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.

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
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.

PLF On 9th Circuit Biological Opinion

PLF statement on 9th 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.”