Supreme Court Declines To Hear California Delta Case
November 2, 2011 The U.S. Supreme Court decided this week that it won’t hear a challenge to the federal Delta smelt regulations that have caused water cutbacks in Central and Southern California that many growers consider draconian.
In announcing the court’s ruling, Pacific Legal Foundation (PLF) attorneys, saying they were disappointed, vowed to keep fighting against the “fish-before people policies” that led to a regulatory drought in the San Joaquin Valley and for millions of urban residents farther south.
In late the spring of 2009, the PLF, a conservative legal organization, filed suit on behalf of King Pistachio Grove and two other large nut growers, Stewart & Jasper Orchards, which at the time farmed more than 2,000 acres of mostly almonds in Newman, and Arroyo Farms, which then grew more than 1,000 acres of mostly almonds near Firebaugh. All three growers said the uncertainty over water supplies was putting the future economic viability of their farms in serious question.
The cost of water was so high that it was difficult to stay in business, they told GrowingProduce.com as the state was suffering a drought. “I’m paying as much for water this year as all my other cultural costs combined,” pistachio grower Larry Easterling said at the time. “That makes it extremely difficult to make a living, much less a profit.”
Representing the farmers affected by the water cutbacks, PLF’s federal lawsuit focused on a two-pronged strategy, citing both statutory and constitutional causes of action:
– In violation of administrative law, they claimed federal officials haven’t fulfilled their duty under their own regulations to show that the water cutoff will actually help the smelt, or to consider and weigh the economic costs.
– Because the smelt is not sold in interstate commerce, the federal government has no Commerce Clause authority to regulate it. “In other words,” said PLF attorney Damien Schiff, “the regulatory drought is not just morally wrong — it is flat-out unconstitutional.”
In December 2010 the trial court issued a favorable decision. The trial court held that the Delta smelt biological opinion was invalid, violating the Endangered Species Act (ESA) and Administrative Procedure Act (APA).
But earlier this year, in March, the Ninth Circuit Court of Appeals rejected PLF’s Commerce Clause challenge to the delta smelt restrictions. Although the PLF was disappointed, they were encouraged that the court agreed that they had standing issue to pursue the case. By giving PLF a clean merits decision, the Ninth Circuit had, they thought, set things up well for a Supreme Court review.
The PLF says it will remain active in other litigation over the federal biological opinions for the Delta smelt and other species. “The Commerce Clause imposes real boundaries on federal power,” the PLF stated in a press release, “and we will litigate this issue until the Supreme Court ultimately agrees to take it up.”
Source: Pacific Legal Foundation
To read the original story from 2009, which appeared on the cover of the July issue of American/Western Fruit Grower magazine, click on “Water Woes.”
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