SUPREME COURT:

Justices decline to take delta smelt case

The Supreme Court today decided -- for now -- not to get involved in ongoing litigation over California's endangered delta smelt.

The justices decided against taking up a constitutional challenge to the small fish's listing under the Endangered Species Act.

The species has been the center of a legal fight after U.S. Fish and Wildlife Service efforts to protect its habitat in the Sacramento-San Joaquin Delta prompted opposition from local businesses and water districts.

A 2008 biological opinion concluded that water flowing to irrigation districts and farms in the Central Valley had to be reduced in order to protect the tiny fish.

The case being considered by the Supreme Court, Stewart & Jasper Orchards v. Salazar, is just one element of the ongoing litigation, focusing only on whether the application of the ESA to a noncommercial fish that is only found in California was an unconstitutional exercise of congressional power under the Commerce Clause of the U.S. Constitution.

In March, the San Francisco-based 9th U.S. Circuit Court of Appeals rejected the claim (Greenwire, March 28).

The petition was filed by the Pacific Legal Foundation (PLF), a conservative Sacramento-based legal group, on behalf of California farm owners.

"By applying an unreasonably expansive view of its commerce clause authority under the Endangered Species Act, the government has deprived California farms and municipalities of essential water resources," PLF attorney Brandon Middleton wrote in the group's brief.

In response, U.S. Solicitor General Donald Verrilli pointed out that challengers to the federal government's efforts have already tasted some success.

In 2010, a federal judge told FWS to come up with a new biological opinion. He has since given the agency until December 2013 to do so (Greenwire, May 5). There are also two appeals pending before the 9th Circuit.

Verrilli wrote that there "remains the possibility that plaintiffs in these cases will ultimately receive substantial relief, irrespective of the Commerce Clause question presented here."

The Supreme Court's refusal to take up the PLF petition means the litigation is unaffected.

"Obviously we are disappointed the court declined to accept our case," Middleton said today. "We felt the 9th Circuit decision was wrongly decided and the analysis offered no limit on federal authority under the Commerce Clause."

Paul Weiland, an Irvine-Calif.-based partner at the Nossaman law firm who represents groups challenging the biological opinion, said it was not a surprise the Supreme Court did not take the case because there is no split within the federal courts of appeal on the issue.

As for the ongoing litigation, he sees no end in sight in the near future and little prospect of a settlement.

"The water wars out here continue," Weiland said.

Jason Rylander, an attorney at Defenders of Wildlife, noted that the Supreme Court has now declined on six different occasions to take up constitutional challenges to the ESA.

"There can be no doubt that the Commerce Clause provides Congress ample authority to protect America's wildlife heritage," he said.

In other action today, the court also declined to take up a case in which the Boston-based 1st U.S. Circuit Court of Appeals had ruled against a developer after the state of Rhode Island halted construction of a major project (E&ENews PM, May 24).

The appeals court had held that Downing/Salt Pond Partners did not have grounds to file a federal takings claim against the state over a project in Narragansett, R.I., that it was forced to abandon when a major American Indian archaeological site was uncovered. The petition was Downing/Salt Pond Partners, L.P. v. Rhode Island.

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