June 10, 2009

delta smelt litigation analyses from Somach Simmons & Dunn

By Damien M. Schiff Senior Attorney

Today Aquafornia linked to two informative posts from Somach Simmons & Dunn on the delta smelt litigation. First, Somach's Brian D. Poulsen offers his take on PLF's lawsuit. Poulsen provides an analysis of the relevant Ninth Circuit case law (or the lack thereof) and concludes that "it is possible this case could ultimately make its way to the Supreme Court." We agree.  Legal Planet's Holly Doremus argues that "[c]ommerce clause challenges to the ESA have already been rejected by federal courts of appeals in at least five published opinions. There’s no reason to think this version will fare any better." But, as Poulsen notes, "courts [have] differed significantly in their approaches to the issue."

More on our lawsuit on behalf of a small group of farmers can be found here.

Somach's Jacqueline L. McDonald has provided details on Judge Wanger's preliminary injunction of the U.S. Fish and Wildlife Service under NEPA. She notes that "the ruling suggests that the Service may, as a result of a future decision on the merits in this case, be required to issue a new biological opinion that has gone through NEPA review." It is also worth noting that the Service's initial attempt towards compliance with the preliminary injunction was flimsy, at best. We critiqued the Service on the point last week.

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