Don’t be fooled: "fish vs. people" is real

Author: Brandon Middleton

With Sen. Dianne Feinstein’s proposal to increase water deliveries to the San Joaquin Valley and Southern California, there’s been a renewed discussion of the “fish vs. people” theme that accompanies the debate on California’s water policy.  For example, the Fresno Bee’s Jim Boren suggests that “calling the struggle over limited water allocations in the state ‘fish vs. people’ or a ‘man-made drought’ oversimplifies an issue that impacts every part of California life.” The Monterey County Herald similarly comments that “the controversy has been overly simplified into a contest between farms and the ‘tiny delta smelt.'”

Folks, I realize that “fish vs. people” sounds like a simplistic talking point.  Sadly, however, it is firmly grounded in truth, because the Endangered Species Act does indeed elevate the needs of species above the needs of people.  There is little balance when it comes to this law, and the fact of the matter is that if you lose your property, your livelihood, or your water as a result of the overzealous implementation of the ESA, the chances of your harm being adequately considered in a court of law are slim to none.

Compare that to the needs of species getting the “highest of priority” in ESA cases, and you get the draconian “fish before people” policy that we have today.

The delta smelt story is a classic example of the federal government putting fish before people. Last week, the U.S. Fish and Wildlife Service decided to restrict water deliveries because a grand total of six delta smelt had been killed by the pumps.  Clearly, depriving millions of people of water on this basis doesn’t make much sense, especially when it is far from certain that restricting water deliveries will actually help the delta smelt species (there are, of course, a wide range of factors that have contributed to the smelt’s decline, so why scapegoat the pumps?).

But when lawyers (including PLF attorneys) for victims of the regulatory drought went to federal court to stop this nonsense, the Endangered Species Act prevented the victims’ voices from being heard. In declining our request for a temporary restraining order of the delta smelt restrictions, the court described the beast that is the ESA:

The Supreme Court held in TVA v. Hill, 437 U.S. 153, 194 (1978), that Congress struck the balance in favor of affording endangered species the highest of priorities. In adopting the Endangered Species Act (“ESA”), Congress intended to “halt and reverse the trend toward species’ extinction, whatever the cost.”

In other words, the Endangered Species Act has been set up and interpreted to prevent lower courts from weighing the needs of species against the needs of people. The result for ESA cases is that, in many instances, the story of the species is fair game, but story of human harm is swept aside.

There should be no doubt that Congress and the Supreme Court have combined to make the Endangered Species Act a law that can effectively silence its victims.  If that isn’t putting fish and other species before people, I don’t know what is.

Update: Sen. Feinstein discusses the ESA’s inflexibility in today’s San Francisco Chronicle (hattip: Aquafornia):

[T]here currently exists an imbalance in the measures the government will take to protect the delta smelt and those it will take to protect people from economic devastation. I seek to remedy this imbalance by making technical modifications to the biological opinions that restrict delta pumping and give west side farmers the minimum amount of water necessary to work this year – 38-40 percent of their contractual allocation – while respecting environmental protections. . . .

The Endangered Species Act is a vital yet inflexible instrument, and we must consider the human condition. I can’t sit by as farms, jobs and entire communities in the valley disappear.