PLF asks Supreme Court to review constitutionality of delta smelt water cutbacks


Author: Brandon Middleton

I am pleased to report that Pacific Legal Foundation attorneys petitioned the United States Supreme Court this week to review the constitutionality of the federal government's devastating delta smelt water cutbacks.  The petition (filed in Stewart & Jasper Orchards v. Salazar) notes that the U.S. Fish and Wildlife Service claims it can regulate the delta smelt under the Constitution's Commerce Clause, which provides Congress with the authority to "regulate Commerce . . . among the several States."  But there is nothing commercial or interstate about the delta smelt–this species is a noncommercial fish found only in California and over which the feds have no constitutional authority.

The regulatory drought and its consequences here in California deserve the Supreme Court's review, but this case is especially important given the Ninth Circuit's flawed March 2011 decision to uphold the delta smelt regulations under the Commerce Clause.  As we argue in the petition, the Ninth Circuit got it wrong because it used an incorrect standard for review of Commerce Clause challenges under the Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1 (2005).

In Raich, the Court upheld the Controlled Substances Act's prohibition of the local production and consumption of marijuana as "one of many essential parts of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate [or local] activity were regulated."  But the Ninth Circuit held that Raich applies even to statutes which do not constitute a comprehensive regulation of economic activity, like the Endangered Species Act (a conservation statute).  According to the Ninth Circuit, the statutory regime under Raich "need not be . . . purely economic or commercial." This is squarely in conflict with Supreme Court's emphasis in Raich that the CSA "directly regulate[d] economic, commercial activity," and provided for the regulation of the "quintessentially economic activities" of "production, distribution, and consumption of commodities for which there is an established, and lucrative interstate market."

The Ninth Circuit's decision that Raich applies even to noneconomic statutes is not only a radical departure from Supreme Court precedent, it is also in conflict with several other circuit courts that have interpreted Raich.  For example, in United States v. Maxwell, 446 F.3d 1210 (11th Cir. 2006), the Eleventh Circuit held that Raich stands for the proposition that "where Congress comprehensively regulates economic activity, it may constitutionally regulate intrastate activity, whether economic or not, so long as the inability to do so would undermine Congress's ability to implement effectively the overlying economic regulatory scheme."  The Ninth Circuit disagrees with this approach because it feels that requiring a "'comprehensive economic regulatory scheme' . . . misconstrues Raich."

The Ninth Circuit's flawed decision also adds to the conflict that exists regarding Commerce Clause challenges to the application of the Endangered Species Act to noncommercial, intrastate species like the delta smelt.  Several circuits have upheld the application of the ESA under the Commerce Clause, but the rationales for doing so are all over the board.  This has created a messy and contradictory jurisprudence among the circuit courts and suggests an unprincipled judicial wariness for limiting congressional authority over environmental affairs.

What is particularly troubling about the Ninth Circuit's decision is that the court provided Congress with a constitutionally dubious guide to avoid all Commerce Clause concerns–under the Ninth Circuit's decision, all Congress must do is regulate enough activities such that the "aggregate effect of the statute" is significant.  Of course, this provides no real limit to Congress's Commerce Clause authority and makes freedom from excessive federal regulation "solely a matter of legislative grace."  United States v. Morrison, 529 U.S. 598, 616 (2000) (citing United States v. Lopez, 514 U.S. 549 at 575-79 (1995) (Kennedy, J., concurring)).

It is our belief that this case presents the Supreme Court with an ideal opportunity to remind federal politicians and bureaucrats that the Constitution limits their power (which they hate to admit), and we hope it will lead to an end to the feds' policy of putting the delta smelt before people.