PLF considers delta smelt petition to U.S. Supreme Court


Author: Brandon Middleton

Regarding today's decision from the Ninth Circuit in the delta smelt Commerce Clause case (Stewart & Jasper Orchards v. Salazar), these are our official responses which will be sent to the media later this afternoon:

PLF attorneys announced today that they are considering petitioning the U.S. Supreme Court to hear their constitutional challenge to the crippling federal regulations for the Delta smelt — regulations that resulted in draconian water-pumping cutbacks for farmers, businesses and communities in the San Joaquin Valley and Southern California.

Today, the Ninth Circuit Court of Appeals ruled on the PLF lawsuit. Although the court rejected PLF’s challenge to the smelt regulations, the court also rejected the federal government’s argument that PLF’s clients — three San Joaquin Valley farmers who have been hurt by the water cutbacks – – don’t have standing to bring the case in the first place.

PLF attorney Brandon Middleton issued this statement: "We always knew that this case might be decided, ultimately, by the nation’s highest court. After all, we’re presenting constitutional arguments of the most fundamental kind. The Commerce Clause limits federal regulation to interstate commerce. But the Delta smelt isn’t an interstate fish – it exists only in California. And it isn’t commercial – nobody buys it or sells it. Therefore, under a faithful reading of the Constitution, the federal government has no authority over the Delta smelt.

"The Ninth Circuit properly recognized that our clients have been hurt by the federal government's delta smelt water cutbacks issued under the Endangered Species Act, and they can sue as a result," Middleton continued. "But the court upheld the water cutbacks by implying that any regulation that could be said to have a 'substantial' relation to interstate commerce is constitutional. The court's rationale is misguided because it offers no real limit to the government's Commerce Clause authority. If a regulation is valid simply because it has some hypothetical tie to interstate commerce – – as opposed to a clear, definable connection — there's no stopping point. Congress could arguably regulate the food you choose to put on your dinner plate, since what you eat could be argued to have some distant relation to interstate commerce.

"If we win this constitutional argument, it will reduce the government-caused water shortages in California and help the millions of Americans whose food supply has been placed at greater risk by the extreme Delta smelt regulations," said Middleton. "It will also mark a watershed in the battle against out-of-control federal power, across the board."