May 21, 2009

PLF lawsuit challenging Delta water restrictions filed

By Damien M. Schiff Senior Attorney

Today Pacific Legal Foundation filed a lawsuit in federal court in Fresno challenging the Delta pumping restrictions imposed by the Fish and Wildlife Service on account of the delta smelt, a "threatened" fish species under the Endangered Species Act.  A copy of the complaint can be found here.  Among the claims in the lawsuit is a constitutional challenge to the Service's power to regulate the smelt under the Constitution's Commerce Clause.  The lawsuit argues that the smelt, which is found only within California and which is not part of any commercial market, is not a permissible subject of federal regulation.  The lawsuit also contends that the pumping restrictions are irrational, because the Service has not demonstrated that the pumping restrictions will actually benefit the smelt.

The lawsuit has been filed on behalf of three separate farming operations, each of which has suffered drastic cutbacks in water deliveries owing to the pumping restrictions.

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