PLF voices support for solutions to water crisis


Pacific Legal Foundation attorneys represent some of the farmers in San Luis & Delta-Mendota Water Authority v. Jewell who are challenging the Delta smelt biological opinion as an abuse of federal power based on questionable science and shoddy regulatory procedures.

Damien Schiff, a principal attorney with PLF who represents Stewart & Jasper Orchards, King Pistachio Grove, and Arroyo Farms, issued this statement, in response to the Ninth Circuit’s ruling:

The Ninth Circuit has done a reverse rain dance for California, practically guaranteeing that the impacts of our current drought will be more devastating.

The ruling gives judicial blessing to regulations that impose real punishment on people with only speculative benefits for a declining fish species.  Under these draconian regulations, water is withheld from farms, businesses, and communities from the Central Valley to San Diego based on sloppy science and ideological agendas.


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There’s a drought of common sense in the bureaucracies that impose these regulations—and in the perverse legal precedents that lead courts to uphold them.  In one notorious precedent, TVA v. Hill, the U.S. Supreme Court said the Endangered Species Act gives absolute priority to species over everything else, including the general welfare of the human community.

We must all hope that California’s water crisis—made worse by last week’s Delta smelt decision—can prod the U.S. Supreme Court to reconsider its past decisions that are leaving us so parched.

Indeed, the one hopeful aspect of today’s ruling is there’s a possibility the smelt case could get to the Supreme Court.  There, it might result in a decision that turns the tide of environmental law away from imbalance and zealotry, and back toward sanity.

Fresno Water Rally – 3/19/14

For the short term, the Ninth Circuit’s decision basically guarantees that water users will receive no additional water from the Delta.  For the long term, the decision bodes ill for agriculture and other productive uses of land in the Central Valley.  A new biological opinion is expected sometime in 2015 or 2016.  With the Ninth Circuit’s validation of the old biological opinion, the Service has no reason to produce a new biological opinion that will be any more generous—or less onerous—than the prior opinion.

Bottom line:  this decision is terribly disappointing and bodes ill for farmers, farm laborers, and millions of other Californians dependent on a reliable water supply.  The decision also reveals the perniciousness of the Supreme Court’s inflated rhetoric TVA v. Hill that Congress intended to make species preservation the “highest” of governmental priorities.  Not only is that assertion of legislative intent plainly false, its impact on the administration of the Act in the lower courts has led to disastrous, anti-human results.