June 10, 2009

the motivation behind our delta smelt lawsuit

By Damien M. Schiff Senior Attorney

After a brief analysis of Judge Wanger's NEPA injunction, Legal Planet's Holly Doremus begins to discuss PLF's delta smelt lawsuit:

In a curious set of findings of fact and conclusions of law, Judge Wanger wrote that plaintiff water users were likely to prevail on their claim that FWS was required to undertake NEPA analysis of the Reasonable and Prudent Alternatives in the biological opinion. (RPAs are steps the agency thinks can be taken to achieve at least some of the aims of a proposed action without jeopardizing listed species.) He has ordered FWS not to implement any “unnecessarily restrictive” limits on pumping “unless and until FWS first considers the harm that these decisions and actions are likely to cause humans, the community, and the environment.” Judge Wanger is asking the agency to balance on an absolute knife edge, ensuring that it doesn’t deny farmers a single drop of water that the fish don’t critically require. Naturally, the water users have already said they will bring the same challenge against the new salmon biological opinion. Meanwhile, just to add to the litigation confusion, the Pacific Legal Foundation has filed a lawsuit asserting that ESA protection of the smelt is unconstitutional because the species is found only in California and “has no commercial value.”

We doubt Professor Doremus' comment on our lawsuit is her take on the reason behind our complaint. After all, there is no question that the delta smelt litigation is confusing, so another complaint would by definition "add to the litigation confusion."

But in case anyone really does think our lawsuit was filed for the sole reason of adding to the litigation confusion or is otherwise skeptical of our motivations, they can rest easy. The U.S. Fish and Wildlife service is micromanaging California's water supply to the detriment of numerous farmers, including our clients. As we've noted before, it is a significant problem when the U.S. Fish and Wildlife Service (and not the California Department of Water Resources or the U.S. Bureau of Reclamation) is calling the shots on the Golden State's water. From Pacific Legal Foundation's standpoint, the U.S. Fish and Wildlife Service is acting in excess of its constitutional authority when it imposes delta smelt-based water restrictions.

To be clear, our lawsuit has nothing to do with trying to add to the litigation confusion, but is motivated by our desire to ensure that the federal government acts in compliance with the U.S. Constitution.

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