Ninth Circuit Court of Appeals Upholds Federal Regulation of the Delta Smelt under the Commerce Clause of the United States Constitution

On February 15, 2011, in San Luis & Delta-Mendota Water Authority v. Salazar, the United States Ninth Circuit Court of Appeals determined that Sections 7 and 9 of the Endangered Species Act (ESA) did not violate the United States Constitution’s Commerce Clause as applied to the California delta smelt. Growers of almonds, pistachios and walnuts brought suit against the United States Fish and Wildlife Service (FWS), claiming that FWS’s protection of the delta smelt had reduced their water supplies, thereby negatively affecting their orchard businesses. The growers argued that because the small fish no longer had any commercial value within California, the Commerce Clause did not support FWS’s regulation of that species. The Night Circuit rejected this argument.

In 1993, FWS categorized the delta smelt as a threatened species under ESA and in 2008, acting under Section 7 of ESA, FWS issued a Biological Opinion for the species to the Bureau of Reclamation. In its Biological Opinion, FWS found that two of the world’s largest water diversion projects, the Bureau’s Central Valley Project (CVP) and the California Department of Water Resource’s State Water Project (SWP), would likely jeopardize the continued existence of the delta smelt and would also harmfully transform delta smelt habitat. Deleterious effects of the CVP and SWP on the delta smelt are a major reason federal regulators and the courts have ordered reductions in water diversions from the Sacramento-San Joaquin Delta in recent years.

After determining that the growers had standing to bring their claims based on alleged economic harms, the Court of Appeals considered the constitutionality of the application of ESA to the delta smelt. The growers argued that because the smelt is no longer commercially harvested in California, it is a purely intrastate species, and therefore, according to the growers, the Commerce Clause does not allow FWS to apply ESA sections 7 and 9 to the species. The Commerce Clause allows for Congress to regulate three categories of activity: (1) channels of interstate commerce, (2) instrumentalities of interstate commerce, and (3) activities which have a substantial effect on interstate commerce. Looking to past United States Supreme Court cases, including Gonzales v. Raich and U.S. v. Lopez, the Court of Appeals concluded that the protection of endangered and threatened species – including wholly intrastate species such as the delta smelt – bears a substantial relation to intrastate commerce, and therefore, ESA’s application to the delta smelt falls within the third category of federal activities authorized by the Commerce Clause. The Ninth Circuit is the fourth circuit court to uphold ESA against Commerce Clause challenges. The U.S. Supreme Court has not yet addressed the issue.