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Friday news roundup: ESA sees another day

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Kimberly Hirai | Nov 04, 2011 06:00 AM

The U.S. Supreme Court just waived its chance to rule on a constitutional challenge to the Endangered Species Act, the sixth time it's refused to hear cases that might limit the bedrock law.

delta smeltThis latest case was an appeal of protections for the threatened California Delta smelt. The Supreme Court's action upholds a previous circuit court's decision that Congress did not wield too much constitutional power when it used the commerce clause to carry out Endangered Species Act protections for the smelt. (Following tradition, the court hasn't taken a commerce clause case since Chief Justice John Roberts was appointed in 2005.)

The fish, endemic to the state, is two to three inches in length and resides in the Sacramento-San Joaquin Delta. The Delta's water serves agricultural fields, supplies drinking water for millions in the region and supports habitat. The decision is yet another page in a book of litigious conflicts plaguing the Delta, pitting federal agencies against local businesses and water districts that have experienced cuts to irrigation water due to protection measures. HCN contributing editor Matt Jenkins wrote about some of these water demands and drought conflicts in his 2009 cover story, Breakdown.

The Pacific Legal Foundation represented Stewart & Jasper Orchards, King Pistachio Grove and Arroyo Farms in the current case, which argued reductions in water had impacted their almond, pistachio, and walnut orchards, according to a 9th U.S. Circuit Court of Appeals opinion. Since the fish is located in a single state and currently has no commercial value, the group argued the application of the commerce clause to its protection was unconstitutional.

The commerce clause in the Constitution allows Congress to regulate all movements of people and goods across state lines and "activities that have a substantial effect on interstate commerce." It provides a basis for federal environmental laws like the ESA.

“Even where the species . . . has no current commercial value, Congress may regulate under its Commerce Clause authority to ‘prevent the destruction of biodiversity and thereby protect the current future interstate commerce that relies on it,’ ” wrote the Circuit Court in March, citing a previous court case. But the foundation and farmers argued the congressional power was too broad:

"By applying an unreasonably expansive view of its commerce clause authority under the Endangered Species Act, the government has deprived California farms and municipalities of essential water resources," foundation attorney Brandon Middleton wrote in a legal brief.

Retired U.S. District Court Judge Oliver Wanger, who ruled on this case and many other California water cases involving the delta smelt, was not surprised by the Supreme Court's decision.

"I felt this was a very straightforward call," Wanger told the Fresno Bee. "Every circuit court in the country had previously ruled as we did."

The protections, as well as higher winter and spring runoff, could be boosting smelt populations. The L.A. Times reported that September estimates of the fish in the Sacramento-San Joaquin Delta were the highest since 2001, though numbers are still meager compared with historical ones. Biologists attributed the increase to a number of factors including greater water flow, which brings more food, less competition with invasive species and less contact with water pumps that can suck smelt in and kill them.

Gray wolves and state endangered species lists

Wolf packs and wolf groups made moves that could remove them from endangered species lists this week.  A new, five-member wolf pack was discovered in the Hells Canyon area on the Idaho-Oregon border. Called the Snake River pack, it is the fourth to establish in Oregon. Four packs must produce at least two pups a year for three years before Endangered Species Act protections are removed. Oregon has issued a kill order for two members of its largest wolf pack, which killed livestock. Environmental groups challenged the order, which is under review in the courts.

As Oregon proceeds toward delisting, the Washington Cattlemen's Association and the Hunter Heritage Council want to skip a conservation and management plan the state was set to possibly approve in December altogether. The groups filed a petition to the state's Fish and Wildlife Commission to remove the gray wolf's state endangered status in the eastern one-third of the state. The area is federally delisted already. The state's five wolf packs currently live in Eastern Washington.

If approved, wolves would be managed by the state as a big game species, allowing the Department of Fish and Game to adopt rules to reel in problem wolves, including use of lethal techniques. Fifteen packs, five of which must reside in Eastern Washington, are required under the management plan proposed this summer. But petition groups and others criticized the management plan, stating the wolf population should not be allowed to get that large before protections are removed.

Kimberly Hirai is an intern at High Country News.

Image courtesy USFWS Pacific Southwest Region.

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