Delta Smelt- USFWS_rev.jpgA federal appeals court in San Francisco has upheld the U.S. government’s power to protect the threatened delta smelt by curtailing water deliveries from the Sacramento-San Joaquin Delta to Central Valley farms.

The 9th U.S. Circuit Court of Appeals on Friday rejected a claim by three Central Valley almond and pistachio growers who argued that protections given to the smelt under the U.S. Endangered Species Act violated the Commerce Clause of the Constitution.

The delta smelt, a fish typically 2 to 3 inches long, is found only in the upper San Francisco Bay and the delta. Its population has been declining steeply both before and after it was federally listed as a threatened species in 1993.

The smelt was once used as bait but is no longer sold commercially.

Water deliveries from the delta to the Central Valley were restricted by federal agencies during the 2007-09 California drought partly because of Endangered Species Act protection of the smelt. Another reason for the curtailment was the drought itself, according to environmental attorney Trent Orr.

The Commerce Clause allows Congress to regulate interstate commerce. But the growers claimed in a lawsuit filed in federal court in Fresno in 2009 that the smelt is not part of interstate commerce because it is found only in California and is not sold.

They argued that federal agencies therefore weren’t entitled to use the Endangered Species Act to restrict water deliveries to aid the fish.

But a three-judge panel of the appeals court said the restrictions fell with the Commerce Clause power because they were part of a broader regulatory scheme related to interstate commerce.

“Congress has the power to regulate purely intrastate activity as long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce,” Circuit Judge Sidney Thomas wrote for the panel.

The court said the smelt might have future commercial value. It also said that bans on the sale of endangered species affect interstate commerce, that scientific study of such species stimulates commerce, and that agriculture and fisheries benefit from diversity of species.

Among other precedents, the circuit court cited a 2005 U.S. Supreme Court decision that upheld Congress’s Commerce Clause power to make medical marijuana possession a federal crime even when the plant is locally grown, never crosses state lines and is not sold.

In that decision, made in a lawsuit filed by medical marijuana patient Angel Raich of Oakland, the Supreme Court said Congress can regulate purely local activities that are part of an economic class of activities that substantially affect interstate commerce.

Brandon Middleton, a lawyer from the Sacramento-based Pacific Legal Foundation who represented the growers, said his clients are considering appealing to an expanded panel of the 9th Circuit or to the U.S. Supreme Court.

Middleton said, “If a regulation is valid simply because it has some hypothetical tie to interstate commerce–as opposed to a clear, definable connection–there’s no stopping point.”

Orr, a lawyer with Earthjustice, an environmental law firm in Oakland, said, “Today’s ruling affirms…that it’s in the national interest to preserve all of America’s wildlife, including species that happen to exist only within the confines of a single state.

“The (endangered species) law clearly recognizes that all species are important to the web of life, may have benefits to society yet to be discovered, and are integrally related to the nation’s commerce,” Orr said.

Orr said four other federal appeals courts around the nation have rejected similar Commerce Clause challenges to Endangered Species Act protection of a single-state species. But Friday’s ruling was the first time the issue was addressed by the 9th Circuit, which has jurisdiction over nine western states.

Julia Cheever, Bay City News

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