Supreme Court favors fish over farmers


A federal plan to protect the imperiled Delta smelt by restricting water diversions from the Sacramento-San Joaquin Delta was left in place by the U.S. Supreme Court Monday.

The high court without comment turned down appeals by Central Valley farmers and water districts of a ruling by a federal appeals court in San Francisco last year that upheld the plan.

The once-abundant Delta smelt is a 2- to 3-inch fish found only in the Delta and upper San Francisco Bay. Its population has dropped precipitously in recent years, according to environmental groups that participated in the case, and it is listed as a threatened species under the U.S. Endangered Species Act.

The plan to protect the smelt resulted from a 2008 biological opinion in which the U.S. Fish and Wildlife Service said the fish was jeopardized by water diversions to central and southern California by the federal Central Valley Project and the State Water Project. The biological opinion led to guidelines restricting diversions.

In the past two years however, limits on deliveries of Delta water have stemmed from the California drought and not the guidelines, according to Earthjustice and the Natural Resources Defense Council.

But in the previous 2012-13 water year, the guidelines reduced water projects’ supplies by more than 800,000 acre-feet, according to the Westlands Water District, one of the parties in the case.

The biological opinion was upheld last year by the 9th U.S. Circuit Court of Appeals and that decision was left intact today when the Supreme Court refused to take up the case.

Pacific Legal Foundation attorney James Burling, who represented three Central Valley almond, walnut and pistachio growers in the appeal, said:

“We are disappointed that the court declined to review the federal government’s damaging and unjustified Delta smelt regulations. … These regulations have harmed farmers and farm workers in the Central Valley, along with tens of millions of Southern Californians, by diverting vast quantities of water away from human use and out to the Pacific Ocean.”

Several environmental groups, which said the situation of the smelt as a species is an indicator of the general ecological health of the Delta, praised today’s high court action.

Natural Resources Defense Council attorney Kate Poole said:

“Today’s decision is good news for the thousands of fishermen, Delta farmers, and everyone who depends on the health of California’s Bay-Delta estuary and its native fisheries and wildlife.”

Earthjustice attorney Trent Orr said that in addition to upholding protection for the smelt, today’s Supreme Court action:

“… was a major victory for the preservation of the Endangered Species Act.”

The growers and water districts that appealed had asked the high court to overrule a 1978 decision in which the Supreme Court said the 1973 federal law gives priority to protection of endangered and threatened species over economic considerations.

Orr said:

“It’s a big relief that (1978) decision was left in place.”

Burling said the Pacific Legal Foundation, a Sacramento-based public-interest law firm that supports property rights and advocated limited government, will continue to ask the high court to revisit the 1978 decision in future appeals of other cases:

“It is high time to formally reverse that ruling.”

Burling called the 37-year-old precedent “perverse and outmoded.”

The case originated in federal court in Fresno, where now-retired U.S. District Judge Oliver Wanger ruled in 2011 that the biological opinion was deficient and that the wildlife service must prepare a new one, but kept the restrictions in place during appeals.

Last year’s 9th Circuit decision reversed Wanger’s ruling. In a related case, the 9th Circuit in December upheld a second biological opinion in which the wildlife service said pumping limits were also needed to protect juvenile salmon migrating through the Delta to the ocean.

As in the smelt case, the appeals court overturned a ruling in which Wanger had said the biological opinion was deficient.

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