Judges offer litany of reasons to enshrine single-state species

By MATEUSZ PERKOWSKI

Capital Press

Several nut farmers in California have failed to convince a federal appeals court that irrigation curtailments aimed at protecting the threatened Delta smelt violate the U.S. Constitution.

Water deliveries to the plaintiffs' almond, pistachio and walnut operations were reduced due to Endangered Species Act restrictions on major irrigation projects in the state.

According to their lawsuit, the U.S. Fish and Wildlife Service doesn't have the authority to enforce ESA provisions in regard to the Delta smelt because the tiny fish only inhabits California and has no commercial value.

Because the species does not affect interstate commerce, the federal government has exceeded its regulatory power under the commerce clause of the U.S. Constitution, the plaintiffs said.

A federal judge rejected those arguments in 2009, ruling that agency actions intended to safeguard Delta smelt were valid exercises of commerce clause power.

The 9th U.S. Circuit Court of Appeals has now upheld that decision, pointing to a similar case in the 11th Circuit in which ESA protections for the Alabama sturgeon were also found to be valid.

Like the Delta smelt, the population of this endangered fish is entirely contained within one state.

According to the 9th Circuit's ruling, ESA regulations pertaining to such singe-state species fall within the scope of the commerce clause for several reasons:

* Commercial activities are often the cause for the species becoming threatened or endangered.

* Interstate trafficking in threatened and endangered species is banned under the ESA.

* Restrictions allow the government to preserve "the future and unanticipated interstate-commerce value of species," such as an "undiscovered scientific and economic value."

* Thanks to regulation, populations of a protected species may recover to the point where it can be harvested for commerce.

* Rare species can boost tourism and travel, which may serve to "stimulate interstate commerce."

* Protection of such species helps keep the gene pool diverse, helping the agriculture and aquaculture industries.