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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.


Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.


Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« FWS rejects petition to list American dipper in South Dakota | Main| FWS revisiting status of arctic grayling, and still considering listing of northern leopard frog »

Judge Wanger rejects commerce clause challenge to ESA

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The Delta Smelt Consolidated Cases, 2009 WL 3273843 (E.D. Cal., Oct. 8, 2009)

INTRO: This case concerns the United States Fish and Wildlife Service's (FWS) December 15, 2008 biological opinion (BiOp or 2008 BiOp) concerning the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) on the threatened delta smelt, prepared pursuant to Section 7(a)(2) of the Endangered Species Act (ESA), 16 U.S.C. §§ 1536(a)(2). Before the court for decision are cross motions for summary judgment on Plaintiffs' Stewart & Jasper Orchards', et al., (Stewart Plaintiffs) sixth claim for relief, which alleges that "because the delta smelt is a purely 'intrastate species,' and because it has no commercial value," the application of sections 7(a)(2) and 9 of the ESA to the delta smelt is an "invalid exercise of constitutional authority" under the Commerce Clause...

EXCERPT: although Congress had multiple motivations for passing the ESA, including ethical and aesthetic considerations, the ESA has strong underpinnings in market regulation. Among other things, one of the ESA's regulatory goals is to protect a monetarily valuable natural resource, our planet's biodiversity, which is proclaimed by express Congressional findings. "To allow extinction of animal species is ecologically, economically, and ethically unsound." 119 Cong. Rec. 25,668 (1973) (statement of Sen. Tunney). "The value of this genetic heritage is, quite literally, incalculable.... From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations." H.R. Rep No 93-307, at 57. It is "hard to imagine a stronger expression of Congress' belief that species preservation substantially affects the national economic interest." Bldg. Indus. Ass'n of Superior Cal. v. Babbit, 979 F.Supp. 893, 907 (D.D.C.1997)...  Protecting "biodiversity" as a whole cannot be accomplished by protecting only those species that are mobile enough to cross state lines or those whose ranges happen to extend over multiple states. Congress had a rational basis for believing that requiring federal agencies to evaluate the impacts of planned activities on all threatened or endangered species, regardless of their geographic range, was the most effective way to protect the commercial benefits of biodiversity. The application of section 7 to the facts of this case is a valid exercise of Congress' Commerce Clause power.

CONCLUSION: All of Plaintiffs' and Amici's contentions and arguments have been fully considered. They are not new and have been universally unsuccessful before other courts. The analysis here is not different...  (1) Plaintiffs do not have standing to contest the application of ESA § 9, and, even if they did, arguendo, any such claim would be unripe and if the merits reached, the section 7 analysis is equally applicable to reject the claim as a matter of constitutional law on the merits. Plaintiffs' motion for summary judgment is DENIED...  (2) A section 7 claim is raised in the complaint, Plaintiffs have standing to bring such a claim, and Federal Defendants' and Defendant Intervenors' motions for summary judgment focus on section 7. These motions are ripe for adjudication...  (3) The application of section 7 to require federal agencies to evaluate effects of planned Project operations on the delta smelt is a valid exercise of Congress' Commerce Clause power. Federal Defendants' and Defendant Intervenors' motions for summary judgment on Plaintiffs' sixth claim for relief are GRANTED.

The export of Northern California’s water from Sacramento Delta to benefit agricultural areas west of San Joaquin Valley, accomplished in part by the Tracy Pumping Plant (pictured above) kills millions of  fish (including California's delta smelt) and involves billions of dollars (and don't forget, many millions in attorney's fees).  Photo from