Full Posts

Bloglines Subscribe in Bloglines
Newsgator Subscribe in NewsGator Online
Google Add to Google
netvibes Add to Netvibes


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.

Creative Commons License

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.

« ESA litigation increasing not just in abundance, but also in procedural complexity, as demonstrated by recent court decision related to flood insurance | Main| Squirrels bite... Judge Sullivan in D.D.C. rejects FWS rule delisting the Virginia northern flying squirrel, giving teeth to previously stated delisting criteria from 1990 recovery plan »

9th Circuit says ESA is constitutional... but now what?

Bookmark :  Technorati  Digg This  Add To Furl  Add To YahooMyWeb  Add To Reddit  Add To NewsVine 

STEWART & JASPER ORCHARDS v. SALAZAR, No. 10-15192 (9th Cir. Mar. 25, 2011)

SUMMARY: In this appeal, we consider whether application of sections 7 and 9 of the Endangered Species Act to the California delta smelt violates the Commerce Clause in the United States Constitution. We conclude that it does not, and we affirm the judgment of the district court.

FACTUAL BACKGROUND: The delta smelt is a small fish, 60-70 millimeters in length, that is undisputedly endemic to California. Though once inhabiting California’s San Francisco Bay/Sacramento-San Joaquin Delta Estuary, its range has diminished. The delta smelt presently has no commercial value, but it was commercially harvested as bait in the past. The United States Fish and Wildlife Service (“Service”) listed the delta smelt as a threatened species in 1993 under the Endangered Species Act...  In 2008, the Service, acting under ESA Sec. 7, 16 U.S.C. 1536(a)(2), issued a Biological Opinion to the Bureau of Reclamation (“Bureau”). The Biological Opinion concerned theBureau’s and the California Department of Water Resource’s operation of the Central Valley Project and the State Water Project, two of the world’s largest water diversion projects. The Biological Opinion concluded that “the coordinated operations of he water projects as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt habitat.” The Biological Opinion included a “Reasonable and Prudent Alternative,” as well as an “Incidental Take Statement.” The Reasonable and Prudent Alternative consisted of various components designed to reduce entrainment and other “taking” of smelt during critical times of the year by controlling water flows to and in the delta...  

ISSUE: Stewart & Jasper Orchards; Arroyo Farms, LLC; and King Pistachio Grove (collectively “the Growers”) sued the Service, claiming that their almond, pistachio, and walnut orchards “experienced substantially reduced water deliveries as a result of the Service’s decision to act on behalf of the delta smelt.” Among other claims, the Growers alleged that—as applied to the delta smelt—the Service’s application of ESA § 7 and power to enforce the “no-take provision” in ESA § 9 were unconstitutional under the Commerce Clause. The Growers claimed that, since “the delta smelt is a purely intrastate species and because it has no commercial value, Sections 7(a)(2) and 9 of the ESA . . . as applied to the operation of the Central Valley Project and the State Water Project, are invalid exercises of constitutional authority under the Commerce Clause.”

Image from an

STANDING EXCERPTS: The Growers have Article III standing to challenge the no take provision in ESA § 9 because the Service’s coercive power to enforce ESA § 9 caused the Bureau to reduce water flows, which injured the Growers. See Bennett v. Spear, 520 U.S. 154, 169 (1997)...  If the no-take provision in ESA § 9 is invalidated, the Growers’ injury will “likely” be redressed because the Bureau could restore water flows without worrying about whether the flows would result in a taking. See Bennett, 520 U.S. at 171. The Service conceded this point in the lower court...

EXCERPTS: RE 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. Pursuant to Gonzales v. Raich, 545 U.S. 1, 17 (2005)... when a statute is challenged under the Commerce Clause, courts must evaluate the aggregate effect of the statute (rather than an isolated application) in determining whether the statute relates to “commerce or any sort of economic enterprise.” See Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 610.

We and other courts have discussed at length why the protection of threatened or endangered species implicates economic concerns. To summarize:
  • A species might become threatened or endangered precisely because of “overutilization for commercial . . . purposes.” 16 U.S.C. 1533(a)(1)(B)
  • The ESA protects endangered or threatened species, in part, by prohibiting all interstate and foreign commerce in those species.
  • The ESA protects the future and unanticipated interstate-commerce value of species.
  • Regeneration of a threatened or endangered species might allow future commercial utilization of the species.
  • Interstate travelers stimulate interstate commerce through recreational observation and scientific study of endangered or threatened species.
  • The genetic diversity provided by endangered or threatened species improves agriculture and aquaculture, which clearly affect interstate commerce.
This is not an exhaustive summary, but it sufficiently illustrates that the ESA, including sections 7 and 9, “bears a substantial relation to commerce.” See Raich, 545 U.S. at 17. Thus, even though the ESA might “ensnare… some purely intrastate activity, . . . we refuse to excise individual components of that larger scheme.”

KEITHINKING: OK, so the Endangered Species Act is constitutional. Again. Why are we still debating the issue?  Isn’t commerce self-evident when ecotourists worldwide flock to places specifically to see the rare species?  There should be no need to worry about the moral, medicinal or ecological justifications for the ESA.  And, for the record, the ESA has now been upheld by the D.C., 4th, 5th, 9th, and 11th Circuits, with a cert. denied by the U.S. Supreme Court too. Alabama-Tombigbee Rivers v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007); Rancho Viejo v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); GDFRealty Invest. Ltd. v. Norton (GDF), 326 F.3d 622 (5th Cir. 2003), writ of certiorari denied, GDF Realty Invs., Ltd. v. Norton, 125 S. Ct. 2898 (2005); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); Nat’l Ass’n of Home Builders v. Babbitt (NAHB), 130 F.3d 1041 (D.C. Cir. 1997). See also, Tenn. Valley Auth. v. Hill, 437 U.S. 153, 178-79 (1978).

Then again, so what?  The ESA may be constitutional, but it is also controversial.  The House of Representatives in Montana recently voted to nullify the law.  So, just imagine for a moment, the following scenario: frustrated elected officials from a state upset with the rigidity of the ESA finally pass a law (oaths of office notwithstanding) that rejects the notion of federal supremacy, and that refuses to implement an agency decision based on that Congressional Act.  When the time comes, will we really send in the troops to demand strict ESA compliance, or will Congress blink and revise the statutory scheme?  Unlike the state vs. federal tensions during the rights era, these federalism conflicts over the ESA will not occur in Mississippi or Alabama, and they will not present simplistic black vs. white disputes over racism and fundamental constitutional civil rights.  Instead, the ESA battles will play out in states like California, Florida, and Colorado, and they will involve complex disputes over broad interpretations of commerce, and fish vs. people, wolves vs. ranchers, smelt vs. almonds, and green Americans vs. other Americans.

For years now, on these pages, ESA blawg has argued that successful implementation of the ESA requires great caution, compromise and creativity.  In the ongoing struggles over the ESA, and the many lawsuits juxtaposing needs of people with protection of wildlife, extreme viewpoints will lead to counterproductive outcomes.  While the right-leaning political thinkers seek to wholly eliminate the ESA, and perhaps many other environmental laws, through yet another as-applied challenge to its constitutionality, the uncompromising left-leaning thinkers risk losing the very law for which they fight.  In the end, everyone loses sight of the fundamental purpose of the ESA: to protect species -- including humans -- and the ecosystems upon which we all depend.

Image from