Central Valley

Suit questions fed's smelt protection

A conservative legal organization today waded into the delta smelt controversy, claiming in a lawsuit that the federal government has no constitutional authority to oversee the endangered fish.

The lawsuit — filed in U.S. District Court in Fresno by the Pacific Legal Foundation on behalf of three San Joaquin Valley farming operations — claims that the smelt has no commercial value and is not involved in interstate commerce.

Because of that, managing the smelt and placing it under the federal Endangered Species Act violates the U.S. Constitution, which limits federal domestic authority to only things involved in interstate commerce.

The Sacramento-based foundation’s suit also argues that a smelt management plan issued in December — which has resulted in a reduction of water deliveries to west side farmers and urban users in the Bay Area and Southern California — fails to show how the pumping reductions from the Sacramento-San Joaquin River Delta would benefit the smelt, and did not take into account the economic effects of the ruling.

“The federal government is imposing a depression on California’s agriculture industry,” said Pacific Legal Foundation attorney Damien Schiff. He said a “policy that puts people behind fish” is “flat-out unconstitutional.”

The lawsuit comes a day before arguments are scheduled before U.S. District Judge Oliver W. Wanger on an effort by the Westlands Water District and the San Luis & Delta-Mendota Water Authority to stop the federal government from enforcing the new smelt management plan.

That plan — known as a biological opinion — was written after Wanger invalidated an earlier draft because he found it was flawed and violated the Endangered Species Act.

The updated plan led to the water reductions and the lawsuits by Westlands and the Pacific Legal Foundation.

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