LAWSUITS FILED OR PENDING

December 2009

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Judge Wanger Issues Rulings in the Consolidated Proceedings Regarding the Fish and Wildlife Service’s BiOp and the Authority to Regulate Delta Smelt
San Luis Delta-Mendota Water Authority, et al. v. Salazar

Two rulings handed down in early October in the challenge to the Delta smelt biological opinion evidence the ongoing battle between water contractors and others, on one side and the U.S. Fish and Wildlife Service (FWS) on the other over water allocation in the Sacramento-San Joaquin Delta (Delta). In one ruling, Judge Wanger found the federal agencies’ Endangered Species Act (ESA) § 7 consultation process was a valid exercise of the agencies’ U.S. Constitution Commerce Clause authority to regulate intrastate fish populations. The U.S. District Court rejected an argument advanced by the Pacific Legal Foundation that the federal government lacks constitutional authority to regulate Delta smelt because the species has commercial value as part of the ecosystem as a whole and the ESA is a comprehensive scheme designed to protect the monetary value of the planet’s biodiversity.