What they’re saying
• “The law prohibits us from making such fine utilitarian calculations to balance the smelt’s interests against the interests of the citizens of California. — Federal Judge Jay Bybee
• “These regulations have harmed farmers and farmworkers in the Central Valley ... by diverting vast quantities of water away from human use and out to the Pacific Ocean, all to try to improve the habitat of ... a 3-inch fish on the Endangered Species Act list. — James S. Burling, director of litigation for the
The Supreme Court on Monday steered clear of a California whirlpool, letting stand a lower court’s decision that upheld federal rules protecting the Delta smelt.
The high court’s decision not to hear the high-profile California water case disappoints farmers, who have been challenging the U.S. Fish and Wildlife Service over the smelt protections and the larger question of water flow through the San Francisco Bay and Sacramento-San Joaquin Delta.
But the court’s decision, issued without written explanation, is a big win for the Obama administration officials and environmental advocates who consider the tiny fish a key indicator of ecological health and an innocent victim, rather than instigator, of the state’s water woes.
“Today’s decision is good news for the thousands of fishermen, Delta farmers, and everyone who depends on the health of California’s Bay-Delta estuary and its native fisheries and wildlife,” Kate Poole, litigation director of the Natural Resources Defense Council’s water program, declared Monday morning.
The Supreme Court did not rule on the merits of the Delta smelt case, and no oral arguments were heard.
The 9th Circuit’s decision spanned more than 150 pages, covered several related cases and was colored by several partial dissents. Put simply, the appellate court concluded the Fish and Wildlife Service could curtail water deliveries to farms in order to protect the fish under the Endangered Species Act, without regard to the human or economic cost.
“The law prohibits us from making such fine utilitarian calculations to balance the smelt’s interests against the interests of the citizens of California,” wrote Judge Jay Bybee. “The Delta smelt has teetered on the edge of extinction.”
Bybee is a conservative, appointed to the bench by President George W. Bush following service in the Bush administration. While acknowledging that “the stakes are exceedingly high” in the water delivery decisions, he concluded that the Fish and Wildlife Service’s actions were “reasonable and prudent.”
Beyond the Delta smelt, the Supreme Court’s decision not to review the case could affect other threatened and endangered species. It effectively keeps intact, for the nine Western states covered by the 9th Circuit, the appellate court’s reasoning that the Fish and Wildlife Service’s duty is “to halt and reverse the trend toward species extinction, whatever the cost.”
James S. Burling, director of litigation for the Pacific Legal Foundation, said he was disappointed in the decision.
“These regulations have harmed farmers and farmworkers in the Central Valley, along with tens of millions of Southern Californians, by diverting vast quantities of water away from human use and out to the Pacific Ocean, all to try to improve the habitat of ... a 3-inch fish on the Endangered Species Act list,” Burling said.
At least four of the Supreme Court’s nine justices would have had to agree for the petitions to be granted and the case heard. The California case was one of more than 400 whose rejections were made public Monday, following a private court conference Friday.
The Sacramento-based Pacific Legal Foundation filed one challenge on behalf of several farms, including Stewart & Jasper Orchards, an almond, pistachio and walnut operation based near the Stanislaus County town of Newman. The related challenge was filed by groups including the Westlands Water District and the Metropolitan Water District of Southern California.
“The drought’s impacts have been greatly exacerbated by water delivery restrictions imposed to protect the Delta smelt,” the Pacific Legal Foundation argued in a brief.