In re Delta Smelt Consolidated Cases

• Decision Date: 08 October 2009
• Docket Number: No. 1:09-CV-407 OWW DLB.,1:09-CV-407 OWW DLB.
• Citation: 663 F.Supp.2d 922
• Court: U.S. District Court — Eastern District of California
• Parties: In re DELTA SMELT CONSOLIDATED CASES. San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al. (1:09-cv-407 OWW DLB). State Water Contractors v. Salazar, et al. (1:09-cv-422 OWW GSA). Coalition for A Sustainable Delta, et al. v. United States Fish and Wildlife Service, et al. (1:09-cv-480 OWW GSA). Metropolitan Water District v. United States Fish and Wildlife Service, et al. (1:09-cv-631 OWW DLB). Stewart & Jasper Orchards et al. v. United States Fish and Wildlife Service (1:09-cv-892 OWW DLB).

663 F.Supp.2d 922

In re DELTA SMELT CONSOLIDATED CASES.

San Luis & Delta-Mendota Water Authority, et al. v. Salazar, et al. (1:09-cv-407 OWW DLB).

State Water Contractors v. Salazar, et al. (1:09-cv-422 OWW GSA).

Coalition for A Sustainable Delta, et al. v. United States Fish and Wildlife Service, et al. (1:09-cv-480 OWW GSA).

Metropolitan Water District v. United States Fish and Wildlife Service, et al. (1:09-cv-631 OWW DLB).

Stewart & Jasper Orchards et al. v. United States Fish and Wildlife Service (1:09-cv-892 OWW DLB).

No. 1:09-CV-407 OWW DLB.

United States District Court, E.D. California.

October 8, 2009.

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Christopher J. Carr, Edgar B. Washburn, William M. Sloan, Morrison and Foerster LLP, San Francisco, CA, Daniel Joseph O'Hanlon, Hanspeter Walter, William Thomas Chisum, Kronick, Moskovitz, Tiedemann & Girard, Eileen M. Diepenbrock, Jon David Rubin, Jonathan R. Marz, Diepenbrock Harrison, Brandon Murray Middleton, Damien Michael Schiff, James S. Burling, M. Reed Hopper, Pacific Legal Foundation, Sacramento, CA, Gregory K. Wilkinson, Steven M. Anderson, Best Best & Krieger, LLP, Riverside, CA, Corinne Fratini, Morrison & Forerster, LLP, Walnut Creek, CA, Audrey M. Huang, Paul S. Weiland, John J. Flynn, III, Robert C. Horton, Nossaman LLP, Irvine, CA, for San Luis & Delta-Mendota Water Authority, et al.

James A. Maysonett, Department of Justice, Ethan Carson Eddy, Govt., U.S. Dept. of Justice, Wildlife & Marine Resources Section, Washington, DC, Jonathan R. Marz, Diepenbrock Harrison, William James Shapiro, United States Department of Justice, Brenda Washington Davis, The Brenda Davis Law Group, Sacramento, CA, Allison Ernestine Goldsmith, Cecilia Louise Dennis, Clifford Thomas Lee, California Attorney General's Office, Michael M. Edson, California Department of Justice, San Francisco, CA, for Salazar, et al.

MEMORANDUM DECISION RE CROSS MOTIONS FOR SUMMARY JUDGMENT RE COMMERCE CLAUSE (Docs. 233 & 288).

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

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 "[b]ecause 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. U.S. Const. art. I, § 8, cl. 3; 1:09-cv-892, Doc. 1 ("Compl."), at ¶ 94.¹ Plaintiffs move for summary judgment on the narrow ground that the application of ESA § 9's take prohibition to the smelt exceeds Congress' power under the Commerce Clause. Doc. 228-2. A coalition of California Farmers and the City of Fresno filed an amici curiae brief in support of Plaintiffs' motion, framing the challenge as one involving application of ESA § 7 to protect the smelt. Doc. 263.²

Federal Defendants and Defendant Intervenors, a coalition of environmental organizations ("Environmental Intervenors"), oppose Plaintiffs' motion. Docs. 270 & 281. Plaintiffs filed a reply. Doc. 293.

Federal Defendants and Defendant Intervenors cross-move for summary judgment on this claim, arguing: (1) that the Stewart Plaintiffs do not have standing to sue; (2) their claim is not ripe; and (3) the application of "Section 7(a)(2) and 9" to the operations of the CVP and SWP is a valid exercise of Congress' power under the Commerce Clause. Docs. 234 & 244. Plaintiffs oppose this motion. Doc. 273. Federal Defendants and Defendant Intervenors filed replies. Docs. 294 & 298.

II. STATUTORY FRAMEWORK

The purpose of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544, is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531(b). In enacting the ESA, Congress made legislative findings that:

(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;

(4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to—

(A) migratory bird treaties with Canada and Mexico;

(B) the Migratory and Endangered Bird Treaty with Japan;

(C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;

(D) the International Convention for the Northwest Atlantic Fisheries;

(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;

(F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation's international commitments and to better safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants.

16 U.S.C. § 1531(a).

ESA section 2(c)(1), 16 U.S.C. § 1531(c)(1), further states that it is "the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter." The ESA authorizes the Secretary of the Interior to list as endangered "any species which is in danger of extinction throughout all or a significant portion of its range," and to list as threatened "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. §§ 1532(6) and (20), 1533.

ESA § 9 makes it unlawful for any person to:

(A) import any [listed] species into, or export any such species from the United States;

(B) take any such species within the United States or the territorial sea of the United States;

(C) take any such species upon the high seas;

(D) possess, sell, deliver, carry, transport, or ship, by any means whatsoever, any such species taken in violation of subparagraphs (B) and (C);

(E) deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any such species;

(F) sell or offer for sale in interstate or foreign commerce any such species; or

(G) violate any regulation pertaining to such species or to any threatened species of fish or wildlife listed pursuant to section 1533 of this title and promulgated by the Secretary pursuant to authority provided by this chapter.

16 U.S.C. § 1538. "Take" is defined as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." § 1532(19). The term "person" is defined as "an individual, corporation, partnership, trust, association, or any other private entity, . . . or any other entity subject to the jurisdiction of the United States." § 1532(13).

Section 9's take prohibition also applies to persons engaged in activities that are not intended or designed to take species listed under the ESA, but which may nevertheless take species incidentally. Incidental taking of listed species by private entities that does not jeopardize the continued existence of that species may be authorized by the Secretary of the Interior pursuant to an incidental take permit issued under Section 10 of the ESA. See 16 U.S.C. § 1539. Take that complies with the terms and conditions set forth in a Section 10 incidental take permit is exempted from the Section 9 prohibition and is lawful. § 1539(c)(1)(B).

Section 7, entitled "Interagency cooperation," requires "[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an `agency action') is not likely to jeopardize the continued existence of any endangered species or threatened species." § 1536(a)(2). Once the consultation process contemplated by section 7(a)(2) has been completed, "the Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." § 1536(b)(3)(A). This written statement is commonly known as a biological opinion.

Section 7(b)(3)(A) further provides that, "[i]f jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) of [Section 7] and can be taken by the Federal agency . . . in implementing the agency action." Id. If the Secretary offers such "reasonable and prudent alternatives which the Secretary believes would not violate [the prohibition against jeopardy or adverse...