San Luis & Delta-Mendota Water Authority v. Salazar, 638 F.3d 1163

Delta smelt is a small, California-endemic fish whose range has diminished and that currently has no commercial value but was once used as bait.
The Service listed the delta smelt as threatened in 1993, designated critical habitat in 1994, and considered re-listing as endangered in 2010 but did not, due to higher-priority listings.
Section 7 requires federal agencies to consult with the Service for actions that may jeopardize species or modify habitat; the Service issues a biological opinion with potential reasonable and prudent alternatives and an Incidental Take Statement.
In 2008 the Service issued a Biological Opinion under §7 regarding the Central Valley Project and State Water Project; it concluded likely jeopardy and adverse habitat modification for delta smelt.
The Biological Opinion included a Reasonable and Prudent Alternative and an Incidental Take Statement intended to shield the Bureau from §9 liability if followed.
Growers sued, challenging the application of ESA §§ 7 and 9 to the water projects as unconstitutional under the Commerce Clause; district court denied some claims, found standing for §7 but not for §9, and held §7 valid under Commerce Clause while §9 merits were addressed later.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing to challenge §9 as applied	Growers have injury from reduced water; coercive enforcement by §9 causes redressable injury.	No imminent enforcement and causation insufficient; §9 challenge not ripe.	Growers have Article III standing to challenge §9 as applied.
Ripeness of the §9 as-applied challenge	Enforcement power and concrete harm render the claim ripe; pre-enforcement rationale in Thomas does not apply.	Ripeness not met under traditional pre-enforcement framework.	Challenge to §9 is ripe under Abbott and related standard.
Commerce Clause challenge to §§7 and 9 as applied	§7 and §9 are unconstitutional because delta smelt is intrastate and lacks commercial value.	ESA bears substantial relation to interstate commerce; Raich framework supports regulation of intrastate activity with a broad regulatory scheme.	ESA §§7 and 9 are valid Commerce Clause regulations; Growers' as-applied challenge fails.

Bennett v. Spear, 520 U.S. 154 (U.S. Supreme Court, 1997) (Biological Opinion coercive power can create standing to challenge §9)
Summers v. Earth Island Institute, 555 U.S. 488 (U.S. Supreme Court, 2009) (Distinguishes live controversy from settled regulations; not controlling here)
Raich v. Gonzales, 545 U.S. 1 (U.S. Supreme Court, 2005) (Congress may regulate intrastate activity with substantial effect on commerce)
United States v. Lopez, 514 U.S. 549 (U.S. Supreme Court, 1995) (Established substantial effects test for Commerce Clause)
United States v. Morrison, 529 U.S. 598 (U.S. Supreme Court, 2000) (Further supports substantial effects framework)
Alabama-Tombigbee Rivers v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007) (Post-Raich upholding ESA as substantially related to commerce)
Bramble v. Gates, 103 F.3d 1475 (9th Cir. 1996) (ESA protections align with commerce concerns)
GDF Realty Inv., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003) (Supports broad commerce relation of ESA)
Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) (Endangered species protection implicates interstate commerce)
NAHB v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (Commerce implications of ESA discussed)