SAN LUIS WATER AUTHORITY v. Salazar
638 F.3d 1163
| 9th Cir. | 2011Background
- Delta smelt is an endemic California species with no current commercial value but previously harvested as bait.
- The Service listed the delta smelt as threatened in 1993 and designated critical habitat in 1994; in 2010 it contemplated relisting as endangered but deferred.
- Section 7 of the ESA requires federal agencies to consult with the Service to avoid jeopardy or adverse modification of critical habitat; a biological opinion is issued after consultation.
- In 2008 the Service issued a Biological Opinion for the Central Valley Project and State Water Project, concluding likely jeopardy and proposing a reasonable and prudent alternative with an Incidental Take Statement.
- The Growers challenged the application of ESA Sections 7 and 9 to the water projects as applied to the delta smelt, claiming Commerce Clause invalidity.
- The district court found standing for §7 but not for §9, and rejected the Commerce Clause challenge; on appeal, the Growers challenge §9 as applied and the Service challenge §7 and §9 together.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do the Growers have standing to challenge §9 as applied? | Growers have injury from reduced water deliveries and coercive effect of §9. | Standing limited to §7; §9 lacks injury in fact at issue. | Growers have standing to challenge §9. |
| Is the §9 no-take provision as applied to the delta smelt an unconstitutional use of the Commerce Clause? | Delta smelt is intrastate, no commercial value; §7/§9 overreach Commerce Clause. | ESA bears substantial relation to commerce via Raich framework; intrastate activity can be regulated. | No, §9 as applied is a valid Commerce Clause regulation. |
| Is the Growers' challenge to §7/§9 ripe for review? | Immediate practical harm from ongoing coercive enforcement; past enforcement history not required. | Pre-enforcement risk disputes require imminent enforcement; here not imminent. | Challenge is ripe; Abbott Laboratories framework applies. |
| Does the case present a valid as-applied challenge under the Commerce Clause to §7 and §9? | As applied to delta smelt, §7/§9 exceed Congress's Commerce Clause power. | Raich framework supports substantial relation to interstate commerce; regulation valid. | ESA §§ 7 and 9 withstand as-applied Commerce Clause challenge. |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (Biological Opinion can have coercive effect on agency actions granting standing)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing elements: injury, causation, redressability)
- Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife, 273 F.3d 1229 (9th Cir. 2001) (no-jeopardy provision motivation complements no-take provision in causation)
- Raich v. Gonzales, 545 U.S. 1 (U.S. 2005) (local activity may be regulated if part of a broad regulatory scheme with substantial relation to commerce)
- Alabama-Tombigbee Rivers v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007) (ESA bears substantial relation to commerce; intrastate activity regulated under overarching scheme)
- Bramble v. United States, 103 F.3d 1475 (9th Cir. 1996) (pre-Raich precedent upholding ESA under Commerce Clause)
- GDF Realty Invest. Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003) (ESA commerce relation and standing context referenced)
- Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000) (economic impacts of endangered species regulation on interstate commerce)
- NAHB v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (endangered species protection linked to commerce considerations)
- United States v. Bramble, 103 F.3d 1475 (9th Cir. 1996) (post-Lopez upholding ESA as substantial relation to commerce)