The Ninth Circuit Court of Appeals has determined that the U.S. Fish and Wildlife Service (FWS) has not violated the U.S. Constitution’s Commerce Clause by applying the Endangered Species Act (ESA) to protect delta smelt. San Luis & Delta-Mendota Water Auth. v. Salazar, No. 10-15192 (9th Cir. 3/25/11).

Affirming a district court ruling, the appellate court rejected claims that cuts in water exports required under an FWS biological opinion to protect the delta smelt were unconstitutional. Plaintiffs argued that cuts to water exports from the Sacramento-San Joaquin Delta Estuary to agricultural and urban water users were “invalid exercises of constitutional authority [under the Commerce Clause]” because the delta smelt lacks any commercial value and “is a purely intrastate species.” They further argued that the ESA was not a market regulatory scheme and that the government was required to demonstrate that the take of delta smelt substantially affects interstate commerce.

The district court and Ninth Circuit disagreed, ruling that plaintiff’s arguments fail “because the ESA bears a substantial relation to commerce.” According to the appellate court, the ESA “clearly recognizes that all species are important to the web of life, may have benefits to society yet to be discovered, and are integrally related to the nation’s commerce.” News reports indicate that plaintiffs are likely to seek U.S. Supreme Court review. See Law360 and Greenwire, March 28, 2011.