Application of Sections 7 and 9 of the Endangered Species Act to California Delta Smelt Does Not Violate Commerce Clause


In Stewart & Jasper Orchards v. Salazar, the Court of Appeals affirmed the district court judgment that the application of Sections 7 and 9 of the Endangered Species Act (“ESA”) to the California delta smelt does not violate the Commerce Clause in the United States Constitution.

The delta smelt is a small fish, 60-70 millimeters in length, that is undisputedly endemic to California. Though once inhabiting all of California’s San Francisco Bay/Sacramento-San Joaquin Delta Estuary, its range has diminished. The delta smelt presently has no commercial value, but it was commercially harvested in the past.

The United States Fish and Wildlife Service listed the delta smelt as a threatened species in 1993 under the ESA. In 2008, the Service, acting under Section 7 of the ESA (16 U.S.C. § 1536(a)(2)), issued a Biological Opinion to the Bureau of Reclamation. The Biological Opinion concerned the Bureau’s and the California Department of Water Resource’s operation of the Central Valley Project and the State Water Project, two of the world’s largest water diversion projects. The Biological Opinion concluded that “the coordinated operations of the water projects as proposed, are likely to jeopardize the continued existence of the delta smelt” and “adversely modify delta smelt habitat.” The Biological Opinion included a “Reasonable and Prudent Alternative,” as well as an “Incidental Take Statement.” The Reasonable and Prudent Alternative consisted of various components designed to reduce entrainment and other “taking” of smelt during critical times of the year by controlling water flows to and in the delta.

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