U.S. Supreme Court Denies Cert in Delta Smelt Case

In an anticlimactic end to a situation that has caused much uproar in California over the last eight years—Delta pumping restrictions—the U.S. Supreme Court denied certiorari in Stewart & Jasper Orchards v. Jewell and State Water Contractors v. Jewell letting stand a 2008 biological opinion that imposes pumping restrictions to protect the Delta smelt.

The issue began in earnest in the spring of 2007 when a state court issued a writ of mandate requiring the Department of Water Resources to shut down the Harvey O. Banks Pumping Plant, a major Delta pumping station, and obtain proper takings permits for the Delta smelt and certain threatened or endangered salmon species.  The federal government jumped into the fray a few months later when Federal District Court Judge Oliver Wanger ruled that the U.S. Fish and Wildlife Service’s (“USFWS”) biological opinion on the long-term impacts of the Central Valley Project (“CVP”) and the SWP was “unlawful and inadequate” and later that year restricted pumping for the CVP . In December 2008, USFWS issued a new biological opinion.  The ensuing challenges led to the Federal District Court invalidating the biological opinion because the federal agencies failed to examine alternatives that “minimize jeopardy to affected humans and their communities, as well as protecting the threatened species.”  In early 2014, the 9th U.S. Circuit Court of Appeals overturned the District Court—the pumping restrictions were back on and the issue was appealed to the U.S. Supreme Court.  (For background on the Delta smelt rulings, restrictions and biological opinion, see Water Strategist April 2007, June 2007, September 2007, December 2008, January 2009 and June 2010).

In its petition for certiorari, the Pacific Legal Foundation, who represented farmers with permanent crops in the San Joaquin Valley, argued that the appellate court had relied on an old case with a brutal precedent as a basis for its decision.  The facts of TVA v. Hill dealt with whether the discovery of the endangered snail darter on the Little Tennessee River would put the nearly-completed Tellico Dam in violation of the Endangered Species Act—but its impact was to grant exceptional latitude to regulators without regard to the cost.

“In recent years the U.S. Supreme Court has begun to back away from TVA,” said Damien Schiff, Principle Attorney with PLF.  “The Delta smelt case offers the court an opportunity to help drought-scorched California—and to finally overturn this radical and harmful precedent.”

In denying certiorari, the Supreme Court effectively upheld the appellate court ruling and its reliance on TVA.

So what does the High Court’s actions really mean?

This was a denial of certiorari, not a decision, so there are no opinions that reveal what was going on in the minds of the nine justices, but there are a couple of important points to note.

First, it does not mean that the Supreme Court necessarily agrees with the appellate court or that all cases involving biological opinions or the Delta smelt are going to stand in this condition on this precedent for all time.  Rather, consider the possibility that with all of the cases coming before the court, the impact of this one was not widespread enough.

Marcia Scully, General Counsel for the Metropolitan Water District of Southern California, iterated this point in her reaction to the news that the Court had denied certiorari.

“The Supreme Court decision was not a surprise. The water agencies understood the long odds against prevailing even before filing the petition because the Supreme Court hears less than 1 percent of the 10,000 requests it receives each year,” said Scully in a statement.

The second point is that cases stem from action that pre-dates the Bay Delta Conservation Plan (“BDCP”).  Like it or not, state and federal agencies are already working on a way to do things differently, and the controversial twin tunnels component has the potential, according to project proponents, to make pumping restrictions moot.

Written by Marta L. Weismann