The Law Is Powerful Protection Against Erratic Political Winds

In his January 25th post, an attorney for the ultra-right wing Pacific Legal Foundation accused my colleague of ignoring the Constitution, claiming that the water cutbacks to protect California’s threatened native fish are “devoid of constitutional authority.”  Interesting thought – but one that has been rejected by every federal court that has heard this refrain from PLF before, and there have been many.  While PLF tries to cloak its arguments in constitutional armor (who’s not for the Constitution?), their efforts to attack protections for the crashing Bay-Delta estuary would, in fact, radically undermine longstanding constitutional protections, statutory law (laws made by our elected representatives in Congress), and precedent (law as interpreted by numerous judges over time).  Not only do their arguments lack foundation in fact, but they lack grounding in the law.

PLF argues that “the U.S. Fish and Wildlife Service has no business involving itself with a fish that has no connection to interstate commerce.”  The sheer irony of this statement is astounding from an organization that claims that these same fish are causing economic havoc on the entire nation’s food supply that “go[es] far beyond California.”   The measures that PLF objects to affect the very direction of flow of some of California’s largest navigable rivers, the health of the largest estuary on the west coast of the Americas, and California’s (and Oregon’s) multimillion dollar salmon fishing industry which has been entirely shut down for the last two years resulting in the direct loss of nearly 2,700 jobs for the 2009 season alone according to Governor Schwarzenegger.  California even once sustained a prosperous smelt fishery back when the delta smelt was one of the most abundant species in the estuary, which was still the case as recently as the 1980s.  By any reasonable account, these fish have an effect on interstate commerce.

And then there’s the pesky problem of the law.  PLF has advanced and lost its theory about the Constitution prohibiting regulation of intrastate species before at least four circuits of the U.S. Courts of Appeal, many more district courts, and have been rebuffed five times when they’ve sought to interest the U.S. Supreme Court in their theory.  From protection of birds to wolves to a “homely” sturgeon that resides only in the state of Alabama, courts have time and again affirmed the importance to our national economy of protecting and preserving all species.  As the Eleventh Circuit Court of Appeals recently explained in a compelling overview of the purposes of the Endangered Species Act (and cited extensively by the federal judge in Fresno who rejected PLF’s challenge to regulating Bay-Delta fish species):

[T]he economic value of endangered species extends far beyond their sale price.  The House Report accompanying the Endangered Species Act explains that as human development pushes species toward extinction, “we threaten their – and our own – genetic heritage.  The value of this genetic heritage is, quite literally, incalculable.”  H.R. Rep. No. 93-412, at 4 (1973).  Biodiversity’s value is not ethereal; its preservation produces economic gain in even the most narrow sense.  For example, species diversity is essential to medicine.  Half of the most commonly prescribed medicines are derived from plant and animal species….  Nine of the ten most commonly used prescription drugs in the United States are derived from natural plant products….

Genetic diversity is also important to improving agriculture and aquaculture.  As the D.C. Circuit explained…, “the genetic material of wild species of plants and animals is inbred into domestic crops and animals to improve their commercial value and productivity.”  130 F.3d at 1053.  Of the explosive growth in this nation’s farm production since the 1930s, genetic diversity is responsible “for at least one-half of the doubling in yields of rice, soybeans, wheat, and sugarcane, and a three-fold increase in corn and potatoes.”…The growing use of genetic modification in aquaculture, meanwhile, may prove essential to meeting the rising world demand for fish and fishmeal….

A species’ simple presence in its natural habitat may stimulate commerce by encouraging fishing, hunting, and tourism.  A Fish and Wildlife Service report found that in 2001 recreational anglers spent $35.6 billion, recreational hunters spent $20.6 billion, and wildlife watchers spent $38.4 billion….. The report estimated direct expenditures only, and the total commercial impact of each activity may be greater still.  A 1996 estimate found that recreational anglers alone had “a nationwide economic impact of about $108.4 billion, support[ed] 1.2 million jobs, and add[ed] $5.5 billion to Federal and State tax revenues.”  …All of the industries we have mentioned – pharmaceuticals, agriculture, fishing, hunting, and wildlife tourism – fundamentally depend on a diverse stock of wildlife, and the Endangered Species Act is designed to safeguard that stock.

Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250, 1271-77 (11th Cir. 2007). 

PLF’s argument that the citizens of California and the country as a whole derive no economic benefit from the protection of the west coast’s largest estuary and its native species misses the legal mark.  Thankfully, the Constitution is a stubborn document, and was designed to resist the baseless public relations campaign that PLF has directed its way.