Observations From the Back Row, 4/6/11

By Rich Kozlovich

Ninth Circuit Rejects Commerce Clause Challenge to Endangered Species Act.  A federal appeals court has rejected a conservative legal group's argument that federal protections of an endangered species violate the Commerce Clause.

A unanimous panel of the U.S. Court of Appeals for the Ninth Circuit upheld the federal protections of delta smelt, a small fish endemic to California, against challenges from the Pacific Legal Foundation, which argued that the protections diminished water exports from the Delta.

The federal protections of the fish were created pursuant to the Endangered Species Act. The Pacific Legal Foundation argued that the fish are "purely intrastate species," with no "commercial value," and therefore the federal government regulations to protect the fish were "invalid exercises of constitutional authority [under the Commerce Clause]."

The Ninth Circuit panel disagreed, writing in part, that “Congress has the power to regulate purely intrastate activity long as the activity is being regulated under a general regulatory scheme that bears a substantial relationship to interstate commerce." Citing the Eleventh Circuit, the panel ruled that "the Endangered Species Act is a general regulatory statute bearing substantial relation to commerce."

My Take - How much do you want to bet the founding fathers (you know, the people who wrote the Commerce Clause) didn’t believe that.  Below are links that list the insanity of ESA over the last week.  And this wasn't all of them.  RK

• Feds may protect rare sunfish found only on Limestone County.
• The US Fish and Wildlife Service announced Monday that “the meltwater lednian stonefly warrants protection under the Endangered Species Act
• Endangered plant scrub Lupine is in recovery plan.
• Endangered ‘Mameng,’ a protected species, openly traded
• Killer whales eat Bluefin Tuna
• National Campaign to Boycott Endangered Bluefin Tuna Coming to Las Vegas Sushi Restaurants
• Sea lions' appetite for salmon has lawmakers out for blood
• In the United States, Hawaii has more endangered species than any other state.
• Delist the prairie dog.
• Critical habitat for snowy plover may more than double under new proposal.
• Flying squirrel returns to ESA list
• Parkway plants to be relocated.
• Wolf bills and wolf settlements. Wolves are a big problem…
• Cattlemen seek solutions in face of wolf return.
• Model airplane show hinges on scrub jay protection.
• Butterfly boosters hope second time’s a charm.
• Critical habitat for the Chiricahua leopard frog proposed.
• Dog ban at Plymouth
• Solar projects and 140 endangered tortoises
• Nature conservancy protection of warbler habitat.
• First razor clam dig for April approved.
• Cattlemen seek solutions in face of wolf return.
• Palm Oil….it doesn’t end there.
• Expand the carbon tax, invest in transit, pass an Endangered Species Act and protect more old growth forests.
• Dwarf wedgemussel, the creeper, triangle floater, Eastern pond mussel and the slimy sculpin!
• The U.S. Fish and Wildlife Service is gathering information to determine if four species found on South Sound prairie habitat should be listed under the federal Endangered Species Act.
• Water deliveries to the plaintiffs' almond, pistachio and walnut operations were reduced due to Endangered Species Act restrictions on major irrigation projects in the state.
• The Parnell administration grew so weary of the continuous battle with the federal government that it established a position for a lawyer who deals solely with issues involving the Endangered Species Act. ...

###