Christopher J. Carr, Edgar B. Washburn, William M. Sloan, Morrison and Foerster LLP, San Francisco, CA, Daniel Joseph O'Hanlon, Hanspeter Walter, William Thomas Chisum, Kronick, Moskovitz, Tiedemann & Girard, Eileen M. Diepenbrock, Jon David Rubin, Jonathan R. Marz, Diepenbrock Harrison, Brandon Murray Middleton, Damien Michael Schiff, James S. Burling, M. Reed Hopper, Pacific Legal Foundation, Sacramento, CA, Gregory K. Wilkinson, Steven M. Anderson, Best Best & Krieger, LLP, Riverside, CA, Corinne Fratini, Morrison & Forerster, LLP, Walnut Creek, CA, Audrey M. Huang, Paul S. Weiland, John J. Flynn, III, Robert C. Horton, Nossaman LLP, Irvine, CA, for San Luis & Delta-Mendota Water Authority, et al.

James A. Maysonett, Department of Justice, Ethan Carson Eddy, Govt., U.S. Dept. of Justice, Wildlife & Marine Resources Section, Washington, DC, Jonathan R. Marz, Diepenbrock Harrison, William James Shapiro, United States Department of Justice, Brenda Washington Davis, The Brenda Davis Law Group, Sacramento, CA, Allison Ernestine Goldsmith, Cecilia Louise Dennis, Clifford Thomas Lee, California Attorney General's Office, Michael M. Edson, California Department of Justice, San Francisco, CA, for Salazar, et al.

OLIVER W. WANGER, District Judge.

This case concerns the United States Fish and Wildlife Service's ("FWS") December 15, 2008 biological opinion ("BiOp" or "2008 BiOp") concerning the impact of coordinated operations of the Central Valley Project ("CVP") and State Water Project ("SWP") on the threatened delta smelt, prepared pursuant to Section 7(a)(2) of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1536 (a)(2). Before the court for decision are cross motions for summary judgment on Plaintiffs' Stewart & Jasper Orchards', et al., ("Stewart Plaintiffs") sixth claim for relief, which alleges that "[b]ecause the delta smelt is a purely `intrastate species,' and because it has no commercial value," the application of sections 7(a)(2) and 9 of the ESA to the delta smelt is an "invalid exercise[ ] of constitutional authority" under the Commerce Clause. U.S. Const. art. I, § 8, cl. 3; 1:09-cv-892, Doc. 1 ("Compl."), at ¶ 94. [1] Plaintiffs move for summary judgment on the narrow ground that the application of ESA § 9's take prohibition to the smelt exceeds Congress' power under the Commerce Clause. Doc. 228-2. A coalition of California Farmers and the City of Fresno filed an amici curiae brief in support of Plaintiffs' motion, framing the challenge as one involving application of ESA § 7 to protect the smelt. Doc. 263. [2]

Federal Defendants and Defendant Intervenors, a coalition of environmental organizations ("Environmental Intervenors"), oppose Plaintiffs' motion. Docs. 270 & 281. Plaintiffs filed a reply. Doc. 293.

Federal Defendants and Defendant Intervenors cross-move for summary judgment on this claim, arguing: (1) that the Stewart Plaintiffs do not have standing to sue; (2) their claim is not ripe; and (3) the application of "Section 7(a)(2) and 9" to the operations of the CVP and SWP is a valid exercise of Congress' power under the Commerce Clause. Docs. 234 & 244. Plaintiffs oppose this motion. Doc. 273. Federal Defendants and Defendant Intervenors filed replies. Docs. 294 & 298.

The purpose of the Endangered Species Act ("ESA"), 16 U.S.C. §§ 1531-1544 , is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved" and "to provide a program for the conservation of such endangered species and threatened species." 16 U.S.C. § 1531 (b). In enacting the ESA, Congress made legislative findings that:

16 U.S.C. § 1531 (a).

ESA section 2(c)(1), 16 U.S.C. § 1531 (c)(1), further states that it is "the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter." The ESA authorizes the Secretary of the Interior to list as endangered "any species which is in danger of extinction throughout all or a significant portion of its range," and to list as threatened "any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." 16 U.S.C. §§ 1532 (6) and (20), 1533.

ESA § 9 makes it unlawful for any person to:

16 U.S.C. § 1538 . "Take" is defined as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." § 1532(19). The term "person" is defined as "an individual, corporation, partnership, trust, association, or any other private entity,. . . or any other entity subject to the jurisdiction of the United States." § 1532(13).

Section 9's take prohibition also applies to persons engaged in activities that are not intended or designed to take species listed under the ESA, but which may nevertheless take species incidentally. Incidental taking of listed species by private entities that does not jeopardize the continued existence of that species may be authorized by the Secretary of the Interior pursuant to an incidental take permit issued under Section 10 of the ESA. See 16 U.S.C. § 1539 . Take that complies with the terms and conditions set forth in a Section 10 incidental take permit is exempted from the Section 9 prohibition and is lawful. § 1539(c)(1)(B).

Section 7, entitled "Interagency cooperation," requires "[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an `agency action') is not likely to jeopardize the continued existence of any endangered species or threatened species." § 1536(a)(2). Once the consultation process contemplated by section 7(a)(2) has been completed, "the Secretary shall provide to the Federal agency and the applicant, if any, a written statement setting forth the Secretary's opinion, and a summary of the information on which the opinion is based, detailing how the agency action affects the species or its critical habitat." § 1536(b)(3)(A). This written statement is commonly known as a biological opinion.

Section 7(b)(3)(A) further provides that, "[i]f jeopardy or adverse modification is found, the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) of [Section 7] and can be taken by the Federal agency . . . in implementing the agency action." Id. If the Secretary offers such "reasonable and prudent alternatives which the Secretary believes would not violate [the prohibition against jeopardy or adverse modification]," and concludes that the taking of a listed species "incidental to the agency action will [likewise] not violate [the prohibition against jeopardy or adverse modification]," the Secretary must provide the action agency with a written statement that (1) "specifies the impact of such incidental taking on the species" and (2) "specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact," and (3) "sets forth the terms and conditions (including, but not limited to, reporting requirements) that must be complied with by the [action agency] to implement the measures specified. . ." § 1536(b)(4)(C). Like that issued under section 10, this written statement is commonly referred to as an "Incidental Take Statement" ("ITS"). Any taking that is in compliance with the terms of the ITS "shall not be considered . . . a prohibited taking of the species concerned." § 1536(o)(2).

FWS listed the delta smelt as a threatened species on March 5, 1993. 58 Fed. Reg. 12,854 ; Administrative Record ("AR") 3265. It is undisputed that the smelt is "endemic to California." Id.

The 2008 BiOp concluded that "the coordinated operations of the CVP and SWP, as proposed, are likely to jeopardize the continued existence of the delta smelt" and "adversely modify delta smelt critical habitat." BiOp 276-78. [3] As a result of this conclusion, the BiOp includes a "reasonable and prudent alternative" ("RPA") designed to allow the projects to continue operating without causing jeopardy or adverse modification. BiOp at 279. The RPA includes various components governing operation of the CVP and SWP, designed to reduce entrainment and other taking of smelt during critical times of the year by controlling water flows to and in the Delta. BiOp. 279-85.

The RPA measures prescribed by the BiOp to prevent takes of delta smelt "are nondiscretionary and must be implemented by Reclamation, working with DWR. . . in order for the exemption in section 7(o)(2) to apply."

BiOp 286.

Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). The instant motions address a challenge to the constitutionality of agency action. The relevant facts are not in dispute, rendering the issues amenable to summary judgment.

"Due respect for the decisions of a coordinate branch of Government demands that [courts] invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." United States v. Morrison, 529 U.S. 598, 607 , 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Congressional enactments are, therefore, entitled to a "presumption of constitutionality." See id. "In assessing the scope of Congress' authority under the Commerce Clause," a court "need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding." Gonzales v. Raich, 545 U.S. 1, 22 , 125 S.Ct. 2195 , 162 L.Ed.2d 1 (2005) (internal quotation omitted).

The Stewart Plaintiffs' sixth claim for relief alleges that application of "Sections 7(a)(2) and 9 of the ESA . . . as applied to the Long Term Operational Criteria and Plan for coordination of the [CVP] and [SWP] are invalid exercises of constitutional authority." Compl. ¶ 94. However, Plaintiffs' motion for summary judgment focuses exclusively on the theory that the application of Section 9's take prohibition to the smelt exceeds Congress' authority under the Commerce Clause. Doc. 228-2 at 12. [4]

Federal Defendants assert that the Stewart Plaintiffs lack standing to bring a Commerce Clause challenge to the application of only Section 9 to CVP and SWP operations, because, among other things, "Plaintiffs' Complaint makes no factual allegations of injury resulting from the application of Section 9 to the operations of the CVP and SWP, as it does not allege that Plaintiffs have violated or will violate any of Section 9's provisions. . . ." Doc. 234 at 7. Federal Defendants' argument continues:

Id. (citations omitted).

In response, Plaintiffs suggest that whether they will be subject to section 9 liability is only part of their claim, because Project operators may be subject to Section 9 liability if they do not abide by the BiOp's terms and conditions. Plaintiffs correctly point out that, at least in part, the BiOp is "based on the premise that, without the Service's authorization, takes of delta smelt that occur as a result of coordinated [CVP] and [SWP] operations would violate Section 9 of the ESA." Doc. 228-2 at 12 (citing BiOp at 286 (noting that the ITS "must be implemented by Reclamation, working with DWR . . . in order for the exemption in section 7(o)(2) [from section 9 liability] to apply")). The coordinated operations, under the BiOp's constraints, reduce CVP and SWP water available to deliver under Plaintiffs' water service contracts with Interior and DWR.

However, Plaintiffs do not acknowledge Section 7's more central role, which directly resulted in the issuance of the challenged BiOp. Section 7(a)(2) requires every federal agency, "in consultation with and with the assistance of the Secretary [of the Interior], insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of [listed species] or result in the destruction of adverse modification of [the critical] habitat of such species." 16 U.S.C. § 1536 (a)(2). The phrase "jeopardize the continued existence of" is defined by regulation to mean "to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species." 50 C.F.R. § 402.02 . Likewise, the phrase "destruction or adverse modification" means "a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to, alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical." Id. Neither section 7(a)(2) nor the definitional regulations mention the term "take." Section 7 operates as an independent requirement that agencies thoroughly examine the potential consequences of their actions for listed species.

Here, FWS concluded that, as proposed, the agency action would cause jeopardy and adverse modification to the smelt and its habitat. As required by Section 7(b), FWS proposed a RPA and included in the BiOp a statement that, if the Projects are operated in accordance with the RPA and other conditions, incidental takes resulting from Project operations would not subject Project operators to Section 9 take liability. The threat of civil or criminal Section 9 liability motivates project operators and users to comply with the terms and conditions of the BiOp. The BiOp directly resulted from the consultation process required under Section 7. Even if Section 7 and Section 9 overlap, the application of one does not necessarily implicate the other.

Plaintiffs' suggestion that the BiOp was "issued based on the imminent application of Section 9 to delta smelt takes occurring in the CVP and SWP," Doc. 273 at 3, is not supported by the record. Plaintiffs cite page 286 of the BiOp, which notes that the RPA and terms and conditions of the ITS "must be implemented by Reclamation, working with DWR . . . in order for the exemption in section 7(o)(2) [from section 9 liability] to apply." This simply recognizes that adoption of an RPA and ITS, serve to immunize the action agency from liability under Section 9. The pleadings and record provide no information that a Section 9 enforcement action against any project operator is "imminent."

To establish Article III standing: (1) a plaintiff "must have suffered an injury in fact an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical"; (2) "there must be a causal connection between the injury and the conduct complained of the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court."; and (3) "it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (internal citations and quotations omitted).

It is undisputed that the issuance of the BiOp has resulted in reduced water deliveries to south-of-Delta users, including Plaintiffs, to protect the smelt. This has resulted in a number of adverse consequences to water users, discovered in accompanying motions. Given that there is no threat of imminent Section 9 enforcement in this case, there is no causal connection between Plaintiffs' injury and the conduct complained of, namely Section 9's application to the coordinated operation of the project. [5] Plaintiffs lack standing to sue under Section 9.

Plaintiffs' Section 9 challenge is unripe. The ripeness doctrine avoids "premature adjudication" of disputes. Scott v. Pasadena Unif. Sch. Dist., 306 F.3d 646 , 662 (9th Cir.2002). A pre-enforcement challenge is only ripe if a plaintiff is presented with "the immediate dilemma to choose between complying with newly imposed, disadvantageous restrictions and risking serious penalties for violation." Reno v. Catholic Soc. Servs., 509 U.S. 43, 57 , 113 S.Ct. 2485 , 125 L.Ed.2d 38 (1993). In evaluating "the genuineness of a claimed threat of prosecution," a court must examine: (1) "whether the plaintiffs have articulated a concrete plan to violate the law in question"; (2) "whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings"; and (3) "the history of past prosecution or enforcement under the challenged statute." Thomas v. Anchorage Equal Rights Com'n, 220 F.3d 1134 , 1139 (9th Cir.2000).

Here, Plaintiffs point to no concrete plans on the part of project operators to violate the ESA, no communication of a specific warning or threat to initiate enforcement proceedings, nor any history of past prosecution or enforcement against the project operators. Even if, arguendo, project operators faced imminent prosecution under Section 9, Plaintiffs do not cite any authority to support the threshold proposition that they can stand in the shoes of project operators to challenge such section 9 enforcement proceedings.

Although Section 9 operates during the consultation process, Plaintiffs have not demonstrated that their injury is fairly traceable to any threatened Section 9 enforcement action. The only viable Commerce Clause challenge in this case is to the constitutionality of FWS's application of Section 7 to the coordinated operation of the Projects.

Plaintiffs do not have standing to assert a pure § 9 claim. Even if they did, any such claim would be unripe. Plaintiffs' sixth claim for relief alleges that application of "Sections 7(a)(2) and 9 of the ESA. . . as applied to the Long Term Operational Criteria and Plan for coordination of the [CVP] and [SWP] are invalid exercises of constitutional authority," and there is no dispute that Plaintiffs have standing to bring a section 7 claim. However, Plaintiffs deliberately refuse to advance section 7 as a basis for their motion for summary judgment.

Nevertheless, Federal Defendants and Defendant Intervenors move for summary judgment on Plaintiffs' sixth claim for relief, arguing that the application of "Sections 7(a)(2) and 9," together, to the operations of the CVP and SWP is authorized by the Commerce Clause. Doc. 234 at 9; Doc. 244-2 at 13 (joining Federal Defendants' arguments). It is therefore appropriate to adjudicate Federal Defendants' and Defendant Intervenors' defensive motions for summary judgment, which appropriately focus on section 7, not section 9, because section 7 directly required the preparation of the BiOp and RPA about which the Plaintiffs complain.

Article I, section 8, clause 3 of the United States Constitution authorizes Congress to "regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes." Acts of Congress are presumed to be constitutional. See United States v. Morrison, 529 U.S. 598, 607 , 120 S.Ct. 1740 , 146 L.Ed.2d 658 (2000). A court may invalidate a statute "only upon a plain showing that Congress has exceeded its constitutional bounds." Id.

In United States v. Lopez, 514 U.S. 549 , 115 S.Ct. 1624 , 131 L.Ed.2d 626 (1995), the Supreme Court considered whether a provision of the Gun-Free School Zones Act, 18 U.S.C. § 922 (q)(1)(A), which made it a federal offense to possess a firearm near a school, exceeded Congress' authority under the Commerce Clause. 514 U.S. 549, 551 , 115 S.Ct. 1624 (1995). The Lopez Court began its analysis with familiar "first principles":

514 U.S. at 553-54 , 115 S.Ct. 1624 . Lopez held that the Commerce Clause authorizes Congress to regulate "three broad categories of activity":

Id. at 558-59 , 115 S.Ct. 1624 (citations omitted) (emphasis added). [6] Focusing on the third, "substantial effects" category, the Court articulated four factors relevant to evaluating whether the Gun-Free School Zones Act had a substantial affect on interstate commerce.

First, the challenged statute was "a criminal statute that by its terms has nothing to do with `commerce' or any sort of economic enterprise, however broadly one might define those terms." 514 U.S. at 560-61 , 115 S.Ct. 1624 (emphasis added). The Court noted that it has "upheld a wide variety of congressional Acts regulating intrastate economic activity where we have concluded that the activity substantially affected interstate commerce." Id. at 559 , 115 S.Ct. 1624 .

Second, the Act "has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce." Id. at 562 , 115 S.Ct. 1624 (emphasis added). Such a jurisdictional element, while not required, "may establish that the enactment is in pursuance of Congress' regulation of interstate commerce." Morrison, 529 U.S. at 612 , 120 S.Ct. 1740 .

Third, "[a]lthough as part of our independent evaluation of constitutionality under the Commerce Clause we of course consider legislative findings, and indeed even congressional committee findings, . . . neither the statute nor its legislative history contains express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone." Lopez, 514 U.S. at 562 , 115 S.Ct. 1624 (internal citations and quotations omitted). While "Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce," id., such findings may "enable us to evaluate the legislative judgment that the activity in question substantially affect[s] interstate commerce, even though no such substantial effect [is] visible to the naked eye," id. at 563 , 115 S.Ct. 1624 .

Fourth, Lopez rejected the Government's argument that possession of firearms in school zones may affect the national economy because the violent crime that can be expected to result from such possession would: (1) affect the costs of insurance throughout the nation; (2) reduce the willingness of individuals to travel to areas perceived to be unsafe, and (3) hamper the educational process by threatening the learning environment. The Court concluded that these effects were unconvincing because they only "tenuously" connected gun possession in school zones to interstate commerce. Id. at 564 , 115 S.Ct. 1624 . If the government's arguments were accepted, the Court would be "hard pressed to posit any activity by an individual that Congress is without power to regulate." Id.

Morrison applied Lopez's four-step framework to strike down a provision of the Violence Against Women Act ("VAWA"), 42 U.S.C. § 13981 , affording a federal civil remedy for the victims of gender-motivated violence. 529 U.S. 598 , 120 S.Ct. 1740 . With respect to the first Lopez factor, whether the statute had anything to do with "commerce" or "any sort of economic enterprise," the Morrison Court reasoned that "[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity." Id. at 612 , 120 S.Ct. 1740 . Next, Morrison concluded that "§ 13981 contains no jurisdictional element establishing that the federal cause of action is in pursuance of Congress' power to regulate interstate commerce." Id. at 613, 120 S.Ct. 1740 .

Turning to the issue of congressional findings, Morrison noted that "[i]n contrast with the lack of congressional findings that we faced in Lopez , § 13981 is supported by numerous findings regarding the serious impact that gender-motivated violence has on victims and their families." Id. at 614, 120 S.Ct. 1740 . However, the Court held that "the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation." Id. "[S]imply because Congress may conclude that a particular activity substantially affects interstate commerce does not necessarily make it so." Id. (internal citations and quotations omitted). "Rather, whether particular operations affect interstate commerce sufficiently to come under the constitutional power of Congress to regulate them is ultimately a judicial rather than a legislative question, and can be settled finally only by this Court." Id. (internal citations and quotations omitted). Congress' findings regarding VAWA were "substantially weakened by the fact that they rely so heavily on a method of reasoning that we have already rejected as unworkable if we are to maintain the Constitution's enumeration of powers." Id. at 615 , 120 S.Ct. 1740 . Congress found that gender-motivated violence affects interstate commerce by

Id. (citing H.R. Conf. Rep. No. 103-711, at 385, U.S.Code Cong. & Admin. News 1994, pp. 1803, 1853; S.Rep. No. 103-138, at 54.) The concern "expressed in Lopez that Congress might use the Commerce Clause to completely obliterate the Constitution's distinction between national and local authority seems well founded." Id. (citing Lopez, 514 U.S. at 564 , 115 S.Ct. 1624 ).

Id. at 615 , 120 S.Ct. 1740 .

The Morrison Court was particularly concerned that the Government's reasoning, if accepted would "be applied equally as well to family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant." Id. at 615-16 , 120 S.Ct. 1740 . In conclusion, the Court emphasized that, traditionally, the regulation of intrastate violent crime has always been the province of the states:

Id. at 617-18 , 120 S.Ct. 1740 (internal citations, quotations, and footnotes omitted).

Morrison left open the possibility that noneconomic activity might be aggregated under certain circumstances:

Id. at 613 , 120 S.Ct. 1740 . Morrison requires the identification of "economic activity" as a precondition to the federal power to regulate under the Commerce Clause. Id. at 613 , 120 S.Ct. 1740 .

More Recently, Raich , upheld the application of provisions of the Controlled Substances Act ("CSA") criminalizing, the manufacture, distribution, and possession of marijuana by one individual who grew marijuana solely for her own personal, medicinal use and another medicinal user who was provided locally grown marijuana by a caregiver at no charge. 545 U.S. 1 , 125 S.Ct. 2195 . Raich confirmed Supreme Court precedent "firmly establishes Congress' power to regulate purely local activities that are part of an economic class of activities that have a substantial effect on interstate commerce." Id. at 17 , 125 S.Ct. 2195 (internal citations and quotations omitted).

Id. at 17 , 125 S.Ct. 2195 (internal citations and quotations omitted) (emphasis added).

Raich relies heavily on Wickard v. Filburn, 317 U.S. 111 , 63 S.Ct. 82 , 87 L.Ed. 122 (1942):

Id. at 17-18, 125 S.Ct. 2195 .

Raich found the similarities between Wickard and the enforcement of the CSA against purely intra-state medicinal users of marijuana to be "striking," because "a primary purpose of the CSA is to control the supply and demand of controlled substances in both lawful and unlawful drug markets." Id. at 18-19, 125 S.Ct. 2195 . "Congress had a rational basis for concluding that leaving home-consumed marijuana outside federal control would . . . affect price and market conditions," and/or that it was important to regulate the growth of marijuana for personal use because "the high demand in the interstate market [might] draw such marijuana into [the illicit] market." Id. at 19 , 125 S.Ct. 2195 . Just as "the diversion of homegrown wheat tended to frustrate the federal interest in stabilizing prices by regulating the volume of commercial transactions in the interstate market, the diversion of homegrown marijuana tends to frustrate the federal interest in eliminating commercial transactions in the interstate market in their entirety." Id. "In both cases, the regulation is squarely within Congress' commerce power because production of the commodity meant for home consumption, be it wheat or marijuana, has a substantial effect on supply and demand in the national market for that commodity." Id.

Raich was careful to distinguish the CSA from the statutes disputed in Lopez and Morrison .

Id. at 25-26 , 125 S.Ct. 2195 . The Court rejected Respondent's contention "that their activities were not "an essential part of a larger regulatory scheme" because they had been "isolated by the State of California, and [are] policed by the State of California," and thus remain "entirely separated from the market"":

Id. at 30 , 125 S.Ct. 2195 .

The parties (and many learned commentators) debate how Raich fits into the Lopez/Morrison analytical structure. Federal Defendants suggest that a court should first determine, under Raich , whether the challenged provisions of the ESA are "essential part[s] of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Doc. 234 at 12 (citing Lopez, 514 U.S. at 561 , 115 S.Ct. 1624 ; Raich, 545 U.S. at 17 , 125 S.Ct. 2195 ("when a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence")). Then, if the challenged provision is determined to be a part of a larger regulation of economic activity, the court must examine the four remaining Lopez factors (i.e., (1) whether the regulated activity is economic in nature; (2) whether there is a jurisdictional element; (3) relevant legislative findings; and (4) the attenuation of the relationship between the statute and interstate commerce). Doc. 234 at 12.

In contrast, Plaintiffs assert that Raich should be considered a "last resort rationale for upholding congressional regulation of noncommercial activity. . . . not . . . an independent ground for expanding the scope of Congress' power under the Supreme Court's `substantial affects' jurisprudence." Doc. 273 at 5. But, the law review article cited by Plaintiffs in support of the proposition that Raich is a "last resort" rationale, Randy E. Barnett, Foreword: Limiting Raich, 9 Lewis & Clark L.Rev. 743, 746 (2005) (cited at Doc. 273 n. 2), observed that the "comprehensive scheme" doctrine could "be considered a fourth distinct rationale for evaluating the reach of the Commerce and Necessary and Proper Clauses, in addition to the three identified in Lopez . " This commentator actually opines that Raich and Lopez/Morrison provide independent means by which to evaluate a Commerce Clause challenge. Nothing in Raich, Lopez, or Morrison suggests that Raich provides a "last resort" basis for upholding Congressional action against a Commerce Clause challenge.

In Alabama-Tombigbee Rivers Coalition v. Kempthorne , the only post- Raich appellate decision addressing a Commerce Clause challenge to the ESA, the Eleventh Circuit applied Raich as an independent basis to evaluate the ESA under the "substantial effects" test of Commerce Clause power, 477 F.3d 1250 (11th Cir.2007), cert. denied ___ U.S. ___, 128 S.Ct. 8775 , 169 L.Ed.2d 725 (2008), finding the challenged provisions of the ESA were essential parts of a "general regulatory statute bear[ing] a substantial relation to commerce," without directly evaluating any of four Lopez factors. [7]

Four Courts of Appeal have upheld ESA Sections 4 and 9 against Commerce Clause challenges. Alabama-Tombigbee, 477 F.3d 1250 ; Rancho Viejo v. Norton, 323 F.3d 1062 (D.C.Cir.2003) (" Rancho Viejo "); GDF Realty Invest. Ltd. v. Norton, 326 F.3d 622 (5th Cir.2003) (" GDF "); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir.2000) (" Gibbs "); Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C.Cir.1997) (" NAHB ").

Alabama-Tombigbee, rejected a Commerce Clause challenge to the listing under ESA § 4 of the Alabama sturgeon, a purely-intrastate fish species with "little, if any, commercial value":

Alabama-Tombigbee, 477 F.3d at 1271-77 .

The parallels between Alabama-Tombigbee and the present case are myriad, and the distinctions immaterial. The Eleventh Circuit's conclusion that the ESA is a comprehensive scheme designed to protect economic resources is rational. The ESA "is a general regulatory statute bearing a substantial relation to commerce." Id. at 1273 (citing GDF, 326 F.3d at 640 ; Rancho Viejo, 323 F.3d at 1073 ; Gibbs, 214 F.3d at 497 ). The ESA prohibits all interstate and foreign trade in endangered species. 16 U.S.C. § 1538 (a)(1)(F); Alabama-Tombigbee, 477 F.3d at 1273 .

Plaintiffs argue that "[t]o the extent economic concerns are present [in the ESA], they are either incidental or they are so fanciful as to . . . annihilate any vestige of the federal-state division of power." Doc. 273 at 11. Although Plaintiffs cite myriad law review articles to support this proposition, see id. at 13, their argument is noticeably devoid of citation to the statute or caselaw. [8] To the contrary, such contentions are annihilated by the economic analysis of the 11th Circuit in Alabama-Tombigbee and have been rejected by every circuit to which the arguments have been presented.

The ESA's concern with markets and commercial activities are neither "incidental" nor "fanciful." The ESA directly regulates the international and interstate trade in endangered species, 16 U.S.C. § 1538 (a)(1)(F), a market that exceeds $1 billion dollars in the United States alone. Alabama-Tombigbee, 477 F.3d at 1273 . "The commercial impact of the [ESA] is even greater" than that evidenced by illicit trade in the species "because the economic value of endangered species extends far beyond their sale price." Alabama-Tombigbee, 477 F.3d at 1273 . Although economics may not be the only impetus behind the ESA, the legislative history, reviewed in Alabama-Tombigbee , reveals that it was a strong motivating factor. Id. (citing H.R.Rep. No. 93-412, at 4 (1973) ("The value of this genetic heritage is, quite literally, incalculable.")).

Plaintiffs concede that some endangered species have been commoditized, but argue that "simply because some endangered or threatened species are commodities is no basis to feign the existence of markets for all such species." Doc. 273 at 14 n. 12 (emphasis added). [9] Plaintiffs distort the inquiry. The relevant question is not whether the application of the ESA to a particular species is of direct economic consequence. Rather, under Raich , the issue is whether, once Congress has determined it is important to regulate in an area connected to commerce, the challenged regulation is an essential part of that regulatory scheme. 545 U.S. at 24-25 , 125 S.Ct. 2195 .

In Alabama-Tombigbee , the Eleventh Circuit concluded that section 4's listing process was an essential part of the overall regulatory scheme because "the decision to list a species as endangered or threatened is a necessary precondition to the protections afforded under the Act." 477 F.3d at 1274 . Here, the relevant statutory provision is section 7, which requires federal agencies to carefully consider whether their actions cause jeopardy or adverse modification to a species and its habitat. The ESA evidences Congressional intent to use section 7 as, if not the principle, an affirmative mechanism to implement the purposes of the ESA. The Supreme Court articulated in TVA v. Hill , that section 7's legislative history "reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species." 437 U.S. at 185 , 98 S.Ct. 2279 . Section 7 is an essential part of the legislative scheme. [10]

Moreover, under section 7 the regulated activity is the operation of the CVP and SWP, not the listing, or even the take, of individual species. Project operations provide water to municipal and agricultural users throughout California. Application of the ESA to Project operations undeniably regulates the conditions under which water is provided to contractors. The direct and secondary effects on interstate commerce of the regulated activity (operation of the Projects) are undeniable.

Just as the plaintiffs in Alabama-Tombigbee sought only a declaration that application of the ESA to Alabama sturgeon, a purely intra-state species, exceeded Congress' Commerce Clause Power, the Stewart Plaintiffs seek a declaration that California's endemic delta smelt is beyond Congress' reach. This raises the question of whether applying section 7 to intra-state species is an essential part of the larger regulatory scheme.

This issue is expressly addressed by Alabama-Tombigbee :

477 F.3d at 1274-75 (emphasis added).

Plaintiffs argue that "Congress' supposed determination that the most effective way to safeguard the commercial benefits in biodiversity was to protect all endangered species, regardless of their geographic range," is reasoning that could easily permit a determination that is impermissible under the Commerce Clause, e.g., "that the most effective way to safeguard the commercial benefits of crime-free communities is to protect all communities by regulating all crime." Doc. 273 at 20 (internal citations and quotations omitted; modifications adopted). Plaintiffs miss the point. In Lopez , where gun free school zones were too tenuously connected to their supposed economic benefits, including reduced crime, there was no comprehensive economic regulatory scheme at issue. Accordingly, the Lopez court did not examine whether the prohibition of guns in school zones was an essential part of a regulation designed to control a weapons-related marketplace.

Here, by contrast, although Congress had multiple motivations for passing the ESA, including ethical and aesthetic considerations, the ESA has strong underpinnings in market regulation. Among other things, one of the ESA's regulatory goals is to protect a monetarily valuable natural resource, our planet's biodiversity, which is proclaimed by express Congressional findings. "[T]o allow extinction of animal species is ecologically, economically, and ethically unsound." 119 Cong. Rec. 25,668 (1973) (statement of Sen. Tunney). "The value of this genetic heritage is, quite literally, incalculable. . . . From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations." H.R. Rep. No. 93-307, at 57. It is "hard to imagine a stronger expression of Congress' belief that species preservation substantially affects the national economic interest." Bldg. Indus. Ass'n of Superior Cal. v. Babbitt, 979 F.Supp. 893, 907 (D.D.C.1997).

Protecting "biodiversity" as a whole cannot be accomplished by protecting only those species that are mobile enough to cross state lines or those whose ranges happen to extend over multiple states. Congress had a rational basis for believing that requiring federal agencies to evaluate the impacts of planned activities on all threatened or endangered species, regardless of their geographic range, was the most effective way to protect the commercial benefits of biodiversity. The application of section 7 to the facts of this case is a valid exercise of Congress' Commerce Clause power. See Raich, 545 U.S. at 23-24 , 125 S.Ct. 2195 (approving of aggregation of "subdivided class of activities" that was part of a larger economic regulatory scheme); NAHB, 130 F.3d at 1053-54 ("In the aggregate . . . we can be certain that the extinction of species and the attendant decline in biodiversity will have a real and predictable effect on interstate commerce.").

It is not necessary or appropriate to decide Federal Defendants' alternative theories of Constitutional authority based upon the Spending and Welfare or Property Clauses. See County Court of Ulster County, N.Y. v. Allen, 442 U.S. 140, 154 , 99 S.Ct. 2213 , 60 L.Ed.2d 777 (1979) ("Federal courts are courts of limited jurisdiction. They have the authority to adjudicate specific controversies between adverse litigants over which and over whom they have jurisdiction. In the exercise of that authority, they have a duty to decide constitutional questions when necessary to dispose of the litigation before them. But they have an equally strong duty to avoid constitutional issues that need not be resolved in order to determine the rights of the parties to the case under consideration.").

All of Plaintiffs' and Amici's contentions and arguments have been fully considered. They are not new and have been universally unsuccessful before other courts. The analysis here is not different.

For the reasons stated above:

(1) Plaintiffs do not have standing to contest the application of ESA § 9, and, even if they did, arguendo, any such claim would be unripe and if the merits reached, the section 7 analysis is equally applicable to reject the claim as a matter of constitutional law on the merits. Plaintiffs' motion for summary judgment is DENIED.

(2) A section 7 claim is raised in the complaint, Plaintiffs have standing to bring such a claim, and Federal Defendants' and Defendant Intervenors' motions for summary judgment focus on section 7. These motions are ripe for adjudication.

(3) The application of section 7 to require federal agencies to evaluate effects of planned Project operations on the delta smelt is a valid exercise of Congress' Commerce Clause power. Federal Defendants' and Defendant Intervenors' motions for summary judgment on Plaintiffs' sixth claim for relief are GRANTED.

[1] Unless otherwise indicated, "Doc." References are to Docket entries from the lead case, 1:09-cv-407.

[2] Amici's original brief was rejected as "excessively duplicative of motions already presented by the parties." Doc. 256. In response, Amici submitted a revised brief, in which they argue that application of ESA § 7 to protect the smelt exceeds Congress' authority under the Commerce Clause. This theory, Amici assert, is "fundamentally different" from the position taken by the Stewart Plaintiffs, namely that application of ESA § 9 [cannot] prevent takes of the delta smelt exceeds Congress' Commerce Clause power. Environmental Intervenors suggest that this, second Amici brief should be disregarded as excessively duplicative of the arguments made by the Stewart Plaintiffs. Although, as discussed below, the substance of the arguments is largely the same, different arguments raised by Amici will be considered.

[3] Although the BiOp is part of the administrative record, its internal page references, not AR references, are used for ease of reference.

[4] Plaintiffs' focus on Section 9's take prohibition is undoubtedly a deliberate one. A major element of the Commerce Clause analysis turns on whether the regulated activity is "economic" or "commercial" in nature. Section 7's command to ensure that any "action authorized, funded, or carried out" by a federal agency does not cause jeopardy or adverse modification is arguably more directly linked to economic activity than is Section 9's prohibition against take of listed species. Notably, amici do not share Plaintiffs' focus, arguing instead that Section 7's application in this case exceeds Congress' Commerce Clause power. See Doc. 263.

[5] Plaintiffs assert, and Federal Defendants do not refute, that invalidating the application of section 9 to the facts of this case would preclude enforcement of the BiOp. In this way, invalidating section 9 would arguably redress Plaintiffs' injury, but this does not establish a sufficient causal connection between section 9 and Plaintiffs' injury.

[6] The parties agree that only the third category, permitting regulation of activities that substantially affect interstate commerce, is at issue here. See Doc. 234 at 1 & Doc. 228-2 at 12. This is the approach taken by all but one of the relevant appellate decisions. See Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1271 (11th Cir.2007) (in challenge to FWS's power to list a purely intra-state species under ESA § 4, parties agreed that only the third category was at issue); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1066-67 (D.C.Cir.2003) (assuming without discussion that the "substantially affect interstate commerce" category should be the focus of analysis in challenge to application of the ESA to a private construction project); GDF Realty Inv., Ltd. v. Norton, 326 F.3d 622, 628 (5th Cir.2003) (same); Gibbs v. Babbitt, 214 F.3d 483, 491 (4th Cir.2000) (evaluating under third category a Commerce Clause challenge to regulation allowing the taking of red wolves on private property only under certain, narrow circumstances); but see Nat'l Assoc. of Home Builders v. Babbitt, 130 F.3d 1041, 1046-49 (D.C.Cir.1997) (upholding challenge to application of Section 9 to hospital construction project to protect a purely intra-state species as within Congress' power to regulate the "channels of interstate commerce").

[7] In practice, there is substantial overlap in what the Alabama-Tombigbee court considered in applying Raich (the economic nature of the regulated activity, legislative history, and the relationship of the ESA to interstate commerce), and an analysis of the four Lopez factors. The way the analysis is organized is significant.

[8] On the authoritative effect of scholarly discourse: "easy access to publication helps law professors remain productive `regardless of whether their work is relevant or even particularly good.'" See Elizabeth Chambliss, 71 Law. & Contemp. Probs. 17, 27 n. 74 (2008).

[9] This argument suggests that the Delta smelt are not one of those listed species that have been treated as commodities. The record contains some evidence suggesting otherwise, i.e., that "delta smelt were harvested commercially with other smelt (Osmeridae) and silverslide (Atherinidae) species during the 19th and early 20th centuries in a prosperous `smelt' fishery (Skinner 1962) (Sweetnam and others 2001)." AR 17005. As pointed out in Alabama-Tombigbee , "Congress . . . reasoned that protection of an endangered species could `permit the regeneration of that species to a level where controlled exploitation of that species can be resumed. In such a case businessmen may profit from the trading and marketing of that species for an indefinite number of years, where otherwise it would have been completely eliminated from commercial channels.'" 477 F.3d at 1275 (citing S.Rep. No. 91-526, at 3 (1969)). Plaintiffs dispute that the historic record actually demonstrates a commercial harvest of delta smelt, as opposed to other types of smelt.

[10] The essential nature of section 9, on which Plaintiffs rely, is even more obvious. Without the ability to prohibit take of species, it would be impossible to regulate commerce in those species. Congress could have excluded intrastate species from the scope of the ESA, but it chose not to do so. A court has no power to excise, as trivial, individual instances of the class. Id. at 1274 ; Raich, 545 U.S. at 23 , 125 S.Ct. 2195 .