Salazar

In this appeal, we consider whether application of sections 7 and 9 of the Endangered Species Act to the California delta smelt violates the Commerce Clause in the United States Constitution. We conclude that it does not, and we affirm the judgment of the district court.

I

The delta smelt is a small fish, 60-70 millimeters in length, that is undisputedly endemic to California. Though once inhabiting 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 as bait in the past.

The United States Fish and Wildlife Service (“Service”) listed the delta smelt as a threatened species in 1993 under the Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544 . 58 Fed.Reg. 12854 (Mar. 5, 1993). The Service designated critical habitat for the delta smelt in 1994. 59 Fed.Reg. 65256 (Dec. 19, 1994). And, in 2010, it announced that the delta smelt should be re-listed as endangered but that the Service would forgo re-listing for the time being on account of higher-priority listings. 75 Fed.Reg. 17667 (Apr. 7, 2010).

Section 7 of the ESA requires federal agencies…