There have been two important ESA cases in the last few days.
First, the Supreme Court has denied cert in a case involving delta smelt. Much like our snail darter case, this is tiny fish found entirely within one body of water. That body of water is the Sacramento Bay Delta, a body of water that supplies many of the agricultural users in the state. The Pacific Legal Foundation represented several agricultural interests in challenging the ESA based on the Commerce Clause. Thus, just like our discussions in class, the plaintiffs argued that the Commerce Clause did not extend to protect of a species without commercial value and found entirely within one state. The Ninth Circuit had held that when considering the commerce clause, one should look at the aggregate effects of all endangered species protection. Although the Supreme Court did not grant review in this case, PLF has pledged to pursue these arguments in future cases.
Second,the D.C. Circuit recently issued an opinion on standing and the ESA — another hot topic from our class discussions. The case involved endangered Asian elephants who travel and perform with the Ringling Brothers and Barnum & Bailey Circus. The ASPCA brought a case arguing that the bullhooks and chains used in managing the elephants actually injure them (violating section 9 of the ESA). The court did not reach the merits of the case because it held that the ASPCA members used to establish standing failed to show Article III standing. The district court described the member as “a paid plaintiff and fact witness” whose claims about attachment to the elephants lacked credibility.