How the Delta Smelt Swam Into a Political Firestorm

by Michelle C. Pardo

Southern Californians have been reeling from the devastation caused by the recent record-breaking wildfires and now face the daunting task of rebuilding their lives.  As is the case in the wake of many disasters, a need for answers and accountability as to what caused or contributed to the disaster remains paramount.  Just days after the fires started, headlines suggested that a small, nondescript fish – the Delta smelt (Hypomesus transpacificus)  is to blame for the Palisades and other Los Angeles area wildfires.  Did environmental protections for the Delta smelt really cause a statewide water crisis?  Or is the Delta Smelt blame game but a fishy theory that has become a political football?

Read more: How the Delta Smelt Swam Into a Political Firestorm

The Delta smelt is a 2-2.8 inch long fish that lives in the Sacramento-San Joaquin River Delta – a place that has been the center of the fight over water in California.  Once present in abundance, the smelt began its decline around the mid-20th century and is now nearing extinction.  Most Delta smelt live for only one year and even temporary environmental conditions can greatly affect their population.  The largest impact on the fish has occurred after extended periods of drought, which increased the need for California’s cities and farms to pump more delta water – leaving the fish with less fresh, cold water.  Other threat factors include disease, competition (including with invasive clams and mussels that were introduced to the river) and predation.  Additionally, pumps operated by the state and federal government can suck smelt and other fish into the system. 

The Delta Smelt’s Protections

The listing of the Delta Smelt – first, in 1993 as threatened under the federal Endangered Species Act (ESA) and the state analog, California Endangered Species Act (CESA), and later uplisted to endangered in California (2010) – affects how much water can be pulled from the delta.

When listed as threatened or endangered under the federal ESA, several protections kick in.  The ESA makes it illegal to import, export, take, posses, sell or transport an endangered species.  16 U.S.C. § 1538.  It also provides that land or water necessary for the survival of the species may be designated as “critical habitat.”  While the designation of critical habitat does not prevent all development or other activities in a designated area, activities that involve a federal permit, license or funding and are likely to destroy or adversely modify critical habitat, must undergo analysis and amendments to the project to proceed without adversely affecting critical habitat.  Highly-charged disputes often occur when the government uses controversial or methods not ground in accepted science to assess what areas are actually occupied by the species and what physical and biological features a species needs to survive.

According to the U.S. Fish and Wildlife Service, “An area may be excluded from critical habitat designation based on economic, national security, or other relevant impacts. In some cases, we may determine that the benefits of excluding it outweigh the benefits of including it.”  https://www.fws.gov/sites/default/files/documents/critical-habitat-fact-sheet.pdf. 

While an oversimplification of a complex issue, this is where the competing interests of those cities and farms that have a desperate need for water come head to head with the needs of the Delta smelt and other fish endemic to California to survive. 

Swimming Into Political Controversy

California’s water management policies have long clashed with environmentalists, agricultural interests and urban planners.  Why?  As it turns out, water is universally necessary, but agricultural, fishing, municipal and wildlife uses all have different priorities. 

During President Trump’s first Administration, new rules would have allowed farmers to access more water from California’ s largest river systems.  Environmentalists claimed it would push the Delta smelt and other species to the brink of extinction.  In 2019, two federal agencies issued biological opinions under the ESA that despite finding federal action would not jeopardize listed species, the water projects actually reduce protections for the species and their critical habitat in contravention of the ESA and its purpose.  An ESA biological opinion – required when a federal agency is authorizing, funding or carrying out an action – is a document that analyzes how a proposed action may impact listed species and critical habitats.  16 USC § 1536(a)(2).  If the federal action is likely to harm or jeopardize the listed species, the government may propose alternatives that will minimize the effect on the listed species, or scrap the project.   16 USC § 1536 (b)(1)(3)(A).

In 2020, California sued the federal government, alleging that the biological opinions “failed to take a ‘hard look’ at the environmental impacts of planned the federal water project.”  The lawsuit further alleged:

The Central Valley Project harms ESA-listed fish species in the Sacramento River and San Joaquin River watersheds by, for example, directly taking fish at the project’s South Delta pumping facility, redirecting fish from their migratory pathways, and altering the species’ natural habitat. Habitat alterations resulting from project operations include changes to river flow, hydrology, salinity, and water temperature.

Becerra v. Ross et al., No. 3:20-cv-01299 (N.D. Cal) at p. 8.

The Trump Administration described the lawsuit as a “catastrophic halt” of “enormous amounts of water to flow from the snow melt and rainwater in rivers in North California to beneficial use in the Central Valley and Southern California.” 

Fast forward to January 7, 2025, when parts of Southern California was hit with the most devastating wildfires on record.  The wildfires – and what contributed to them – has revived this contentious debate.  The Delta smelt – previously described by President Trump as “an essentially worthless fish” was targeted as the culprit for why farmers and cities had limitations on the amount of water they could receive. 

But in addition to the water needed by farmers and major cities, endangered and threatened species like the Delta smelt require their own flow of fresh water, known as “outflow.”  Without the needed outflow, salt water can move upstream making the delta waters too brackish and potentially harm certain species of fish.  To counter this risk, water must be allowed to flow out of the system.  The flows needed to protect the region’s ecosystem – which help support migration and spawning of delta smelt, salmon, longfin smelt and other fish species, – account for about 10% of all available flows.  Some have called the wildlife-protection outflow as having an insignificant role in water projects. 

Governor Newsom’s office rebuffed President Trump’s claims, denying that President Trump ever asked him to sign a “water restoration declaration” and others insist that the Delta smelt is not the source of the controversy regarding water projects.

On January 20, 2025, just hours into his second term, President Trump signed an executive order directing federal agencies to route more water from across the state.  In a Memorandum to the Secretary of Commerce and the Secretary of the Interior titled: “Putting People over Fish: Stopping Radical Environmentalism to Provide Water to Southern California”  https://www.whitehouse.gov/presidential-actions/2025/01/putting-people-over-fish-stopping-radical-environmentalism-to-provide-water-to-southern-california/, President Trump directed the Secretaries of Commerce and Interior to:

 “immediately start” the work from his first Administration to “route more water from the Sacramento-San Joaquin Delta to other parts of the state for use by the people there who desperately need a reliable water supply.”  

The Memo requires the Secretaries of Commerce and the Interior to report to the President regarding progress made in implementing policies in the memo and providing recommendations regarding future implementation.

Governor Gavin Newsom and others in California regulatory agencies have disputed that the Delta smelt and its environmental protections are to blame for water shortages in the state (while also disputing the fact or extent of water shortages in the first place).  Some scientists insist that hydrology and outflow to ensure freshwater for human use has much more of an effect on the projects ability to deliver water than the current ESA safeguards.  Regardless of who is right, President Trump has suggested that federal disaster aid to recover from the wildfires may be conditioned upon California cooperating with federal government water policies, making it difficult for the state to cling to existing water policy.

One thing remains clear: as urban development continues, and natural resources grow scarce, the clash between a state or municipality’s ability to deliver necessary resources in a manner that does not risk extinction of threatened or endangered species will likely continue.

“Habitat” Flip Flop – Fish and Wildlife and National Marine Fisheries Services Rescind Trump Administration Definition of “Habitat”

Shortly after the new regulatory definition of “habitat” went into effect, the agencies that promulgated it (the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS)) have rescinded it.

The Endangered Species Act (ESA) has been described as “the most comprehensive legislation for the preservation of endangered species ever enacted by any nation.”  Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978).  One of the ways it purports to do so is through the designation and protection of “critical habitat.”  The Secretaries of the Interior (FWS) and Commerce (NMFS) designate “critical habitat” for threatened and endangered species.  16 U.S.C. § 1533(a)(3)(A)(i).  Once “critical habitat” is designated, the ESA requires federal agencies to ensure that none of their activities (such as granting permits) will “result in the destruction or adverse modification” of the “critical habitat.”  16 U.S.C. § 1536(a)(2).

The term “critical habitat” is defined by the ESA itself, 16 U.S.C. § 1532(5)(A), but the broader term “habitat,” is not.  This may seem insignificant, but the difference between “critical habitat” and “habitat” became—one might say, critical—in the Supreme Court’s 2018 opinion Weyerhaeuser Co. v. U.S. FWS, 139 S. Ct. 361 (2018).  There, the Supreme Court held that an area cannot be designated a “critical habitat” unless it is also a “habitat,” which does not have a statutory definition.  Id. at 368-369.  The Supreme Court commented that “the statutory definition of ‘critical habitat’ tells us what makes habitat ‘critical,’ not what makes it ‘habitat.’”  Id. at 368.  The case, however, did not address what is or should qualify as “habitat.”

In response to this decision, FWS and NMFS promulgated the following regulatory definition of “habitat”: “For the purposes of designating critical habitat only, habitat is the abiotic and biotic setting that currently or periodically contains the resources and conditions necessary to support one or more life processes of a species.”  50 C.F.R. § 424.02.  The “habitat definition rule” was published on December 16, 2020 became effective on January 15, 2021.

Then came a change in administration and an about-face on the “habitat definition rule.”  On January 20, 2021 President Biden issued an Executive Order that required agencies to review federal regulations and actions taken between January 20, 2017 and January 20, 2021 (i.e., during the Trump administration) to determine their consistency with the Biden administration’s policy considerations.

Following that review, the agencies (FWS and NMFS) decided to rescind their own “habitat definition rule.”  87 FR 37757.  They noted that the regulatory definition was unclear, confusing, and inconsistent with the conservation purposes of the ESA.  Id.  The agencies’ main criticism of their own previous rule is that it prevented the designation of areas that did not currently meet a species’ needs, even if the area could in the future do so due to natural processes or reasonable restoration.  Id. at 37758.  Rather than replace it with a different definition of “habitat,” however, the agencies determined that there should not be a single regulatory definition and that the determination should be made on a case by case basis.  Id. at 37759.

The agencies gave a somewhat dissatisfying acknowledgement to the Weyerhaeuser case that set off this regulatory whiplash:  “[W]e recognize the importance of the Supreme Court’s ruling in Weyerhaeuser and intend to designate as critical habitat only areas that are habitat for the given listed species.”  Id.  In other words, while the agencies now claim that it is impossible for them to define “habitat,” they apparently know it when they see it.

Seem clear as mud?  We would not be surprised if there is future litigation regarding what constitutes “habitat,” now that the Supreme Court has made it clear that falling within the statutory definition of “critical habitat” is not sufficient and there is not currently a case law, statutory, or regulatory definition of “habitat.”

Federal Court Enjoins California Ban on Sale of Alligator and Crocodile Parts

by John M. Simpson.

On Tuesday, a federal district court in California enjoined the enforcement of Cal. Penal Code § 653o which criminalizes the sale and possession for sale of alligator and crocodile parts in California.  April in Paris v. Becerra, No. 2:19-cv-02471-KJM-CKD, consolidated with Louisiana Wildlife Fisheries Comm’n v. Becerra, No. 2:19-cv-02488-KJM-CKD (E.D. Cal. Oct. 13, 2020).  Plaintiffs, business interests importing alligator and crocodile parts into California, brought the action against the California Attorney General and the Director of the state Department of Fish and Wildlife.  The law had been slated to take effect on January 1, 2020, but had been suspended pursuant to a stipulated retraining order pending the court’s decision on the preliminary injunction motion. Continue reading “Federal Court Enjoins California Ban on Sale of Alligator and Crocodile Parts”

Animal Rights Challenge to FWS Sport Trophy Decision Fails in D.C. Circuit

by John M. Simpson.

In Center for Biological Diversity v. Bernhardt, ___ F.3d ___, No. 19-5152 (D.C. Cir. June 16, 2020), the U.S. Court of Appeals for the District of Columbia Circuit recently affirmed a district court’s rejection of a challenge by animal rights groups to a decision by the U.S. Fish & Wildlife Service (FWS) to withdraw blanket findings as to whether the importation under the Endangered Species Act (ESA) of certain sport trophies of “threatened” species taken in other countries would enhance the survival and not be detrimental to the survival of those species. Continue reading “Animal Rights Challenge to FWS Sport Trophy Decision Fails in D.C. Circuit”

D.C. District Court Dismisses Endangered Species Act Case for Lack of Article III Standing

by John M. Simpson.

A U.S. District Court in the District of Columbia recently dismissed a lawsuit brought under the Endangered Species Act (ESA) and the federal Administrative Procedure Act by the Center for Biological Diversity (CBD) against the Secretary of the Interior and the U.S. Fish and Wildlife Service (FWS).  Center for Biological Diversity v. Bernhardt, No. 18-2576 (RC) (D.D.C. Feb. 12, 2020).  CBD asserted that FWS’s guidelines for species-specific species status assessments (SSA’s) were issued without the requisite notice and comment.  The guidelines for species-specific SSA’s provide an analytical framework for the agency’s listing and critical habitat decisions under the ESA.  The court dismissed the case for lack of Article III standing. Continue reading “D.C. District Court Dismisses Endangered Species Act Case for Lack of Article III Standing”

The Case of the Austin Blind Salamander

By Michelle Pardo

Question: What do you get when you cross an Austin Blind salamander, a Barton Springs salamander, a golden-cheeked warbler, and a Texas highway project?

Answer: An Endangered Species lawsuit.

On February 28, 2019, environmental advocacy group Save Our Springs (SOS) and frequent litigator Center for Biological Diversity (Center) sent a 60-Day Notice of Intent to Sue letter to the Texas Department of Transportation (TexDOT), the US Department of Interior and the US Fish and Wildlife Service (FWS), which is a prerequisite to filing a lawsuit pursuant to the  Endangered Species Act (ESA).

The ESA is a federal law that prohibits the “taking” of threatened and endangered species, 16 USC § 1538; “take” has means to harass, harm, pursue, hunt, shoot, would, kill, trap, capture or collect (or attempt such conduct).

The environmental groups claim that the construction of the MoPac Intersections Project, a federally-funded highway project for which the TexDOT is the lead agency, risks an illegal “take” of three endangered species. According to the city of Austin’s official government website, the Austin Blind Salamander gets its name because it does not have “image-forming eyes”, a result of living in its dark, underground habitat in the waters of Barton Springs. The aptly-named Barton Springs salamander shares this same habitat. The other critter named in the potential lawsuit – the golden-cheeked warbler – was one of the eight endangered species protected by the first major urban habitat plan in the country. The groups claim that tree removal due to construction impacts the warbler’s nesting and foraging behaviors. Continue reading “The Case of the Austin Blind Salamander”

The Pitfalls of Serving as Activist Attorney and Client: Should We Give A Hoot?

by Michelle C. Pardo

You may have heard the well-known proverb, “a man who is his own lawyer has a fool for his client.” It stands for the concept that while individuals in our country are free to represent him or herself in a criminal or civil trial – acting pro se – many caution that this is not the wisest course.

The issue is even more precarious when an attorney attempts to participate as a fact witness in a case he or she has brought. Rule 3.7 of the ABA Model Rules of Professional Conduct (a rule substantially echoed in many jurisdictions) states that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.” This rule applies absent certain narrow circumstances, such as the testimony relates to an uncontested issue or the nature and value of legal services. The reason for the rule is straightforward: combining roles of advocate and witness can prejudice the court and the opposing party and create a conflict of interest between lawyer and client.

Friends of Animals, an animal rights organization headquartered in Connecticut, recently was called out by a federal judge in Oregon when its in-house counsel, Michael Harris, tried to serve as a declarant in support of Friends of Animals’ summary judgment motion. The declaration was intended to establish the requisite “injury in fact” for Friends of Animals’ members to establish a critical element of “standing” – the threshold inquiry that permits a litigant to have an injury remedied by the federal courts.  Continue reading “The Pitfalls of Serving as Activist Attorney and Client: Should We Give A Hoot?”

U.S. Supreme Court Decides Dusky Gopher Frog Case

By John M. Simpson.

On November 27, 2018, the U.S. Supreme Court issued its decision in a closely watched Endangered Species Act (ESA) case involving the U.S. Fish & Wildlife Service’s (FWS’s) designation of “critical habitat” for an endangered species known as the “dusky gopher frog” (Rana sevosa).  Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S. ___, No. 17-71 (Nov. 27, 2018). The Court reversed the Fifth Circuit’s decision which had upheld the FWS designation. Continue reading “U.S. Supreme Court Decides Dusky Gopher Frog Case”

PETA Strikes Out Again in Eleventh Circuit

by John M. Simpson.

A petition for rehearing filed by People for the Ethical Treatment of Animals (PETA) was recently denied by the U.S. Court of Appeals for the Eleventh Circuit in an Endangered Species Act (ESA) case involving a killer whale (Orcinus orca) maintained by the Miami Seaquarium.  The denial left standing a significant ruling by the court under the ESA.  PETA v. Miami Seaquarium, 879 F.3d 1142 (11th Cir. 2018).  Continue reading “PETA Strikes Out Again in Eleventh Circuit”

Asian Elephant Case Against Buttonwood Park Zoo Continues

by Michelle C. Pardo

An Endangered Species Act (ESA) lawsuit against the City of New Bedford will continue after a federal district judge in Massachusetts denied the defendant’s efforts to dismiss plaintiff Joyce Rowley’s lawsuit.  The City of New Bedford runs the Buttonwood Park Zoo, which has been home to two Asian elephants, Ruth and Emily, for decades.  Plaintiff Rowley runs an organization called Friends of Ruth & Emily Inc., which is dedicated to retiring Asian elephants Ruth and Emily to “a warm climate sanctuary to live out their days in peace, dignity, and freedom”.  In the last 25 months, it’s “Go Fund Me” page has raised just $10,025 of the requested $25,000 “to get justice” for the elephants. Continue reading “Asian Elephant Case Against Buttonwood Park Zoo Continues”

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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