Eagle Forum Legislative Alerts

Thursday, December 29, 2011

Do Fish Have More Rights Than People?

Is an obscure fish more important than California farmers who need water? The Ninth Circuit sided with the “delta smelt,” a fish lacking in any commercial value which typically grows to only 2 to 3 inches in length. Water is scarce in parts of California, but water distribution has been limited out of concern for this tiny creature.

The farmers went up against the Endangered Species Act, a federal law that wins virtually every time it is challenged in court. But this time the farmers had a strong argument: the endangered fish exists only in California, so the federal government had no authority to regulate water based this purely intrastate issue. Federal power in this field of law is based on the Commerce Clause, which requires some effect on interstate commerce before the federal government can get involved. The delta smelt fish has no commercial value and is found only in California, so its existence does not affect interstate commerce in the slightest. However, the Ninth Circuit ruled in favor of the fish anyway, holding that "the protection of threatened or endangered species implicates economic concerns.”

The Supreme Court has invalidated federal laws for extending too far into matters that do not affect interstate commerce. The Court has held, for example, that Congress cannot prohibit the possession of guns near schools. States, not the federal government, regulate what happens purely within a state without affecting interstate commerce. If Congress cannot regulate an armed bandit near a school, then how can it regulate an unarmed, two-inch-long fish that spends its entire life in the same state?

The farmers appealed to the United States Supreme Court, but it refused to reconsider the Ninth Circuit’s ruling in favor of the fish. The tiny fish proved to be mightiest of all. The name of this fishy case is Stewart & Jasper Orchards vs. Salazar.

Listen to the radio commentary here:

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