ACRU: Delta Smelt Ruling Gives Federal Agency Dictatorial Power


ACRU Staff


November 3, 2014

Ninth Circuit wrongly approves delegation of legislative and judicial authority to Fish and Wildlife Service, American Civil Rights Union brief states.

WASHINGTON, D.C. (Nov. 3, 2014) — By favoring a tiny fish, the Delta Smelt, over the well-being of millions of drought-stricken farmers and residents in California’s agricultural San Joaquin Valley, the Ninth Circuit U.S. Court of Appeals has ignored dire economic effects and the constitutional separation of powers, an American Civil Rights Union brief argues.

Written by ACRU General Counsel Peter Ferrara, the brief in Stewart and Jasper Orchards, et al. vs. Sally Jewel, which asks the U.S. Supreme Court to hear the case, notes that the Ninth Circuit’s ruling overturning a U.S. district court is based on an outdated, 1978 decision in Tennessee Valley Authority (TVA) v. Hill, “which held that under the then Endangered Species Act (since amended), species protection was the highest priority, regardless of cost.”

Apart from the economic devastation caused by rerouting water away from the San Joaquin Valley, the appeals court’s ruling violates the principle of separation of powers, the brief states.

“[W]e are not even discussing delegation of legislative power to the agency. We are discussing delegation of a judicial power as well, interpretation of the law,” the brief says.

“So the agency in this case will have executive, legislative, and judicial power all combined. The founders recognized that literally as tyranny. So we should not be surprised that the agency has used that power to decide that they don’t have to consider at all the economic effects of what they are doing.”



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