Appeal from the United States District Court for the Eastern District of California Oliver W. Wanger, Senior District Judge, Presiding D.C. No. Agency; 1:09-cv-00407-OWW-DLB
The opinion of the court was delivered by: Thomas, Circuit Judge:
Argued and Submitted February 15, 2011-San Francisco, California
Before: Mary M. Schroeder and Sidney R. Thomas, Circuit Judges, and Mark W. Bennett, District Judge.*
*The Honorable Mark W. Bennett, District Judge for the U.S. District Court for Northern Iowa, Sioux City, sitting by designation.
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.
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 to consult with the Service before undertaking any action "authorized, funded, or carried out" by the agency that might "jeopardize the continued existence of any endangered species or threatened species" or might "result in the destruction or adverse modification of habitat" used by any endangered or threatened species. 16 U.S.C. § 1536(a)(2). After the consultation, the Service provides the agency with a written statement describing how the proposed action will affect the endangered or threatened species. Id. at § 1536(b)(3)(A). This statement is commonly known as a "biological opinion." If the Service concludes that the proposed action will likely jeopardize the species, then it may suggest "reasonable and prudent alternatives" for agency action that, the Service believes, will not result in violations of the ESA. Id.
In 2008, the Service, acting under ESA § 7, 16 U.S.C. 1536(a)(2), issued a Biological Opinion to the Bureau of Reclamation ("Bureau"). The Biological Opinion concerned the Bureau's and the California Department of Water Resource's operation of the Central Valley Project and the State Water Project, two of the world's largest water diversion projects. The Biological Opinion concluded that "the coordinated operations of [the water projects], as proposed, are likely to jeopardize the continued existence of the delta smelt" and "adversely modify delta smelt habitat."
The Biological Opinion included a "Reasonable and Prudent Alternative," as well as an "Incidental Take Statement." The Reasonable and Prudent Alternative consisted of various components designed to reduce entrainment and other "taking"*fn1 of smelt during critical times of the year by controlling water flows to and in the delta. If the Bureau complied with the Reasonable and Prudent Alternative, then the Incidental Take Statement would insulate the Bureau from liability under the "no-take provision" in ESA § 9, 16 U.S.C. § 1538(a)(1)(C), which prevents taking of endangered or threatened species.
Stewart & Jasper Orchards; Arroyo Farms, LLC; and King Pistachio Grove (collectively "the Growers") sued the Service, claiming that their almond, pistachio, and walnut orchards "experienced substantially reduced water deliveries as a result of the Service's decision to act on behalf of the delta smelt."
Among other claims, the Growers alleged that-as applied to the delta smelt-the Service's application of ESA § 7 and power to enforce the "no-take provision" in ESA § 9 were unconstitutional under the Commerce Clause. The Growers claimed that, since "the delta smelt is a purely intrastate spe-cies, and because it has no commercial value, Sections 7(a)(2) and 9 of the ESA . . . as applied to [the operation] of the Central Valley Project and the State Water Project, are invalid exercises of constitutional authority [under the Commerce Clause]."
The Growers moved for summary judgment. The Service, along with intervenors, Natural Resources Defense Council and The Bay Council (collectively "the Environmental Parties"), cross-moved for summary judgment. The Service and the Environmental Parties argued that (1) the Growers do not have Article III standing, (2) their claim is not ripe, and (3) application of ESA §§ 7 and 9 to the operations of the water projects is a valid exercise of Congress' power under the Commerce Clause. In re Delta Smelt Consolidated Cases, 663 F. Supp. 2d 922, 926 (E.D. Cal. 2009).
The district court denied the Growers' motion and granted the Service's and Environmental Parties' cross-motions. With respect to the issue of standing, the district court first noted that while the Growers' complaint challenges sections "7(a)(2) and 9" of the ESA, the motion for summary judgment "focuses exclusively on the theory that the application of Section 9's take prohibition to the smelt exceeds Congress' authority under the Commerce Clause." Id. at 929 (emphasis original). Nevertheless, the court concluded, "[T]here is no dispute that Plaintiffs have standing to bring a section 7 claim." Id. at 931. But the court determined the Growers do not have standing to bring a § 9 claim. Id. at 929-31. It reasoned, "Given that there is no threat of imminent Section 9 enforcement in this case, there is no causal connection between Plaintiffs' injury and the conduct complained of, namely Section 9's application to the coordinated operation of the project." Id. at 931.
The district court similarly decided that the ESA § 9 claim is not ripe: "Plaintiffs point to no concrete plans on the part of project operators to violate the ESA, no communication of a specific warning or threat to initiate enforcement proceedings, nor any history of past prosecution or enforcement against the project operators." Id.
Even though the district court concluded that the Growers were not advancing their motion under ESA § 7 and that they did not have standing under ESA § 9, the court went on to address the merits of the Commerce Clause challenge. Id. at 931. Because the Service and the Environmental Parties had cross-moved for summary judgment on application of "Sections 7(a)(2) and 9" together, the district court addressed the Commerce Clause challenge to ESA § 7. Id. It rejected the challenge, though. Delta Smelt, 663 F. Supp. 2d at 945. It held that the Service's protection of the delta smelt was valid under the Commerce Clause, even though the delta smelt is, by all accounts, a purely intrastate species.
The Growers timely filed their appeal. We have jurisdiction over the Growers' appeal under 28 U.S.C. § 1291 and 5 U.S.C. § 704.
The Growers have Article III standing to challenge the no-take provision in ESA § 9 because the Service's coercive power to enforce ESA § 9 caused the Bureau to reduce water flows, which injured the Growers. See Bennett v. Spear, 520 U.S. 154, 169 (1997).
 Article III of the United States Constitution confines federal courts to hearing only "cases" and "controversies." Barnum Timber Co. v. EPA, __ F.3d __, 2011 WL 383012, at *2 (9th Cir. Feb. 3, 2011). "Standing is a core component of the Article III case or controversy requirement." Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To establish Article III standing: (1) a plaintiff "must have suffered an injury in fact-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical"; (2) "there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of independent action of some third party not before the court"; and (3) "it must be likely, as opposed to merely speculative that ...