While political and legal strategists eagerly anticipate Supreme Court review of commerce clause challenges to the federal health care law, western farmers, developers and agribusinesses also have a commerce clause issue before the justices — one involving the not as famous delta smelt.

“Several months ago, I said everybody was looking forward to Obamacare and de-limiting the contours of the commerce clause, but for the last three years, we Westerners have been begging the Court to address the commerce clause vis-a-vis the Endangered Species Act. It’s our first order of business because of its impact on us,” said William Perry Pendley, president of Mountain States Legal Foundation.

The Colorado-based, nonprofit public interest legal organization has filed an amicus brief in Stewart & Jasper Orchards v. Salazar, a petition for review raising a commerce clause challenge to the Endangered Species Act. The U.S. Court of Appeals for the 9th Circuit rejected the growers’ challenge.

The delta smelt is a small fish, 60-70 millimeters in length, that is endemic to California. Though once inhabiting California’s San Francisco Bay/Sacramento-San Joaquin Delta Estuary, its range has diminished. The fish has no commercial value, but it was at one time commercially harvested as bait. The United States Fish and Wildlife Service listed the delta smelt as a threatened species in 1993 under the Endangered Species Act (ESA) and designated critical habitat for the delta smelt in 1994. In 2010, the Service announced that the delta smelt should be relisted as endangered, though that would be postponed because of higher-priority listings.

In 2008, the Service, acting under the ESA, issued what is called a biological opinion on the impact of two major California water diversion projects on the delta smelt and concluded that the projects could jeopardize the continued existence of the fish. The opinion listed alternatives to controlling the flow of water to and in the delta that, if used by the state, would insulate it from liability under the act.

Stewart & Jasper Orchards and other 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.” They claimed that because “the delta smelt is a purely intrastate species, and because it has no commercial value,” the ESA, as applied to the water projects, was an invalid exercise of constitutional authority under the commerce clause. The 9th Circuit disagreed, holding that the ESA “bears a substantial relation to commerce” because the protection of threatened or endangered species implicates economic concerns.

“This is a huge issue for us,” said Pendley. “We’ve had challenges involving the jumping meadow mouse, the listing of a lizard down in Midland, Texas, the prairie chicken and the cave bug which lives in just two counties in Texas.”

He acknowledged that these and other constitutional challenges to the ESA have been rejected by the appellate courts. But, he added, “We know the ultimate decision will have to be made by the Supreme Court. We came close on the cave bug which, much like the delta smelt, existed only in two counties in Texas and was only found on a particular piece of property. Like the delta smelt, it has no commercial value and is not a product in interstate commerce. There has to be a substantial and direct effect on interstate commerce. We have something that is remote and speculative. The 9th Circuit is saying it may not affect economic activity now but sometime in the future it may substantially affect interstate commerce. That’s not the test.”

The growers argue in their petition that the ESA is not a market regulatory scheme that regulates quintessentially economic activities in a recognized interstate commodities market like the Controlled Substances Act, which the justices found in Gonzales v. Raich could regulate the intrastate production and home use of marijuana. And because the ESA is not such a regulatory statute, it may not be applied to a purely intrastate species, here the delta smelt.

Mountain States, in its amicus brief, adds to the growers’ arguments that “only economic activities may be regulated under Congress’s commerce power. That is, Congress may regulate only an economic activity that relates to the production, distribution, and consumption of commodities in a recognized interstate market.”

Pendley hopes the Court will not wait for a circuit split to develop before agreeing to examine the commerce clause issue.

“I don’t think the circuits are going to split,” he said. “The ESA is such an unassailable, virtuous thing in the minds of these judges who are far removed from having their boots on the ground.”

The ESA today, he added, is “not your father’s ESA.” When the act was passed in 1976, he explained, it was viewed as protecting the “warm and fuzzies,” but now it protects the “cold and slimy.”

People still think of the act as protecting primarily wolves and golden or bald eagles, he said, adding, “They don’t realize its being used for things like the delta smelt and cave bug. The Court’s going to have to do it on its own and not wait for the circuits. Perhaps the 9th Circuit decision will draw the Court’s attention, especially since it gets so much so wrong so often.”

Marcia Coyle can be contacted at mcoyle@alm.com.