Mountain States Legal Foundation Logo

Archived Cases

Archived: All Cases

Stewart & Jasper Orchards v. Jewell

Legal Question:

Whether Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), which interpreted the Endangered Species Act prior to Congress’s addition of “reasonable and prudent alternative,” still require that federal agencies protect species and their habitat “whatever the cost”?


Stewart & Jasper Orchards, a California corporation; Arroyo Farms, LLC, a California limited liability company; and King Pistachio Grove, a California limited partnership, represented by Pacific Legal Foundation


Sally Jewell, as Secretary of the U.S. Department of the Interior; U.S. Fish & Wildlife Service; Daniel M. Ashe, as Director of the U.S. Fish & Wildlife Service; Ren Lohoefener, as Regional Director of the U.S. Fish & Wildlife Service, Pacific Southwest Region, U.S. Department of the Interior; U.S. Bureau of Reclamation; Michael L. Connor, as Commissioner of the U.S. Bureau of Reclamation, U.S. Department of the Interior; David Murillo, as Director of the U.S. Bureau of Reclamation, Mid-Pacific Region, U.S. Department of the Interior; Mark Cowin, Director, California Department of Water Resources; U.S. Department of Justice; U.S. Environmental Protection Agency; Gina McCarthy, as

Administrator of the U.S. Environmental Protection Agency; U.S. Department of Transportation; Anthony Foxx, as Secretary of the U.S. Department of Transportation; Maritime Administration; Paul N. Jaenichen, Sr., as Acting Maritime Administrator;

U.S. Department of Homeland Security; Jeh Johnson, as Secretary of Homeland Security; Federal Emergency Management Agency; William Craig Fugate, as Administrator of the Federal Emergency Management Agency; U.S. Army Corps of Engineers; Thomas P. Bostick, Commanding General and Chief of Engineers; U.S. Department of the Interior


Supreme Court of the United States

In 1993, the U.S. Fish and Wildlife Service listed the delta smelt, a two- to three-inch fish that has little, if any commercial value, as threatened under the Endangered Species Act (ESA), and in 1994 designated, as critical habitat, a large area of the Sacramento-San Joaquin Delta in central California, which is the source of water supplied by the Central Valley Project and the State Water Project.  The area supplies more than half of America’s nation’s fruits, vegetables, and nuts.

Under Section 7 of the ESA, federal agencies must ensure that their actions are not likely to jeopardize the continued existence of a listed species or result in the destruction or adverse modification of critical habitat.  Thus, the Bureau of Reclamation, which operates the Central Valley Project, was required to seek a biological opinion from the FWS to determine if operation of the water projects would likely jeopardize the listed species or modify its critical habitat. 

In 2005, the FWS issued a “biological opinion” that determined the water projects’ operations would not adversely affect the delta smelt or its critical habitat.  Environmental groups successfully challenged the opinion and another opinion was issued in 2008, which found that the water projects’ operations would likely jeopardize the continued existence of the delta smelt and adversely modify its critical habitat.  The FWS proposed “reasonable and prudent alternatives” that the Bureau of Reclamation could undertake, all of which involved decreasing to a devastating degree the water available for domestic and agricultural uses, as well as for storage.

In 2010, a California federal district court struck down the biological opinion; however, in March 2014, a panel of the Ninth Circuit reversed.  The petition for writ of certiorari was filed on September 30, 2014.

No Status Updates
  • Supreme Court Must Review Devastating Endangered Species Ruling

    Nov 3, 2014
    A western, public-interest legal foundation with decades of experience addressing legal and constitutional issues regarding the Endangered Species Act (ESA) today urged the Supreme Court of the United States to review a ruling by the notorious U.S. Court of Appeals for the Ninth Circuit.

Help protect constitutional liberties and private property rights, and promote limited and ethical government and the free enterprise system:

Donate Here