National Ass'n of Home Builders v. Babbitt

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 3, 1997 Decided December 5, 1997

No. 96-5354

National Association of Home Builders, et al.,

Appellants

v.

Bruce Babbitt, Secretary,

United States Department of Interior and

Mollie Beattie, Director,

United States Fish and Wildlife Service,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 95cv01973)

Thomas C. Jackson argued the cause for appellants, with

whom Patrick J. Hurd, Arthur S. Garrett III, Martha E.

Marrapese, Glen F. Koontz and Alec I. Ugol were on the

briefs. Alan K. Marks entered an appearance.

David C. Shilton, Attorney, United States Department of

Justice, argued the cause for appellees, with whom Lois J.

Schiffer, Assistant Attorney General, and J. Carol Williams,

Attorney, were on the brief. John A. Bryson, Attorney,

entered an appearance.

William R. Irvin, Kathleen Rogers, Josh Eagle and Mi-

chael J. Bean were on the brief for amici curiae Center for

Marine Conservation, et al.

Robin L. Rivett and Anne M. Hawkins were on the brief

for amicus curiae Pacific Legal Foundation.

Daniel J. Popeo and Paul D. Kamenar were on the brief

for amicus curiae Washington Legal Foundation.

Paul M. Terrill, III was on the brief for amicus curiae

American Land Foundation.

Before: Wald, Sentelle and Henderson, Circuit Judges.

Opinion filed by Circuit Judge Wald.

Concurring opinion filed by Circuit Judge Henderson.

Dissenting opinion filed by Circuit Judge Sentelle.

Wald, Circuit Judge: The National Association of Home

Builders of the United States, the Building Industry Legal

Defense Fund, the County of San Bernardino, and the City of

Colton, California brought this action in the United States

District Court for the District of Columbia to challenge an

application of section 9(a)(1) of the Endangered Species Act

("ESA"), 16 U.S.C. s 1538(a)(1), which makes it unlawful for

any person to "take"--i.e., "to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or attempt to

engage in any such conduct," 16 U.S.C. s 1532(19)--any

endangered species. The plaintiffs sought a declaration that

the application of section 9 of the ESA to the Delhi Sands

Flower-Loving Fly ("the Fly"), which is located only in

California, exceeds Congress' Commerce Clause power and

an injunction against application of the section to the plain-

tiff's construction activities in areas containing Fly habitat.

This dispute arose when the Fish and Wildlife Service

("FWS") placed the Fly, an insect that is native to the San

Bernardino area of California, on the endangered species list.

The listing of the Fly, the habitat of which is located entirely

within an eight mile radius in southwestern San Bernardino

County and northwestern Riverside County, California,

forced San Bernardino County to alter plans to construct a

new hospital on a recently purchased site that the FWS had

determined contained Fly habitat. The FWS and San Ber-

nardino County agreed on a plan that would allow the County

to build the hospital and a power plant in the area designated

as Fly habitat in return for modification of the construction

plans and purchase and set aside of nearby land as Fly

habitat. In November 1995, FWS issued a permit to allow

construction of the power plant. During the same month,

however, the County notified the FWS that it planned to

redesign a nearby intersection to improve emergency vehicle

access to the hospital. The FWS informed the County that

expansion of the intersection as planned would likely lead to a

"taking" of the Fly in violation of ESA section 9(a). After

brief unsuccessful negotiations between the County and FWS,

the County filed suit in district court challenging the applica-

tion of section 9(a)(1) to the Fly.

The district court held that application of section 9(a)(1) of

the Endangered Species Act to the Fly is a valid exercise of

Congress' power pursuant to the Commerce Clause. Accord-

ingly, the court entered summary judgment on behalf of the

government. See National Association of Home Builders v.

Babbit, 949 F. Supp. 1, 2 (D.D.C. 1996). Because we also find

that the application of section 9(a)(1) of the Endangered

Species Act to the Fly does not exceed Congress' Commerce

Clause power, we affirm the district court's decision to grant

the government's motion for summary judgment.1

__________

1 Summary judgment is appropriate when all of the submissions

"show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56.

I. Factual and Procedural Background

The Delhi Sands Flower-Loving Fly, which lives only in

the "Delhi series" soils found in southwestern San Bernardino

County and northwestern Riverside County, California, is the

only remaining subspecies of its species. The other subspe-

cies, the El Segundo Flower-Loving Fly, is believed to be

extinct due to destruction of its habitat through urban devel-

opment. See Brief of Amici Curiae Center for Marine

Conservation, Defenders of Wildlife, Environmental Defense

Fund, National Audubon Society, and World Wildlife Fund

("Brief of Amici Curiae for Appellees") at 4. The Fly is also

one of only a few North American species in the "mydas flies"

family and one of only a few species in that family that visit

flowers in search of nectar, thereby pollinating native plant

species. See id. at 1.

Over 97 percent of the historic habitat of the Fly has been

eliminated, and, prior to its listing as endangered, its remain-

ing habitat was threatened by urban development, unautho-

rized trash dumping, and off-road vehicle use. See Endan-

gered and Threatened Wildlife and Plants; Determination of

Endangered Status for the Delhi Sands Flower-loving Fly, 58

Fed. Reg. 49,881, 49,885 (1993) (codified at 50 C.F.R. pt. 17).

There are currently 11 known populations of the Fly, all of

which occur within an eight mile radius of one another. See

Declaration of Christopher D. Nagano (Apr. 30, 1996) at p 14

("Nagano Declaration"). The size of the entire population of

Flies was recently estimated in the low hundreds. See U.S.

Fish and Wildlife Service, Technical/Agency Draft Recovery

Plan for the Delhi Sands Flower-Loving Fly 12 (1996).

In 1990, after receiving two petitions asking that the Fly be

placed on the endangered species list, the FWS began an

investigation into whether listing of the Fly as endangered

was warranted. Soon thereafter, the FWS found that sub-

stantial information had been presented to indicate that the

Fly was an endangered species. Two years later, the FWS

published its final determination that the Fly is "in imminent

danger of extinction due to extensive habitat loss and degra-

dation that has reduced its range by 97 percent." 58 Fed.

Reg. at 49,881. The listing of the Fly as endangered trig-

gered the automatic statutory prohibitions of section 9(a)(1) of

the ESA, 16 U.S.C. s 1538(a)(1). As a result, commercial

trade in the species could no longer occur lawfully and no

person could "take" individuals of the species without a

permit or an exemption.

For several years prior to the listing of the Fly as endan-

gered, the County of San Bernardino had been planning to

build a $470 million earthquake-proof "state of the art"

hospital to serve as the central emergency medical center for

the San Bernardino County area in the event of an earth-

quake and to serve as a primary burn care center and

teaching facility. In July 1992, two years after the FWS had

published its notice that sufficient information had been pre-

sented to justify listing the Fly as endangered but before the

Fly was actually so listed, the Board of the new San Bernar-

dino County hospital acquired the final site parcels for the

hospital. The 76-acre site that the board acquired contained

habitat of the Fly.

In November 1992, the FWS notified the County that the

Fly was likely to be listed as endangered, and in May 1993--

after the Fly was listed--the FWS advised the County that

the hospital site was occupied by the Fly and that construc-

tion of the facility as then proposed would likely "take"

members of the species in violation of the ESA. The County

decided to modify the layout and design of the hospital to

eliminate direct and indirect impacts to the Fly and to

eliminate the need for a section 10 "incidental take permit." 2

__________

2 Under section 10 of the ESA, the Secretary of the FWS may

permit a taking of an endangered species otherwise prohibited by

section 9(a)(1) if the taking is incidental to carrying out an other-

wise lawful activity. No permit may be issued until after the

applicant submits a conservation plan, the Secretary offers opportu-

nity for public comment on the plan, and the Secretary finds, among

other things, that the taking will be incidental, the impacts of the

taking will be minimized to the extent practicable, adequate funding

for the plan is available, and the taking will not appreciably reduce

the likelihood of the survival and recovery of the species. See 16

U.S.C. s 1539(a).

One of the modifications to the original design for the hospital

included in the plan was to move the hospital 250 feet north

to "avoid[ ] direct impact to the entire area identified as

occupied or suitable Delhi Fly habitat." Habitat Preserva-

tion, Habitat Enchangement [sic] and Impact Avoidance Plan

for the Delhi Sands Flower-Loving Fly at the San Bernardi-

no County Hospital Replacement Site 8 (Dec. 1, 1993). This

resulted in an 8.35 acre Delhi Fly habitat preserve. Id. The

plan also created a 100-foot wide corridor to link two Fly

habitat areas and permit interbreeding between Fly colonies.

In October 1994, the County approached FWS with a

proposal to construct a substation to power the hospital on

"the best remaining habitat" for the Fly. See Declaration of

Jeffery M. Newman 8 (Apr. 29, 1996) ("Newman Declara-

tion"). The County submitted an application for incidental

"take" of the Fly, which would permit it to build on about 4

acres of Fly habitat. To offset this reduction in Fly habitat,

the County proposed to acquire and manage a nearby 7.5 acre

site as Fly habitat. In November 1995, the FWS issued the

section 10 permit for the substation and construction began

shortly thereafter. See id. at 9.

In November 1995, the County informed FWS of its plans

to redesign an intersection near the hospital that the County

argues is critical to emergency vehicle access to the new

hospital. The FWS determined that the plan, which called

for a reduction of the 100 foot wide corridor to an 18 foot wide

corridor, a reduction of 70 to 80 percent, would "greatly

reduce, if not effectively eliminate, the entire corridor area

set aside as a critical part of the County's efforts to avoid a

take" of the Fly. Newman Declaration at 7. The FWS

advised the County that the redesign of the intersection

would probably cause a "take" of the Fly in violation of

section 9 of the ESA.

On October 20, 1995, the National Association of Home

Builders of the United States, the Building Industry Legal

Defense Fund, the County of San Bernardino, and the City of

Colton, California filed a complaint seeking a declaration that

the taking prohibition of section 9 of the ESA was unconstitu-

tional as applied to "takes" of the Fly and asking for an

injunction barring application of the provision. An amended

complaint later added the California Building Industry Asso-

ciation and the City of Fontana as plaintiffs. On December 6,

1996, the district court granted the government's motion for

summary judgment. See National Association of Home

Builders, 949 F. Supp. 1. This appeal ensued.

II. Discussion

Appellants challenge the application of section 9(a)(1) of the

ESA, which makes it unlawful for any person to "take any

[endangered or threatened] species within the United States

or the territorial sea of the United States," 16 U.S.C.

s 1538(a)(1), to the Delhi Sands Flower- Loving Fly. See also

Babbitt v. Sweet Home Chapter of Communities for a Greater

Oregon, 515 U.S. 687 (1995) (upholding agency's interpreta-

tion of the term "take" to include significant habitat degrada-

tion). Appellants argue that the federal government does not

have the authority to regulate the use of non-federal lands in

order to protect the Fly, which is found only within a single

state. Indeed, they claim that "the Constitution of the Unit-

ed States does not grant the federal government the authori-

ty to regulate wildlife, nor does it authorize federal regulation

of nonfederal lands." Brief for Appellants at 17.

The district court held that the application of section 9(a)(1)

of the ESA to the Fly is constitutional. It concluded that the

federal government's "limited and enumerated" powers in-

clude the power to regulate wildlife and non-federal lands

that serve as the habitat for endangered species. The court

also concluded that the ESA provides for a regulatory scheme

that is within the bounds of Congress' power under the

Commerce Clause. The district court thus granted the gov-

ernment's motion for summary judgment. We affirm the

district court's decision.

Appellants' Commerce Clause challenge to the application

of section 9(a)(1) of the ESA to the Fly rests on the Supreme

Court's decision in United States v. Lopez, 514 U.S. 549

(1995). In Lopez, the Court held that the Gun-Free School

Zones Act of 1990, 18 U.S.C. s 922(q), which made possession

of a gun within a school zone a federal offense, exceeded

Congress' Commerce Clause authority. Drawing on its earli-

er Commerce Clause jurisprudence, see especially Perez v.

United States, 402 U.S. 146, 150 (1971), the Lopez Court

explained that Congress could regulate three broad catego-

ries of activity: (1) "the use of the channels of interstate

commerce," (2) "the instrumentalities of interstate commerce,

or persons or things in interstate commerce, even though the

threat may come only from intrastate activities," and (3)

"those activities having a substantial relation to interstate

commerce ... i.e., those activities that substantially affect

interstate commerce." Lopez, 514 U.S. at 558-59 (citations

omitted). Possession of a gun within 1000 feet of a school,

the Court explained, clearly did not fit the first two catego-

ries. In addition, it could not be regulated under the third

category as an activity that "substantially affects" interstate

commerce because it was not commercial in nature and was

not an essential part of a larger regulation of economic

activity. Moreover, the Court explained, Congress had made

no findings about the effect of gun possession in school zones

on interstate commerce. Thus, concluding that Congress had

no rational basis for finding that gun possession within school

zones had a substantial effect on interstate commerce, the

Court declared the statute unconstitutional. See id. at 567-

68.

It is clear that, in this instance, section 9(a)(1) of the ESA

is not a regulation of the instrumentalities of interstate

commerce or of persons or things in interstate commerce. As

a result, only the first and the third categories of activity

discussed in Lopez will be examined. In evaluating whether

ESA section 9(a)(1) is a regulation of the use of the channels

of interstate commerce or of activity that substantially affects

interstate commerce, we may look not only to the effect of the

extinction of the individual endangered species at issue in this

case, but also to the aggregate effect of the extinction of all

similarly situated endangered species. As the Lopez Court

explained, " 'where a general regulatory statute bears a sub-

stantial relation to commerce, the de minimis character of

individual instances arising under the statute is of no conse-

quence.' " Lopez, 514 U.S. at 558 (quoting Maryland v.

Wirtz, 392 U.S. 183, 197 n.27 (1968), overruled on other

grounds, National League of Cities v. Usery, 426 U.S. 833

(1976), overruled by Garcia v. San Antonio Metro. Transit

Auth., 469 U.S. 528 (1985) (first emphasis added)). If a

statute regulates "a class of activities ... within reach of the

federal power," Perez, 402 U.S. at 154, the courts have "no

power 'to excise, as trivial, individual instances' of the class,"

id. Because section 9(a)(1) of the ESA regulates a class of

activities--takings of endangered species--that is within Con-

gress' Commerce Clause power under both the first and third

Lopez categories, application of section 9(a)(1) to the Fly is

constitutional.3

A. Channels of Interstate Commerce

Application of section 9(a)(1) of the ESA to the Fly can be

viewed as a proper exercise of Congress' Commerce Clause

power over the first category of activity that the Lopez Court

identified: the use of the "channels of interstate commerce."

Lopez, 514 U.S. at 558. Although this category is commonly

used to uphold regulations of interstate transport of persons

or goods, it need not be so limited. Indeed, the power of

Congress to regulate the channels of interstate commerce

provides a justification for section 9(a)(1) of the ESA for two

reasons. First, the prohibition against takings of an endan-

__________

3 Judge Henderson's concurring opinion expresses the view that

the first Lopez category does not apply; as to the third Lopez

category, however, I find our reasoning to be substantially similar.

We agree that "the loss of biodiversity itself has a substantial effect

on our ecosystem and likewise on interstate commerce," Concurring

opinion ("Conc. op.") at 2 (footnote omitted); cf. infra subsection

II.B.1, and that "at the time it passed ESA the Congress contem-

plated protecting endangered species through regulation of land

and its development, which is precisely what the Department has

attempted to do here. Such regulation, apart from the characteris-

tics or range of the specific endangered species involved, has a plain

and substantial effect on interstate commerce," Conc. op. at 4; cf.

infra subsection II.B.2.

gered species is necessary to enable the government to

control the transport of the endangered species in interstate

commerce. Second, the prohibition on takings of endangered

animals falls under Congress' authority " 'to keep the chan-

nels of interstate commerce free from immoral and injurious

uses.' " Id. (quoting Heart of Atlanta Motel Inc. v. United

States, 379 U.S. 241, 256 (1964)).4

The ESA's prohibition on takings of endangered species

can be justified as a necessary aid to the prohibitions in the

ESA on transporting and selling endangered species in inter-

state commerce. In this sense, the prohibition against tak-

ings of endangered species is analogous to the prohibition

against transfer and possession of machine guns (including

purely intrastate possession) of 18 U.S.C. s 922(o), which has

been upheld by the Fifth, Sixth, Ninth, and Eleventh Circuits

__________

4 Judge Sentelle unsuccessfully attempts to draw a parallel be-

tween the statute at issue in Lopez, which the Supreme Court

determined was not a regulation of the use of the channels of

interstate commerce, and the statute at issue in this case. In fact,

the two statutes are different in material respects. First, s 922(q)'s

prohibition against possession of a firearm in a school zone clearly

was not necessary to enable the government to control the trans-

portation of firearms in interstate commerce. Yet, as noted above

and discussed in greater depth below, the ESA's prohibition against

taking endangered species is necessary to enable the government to

control the transport of endangered species in interstate commerce.

Thus, in this respect, ESA section 9(a)(1) is much more similar to

the prohibition against transfer and possession of machine guns of

18 U.S.C. s 922(o), which has been repeatedly found constitutional,

than it is to s 922(q). See infra text accompanying notes 5 & 6.

Second, s 922(q)'s prohibition against possession of a firearm in a

school zone clearly did not fall under Congress' authority " 'to keep

the channels of interstate commerce free from immoral and injuri-

ous uses,' " Heart of Atlanta, 379 U.S. at 256, because it regulated

possession of firearms within only a very limited area. However, as

is again discussed in greater depth below, the ESA's prohibition on

taking endangered animals clearly does fall under Congress' author-

ity to keep the channels of interstate commerce free from immoral

and injurious uses in cases where the pressures of interstate

commerce place the existence of species in peril.

as a regulation of the channels of interstate commerce. In

United States v. Rambo, 74 F.3d 948, 951 (9th Cir.), cert.

denied, 117 S. Ct. 72 (1996), for instance, the Ninth Circuit

upheld section 922(o) against a Lopez-inspired Commerce

Clause challenge. The court held that the statute was a

" 'regulation of the use of the channels of interstate com-

merce' " because "[b]y regulating the market in machineguns,

including regulating intrastate machinegun possession, Con-

gress has effectively regulated the interstate trafficking in

machineguns." Id. at 952 (quoting Lopez, 514 U.S. at 559).5

Thus, section 922(o) is properly classified as a first category

regulation because " 'federal regulation of intrastate incidents

of transfer and possession is essential to effective control of

__________

5 The other circuits that held that section 922(o) is a proper

exercise of Congress' power to regulate the "channels of interstate

commerce" employed similar reasoning. See United States v.

Wright, 117 F.3d 1265, 1270 (11th Cir. 1997) (upholding section

922(o) on the ground that Congress had a rational basis to deter-

mine that a total ban on possession of machineguns would have a

substantial effect on interstate commerce because "the connection

between the elimination of the lawful demand for machineguns and

the manufacture, importation, and interstate transfer of these prod-

ucts is obvious and direct"); United States v. Beuckelaere, 91 F.3d

781, 784 (6th Cir. 1996) (upholding 19 U.S.C. s 922(o) as a first

category regulation because "s 922(o) regulates the 'extensive, in-

tricate, and definitely national market for machineguns' by prohibit-

ing the transfer and possession of machineguns acquired after May

19, 1986") (citations omitted); United States v. Kirk, 70 F.3d 791,

796-97 (5th Cir. 1995), aff'd, 105 F.3d 997 (5th Cir. 1996) (en banc),

cert. denied, 118 S. Ct. 47 (1997) (holding that "section 922(o) is a

regulation which attempts 'to prohibit the interstate transportation

of a commodity through the channels of commerce," because the

ban on possession of machineguns controls "the interstate market

for machineguns by creating criminal liability for those who would

constitute the demand side of the market") (citations omitted). The

en banc court in United States v. Kirk, 105 F.3d 997, was equally

divided, with eight judges voting to affirm and eight judges voting

to reverse the district court judgment. In addition, there were two

the interstate incidents of such traffic.' " Id. (quoting United

States v. Kirk, 70 F.3d 791, 797 (5th Cir. 1995), aff'd, 105 F.3d

997 (5th Cir. 1996) (en banc), cert. denied, 118 S. Ct. 47

(1997). In other words, it is necessary to regulate possession

of machineguns in order to effectively regulate the interstate

traffic in machineguns because it is impossible to sell ma-

chineguns in interstate commerce without first possessing

them. Similarly, the prohibition on "taking" endangered

species is properly classified as a first category regulation

because one of the most effective ways to prevent traffic in

endangered species is to secure the habitat of the species

from predatory invasion and destruction. Therefore, like

section 922(o), section 9(a)(1) of the ESA can be properly

upheld as a regulation of the use of the channels of interstate

commerce.6

The prohibition on takings of endangered animals also falls

under Congress' authority to prevent the channels of inter-

state commerce from being used for immoral or injurious

purposes. This authority was perhaps best described by the

Supreme Court in Heart of Atlanta, 379 U.S. 241, which the

Lopez Court cited and quoted in its reference to Congress'

power to regulate the use of the "channels of interstate

commerce." In Heart of Atlanta, the Supreme Court upheld

a prohibition on racial discrimination in places of public

accommodation serving interstate travelers against a Com-

merce Clause challenge. The Court explained that " 'the

authority of Congress to keep the channels of interstate

__________

separate opinions affirming the judgment of the district court.

Neither of the affirming opinions directly addresses the issue of

whether section 922(o) is a regulation of the "channels of interstate

commerce." Therefore, I cite the Fifth Circuit's panel decision not

for its precedential value but because I find its reasoning instruc-

tive.

6 The District Court of Massachusetts used similar reasoning in

upholding against a Commerce Clause challenge the conviction of a

defendant who purchased a guide and hunted Alaskan wildlife with

a false residential hunting license in violation of the Lacey Act. See

United States v. Romano, 929 F. Supp. 502 (D. Mass. 1996). The

court explained that "Congress may employ reasonable means to

rid the channels of interstate commerce of illegally taken wildlife."

See id. at 509 (citations omitted).

commerce free from immoral and injurious uses has been

frequently sustained, and is no longer open to question.' " Id.

at 256 (citation omitted) (quoted in Lopez, 514 U.S. at 558).

It does not matter if the activities that are regulated are of a

"purely local character," the Court elaborated, " '[i]f it is

interstate commerce that feels the pinch, it does not matter

how local the operation which applies the squeeze.' " Id. at

258 (citation omitted). Thus, the power of Congress over

interstate commerce "also includes the power to regulate the

local incidents thereof, including local activities in both the

States of origin and destination, which might have a substan-

tial and harmful effect upon that commerce." Id. This same

principle was elaborated in the seminal case of United States

v. Darby, 312 U.S. 100 (1940), which was the only other case

cited by the Lopez Court in its description of the first

category of activity that Congress can regulate under its

commerce power. In Darby, the Court upheld federal wage

and hour regulations against a Commerce Clause challenge,

noting that such regulations were necessary to prevent states

with higher regulatory standards from being disadvantaged

vis--vis states with lower regulatory standards. In uphold-

ing the regulation, the Court explained that "Congress, fol-

lowing its own conception of public policy concerning the

restrictions which may appropriately be imposed on interstate

commerce," is free to exclude from commerce goods that will

have injurious effects in the state in which they are produced

or to which they are destined. Id. at 114. This is true even

though the activity prohibited by the regulation at issue in

Darby--failure to meet minimum wage and maximum hour

requirements--might have had little or no direct effect out-

side the state in which the goods were produced.

This same reasoning that the Supreme Court applied in

Darby and Heart of Atlanta is applicable to the case at hand.

In those cases as well as here, Congress used its authority to

rid the channels of interstate commerce of injurious uses to

regulate the conditions under which goods are produced for

interstate commerce. In Darby, Congress used this authori-

ty to prevent labor exploitation of employees producing lum-

ber for interstate commerce. In Heart of Atlanta, Congress

used this authority to prevent racial discrimination by a hotel

serving an interstate clientele. Similarly, in this case, Con-

gress used this authority to prevent the eradication of an

endangered species by a hospital that is presumably being

constructed using materials and people from outside the state

and which will attract employees, patients, and students from

both inside and outside the state. Thus, like regulations

preventing racial discrimination or labor exploitation, regula-

tions preventing the taking of endangered species prohibit

interstate actors from using the channels of interstate com-

merce to "promot[e] or spread[ ] evil, whether of a physical,

moral or economic nature." North American Co. v. S.E.C.,

327 U.S. 686, 705 (1946). Congress is therefore empowered

by its authority to regulate the channels of interstate com-

merce to prevent the taking of endangered species in cases

like this where the pressures of interstate commerce place

the existence of species in peril.

In his dissent, Judge Sentelle claims that this analysis of

Darby and Heart of Atlanta is "far off the mark." Dissenting

opinion ("Diss. op.") at 7. It is his analysis, however, that is

inconsistent with the reasoning and results in these cases. In

Judge Sentelle's view, the only regulations that would qualify

as a proper regulation of the channels of interstate commerce

are direct regulations of persons or things that move across

state lines. This view is simply not consistent with the

Court's decisions in Darby and Heart of Atlanta, which I

again note are the only two cases the Lopez Court cited to

illustrate its first category of authorized regulation. Neither

Darby nor Heart of Atlanta involved a direct regulation of

persons or things that moved across state lines. The statute

challenged in Darby set wage and hour requirements for

lumber factory employees, while the statute in Heart of

Atlanta prohibited racial discrimination against hotel custom-

ers. Judge Sentelle's argument thus proves too much: If

only direct regulation of goods that travel in interstate com-

merce can be upheld as valid under the channels of interstate

commerce prong of Lopez, both of these statutes must fail as

well, a result patently inconsistent with the Court's express

affirmance of them in Lopez. Therefore, contrary to Judge

Sentelle's assertion, see Diss. op. at 7-8, the argument that

access to the channels of interstate commerce may be regu-

lated in order to prevent injurious local practices that in turn

have a substantial harmful effect on interstate commerce

either by discouraging such commerce or by inciting a race to

the bottom is neither novel nor unduly extensive; indeed, it is

the core reasoning of Darby and Heart of Atlanta.

B. Substantially Affects Interstate Commerce

The takings clause in the ESA can also be viewed as a

regulation of the third category of activity that Congress may

regulate under its commerce power. According to Lopez, the

test of whether section 9(a)(1) of the ESA is within this

category of activity "requires an analysis of whether the

regulated activity 'substantially affects' interstate commerce."

514 U.S. at 559. A class of activities can substantially affect

interstate commerce regardless of whether the activity at

issue--in this case the taking of endangered species--is com-

mercial or noncommercial. As the Lopez Court, quoting

Wickard v. Filburn, 317 U.S. 111 (1942), noted:

"[E]ven if appellee's activity be local and though it may

not be regarded as commerce, it may still, whatever its

nature, be reached by Congress if it exerts a substantial

economic effect on interstate commerce, and this irre-

spective of whether such effect is what might at some

earlier time have been defined as 'direct' or 'indirect.' "

Lopez, 514 U.S. at 556 (quoting Wickard, 317 U.S. at 125).7

This interpretation of the Lopez decision is consistent with

this court's recent decision in Terry v. Reno, 101 F.3d 1412

(D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997). In

Terry, we upheld the Freedom of Access to Clinic Entrances

Act against a Commerce Clause challenge, concluding that

the Lopez decision did not restrict Congress' Commerce

Clause power to activity that is "commercial." We rejected

__________

7 Indeed, the case at hand is in many ways directly analogous to

Wickard. In both cases, the appellee's activity, growing wheat for

personal consumption and taking endangered species, is local and is

not "regarded as commerce." Wickard, 317 U.S. at 125. However,

in both cases, the activity exerts a substantial economic effect on

interstate commerce--by affecting the quantity of wheat in one

case, and by affecting the quantity of species in the other.

the argument that Congress could not regulate protest in

front of abortion clinics because protest is an intrastate,

noncommercial activity, explaining that "Congress has au-

thority to regulate 'activities that substantially affect inter-

state commerce.' " Id. at 1417 (quoting Lopez, 514 U.S. at

559 (emphasis added)). We further explained that in order to

be subject to Congress' Commerce Clause power, "[t]he

regulated activity--in this case, interfering with abortion

clinics--need not be commercial, so long as its effect on

interstate commerce is substantial." Id.8

Other circuits have also held that a statute need not

regulate economic activity directly in order to fall under

Congress' Commerce Clause power. For instance, the Fifth

Circuit upheld the Freedom of Access to Clinic Entrances Act

against a challenge alleging that the Act constitutes an uncon-

stitutional exercise of Congress' Commerce Clause power

because it proscribes intrastate, noncommercial activity.

United States v. Bird, 124 F.3d 667, 669-70 (5th Cir. 1997).

Acknowledging that the statute regulates intrastate, noncom-

mercial protest activity, the court held that the statute was a

proper exercise of Congress' Commerce Clause power be-

cause it had a substantial effect on interstate commerce. The

court explained, "[a]fter Wickard--and its reaffirmance in

Lopez--there can be no question that Congress is able to

regulate noncommercial, intrastate activity that substantially

affects interstate commerce...." Id. at 676. Similarly, the

__________

8 Interestingly, Judge Sentelle, who concurred in the Court's

opinion in Terry v. Reno, 101 F.3d 1412, fails to cite the case in his

dissenting opinion. Indeed, he appears to assert propositions that

are directly at odds with the Court's reasoning in that case. For

instance, he claims that ESA section 9(a)(1)(B) is not a permissible

exercise of Congress' commerce power because "like the statute

challenged in Lopez, [it] does not regulate commerce." Diss. op. at

4. Yet in Terry v. Reno, this Court clearly indicated that Congress'

Commerce Clause power is not limited to regulating commercial

activity. Rather, it is limited to regulating activity that has a

substantial effect on interstate commerce. See Terry, 101 F.3d at

1417. Were we to apply Judge Sentelle's reasoning in his dissent-

ing opinion here to Terry, it would dictate a result contrary to the

Court's holding in that case.

Eleventh Circuit recently upheld the Comprehensive Envi-

ronmental Response, Compensation and Liability Act

("CERCLA") against a Commerce Clause challenge by the

operator of a chemical manufacturing facility that was re-

quired to pay for the cleanup of entirely localized environ-

mental contamination caused by the facility. See U.S.A. v.

Olin Corp., 107 F.3d 1506, 1510 (11th Cir. 1997). The court

explained that a statute need not "regulate economic activity

directly to satisfy the Commerce Clause" because "Lopez

reiterates that a statute will pass constitutional muster if it

regulates an activity, whatever its nature, 'that arise[s] out of

or [is] connected with a commercial transaction, which viewed

in the aggregate, substantially affects interstate commerce.' "

Id. (quoting Lopez, 514 U.S. at 561).

A recent Supreme Court decision confirms our holding in

Terry, 101 F.3d 1412, that activity need not be commercial in

character in order to be regulated by Congress under the

Commerce Clause. In Camps Newfound/Owatonna, Inc. v.

Town of Harrison, Maine, 117 S. Ct. 1590, 1602 (1997), which

involved a Commerce Clause challenge to an otherwise gener-

ally applicable state property tax exemption for charitable

institutions that excluded organizations operated principally

for the benefit of nonresidents, the Supreme Court held that

the Commerce Clause applies to activity regardless of wheth-

er it was undertaken with the intention of earning a profit.

Citing its earlier opinion in Edwards v. California, 314 U.S.

160 (1941), in which the Court had held that interstate

transportation of indigent persons was "commerce" regard-

less of whether it was "commercial in character," id. at 172

n. 1, the Court explained that it had "already held that the

dormant Commerce Clause is applicable to activities under-

taken without the intention of earning a profit." 117 S. Ct. at

1602. This decision confirms that the proper test of whether

an activity can be regulated under the Commerce Clause is

not whether the activity is itself commercial or economic but

rather whether the activity has a substantial effect on inter-

state commerce.

In evaluating the effect of the regulated activity on inter-

state commerce, I begin, as we did in Terry, 101 F.3d 1412,

with the legislative history of the Act under challenge. As we

explained in Terry, "we consider 'even congressional commit-

tee findings' regarding the effect on interstate commerce of

the regulated activity." 101 F.3d at 1415 (quoting Lopez, 514

U.S. at 562).

The Committee Reports on the ESA reveal that one of the

primary reasons that Congress sought to protect endangered

species from "takings" was the importance of the continuing

availability of a wide variety of species to interstate com-

merce. As the House Report explained:

... As we homogenize the habitats in which these

plants and animals evolved, and as we increase the

pressure for products that they are in a position to

supply (usually unwillingly) we threaten their--and our

own--genetic heritage.

The value of this genetic heritage is, quite literally,

incalculable....

...

From the most narrow possible point of view, it is in

the best interests of mankind to minimize the losses of

genetic variations. The reason is simple: they are po-

tential resources. They are keys to puzzles which we

cannot solve, and may provide answers to questions

which we have not yet learned to ask.

...

Who knows, or can say, what potential cures for cancer

or other scourges, present or future, may lie locked up in

the structures of plants which may yet be undiscovered,

much less analyzed? More to the point, who is prepared

to risk being [sic] those potential cures by eliminating

those plants for all time? Sheer self interest impels us

to be cautious.

H.R. Rep. No. 93-412, at 4-5 (1973). Similarly, the Senate

Report on the precursor to the ESA, noted:

... From a pragmatic point of view, the protection of

an endangered species of wildlife with some commercial

value may permit the regeneration of that species to a

level where controlled exploitation of that species can be

resumed. In such a case businessmen may profit from

the trading and marketing of that species for an indefi-

nite number of years, where otherwise it would have

been completely eliminated from commercial channels in

a very brief span of time. Potentially more important,

however, is the fact that with each species we eliminate,

we reduce the [genetic] pool ... available for use by man

in future years. Since each living species and subspecies

has developed in a unique way to adapt itself to the

difficulty of living in the world's environment, as a spe-

cies is lost, its distinctive gene material, which may

subsequently prove invaluable to mankind in improving

domestic animals or increasing resistance to disease or

environmental contaminant, is also irretrievably lost.

S. Rep. No. 91-526, at 3 (1969).

This legislative history distinguishes the ESA from the

statute at issue in Lopez. In Lopez, the Court noted that "as

part of our independent evaluation of constitutionality under

the Commerce Clause we of course consider legislative find-

ings, and indeed even congressional committee findings re-

garding effect on interstate commerce." 514 U.S. at 562

(citations omitted). The Lopez Court found, however, that

there were no "congressional findings [that] would enable [it]

to evaluate the legislative judgment that the activity in ques-

tion substantially affected interstate commerce." Id. at 563.

In this case, in contrast, the committee reports on the ESA

discuss the value of preserving genetic diversity and the

potential for future commerce related to that diversity. See

also Tennessee Valley Auth. v. Hill, 437 U.S. 153, 178-79

(1978) (recognizing that one of the primary concerns underly-

ing the Endangered Species Act was concern "about the

unknown uses that endangered species might have and about

the unforeseeable place such creatures may have in the chain

of life on this planet").9

__________

9 Despite the Supreme Court's directive in Lopez that a court

reviewing the constitutionality of a statute consider congressional

findings, see Lopez, 514 U.S. at 557, 562, and the extensive case law

indicating that the role of a reviewing court is to determine whether

there is "any rational basis" for a congressional finding that a

regulated activity substantially affects interstate commerce, see,

e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc.,

452 U.S. 276 (1981); United States v. Wright, 117 F.3d 1265, 1269

(11th Cir. 1997), Judge Sentelle totally ignores the extensive legisla-

tive history of the ESA.

These congressional findings, while highly informative, are

of course not sufficient by themselves to make the statute

constitutional. The courts evaluating Commerce Clause chal-

lenges to federal statutes must determine that there was a

rational basis for Congress' conclusion that a regulated activi-

ty substantially affects interstate commerce. As the Elev-

enth Circuit recently explained, "Lopez did not alter our

approach to determining whether a particular statute falls

within the scope of Congress's Commerce Clause authori-

ty.... When ruling on a Commerce Clause challenge, we

must determine, as always, 'whether a rational basis existed

for concluding that a regulated activity sufficiently affected

interstate commerce.' " United States v. Wright, 117 F.3d

1265, 1269 (11th Cir. 1997) (quoting Lopez, 514 U.S. at 557);

see also Hodel v. Virginia Surface Mining & Reclamation

Ass'n, Inc., 452 U.S. 264, 276 (1981) ("The task of a court that

is asked to determine whether a particular exercise of con-

gressional power is valid under the Commerce Clause is

relatively narrow. The court must defer to a congressional

finding that a regulated activity affects interstate commerce,

if there is any rational basis for such a finding.") (citations

omitted) (quoted in Terry, 101 F.3d at 1416).

Congress could rationally conclude that the intrastate activ-

ity regulated by section 9 of the ESA substantially affects

interstate commerce for two primary reasons. First, the

provision prevents the destruction of biodiversity and thereby

protects the current and future interstate commerce that

relies upon it. Second, the provision controls adverse effects

of interstate competition.10

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10 Judge Sentelle asserts that these rationales have "no stopping

point." See Diss. op. at 11, 13. In fact, however, they have very

clear and obvious limits. In the case of the first rationale, the

argument stops at endangered species. Activities that threaten a

species' existence threaten to reduce biodiversity and thereby have

a substantial negative effect on interstate commerce. Thus, the

biodiversity rationale offered here provides support for the Endan-

gered Species Act only insofar as the Act prevents activities that

are likely to cause the elimination of species. In the case of the

second rationale, the argument stops at activities are the product of

destructive interstate competition. Under this rationale, interstate

competition that is likely to produce destructive results, such as

1. Biodiversity

Approximately 521 of the 1082 species in the United States

currently designated as threatened or endangered are found

in only one state. See Brief of Amici Curiae for Appellees at

20-21. The elimination of all or even some of these endan-

gered species would have a staggering effect on biodiversi-

ty--defined as the presence of a large number of species of

animals and plants--in the United States and, thereby, on the

current and future interstate commerce that relies on the

availability of a diverse array of species.

The variety of plants and animals in this country are, in a

sense, a natural resource that commercial actors can use to

produce marketable products. In the most narrow view of

economic value, endangered plants and animals are valuable

as sources of medicine and genes.11 Fifty percent of the most

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elimination of endangered species' habitat, environmental degrada-

tion, or exploitation of labor, can be regulated by Congress. Thus,

the destructive interstate competition rationale provides support for

the Endangered Species Act only insofar as the Act prevents a

bidding down of regulatory standards that is likely to result in the

elimination of endangered species' habitat.

11 This is a necessarily constrained view of the "value" of biodiver-

sity. Endangered species of course have value beyond the profit

they can produce as sources of medicine and genes. For example,

tourists travel to see them, scientists study and learn from them,

and people get aesthetic pleasure from them. In addition, every

species offers some clues to the path of the evolutionary chain that

produced it and to the role of certain genes also found in humans.

For instance, researchers have recently concluded that basic re-

search into the genes of the common fruit fly " 'can yield crucial

clues to human development.' " Jennifer Ackerman, Journey to the

Center of the Egg, N.Y. Times, Oct. 12, 1997, s 6, at 45 (quoting

biologist Christiane Nsslein-Volhard). Moreover, every species

has a place in the ecosystem. Extinction of a species can therefore

have an important effect on the larger system of which it is a part.

As biologist Edward O. Wilson explained:

... The traditional econometric approach, weighing market

price and tourist dollars, will always underestimate the true

value of wild species. None has been totally assayed for all of

frequently prescribed medicines are derived from wild plant

and animal species.12 Such medicines were estimated in 1983

to be worth over $15 billion a year. See id. at 11. In

addition, the genetic material of wild species of plants and

animals is inbred into domestic crops and animals to improve

their commercial value and productivity. As Amici Curiae

explained: "Fortifying the genetic diversity of U.S. crops

played a large part in the explosive growth in farm produc-

tion since the 1930s, accounting for at least one-half of the

doubling in yields of rice, soybeans, wheat, and sugarcane,

and a three-fold increase in corn and potatoes. Genetic

diversity provided by wild plants also protects domestic crops

from disease and pest damage." Id. at 12. Similar genetic

engineering can be used with animals. For instance, it is not

beyond the realm of possibility that the genes of a wild

pollinator species like the Fly might be inbred with the

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the commercial profit, scientific knowledge, and aesthetic plea-

sure it can yield. Furthermore, none exists in the wild all by

itself. Every species is part of an ecosystem, an expert

specialist of its kind, tested relentlessly as it spreads its

influence through the food web. To remove it is to entrain

changes in other species, raising the populations of some,

reducing or even extinguishing others, risking a downward

spiral of the larger assemblage.

Edward O. Wilson, The Diversity of Life 308 (1992).

12 For example, the venom of a species of South American pit

viper led to the discovery of the angiotensin system that regulates

blood pressure in human beings. This helped scientists devise a

molecule that alters blood pressure and is the preferred prescrip-

tion drug for hypertension, bringing the pharmaceutical company

that manufactures it $1.3 billion a year in sales. Biodiveristy II:

Understanding and Protecting Our Biological Resources 9 (Mar-

joie L. Reaka-Kudla et al. eds. 1997). Similarly, the saliva of the

leech led to the development of the anticoagulant hirudin, which is

used to treat hemorrhoids, rheumatism, thrombosis, and contusions

and to dissolve blood clots that threaten skin transplants, and the

saliva of the vampire bat of Central and South America is used to

open clogged arteries and thereby prevent heart attacks. See

Wilson, supra note 11, at 285-86.

honeybee, which currently pollinates most major U.S. crops,

to produce a pollinator that is more disease resistant.

Each time a species becomes extinct, the pool of wild

species diminishes. This, in turn, has a substantial effect on

interstate commerce by diminishing a natural resource that

could otherwise be used for present and future commercial

purposes. Unlike most other natural resources, however, the

full value of the variety of plant and animal life that currently

exists is uncertain. Plants and animals that are lost through

extinction undoubtedly have economic uses that are, in some

cases, as yet unknown but which could prove vitally important

in the future.13 A species whose worth is still unmeasured

has what economists call an "option value"--the value of the

possibility that a future discovery will make useful a species

that is currently thought of as useless. See Bryan Nolan,

Commodity, Amenity, and Morality: The Limits of Quanti-

fication in Valuing Biodiveristy, in Biodiversity 200, 202

(Edward O. Wilson ed., 1988). To allow even a single species

whose value is not currently apparent to become extinct

therefore deprives the economy of the option value of that

species. Because our current knowledge of each species and

its possible uses is limited, it is impossible to calculate the

exact impact that the loss of the option value of a single

species might have on interstate commerce.14 See Alan

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13 Some of the most important medical products derive from

organisms that were once considered worthless or nearly so. For

example, Penicillium mold, which "sparked the concept of antibiot-

ics," was at one time valued only for the flavor it added to blue

cheeses. See Biodiversity II, supra note 12, at 9.

14 Both Judge Sentelle and Judge Henderson appear to misunder-

stand this argument. See Conc. op. at 2; Diss. op. at 9. Although

both quote the statement it is "impossible to calculate the exact

impact" of the extinction of a single species, both ignore the second

half of the argument: that in the aggregate we can be certain that a

decline in biodiversity will have a "real and predictable " effect on

interstate commerce. As a result of this omission, both misportray

the argument as claiming that the extinction of a single endangered

species, by itself, has a substantial effect on interstate commerce.

Indeed, Judge Sentelle goes so far as to describe the argument as

Randall, What Mainstream Economists Have to Say about

the Value of Biodiversity, in Biodiversity, supra, at 217. In

the aggregate, however, we can be certain that the extinction

of species and the attendant decline in biodiversity will have a

real and predictable effect on interstate commerce.

The few federal courts that have considered post-Lopez

Commerce Clause challenges to federal wildlife protection

have found that the extinction of animals substantially affects

interstate commerce.15 In United States v. Bramble, 103

__________

follows: "because of some undetermined and indeed undeterminable

possibility that the fly might produce something at some undefined

and undetermined future time which might have some undefined

and undeterminable medical value, which in turn might affect

interstate commerce at that imagined future point, Congress can

today regulate anything which might advance the pace at which the

endangered species becomes extinct." Diss. op. at 9. This is

inaccurate. To the contrary, the argument is that because biodiver-

sity has a real, substantial, and predictable effect on both the

current and future interstate commerce, "the de minimis character

of individual instances arising under [the ESA] is of no conse-

quence." Lopez, 514 U.S. at 558. In other words, because we know

that in the aggregate the extinction of endangered species will have

a substantial effect on interstate commerce, it does not matter that

it is "impossible to calculate the exact impact" of the extinction of a

single species such as the Fly.

15 Prior to Lopez, the federal courts repeatedly concluded that

congressional efforts at protecting endangered and migratory spe-

cies are constitutional under the Commerce Clause. See Andrus v.

Allard, 444 U.S. 51, 63 n.19 (1979) (discussing Migratory Bird

Treaty Act and noting that the "assumption that the national

commerce power does not reach migratory wildlife is clearly

flawed"); Leslie Salt Co. v. United States, 896 F.2d 354, 360 (9th

Cir. 1990) ("Leslie I"), cert. denied, 498 U.S. 1126 (1991) ("The

commerce clause power ... is broad enough to extend [federal]

jurisdiction to local waters which may provide habitat to migratory

birds and endangered species."), cert. denied, 498 U.S. 1126 (1991);

id. at 361 n.1 (Rymer, J., concurring) ("Congress does have power

under the Commerce Clause to regulate wildlife and endangered

species."); Leslie Salt Co. v. United States, 55 F.3d 1388, 1396 (9th

Cir.) (declining to reconsider Leslie I), cert. denied, 116 S. Ct. 407

F.3d 1475 (9th Cir. 1996), the Ninth Circuit held that the

Eagle Protection Act was a valid exercise of Congress' Com-

merce Clause power because "[e]xtinction of the eagle would

substantially affect interstate commerce by foreclosing any

possibility of several types of commercial activity." Id. at

1481; see also United States v. Lundquist, 932 F. Supp. 1237,

1245 (D. Or. 1996) (holding that "the possession of eagle parts

is an activity which affects a broad regulatory scheme relat-

ing to commercial transactions and which, when viewed in the

aggregate with similar activities nationwide, substantially af-

fects interstate commerce") (citing Lopez, 514 U.S. at 561).

Similarly, in United States v. Romano, 929 F. Supp. 502, 507-

09 (D. Mass. 1996), the District Court of Massachusetts

upheld the Lacey Act, 16 U.S.C. ss 3371-78, which prohibits

any person from importing, exporting, transporting, selling,

receiving, acquiring, or purchasing in interstate or foreign

commerce any fish or wildlife taken, possessed, transported,

or sold in violation of state or foreign law. Citing Congress'

findings that the protection of endangered species protects

future commercial activity, the court held that the Act was

within Congress' Commerce Clause power. See Romano, 929

F. Supp. at 508.16

__________

(1995); see also Hughes v. Oklahoma, 441 U.S. 322, 329-36 (1979)

(holding that state regulations of intrastate wildlife are within

dormant Commerce Clause).

16 The District Court of Hawaii relied on a similar reasoning in an

earlier case involving a Commerce Clause challenge to the ESA,

Palila v. Hawaii Dept. of Land and Natural Resources, 471

F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981). In

that case, the court pointed to the interstate commerce effects of

protecting endangered species to support its decision to uphold the

Endangered Species Act. The court explained: "In this context, a

national program to protect and improve the natural habitats of

endangered species preserves the possibilities of interstate com-

merce in these species and of interstate movement of persons, such

as amateur students of nature or professional scientists who come

to a state to observe and study these species, that would otherwise

be lost by state inaction." Id. at 995. The court thus concluded

that the state's program of preserving herds of "wild" sheep and

I join these courts in concluding that the extinction of

animals substantially affects interstate commerce. More spe-

cifically, I find that the scientific evidence that is currently

available provides sufficient support for Congress' conclusion

that regulation of the "taking" of endangered animals is

within its Commerce Clause power because such takings, if

permitted, would have a substantial effect on interstate com-

merce by depriving commercial actors of access to an impor-

tant natural resource--biodiversity.

2. Destructive Interstate Competition

The taking of the Fly and other endangered animals can

also be regulated by Congress as an activity that substantially

affects interstate commerce because it is the product of

destructive interstate competition. It is a principle deeply

rooted in Commerce Clause jurisprudence that Congress is

empowered to act to prevent destructive interstate competi-

tion. As the Supreme Court explained in Hodel v. Virginia

Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981)

("Hodel v. Virginia"), a case that the Lopez Court cited

repeatedly, "prevention of ... destructive interstate competi-

tion is a traditional role for congressional action under the

Commerce Clause." Id. at 282.

The case at hand bears a substantial similarity to the three

cases in which the Supreme Court best articulated the princi-

ple that Congress may act to prevent interstate competition

that has a destructive effect: Hodel v. Virginia, 452 U.S. 264,

Hodel v. Indiana, 452 U.S. 314 (1981) ("Hodel v. Indiana"),

and United States v. Darby, 312 U.S. 100 (1941). In Hodel v.

Virginia, the Supreme Court considered a challenge to the

constitutionality of the Surface Mining Control and Reclama-

tion Act of 1977. The Surface Mining Act required mine

operators to restore the land after mining to its prior condi-

tion, including its approximate original contour, topsoil, hy-

drologic balance, and vegetation in order to "protect society

and the environment from the adverse effects of surface coal

mining operations." 452 U.S. at 268. An association of coal

__________

goats which destroyed the habitat of an endangered bird constituted

an unlawful "taking" of the bird by the state. Id.

producers in Virginia challenged the Act, which it claimed

"regulat[ed] the use of private lands within the borders of the

States," as beyond Congress' Commerce Clause power. Id.

at 275. The Court held that the Act was a valid exercise of

Congress' power under the Commerce Clause because "Con-

gress rationally determined that regulation of surface coal

mining is necessary to protect interstate commerce from

adverse effects that may result from that activity." Id. at

281. Moreover, the Court concluded that "the power con-

ferred by the Commerce Clause [is] broad enough to permit

congressional regulation of activities causing air or water

pollution, or other environmental hazards that may have

effects in more than one State." Id. at 282.

The parallels between Hodel v. Virginia and the case at

hand are obvious. The ESA and the Surface Mining Act both

regulate activities--destruction of endangered species and

destruction of the natural landscape--that are carried out

entirely within a State and which are not themselves commer-

cial in character. The activities, however, may be regulated

because they have destructive effects, on environmental quali-

ty in one case and on the availability of a variety of species in

the other, that are likely to affect more than one State.17 In

each case, moreover, interstate competition provides incen-

tives to states to adopt lower standards to gain an advantage

vis--vis other states: In Hodel v. Virginia, 452 U.S. 264, the

states were motivated to adopt lower environmental stan-

dards to improve the competitiveness of their coal production

facilities, and in this case, the states are motivated to adopt

lower standards of endangered species protection in order to

attract development.18

__________

17 See supra subsection II.B.1 for a discussion of how biodiversity

affects interstate commerce.

18 In his dissent, Judge Sentelle attempts to distinguish Hodel v.

Virginia, 452 U.S. 264, Hodel v. Indiana, 452 U.S. 314, and United

States v. Darby, 312 U.S. 100, from the case at hand by asserting

that "[i]n the present case neither Congress nor the litigants, nor

for that matter Judge Wald, has pointed to any commercial activity

being regulated, any commercial competition being unfairly chal-

The Supreme Court adopted similar reasoning in Hodel v.

Indiana, 452 U.S. 314, which was decided on the same day as

Hodel v. Virginia, and involved a challenge to different

provisions of the same Act. Hodel v. Indiana, 452 U.S. 314,

involved a constitutional challenge to the "prime farmland"

provisions of the Surface Mining Act, which established spe-

cial requirements for surface coal mining operations conduct-

ed on land that qualified as prime farmland and that had

historically been used as cropland. The Court held that the

provisions did not violate the Commerce Clause. The Act

was adopted, the Court explained, "to ensure that production

of coal for interstate commerce would not be at the expense

of agriculture, the environment, or public health and safety,

injury to any of which interests would have deleterious effects

on interstate commerce." Id. at 329. Moreover, the Court

noted, the Act reflected a congressional desire to "protect[ ]

mine operators in States adhering to high ... standards from

disadvantageous competition with operators in States with

less rigorous regulatory programs." Id.

The parallels between Hodel v. Indiana, 452 U.S. 314, and

the case at hand are again striking. In both cases, the

statutes under challenge regulated intrastate activity that is

not itself commercial and that can be carried out entirely

within a State: the destruction of farmland and the destruc-

tion of endangered species. Just as the prime farmland

provisions of the Surface Mining Act were adopted to protect

agriculture, the environment, and health and safety, injury to

which would have deleterious effects on interstate commerce,

__________

lenged, or any other sort of commerce being destroyed by the

taking of the fly." Diss. op. at 13. Again, this is inaccurate. In

addition to arguing that a decline in biodiversity would have a

substantial and predictable destructive effect on interstate com-

merce, see supra subsection II.B.1, this section of the opinion refers

repeatedly to the fact that the ESA regulates the conditions under

which development takes place, and thereby prevents states from

adopting lower standards of endangered species protection in order

to attract development (e.g., construction of a hospital, power plant,

and intersection)--activity that even Judge Sentelle presumably

would admit is commercial in nature.

section 9(a)(1) of the ESA was adopted to ensure that

"growth and development," H.R. 37 ("Endangered and

Threatened Species Conservation Act of 1973") (Findings,

Purpose, and Policy), reprinted at 119 Cong. Rec. 25,694,

25,694 (1973), would not be at the expense of the conservation

and protection of a variety of species, injury to which would

have equally deleterious consequences for interstate com-

merce.19 Thus, in both cases, the activity at issue may be

regulated because it is likely to have destructive effects on

interstate commerce.

Finally, the Supreme Court's decision in United States v.

Darby, 312 U.S. 100 (1941), also concluded that activity could

be regulated under the Commerce Clause if it involved de-

structive interstate competition. In Darby, the Court upheld

wage and hour regulations for employees engaged in the

production of lumber for interstate commerce. Although the

statute "undertakes to regulate wages and hours within the

state contrary to the policy of the state which has elected to

leave them unregulated," 312 U.S. at 114, the Court held that

the statute was within the Commerce Clause power because it

was necessary to control destructive interstate competition.

The Court explained that "Congress, following its own con-

ception of public policy concerning the restrictions which may

be appropriately imposed on interstate commerce, is free to

exclude from the commerce articles whose use in the states

for which they are destined it may conceive to be injurious to

the public health, morals or welfare, even though the state

has not sought to regulate their use." Id. (citations omitted).

The Court further explained that "interstate commerce

should not be made the instrument of competition in the

distribution of goods produced under substandard labor con-

ditions, which competition is injurious to the commerce and to

the states from and to which the commerce flows." Id. at

115.

Like Darby, 312 U.S. 100, the case at hand involves a

regulation of the conditions under which commercial activity

takes place. The statute in Darby regulated the wages and

__________

19 See id.

hours of workers in Georgia who were engaged in producing

lumber for interstate commerce. Similarly, the statute in this

case regulates the taking of endangered species in the pro-

cess of constructing a hospital, power plant, and intersection

that will likely serve an interstate population. In both cases,

Congress passed the statute in part to prevent states from

gaining a competitive advantage by enacting lower regulatory

standards than other states. Congress was aware that no

state could be expected to require significantly more rigorous

labor standards or endangered species protection than other

states, because for each individual state, the cost of providing

better working conditions or preserving a species outweighs

the benefits even though in aggregate, the benefits of better

labor standards and biodiversity outweigh the costs.20

__________

20 Indeed, both the House and Senate recognized this as a reason

for passing the Endangered Species Act. In its Declaration of

Policy, the Senate stated as follows:

... The Congress finds and declares that--

(1) various species of fish, wildlife, and plants in the United

States have been rendered extinct as a consequence of econom-

ic growth and development untempered by adequate concern

and conservation;

....

(5) encouraging the States, through Federal financial assis-

tance and a system of incentives, to develop and maintain

conservation, protection, restoration, and propagation pro-

grams which meet national and international standards is a key

to meeting the Nation's international commitments and to

better safeguarding, for the benefit of all citizens, the Nation's

heritage in fish and wildlife.

S. 1983 ("Endangered Species Act of 1973") (Declaration of Policy),

reprinted at 119 Cong. Rec. 30,157, 30,157 (1973). Similarly, in its

declaration of findings, purpose, and policy, the House stated:

... The Congress finds and declares that one of the unfortu-

nate consequences of growth and development in the United

States and elsewhere has been the extermination of some

species or subspecies of fish, wildlife, and plants; that serious

losses in species of wild animals with educational, historical,

recreational, and scientific value have occurred and are occur-

ring ...; that a key to more effective protection and manage-

As the cases discussed above illustrate, the Court has long

held that Congress has the power under the Commerce

Clause to prevent destructive interstate commerce similar to

that at issue in this case. I therefore find that Congress has

the power to prevent interstate competition that will result in

the destruction of endangered species just as it has the power

to prevent interstate competition that will result in harm to

the environment, Hodel v. Virginia, 452 U.S. 264, the de-

struction of "prime farm land," Hodel v. Indiana, 452 U.S. at

324, or the employment of people under substandard labor

conditions, Darby, 312 U.S. 100.

III. Conclusion

We hold that the section 9(a)(1) of the Endangered Species

Act is within Congress' Commerce Clause power and that the

Fish and Wildlife Service's application of the provision to the

Delhi Sands Flower-Loving Fly was therefore constitution-

al.21 The district court's decision granting the Government's

motion for summary judgment is therefore

__________

ment of native fish and wildlife that are endangered or threat-

ened is to encourage and assist the States in developing

programs for such fish and wildlife; and that the conservation,

protection, restoration, or propagation of such species will inure

to the benefit of all citizens.

H.R. 37 ("Endangered and Threatened Species Conservation Act of

1973") (Findings, Purpose, and Policy), reprinted at 119 Cong. Rec.

25,694, 25,694 (1973).

21 In the conclusion to his dissent, Judge Sentelle quotes a

portion of Justice Story's Commentaries on the Constitution. See

Diss. op. at 15. Justice Story was undoubtedly an eloquent and

brilliant scholar. As Justice Thomas recently noted, however,

Justice Story's views "represent only his own understanding" of the

Constitution. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,

856 (1995) (Thomas, J., dissenting). Today few would agree with

Justice Story's claim that the "power to regulate manufactures"

falls outside Congress' Commerce Clause power. Indeed, the Lo-

pez Court clearly established the principle that where activity,

including manufacturing activity, "substantially affects interstate

Affirmed.

__________

commerce, legislation regulating that activity will be sustained."

Lopez, 514 U.S. at 559.

Karen LeCraft Henderson, Circuit Judge, concurring:

I agree with Judge Wald's conclusion that the "taking"

prohibition in section 9(a)(1) of the Endangered Species Act

(ESA) constitutes a valid exercise of the Congress's authority

to regulate interstate commerce under the Commerce

Clause.1 I cannot, however, agree entirely with either of her

grounds for reaching the result and instead arrive by a

different route.

Judge Wald first asserts that section 9(a)(1) is a proper

regulation of the "channels of commerce." In support she

cites decisions upholding regulation of commercially market-

able goods, such as machine guns and lumber,2 and public

accommodations.3 In each case, the object of regulation was

necessarily connected to movement of persons or things

interstate and could therefore be characterized as regulation

of the channels of commerce. Not so with an endangered

species, as the facts here graphically demonstrate. The Delhi

Sands Flower-loving Flies the Department of the Interior

seeks to protect are (along with many other species no doubt)

entirely intrastate creatures. They do not move among

__________

1 It is beyond question that the development San Bernardino

County proposes is not only a "discomfit[ure]"of the Delhi Sands

Flower-loving Fly, see Dissent at 1, but also a "taking" within the

meaning of ESA, see Babbitt v. Sweet Home Chapter of Communi-

ties for a Greater Oregon, 515 U.S. 687, 691 (1995) (upholding

Department of Interior's interpretation in 50 C.F.R. s 17.3 of

statutory definition of "take" to include "an act which actually kills

or injures wildlife," which "may include significant habitat modifica-

tion or degradation where it actually kills or injures wildlife by

significantly impairing essential behavioral patterns, including

breeding, feeding, or sheltering"). Further, the extent of inconve-

nience the County experiences if the unlawful taking is prevented,

see Dissent at 1-2, is irrelevant so long as the prevention is

authorized under the Commerce Clause.

2 United States v. Rambo, 74 F.3d 948 (9th Cir. 1995); United

States v. Darby, 312 U.S. 100 (1941).

3 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241

(1964).

states either on their own or through human agency. As a

result, like the Gun-Free School Zones Act in Lopez, the

statutory protection of the flies "is not a regulation of the use

of the channels of interstate commerce." 115 S. Ct. at 1630.

Judge Wald also justifies the protection of endangered

species on the ground that the loss of biodiversity "substan-

tially affects" interstate commerce because of the resulting

loss of potential medical or economic benefit. Yet her opinion

acknowledges that it is "impossible to calculate the exact

impact" of the economic loss of an endangered species. Wald

Op. at 23. As far as I can tell, it is equally impossible to

ascertain that there will be any such impact at all. It may

well be that no species endangered now or in the future will

have any of the economic value proposed. Given that possi-

bility, I do not see how we can say that the protection of an

endangered species has any effect on interstate commerce

(much less a substantial one) by virtue of an uncertain

potential medical or economic value. Nevertheless, I believe

that the loss of biodiversity itself has a substantial effect on

our ecosystem 4 and likewise on interstate commerce. In

addition, I would uphold section 9(a)(1) as applied here be-

cause the Department's protection of the flies regulates and

substantially affects commercial development activity which is

plainly interstate.

First, I agree with Judge Wald that biodiversity is impor-

tant to our understanding of ESA and its relation to inter-

state commerce. As Judge Wald's opinion notes:

Every species is part of an ecosystem, an expert special-

ist of its kind, tested relentlessly as it spreads its influ-

ence through the food web. To remove it is to entrain

changes in other species, raising the populations of some,

reducing or even extinguishing others, risking a down-

ward spiral of a larger assemblage.

__________

4 An ecosystem consists of "[t]he organisms in a community plus

the associated abiotic factors with which they interact." Helena

Curtis & N. Sue Barnes, Biology glossary at G-7 (5th ed. 1989).

Wald Op. at 21 n.11 (quoting Edward O. Wilson, The Diversi-

ty of Life 308 (1992)). The effect of a species' continued

existence on the health of other species within the ecosystem

seems to be generally recognized among scientists. See

Stephen M. Johnson, United States V. Lopez: A Misstep, but

Hardly Epochal for Federal Environmental Regulation, 5

N.Y.U. Envtl. L.J. 33, 79 (1996) ("It is a fundamental princi-

ple of ecology that ecosystems are composed of interdepen-

dent parts that play vital roles in preserving the ecosystem.

As an ecosystem becomes less diverse, it becomes less adapt-

able to stresses that are placed on it.") (footnotes omitted);

Myrl L. Duncan, Property as a Public Conversation, Not a

Lockean Soliloquy: A Role for Intellectual and Legal Histo-

ry in Takings Analysis, 26 Envtl. L. 1095, 1129 (1996)

("[S]cientists have rediscovered that the world cannot mean-

ingfully be broken down into isolated parts, that every part is

connected to every other part. Perhaps the strongest state-

ments about interconnectedness come from scientists, schol-

ars, and regulators working in the field of conservation

biology who are critical of the species-by-species, reaction-to-

crisis approach taken by the Endangered Species Act. They

understand that species protection issues cannot be separated

from those of ecosystem health.") (footnotes omitted). Some

studies show, for example, that the mere presence of diverse

species within an ecosystem (biodiversity) by itself contrib-

utes to the ecosystem's fecundity. See Yvonne Baskin, Ecolo-

gists Dare to Ask: How Much Does Diversity Matter? 264

Science 202 (1994). The Congress recognized the intercon-

nection of the various species and the ecosystems when it

declared that the "essential purpose" of ESA, which protects

endangered species, is in fact "to protect the ecosystem upon

which we and other species depend." H.R. Rep. No. 93-412,

at 10 (1973); see also 16 U.S.C. s 1531 (finding that endan-

gered species "are of aesthetic, ecological, educational, histor-

ical, recreational, and scientific value") (emphasis added); cf.

16 U.S.C. s 1361(5)(b) (congressional finding in support of

Marine Mammal Protection Act of 1972 that "marine mam-

mals ... affect the balance of marine ecosystems in a manner

which is important to other animals and other animal prod-

ucts which move in interstate commerce, and that the protec-

tion and conservation of marine mammals and their habitats

is therefore necessary to insure the continuing availability of

those products which move in interstate commerce"). Given

the interconnectedness of species and ecosystems, it is rea-

sonable to conclude that the extinction of one species affects

others and their ecosystems and that the protection of a

purely intrastate species (like the Delhi Sands Flower-loving

Fly) will therefore substantially affect land and objects that

are involved in interstate commerce. There is, therefore, "a

rational basis" for concluding that the "taking" of endangered

species "substantially affects" interstate commerce so that

section 9(a)(1) is within the Congress's Commerce Clause

authority. See Lopez, 115 S. Ct. at 1629.

The interstate effect of a taking is particularly obvious here

given the nature of the taking the County proposes. In

enacting ESA, the Congress expressed an intent to protect

not only endangered species but also the habitats that they,

and we, occupy. See H.R. Rep. No. 93-412, at 10 (1973)

(identifying ESA's "essential purpose" as "to protect the

ecosystem upon which we and other species depend"); S.

Rep. No. 93-307 at 4 ("Often, protection of habitat is the only

means of protecting endangered animals which occur on non-

public lands."); Babbitt v. Sweet Home Chapter of Communi-

ties for a Great Oregon, 115 S. Ct. 2407, 2416-18 (1995)

(statutory definition of "take" as "harm" encompasses habitat

modification). At the same time, the Congress expressly

found that "economic growth and development untempered

by adequate concern and conservation" was the cause for

"various species of fish, wildlife, and plants in the United

States hav[ing] been rendered extinct." 16 U.S.C.

s 1531(a)(1). It is plain, then, that at the time it passed ESA

the Congress contemplated protecting endangered species

through regulation of land and its development, which is

precisely what the Department has attempted to do here.

Such regulation, apart from the characteristics or range of

the specific endangered species involved, has a plain and

substantial effect on interstate commerce. In this case the

regulation relates to both the proposed redesigned traffic

intersection and the hospital it is intended to serve, each of

which has an obvious connection with interstate commerce.

See Terry v. Reno, 101 F.3d 1412, 1416-17 (D.C. Cir. 1996)

(concluding abortion clinic activities substantially affect inter-

state commerce); Heart of Atlanta Motel, Inc. v. United

States, 379 U.S. 241, 271 (1964) (concluding that "facilities and

instrumentalities used to carry on [interstate] commerce, such

as railroads, truck lines, ships, rivers, and even highways are

also subject to congressional regulation, so far as is necessary

to keep interstate traffic upon fair and equal terms") (empha-

sis added).5 Insofar as application of section 9(a)(1) of ESA

here acts to regulate commercial development of the land

inhabited by the endangered species, "it may ... be reached

by Congress" because "it asserts a substantial economic effect

on interstate commerce." Wickard v. Filburn, 317 U.S. 111,

125 (1942), quoted in United States v. Lopez, 514 U.S. 549,

556 (1995).6

For the preceding reasons I believe that the Department of

the Interior's regulation of the County's proposed "taking" of

the endangered Delhi Sands Flower-loving Fly, pursuant to

section 9(a)(1) of ESA, is a lawful exercise of governmental

authority under the Commerce Clause.7

__________

5 In light of these authorities I cannot agree with my dissenting

colleague that "[t]he activity regulated in the present case involves"

only "local land use." Dissent at 10.

6 The dissent suggests this justification has no "stopping point" as

required by Lopez. See Dissent at 10-11; Lopez, 514 U.S. at 564.

In Lopez the Court was concerned that the "theories" offered by

the government would authorize regulation of "all activities that

might lead to violent crime, regardless of how tenuously they relate

to interstate commerce" and "any activity that it found was related

to the economic productivity of individual citizens." Id. The

rationale on which I rely permits regulation only of activities

(including land use) that adversely affect species that affect, or are

involved in, interstate commerce.

7 In so concluding, I note that neither the Supreme Court nor any

circuit court has used Lopez to strike down an attempted regulation

__________

outside the criminal arena. For cases rejecting post-Lopez chal-

lenges to noncriminal statutes, see Wald Op. at 16-17.

Sentelle, Circuit Judge, dissenting: This case concerns

the efforts of San Bernardino County, California ("the Coun-

ty"), to construct a hospital and supporting infrastructure for

its citizens and other humans. Unfortunately, those efforts

discomfit an insect--the Delhi Sands Flower-Loving Fly.

According to the parties in this case, there are fewer than 300

breeding individuals of this species, all located within forty

square miles in southern California. These flies live as larvae

for nearly two years under Delhi Sands, a particular type of

grit, apparently found only in those forty square miles of

southern California, after which they emerge to feed and

breed for two weeks before dying.

In 1982, the County began considering construction of a

$470 million "state-of-the-art," "earthquake-proof" hospital

complex. The day before ground breaking was scheduled to

occur in 1993, the U.S. Fish and Wildlife Service ("Service")

of the Department of the Interior ("Interior") added the fly to

the endangered species list and notified the County that

construction of the hospital, on County land using County

funds, would harm a colony of six to eight flies and would

therefore violate federal law. To prevent being prosecuted

by the Service, County officials were forced to move the

hospital complex 250 feet northward and to set aside 8 acres

of land for the fly, delaying construction for a year and

costing County taxpayers around $3.5 million. The Service

also imposed a variety of other stringent requirements, in-

cluding preservation of a flight corridor for the insect which

today prevents improvements to a traffic intersection neces-

sary to allow emergency access and avoid "virtual gridlock"

when the hospital opens. At one point, the Service threat-

ened to require shutting down the eight-lane San Bernardino

Freeway (US 10, one of the most heavily traveled in southern

California) for two months every year (I am not making this

up). It did later drop this demand. The Service has also

impeded several localities from complying with County-

mandated weed-control programs which are an integral part

of preventing brush fires in the area. Construction planning

and projects, including an electrical substation and housing

developments, have also been threatened, impeded, or prohib-

ited because of the fly. Local land-use planning, including

the authority to balance environmental concerns with devel-

opment in a way to best serve citizens' interests, has been

disrupted; the financial health of the local governments has

been impacted; a local enterprise zone has been threatened;

and private land development has been impeded.

Statutory Justification

What business, one might ask, does the federal government

have disrupting these activities of the unit of local govern-

ment, which range from the purely local to the generally local

in nature? The government's answer begins with a statutory

justification. It acts under the authority conferred upon it by

the Endangered Species Act ("ESA"), specifically, section

9(a)(1) of that Act, which makes it unlawful, inter alia, to "(B)

take any such species within the United States or the territo-

rial seas of the United States." 16 U.S.C. s 1538(a)(1)(B).

Next, one might ask, what does that statute have to do with

the regulation of the County's activities in building a hospital

and the supporting infrastructure? It is not apparent that

the hospital plans to "take" any insects, or any other species.

It proposes to construct structures for human use, and the

humans using those structures propose to drive automobiles,

each of which might disturb the fly, but would not entail

anything that most users of the English language would

recognize as "taking" the fly. Unfortunately for the County

and its citizens, however, the Secretary of the Interior has

determined that the word "take" includes within its definition

"harm" and, therefore, activities which alter the habitat of an

endangered species are covered by the statute prohibiting the

taking of that species since the habitat modification might

harm it. Even more unfortunately for the County and the

citizens, the Supreme Court has agreed with that expansive

definition of "take." Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 515 U.S. 687 (1995).

Therefore, we may take it as a given that the statute forbid-

ding the taking of endangered species can be used, provided

it passes constitutional muster, to prevent counties and their

citizens from building hospitals or from driving to those

hospitals by routes in which the bugs smashed upon their

windshields might turn out to include the Delhi Sands Flow-

er-Loving Fly or some other species of rare insect. That

leaves the question for today as: by what constitutional

justification does the federal government purport to regulate

local activities that might disturb a local fly?

The Constitutional Justifications

The Department of Interior asserts that section 9(a)(1)(B)

of the ESA, and specifically its use of that section to prohibit

activities in southern California which might disturb a fly

existing only in southern California, are constitutional under

the Commerce Clause. U.S. Const. Art. I, s 8, cl. 3. That

clause empowers Congress to "regulate commerce with for-

eign nations, and among the several states, and with the

Indian tribes." This brings the next question: Can Congress

under the Interstate Commerce Clause regulate the killing of

flies, which is not commerce, in southern California, which is

not interstate? Because I think the answer is "no," I can not

join my colleagues' decision to affirm the district court's

conclusion that it can.

Analysis

The proposition that the federal government can, under the

Interstate Commerce Clause, regulate an activity which is

neither interstate nor commerce, reminds me of the old

chestnut: If we had some ham, we could fix some ham and

eggs, if we had some eggs. With neither ham nor eggs, the

chances of fixing a recognizable meal requiring both amount

to nil. Similarly, the chances of validly regulating something

which is neither commerce nor interstate under the heading

of the interstate commerce power must likewise be an empty

recitation. I recognize that for some decades of jurispruden-

tial development, the Commerce Clause has been used as the

justification for the regulation of a plethora of activities not

apparently within its text. See, e.g., Wickard v. Filburn, 317

U.S. 111 (1942) (regulating the consumption of home-grown

wheat). So wide-ranging has been the application of the

Clause as to prompt one writer to "wonder why anyone would

make the mistake of calling it the Commerce Clause instead

of the 'hey-you-can-do-whatever-you-feel-like clause.' "

Judge Alex Kozinski, Introduction to Volume 19, 19 Harv. J.

L. Pub. Pol. 1, 5 (1995). However, in 1995, the Supreme

Court brought an end to the galactic growth of the Clause's

application and reminded Congress that the words of that

Clause, like the rest of the Constitution, have content, in

United States v. Lopez, 514 U.S. 549 (1995). While I would

have found the present application of the ESA to be outside

the enumerated powers of Congress under the Commerce

Clause even in the world before Lopez, after that controlling

decision, I think there can be no doubt.

In Lopez, the Supreme Court considered the constitutional-

ity of the Gun-Free School Zones Act of 1990, in which

Congress made it a federal offense "for any individual know-

ingly to possess a firearm at a place that the individual

knows, or has reasonable cause to believe, is a school zone."

18 U.S.C. s 922(q)(1)(A) (Supp. V 1988). The Court conclud-

ed that because "[t]he Act neither regulates a commercial

activity nor contains a requirement that the possession be

connected in any way to interstate commerce," the statute

"exceeds the authority of Congress" to regulate commerce

under the Interstate Commerce Clause. 514 U.S. at 551.

For the same reasons, I would hold that the challenged

subsection of the ESA likewise exceeds that authority.

First, ESA section 9(a)(1)(B), like the statute challenged in

Lopez, does not regulate commerce. In Lopez, the Supreme

Court repaired to first principles. It reminded us that the

Commerce Clause, unsurprisingly, regulates "commerce," and

that "commerce ... is traffic ... it is intercourse ... com-

mercial intercourse between nations, and parts of nations," as

relevant here, between states. Id. at 553 (quoting Gibbons v.

Ogden, 9 Wheat. 1, 189-190 (1824)). The Lopez Court then

went on to analyze the developments of Commerce Clause

jurisprudence through the next 171 years after Gibbons v.

Ogden. Specifically, the Court noted such significant devel-

opments as the enactment of the Interstate Commerce Act,

24 Stat. 379 (1887), and the Sherman Antitrust Act, 26 Stat.

209 (1890), as amended, 15 U.S.C. s 1 et seq., and the era of

federal regulation which they ushered into our jurisprudence.

Coupling this with the development of the negative Com-

merce Clause, see authorities collected in Lopez, 514 U.S. at

554, the Lopez Court traced Commerce Clause jurisprudence

to NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937),

and the growing extension of congressional authority to the

regulation of essentially intrastate activities that " 'have such

a close and substantial relation to interstate commerce that

their control is essential or appropriate to protect that com-

merce from burdens and obstructions' [which] are within

Congress' power to regulate." Lopez, 514 U.S. at 555 (quot-

ing Jones & Laughlin Steel, 301 U.S. at 37). Following that

through Wickard v. Filburn, supra, the Lopez Court finally

analyzed the present state of our commerce jurisprudence.

The Court identified "three broad categories of activity that

Congress may regulate under its commerce power." Id. at

558-59. Under the Lopez analysis, these three categories

are: (1) "Congress may regulate the use of the channels of

interstate commerce"; (2) "Congress is empowered to regu-

late and protect the instrumentalities of interstate commerce,

or persons or things in interstate commerce, even though the

threat may come only from intrastate activities"; (3) "Con-

gress' commerce authority includes the power to regulate

those activities having a substantial relation to interstate

commerce." Id. (citations omitted). My colleagues and I

agree that Lopez recognizes the limitation of the power of

Congress to act under the Commerce Clause to these three

categories. Opinion of Judge Wald ("Wald Op.") at 8; Opin-

ion of Judge Henderson ("Henderson Op.") at 1. They

further agree with each other that the federal government's

actions in this case come within its Commerce Clause authori-

ty as defined in Lopez. They cannot, however, agree as to

how it fits within the Lopez analysis.

I find this inability to agree unsurprising, as this effort to

regulate does not fit any of those categories. First, category

(2) of constitutional commerce regulation is definitely unavail-

able. Judge Wald expressly agrees that "section 9(a)(1) of

the ESA is not a regulation of the instrumentalities of inter-

state commerce or of persons or things in interstate com-

merce." Wald Op. at 8. Apparently Judge Henderson agrees

sub silentia, as she never asserts the second category of

Lopez analysis as a foundation for upholding this application

of the Act. That said, we are left with potential justification

of the Act only as regulation of the use of channels of

interstate commerce or as an exercise of Congress' power to

regulate those activities having a substantial relationship to

interstate commerce. My colleagues accept differing argu-

ments as to why one or both of those rationales underpins the

exercise of federal authority over purely local actions disturb-

ing a purely local fly.

Judge Wald first asserts that the action taken by the

Service under section 9(a)(1)(B) is a constitutional regulation

of "the use of the 'channels of interstate commerce.' " Wald

Op. at 9 (quoting Lopez, 514 U.S. at 558). The short disposi-

tion of this argument is to say it does not command a

majority even without me. Judge Henderson rejects it out of

hand, noting, correctly, that all authority offered by Judge

Wald in support of the channels-of-commerce rationale upheld

regulation "necessarily connected to movement of persons or

things interstate...." Henderson Op. at 1 (citing United

States v. Rambo, 74 F.3d 948 (9th Cir. 1995); United States v.

Darby, 312 U.S. 100 (1941); and Heart of Atlanta Motel, Inc.

v. United States, 379 U.S. 241 (1964)). As Judge Henderson

goes on to note, neither the whole of the endangered species,

nor any of the individuals comprising it, travel interstate.

The Delhi Sands Flower-Loving Fly is an inveterate stay-at-

home, a purely intrastate creature. The Gun-Free School

Zones Act, stricken as unconstitutional by the Supreme Court

in Lopez, involved purely local possession of firearms, objects

which do move in interstate commerce, presumably through

its channels. The Supreme Court without difficulty deter-

mined that that section was "not a regulation of the use of the

channels of interstate commerce." Neither is this. It does

not purport to be.1

Not only do I join Judge Henderson in rejecting any claim

that section 9(a)(1)(B) is constitutional as a proper regulation

of the channels of commerce, but I would go further than she

and note that Judge Wald's supporting analysis of Darby and

Heart of Atlanta is far off the mark.

As Judge Wald notes, both Darby and Heart of Atlanta

concerned congressional efforts to "rid the channels of inter-

state commerce of injurious uses." Wald Op. at 13. But, for

reasons I have already described, supra n.1, preventing habi-

tat destruction contributes nothing to the goal of eliminating

the fly, or any other endangered species, from the channels of

commerce. The fact that activities like the construction of a

hospital might involve articles that have traveled across state

lines cannot justify federal regulation of the incidental local

effects of every local activity in which those articles are

employed. Judge Wald seems to be trying to extend Con-

gress' power over the channels of commerce to allow direct

federal regulation of any local effects caused by any activity

using those channels of commerce. She focuses not on the fly

in the channels of commerce, but everything else moving in

the channels of commerce that may affect the fly. But this

improperly inverts the third prong of Lopez and extends it

without limit. Under Judge Wald's theory, instead of being

__________

1 Judge Wald unsuccessfully attempts to distinguish Lopez by

claiming that a prohibition against habitat destruction is "necessary

to enable the government to control the transport of endangered

species in interstate commerce." Wald Op. at 10. The fly is not an

article of interstate commerce, and does not travel the channels of

commerce. The issue before us is not possession or sale of flies,

but, essentially, destruction of flies. Congress may have the au-

thority to prevent interstate transportation of flies, and that aspect

of the ESA is not challenged here. But preventing destruction of

local flies cannot reasonably be held to be either "necessary" or

"proper" to keeping the channels of commerce free from their

interstate transportation. While prohibiting the local possession

and exchange of flies might arguably be necessary to preventing

interstate transportation or exchange of flies, prohibiting destruc-

tion of fly habitat is not.

limited to activities that substantially affect commerce, Con-

gress may also regulate anything that is affected by com-

merce.

While Judge Henderson agrees with me that category (1)

of Lopez regulation does not support the Department's posi-

tion, she agrees with Judge Wald that the statutory protec-

tion of the flies can be justified under category (3): that is,

that it is the regulation of "activities that substantially affect

interstate commerce." Lopez, 514 U.S. at 558-59. Once

again, however, my colleagues cannot agree as to a rationale.

Before responding to their differing opinions on why the

regulation of intrastate fly killing falls within Congress' "pow-

er to regulate those activities having a substantial relation to

interstate commerce," I pause to further elaborate the Su-

preme Court's analysis of that category of legitimate regula-

tory power from Lopez. Because category (3) was the only

category which even arguably could have permitted Congress

to regulate the purely intrastate possession of firearms con-

sidered in Lopez, the Supreme Court afforded it a more

thorough analysis than the other two categories and, in so

doing, established three areas of inquiry necessitated by a

claim of interstate commerce authority under the "substantial

effects" category. Thus, in considering whether or not to

uphold regulation under that rationale, we must examine

whether:

-- the regulation controls a commercial activity, or an

activity necessary to the regulation of some commercial

activity;

-- the statute includes a jurisdictional nexus require-

ment to ensure that each regulated instance of the

activity affects interstate commerce; and

-- the rationale offered to support the constitutionality

of the statute (i.e., statutory findings, legislative history,

arguments of counsel, or a reviewing court's own attribu-

tion of purposes to the statute being challenged) has a

logical stopping point so that the rationale is not so broad

as to regulate on a similar basis all human endeavors,

especially those traditionally regulated by the states.2

None of the rationales offered by my colleagues pass this

examination. Judge Wald offers two possible explanations as

to why the challenged regulatory activity falls within category

(3). First, she puts forth the "biodiversity" rationale. Under

this rationale, she argues that the extinction of a species, and

the concomitant diminution of the pool of wild species, "has a

substantial effect on interstate commerce by diminishing a

natural resource that could otherwise be used for present and

future commercial purposes." Wald Op. at 23. As I under-

stand her argument, because of some undetermined and

indeed undeterminable possibility that the fly might produce

something at some undefined and undetermined future time

which might have some undefined and undeterminable medi-

cal value, which in turn might affect interstate commerce at

that imagined future point, Congress can today regulate

anything which might advance the pace at which the endan-

gered species becomes extinct. Judge Henderson rejects this

rationale, noting cogently that our colleague admits "that it is

'impossible to calculate the exact impact' of the economic loss

of an endangered species," Henderson Op. at 2 (quoting Wald

Op. at 23). Judge Henderson further notes that "it is equally

impossible to ascertain that there will be any such impact at

all." Id. She then reasons, and I agree, that we cannot then

"say that the protection of an endangered species has any

effect on interstate commerce (much less a substantial one)

by virtue of an uncertain potential medical or economic

value." Id. I would further note that Judge Wald's first

rationale fails under each of the subsidiary inquiries of cate-

gory (3) discussed above.

First, the regulation does not control a commercial activity,

or an activity necessary to the regulation of some commercial

__________

2 This specific formulation of the inquiries necessary under cate-

gory (3) is drawn from United States v. Wall, 92 F.3d 1444, 1455-56

(6th Cir. 1996) (Boggs, J., dissenting in part). However, each of the

points summarized in Judge Boggs's formulation is taken directly

from Lopez, 514 U.S. at 559-65.

activity. Neither killing flies nor controlling weeds nor dig-

ging holes is either inherently or fundamentally commercial

in any sense. Like the criminal statute struck down in Lopez,

the challenged section of the ESA "by its terms has nothing

to do with 'commerce' or any sort of economic enterprise,

however broadly one might define those terms." Lopez, 514

U.S. at 561. In applying that test in Lopez, the Supreme

Court noted that "[s]ection 922(q) is a criminal statute" and

that "under our federal system, the States possess primary

authority for defining and enforcing the criminal law." Id. at

561 & n.3 (citations and internal quotations omitted). The

activity regulated in the present case involves local land use, a

similar traditional stronghold of state authority.

As to the second subsidiary inquiry, the Supreme Court

noted in Lopez that the statute before it contained "no

jurisdictional element which would ensure, through case-by-

case inquiry, that the firearms possession in question affects

interstate commerce." Id. at 562. Just so with the ESA.

Nothing in section 9(a)(1)(B) of the Act or any other govern-

ing section requires that the regulated activity affect inter-

state commerce or provides any jurisdictional nexus support-

ing such a test. Like the statute in Lopez, it falls outside the

authority granted by the Commerce Clause.3

Third, the rationale offered by Judge Wald to support this

intrastate application of a statute unlimited by either of the

other two subsidiary inquiries has no logical stopping point.

As Judge Henderson suggests, the rationale dependent upon

the purely speculative future impact of an action with no

__________

3 Judge Wald chides me for not discussing Terry v. Reno, 101

F.3d 1412 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997). See

Wald Op. at 16 n.8. In Terry, the effect on commercial activity was

obvious--persons blocking access to clinics directly affected the

business of abortion doctors serving interstate customers. The

taking of a purely local fly, a harm without even a remote effect on

commerce, cannot be reasonably likened to local activities undertak-

en with the purpose and effect of directly impeding interstate

commerce.

demonstrable impact at all cannot be said to "ha[ve] any

effect on interstate commerce (much less a substantial

one)...." Henderson Op. at 2. If it could, then I do not see

how Congress could be prohibited from regulating any action

that might conceivably affect the number or continued exis-

tence of any item whatsoever. A creative and imaginative

court can certainly speculate on the possibility that any object

cited in any locality no matter how intrastate or isolated

might some day have a medical, scientific, or economic value

which could then propel it into interstate commerce. There is

no stopping point. If we uphold this statute under Judge

Wald's first rationale, we have indeed not only ignored

Lopez but made the Commerce Clause into what Judge Ko-

zinski suggested: the "hey-you-can-do-whatever-you-feel-like

clause." Kozinski, supra.

Though Judge Henderson rejects Judge Wald's "biodiversi-

ty" rationale, she relies on a related justification of her own,

which is to me indistinguishable in any meaningful way from

that of Judge Wald. As I understand her rationale, it

depends on "the interconnectedness of species and ecosys-

tems," which she deems sufficient for us "to conclude that the

extinction of one species affects others and their ecosystems

and that the protection of a purely intrastate species [con-

cededly including the Delhi Sands Flower-Loving Fly] will

therefore substantially affect land and objects that are in-

volved in interstate commerce." Henderson Op. at 4. I see

this as no less of a stretch than Judge Wald's rationale.

First, the Commerce Clause empowers Congress "to regulate

commerce" not "ecosystems." The Framers of the Constitu-

tion extended that power to Congress, concededly without

knowing the word "ecosystems," but certainly knowing as

much about the dependence of humans on other species and

each of them on the land as any ecologist today. An ecosys-

tem is an ecosystem, and commerce is commerce.

Granted, years of jurisprudence have extended that regula-

tory authority to encompass "activities having a substantial

effect on interstate commerce," the third category of Lopez

legitimacy, but Judge Henderson's rationale fails the analysis

of this third category as completely as does Judge Wald's. I

will not rehash the first two subsidiary requirements, because

the failure is for precisely the same reasons set forth above.

As to the third subsidiary test, it fails for substantially the

same reasons as Judge Wald's--it has no stopping point.

There is no showing, but only the rankest of speculation, that

a reduction or even complete destruction of the viability of

the Delhi Sands Flower-Loving Fly will in fact "affect land

and objects that are involved in interstate commerce,"

Henderson Op. at 4, let alone do so substantially.4 Nothing

in the statute certainly necessitates such a nexus, nor has my

colleague supplied a reason why this basis of regulation would

apply to the preservation of a species any more than any

other act potentially affecting the continued and stable exis-

tence of any other item of a purely intrastate nature upon

which one might rest a speculation that its loss or change

could somehow affect some other object, land, or otherwise,

that might be involved in interstate commerce.

In addition to their biodiversity/ecosystem justifications,

each of my colleagues offers a second rationale for justifying

Interior's actions under the third category of Lopez regula-

tion. Judge Wald asserts that "[t]he taking of the Fly and

other endangered animals can also be regulated by Congress

as an activity that substantially affects interstate commerce

because it is the product of destructive interstate competi-

tion." Wald Op. at 26. I am not at all certain what that

means in relation to the application of the ESA to the

building of a hospital and supporting infrastructure in a single

intrastate location. She relies on Hodel v. Virginia, 452 U.S.

264 (1981), Hodel v. Indiana, 452 U.S. 314 (1981), and United

States v. Darby, 312 U.S. 100 (1940). Although she asserts

"striking parallels" between those cases and the present one,

I see no parallel at all. In each of those cases, Congress

regulated arguably intrastate commercial activities, specifi-

cally mining and lumber production for interstate commerce.

__________

4 Indeed, there is nothing in either Judge Henderson's opinion or

the record to support speculation that the extinction of the Delhi

Sands Flower-Loving Fly would have any effect on any other

species.

In each of those cases, the Supreme Court upheld the rele-

vant statutes, noting that the regulated actors would either

destroy other commercial activities or be able to unfairly

compete with interstate competitors subject to higher regula-

tory standards protective of other elements of commerce. In

the present case neither Congress nor the litigants, nor for

that matter Judge Wald, has pointed to any commercial

activity being regulated, any commercial competition being

unfairly challenged, or any other sort of commerce being

destroyed by the taking of the fly. With reference to her

other rationale, I saw no stopping point; here, I am not even

sure what the beginning point is, let alone the terminus. I do

not think a decision upholding the challenged section of the

ESA on this rationale can exist in the same jurisprudence as

Lopez.

Finally, Judge Henderson would justify the challenged

section on the basis that "in enacting the ESA, the Congress

expressed an intent to protect not only endangered species,

but also the habitats that they, and we, occupy." Henderson

Op. at 4. I see no legally significant distinction between this

justification and her "ecosystems" justification. The Com-

merce Clause empowers Congress to regulate "commerce,"

not habitat. People and animals lived in habitats at the time

of the adoption of the Constitution, and we live in habitats

now. Because the power to regulate habitats was "not dele-

gated to the United States by the Constitution, nor prohibited

by it to the states," that power is "reserved to the states

respectively, or to the people." U.S. Const. Amend. X. For

the reasons outlined with reference to the ecosystem justifica-

tion, the habitat justification fails as well.

Judge Henderson would support her view that Commerce

Clause authority extends to the regulation of "land inhabited

by the endangered species," with the language of Wickard v.

Filburn, 317 U.S. 111, 125 (1942), that a subject matter "may

... be reached by Congress" because "it asserts a substantial

economic effect on interstate commerce." I do not see the

applicability of the Wickard language to our present contro-

versy. The statute in Wickard involved the regulation of the

interstate wheat market. The issue in Wickard involved the

production and consumption of homegrown wheat. Where

Congress has acted to regulate interstate commerce in a

commodity, the intrastate production and consumption of that

commodity in fact has an obvious effect on the impact of the

regulatory scheme. While the effect of one farmer's produc-

tion and consumption may not by itself be substantial, "his

contribution, taken together with that of many other similarly

situated, is far from trivial." Wickard 317 U.S. at 127-28,

quoted in Lopez 514 U.S. at 556. In discussing Wickard, the

Lopez Court rejected the notion that the Wickard precedent

establishes that "all activities affecting commerce, even in the

minutest degree, may be regulated and controlled by Con-

gress." Lopez 514 U.S. at 558 (citation and internal punctua-

tion omitted). It went on to note that the Court in Maryland

v. Wirtz, 392 U.S. 183 (1968), had rejected that expansive

reading of Wickard and held that "neither here nor in Wick-

ard has the Court declared that Congress may use a relative-

ly trivial impact on commerce as an excuse for broad general

regulation of state or private activities." Id. at 197 n.27,

quoted in Lopez 514 U.S. at 558. Here, there is no general

regulatory scheme of interstate commerce in a commodity

such that the cumulative effect of purely local state and

private activities could substantially affect it. There is no

commerce in the Delhi Sands Flower-Loving Fly.

An alternate reading of Judge Henderson's second justifi-

cation with its stress on the effect of the regulation upon the

highway and hospital is that she concludes that Congress may

regulate purely intrastate activities--e.g., the habitat modifi-

cation of the fly--where the regulation will then affect items

which are arguably in interstate commerce. Again, I do not

see the stopping point. Congress is not empowered either by

the words of the Commerce Clause or by its interpretation in

Lopez to regulate any non-commercial activity where the

regulation will substantially affect interstate commerce. The

most expansive view of Lopez is that Congress can regulate

"those activities having a substantial relation to interstate

commerce." Nowhere is it suggested that Congress can

regulate activities not having a substantial effect on com-

merce because the regulation itself can be crafted in such a

fashion as to have such an effect.

In the end, attempts to regulate the killing of a fly under

the Commerce Clause fail because there is certainly no

interstate commerce in the Delhi Sands Flower-Loving Fly.

The whole effort to employ a clause that empowers Congress

to regulate commerce in order to serve a perhaps worthy but

wholly non-commercial goal of preserving an endangered fly

calls to mind the thoughts of the first great commentator on

the Constitution, Justice Joseph Story. Story considered the

then-current question of whether the constitutional authority

to regulate commerce could be applied to the perhaps worthy

"purpose of encouraging and protecting domestic manufac-

tures." He declared,

If this were admitted, the enumeration of the powers of

congress would be wholly unnecessary and nugatory.

Agriculture, colonies, capital, machinery, the wages of

labour, the profits of stock, the rents of land, the punctu-

al performance of contracts, and the diffusion of knowl-

edge would all be within the scope of the power; for all

of them bear an intimate relation to commerce. The

result would be, that the powers of congress would

embrace the widest extent of legislative functions, to the

utter demolition of all constitutional boundaries between

the state and national governments.... The power to

regulate manufactures is no more confided to congress,

than the power to interfere with the systems of edu-

cation, the poor laws, or the road laws of the states.

Joseph Story, 2 Commentaries on the Constitution s 1075

(1833).

Conclusion

I dissent from the decision of this court to uphold that

regulation.