Amicus Curiae Brief — National Ass'n of Home Builders v. Babbitt

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+) Wi ams

No. 97-1451 auseets

In the

Supreme Court of the United States

October Term, 1997

NATIONAL ASSOCIATION OF HOME

BUILDERS, ET AL.,

Petitioners,

BRUCE BABBITT, SECRETARY, UNITED STATES

DEPARTMENT OF INTERIOR, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF AMICUS CURIAE OF PACIFIC

LEGAL FOUNDATION IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

ANNE M. HAWKINS *M. REED HOPPER

OF COUNSEL *Counsel of Record

Pacific Legal Foundation Pacific Legal Foundation

2151 River Plaza Drive, 2151 River Plaza Drive,

Suite 305 Suite 305

Sacramento, California 95833 Sacramento, California 95833

Telephone: (916) 641-8888 Telephone: (916) 641-8888

Facsimile: (916) 920-3444 Facsimile: (916) 920-3444

Attorney for Amicus Curiae,

Pacific Legal Foundation

QUESTION PRESENTED

Does a species’ potential impact on “biodiversity,” and the

possibility that commerce may be affected by “biodiversity,”

constitute a sufficiently substantial effect upon interstate

commerce such that the federal government may regulate all

activities affecting that species under its Commerce Clause

powers?

TABLE OF CONTENTS

POR ROLES FRET E OE io ay oe bcd tenn e ewan

TABLE OF AUTHORITIES CITED ...............

INTEREST OF AMICUS CURIAE ...............

RENE SEO ve ck cok sy oo be ee tee

DEA PEOTE GOP ROU GRAMMES ook ove be cceeueens

SUMMARY OF ARGUMENT ...................

po 8 ey oe rrr pe err re rte

THIS COURT SHOULD GRANT THE PETITION

FOR WRIT OF CERTIORARI TO RESOLVE A

CONFLICT AMONG THE CIRCUITS AS TO

WHETHER POTENTIAL OR SPECULATIVE

EFFECTS ON COMMERCE ARE SUFFICIENT TO

SUSTAIN FEDERAL REGULATORY AUTHORITY

AFFECTING LOCAL LAND USE DECISIONS .....

A. The Decision of the Court Below, Finding

That Congress Can Regulate Under the

Commerce Clause Based upon Theoretical,

Speculative, or Potential Effects Upon

Interstate Commerce, Conflicts With the

Fourth Circuit's Decision in United

SNP ns

B. The Seventh and Ninth Circuits Have Held

That Federal Agencies Must Demonstrate

an Actual and Specific Connection to

Commerce in Order for Federal Agencies to

Exercise Jurisdiction Under the Commerce

ooo eae CR RNR EN

TABLE OF AUTHORITIES CITED

Page

Cases

Babbitt v. Sweet Home Chapter of Communities

for a Greater Oregon, 115 S. Ct. 2407 (1995) ........ l

Sooty. Sew, 107 S. Ct T1546 C1997) ..... «2s cena ]

Cargill, Inc. v. United States, 116 S. Ct. 407

SURES py ea Or Sa apap el Ae er nape Aa a 14

Hodel v. Virginia Surface Mining and

Reclamation Association, Inc., 452 U.S. 264

ag rl gals BAe Se baie kms l

Hoffman Homes, Inc. v. Administrator, United

States Environmental Protection Agency,

DO ae A PO Cs BPO ho hes tiene kanes 12-14

Leslie Salt Co. v. United States, 55 F.3d 1388

(9th Cir. 1995), cert. denied, Cargill, Inc. v.

United States, 116 S. Ct. 407 (1995) ........... 12-14

National Association of Home Builders v. Babbitt,

Fe BR ek el oe) ) renee 3-4, 6-9

United States v. Lopez, 514 U.S. 549,

SUD oe Ge SENT os coc be ee selec <2. 5. 7, $5

United States v. Riverside Bayview Homes, Inc.,

Ns ol ae ea cninee 10

United States v. Wilson, 133 F.3d 251 (4th Cir.

DE et he a a ewe heh aes PAS ES 9-11

United States Constitution

SE eS OE a ihe Swipe weed ee 8 ]

Statutes

es ee PU SPE OPPED 9.56 86s 6c cos ewe eens 10

INTEREST OF AMICUS CURIAE

Pacific Legal Foundation (PLF)! is a nonprofit, tax-exempt

corporation organized under the laws of the State of California

for the purpose of litigating in the public interest. Over 25,000

individuals, organizations, associations, and corporations support

PLF’s efforts nationwide.

PLF has participated in numerous cases concerning the

interpretation of the Commerce Clause, as well as cases relating

to the Endangered Species Act. For example, PLF participated

as amicus curiae before this Court in Hodel v. Virginia Surface

Mining and Reclamation Association, Inc., 452 U.S. 264 (1981);

United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995);

Babbitt v. Sweet Home C hapter of Communities for a Greater

Oregon, 115 S. Ct. 2407 (1995); and Bennett v. Spear, 117 S.

Ct. 1154 (1997).

Amicus seeks to augment the arguments of Petitioners that

this Court’s additional guidance is critical to understanding and

applying the limitations imposed by the Commerce Clause as a

grant of authority to the federal government.

INTRODUCTION

Article I, Section 8, Clause 3, of the United States

Constitution is a grant from the people of this country to

Congress of the power “to regulate commerce with foreign

nations, and among the several States, and with the Indian

tribes.” In the years since our Constitution was drafted, the

increased ability to communicate among, travel to, and trade

with people in all parts of our nation and the world has been

accompanied by a corresponding increase in the number of

' Pursuant to Supreme Court Rule 37.6, amicus curiae Pacific Legal

Foundation affirms that no counsel for any party in this case authored

this brief in whole or in part; and furthermore, that no person or entity

has made a monetary contribution specifically for the preparation or

submission of this brief.

activities that the federal government has sought to regulate

under its commerce power, so that federal power touches many

aspects of our lives. Unfortunately, this expansion of federal

power has encouraged many in our federal government,

particularly executive agencies, to operate on the presumption

that federal power is without any limitations at all.

One such agency is the United States Fish and Wildlife

Service. Under the Endangered Species Act of 1973, Fish and

Wildlife is engaging in widespread federal land use regulation of

private property to protect species listed as endangered or

threatened. Although Congress enacted the Endangered Species

Act pursuant to its Commerce Clause powers, neither the Act

nor Fish and Wildlife’s own regulations or practices require that

there be any connection between the activity being regulated

under the Endangered Species Act and interstate commerce.

This case is a challenge to Fish and Wildlife’s assertion of

broad regulatory authority. To validate its actions, the court

below supplied the justification that, because wildlife contributes

to the biodiversity of the earth’s ecosystems, upon which all

things, including commerce, depend, the federal government can

regulate all species, because all species impact the earth’s

biodiversity. This finding that Congress can regulate based upon

theoretical, speculative, or potential impacts upon commerce

directly contravenes the jurisprudence of other circuits and this

Court’s decision in United States v. Lopez.

Petitioners ask this Court to resolve whether the decision

of the court below comports with our constitutional framework.

Under the rationale supported by the court below, the federal

government is able to regulate a swimming pool because a//

water affects interstate commerce, and regulate a flower bed

because the aggregate impact of all flower beds may some day

have a substantial effect on interstate commerce. And while the

federal government does not directly regulate swimming pools

and flower beds, the facts of this case demonstrate that the Fish

and Wildlife Service is purporting to use the Endangered Species

Act to regulate such things to the minutest degree.

STATEMENT OF THE CASE

In 1993, the Secretary of Interior listed the Delhi Sands

Flower-Loving Fly as an endangered species under the

Endangered Species Act, 16 U.S.C. § 1531, et seg. National

Association of Home Builders v. Babbitt, 130 F.3d 1041, 1060

(D.C. Cir. 1997) (NAHB) (Sentelle, J., dissenting). This fly

exists only within the State of California. /d. Indeed, the United

States Fish and Wildlife Service admits that the fly exists only

in 40 square miles of Southern California-on small patches of

land covered with a fine sand known as “Delhi sand.” /d.

at 1043, 1060.

According to the Fish and Wildlife Service, the fly spends

the majority of its two-year life span-over 1 year and

10 months--in the pupal stage, underneath the Delhi sand. /d.

at 1060. It emerges in its adult stage during the late summer

months to breed and feed. /d. The fly exists only in small

“colonies.” In fact, this litigation commenced over Fish and

Wildlife’s protection of a single colony of eight flies. /d.

Federal protection of the fly has disrupted the operations

of two cities and the County of San Bernardino (County), as well

as the development plans of numerous private property owners.

In particular, the Fish and Wildlife Service listed the fly one day

before construction on San Bernardino’s county hospital was

slated to begin. /d. As a result, the Service compelled the

County to relocate the hospital 250 feet north of its original

building site, claiming that proceeding as planned would result

in the unlawful “take” of an endangered species. /d. This

relocation caused a one year delay in the hospital’s construction

and cost the County’s taxpaying citizens an additional

$3.5 million in building costs. /d.

For additional mitigation, Fish and Wildlife also demanded

that the County set aside over eight acres of land from the

original hospital site as fly habitat. /d. Attached to this

dedicated plot, Fish and Wildlife had the County create a 100-

foot wide “fly corridor.” /d. at 1044. In theory, the flies will

choose this route to migrate to other suitable habitat during their

short lives above ground. /d. at 1044-45. Because of Fish and

Wildlife’s insistence on preserving this artificial corridor without

modification, the County’s efforts to redesign a highway inter-

section to accommodate hospital traffic have been stymied. /d.

at 1045.

Delay and redesign of the hospital and its related

intersection are but a few of the impacts that have resulted from

- Fish and Wildlife’s implementation of the Endangered Species

Act. A Fish and Wildlife representative originally demanded

that nearby Interstate 10 close down during the flies’ “active”

period in August and September. /d. at 1060. But, this demand

was eventually withdrawn. /d.

The court below upheld Fish and Wildlife’s regulation of

this local species under the Endangered Species Act as a

legitimate exercise of the authority to regulate interstate

commerce. However, the court did not require that Fish and

Wildlife make an individualized determination that the species

substantially affects interstate commerce. Rather, it is enough,

the court held, that a species contribute to general biodiversity,

since biodiversity itself substantially affects interstate commerce.

As.

SUMMARY OF ARGUMENT

The Petitioners have filed their petition asking this Court

to review whether the need for species “biodiversity” provides

a sufficiently substantial effect upon interstate commerce such

that the federal government may regulate matters affecting

species under its commerce power. Although the court below

answered this question in the affirmative, the majority of the

three-member panel could not agree on why this was so.

However, both judges who sustained the jurisdiction of

the United States Fish and Wildlife Service did so on the basis

that theoretical, potential, and speculative effects upon

commerce were sufficient to confer federal jurisdiction under the

Commerce Clause.

This finding that federal agencies may regulate based upon

potential or speculative, rather than actual and specific, effects

upon commerce, directly conflicts with the decisions of this

Court and of other circuits. Specifically, the Fourth Circuit, in

applying this Court’s decision in United States v. Lopez, 115 S.

Ct. 1624, held that a federal agency could not invoke jurisdiction

where no commerce nexus was directly established.

Furthermore, the decision of the court below conflicts with pre-

Lopez decisions of the Seventh and Ninth Circuits, which

required the federal government to demonstrate an actual and

specific connection with interstate commerce before a federal

agency could assert jurisdiction over local land use activities. To

resolve these conflicts, and to give the lower courts guidance in

understanding the limitation of the federal constitutional

commerce power, this Court should grant the Petition for Writ

of Certiorari.

ARGUMENT

THIS COURT SHOULD GRANT THE PETITION

FOR WRIT OF CERTIORARI TO RESOLVE A

CONFLICT AMONG THE CIRCUITS AS TO

WHETHER POTENTIAL OR SPECULATIVE

EFFECTS ON COMMERCE ARE SUFFICIENT TO

SUSTAIN FEDERAL REGULATORY AUTHORITY

AFFECTING LOCAL LAND USE DECISIONS

The court below upheld Fish and Wildlife’s exercise of

authority to regulate activities affecting the endangered Delhi

Sands Flower-Loving Fly. Specifically, the court held that all of

the actions taken by Fish and Wildlife to protect the fly,

including regulation of local land use activities, were valid

exercises of federal authority under the Commerce Clause.

However, the two-member majority of the panel could not agree

on a rationale. Judge Wald found that regulation of the fly could

be sustained because it regulated the use of the channels of

interstate commerce and regulated an activity that substantially

affects interstate commerce. NAHB, 130 F.3d at 1046. Judge

Henderson disagreed with Judge Wald that regulation of the fly

regulated the use of the channels of interstate commerce, but

agreed that regulation of the fly’s habitat substantially affected

interstate commerce. /d. at 1057-58. Judge Sentelle dissented,

finding that regulation of the fly was invalid under the

Commerce Clause because there was no connection between the

fly and interstate commerce. /d. at 1061. Because Judges Wald

and Henderson could not concur on why regulation of the fly is

valid under the Commerce Clause, their opinions merit scrutiny.

Judge Wald found that regulation of the fly’s habitat could

be sustained because “the provision prevents the destruction of

biodiversity and thereby protects the current and future interstate

commerce that relies upon it.” /d. at 1052.

In finding that “biodiversity” is the link between species

protection and commerce, Judge Wald asserted:

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. 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. 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 knowl-

edge 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.

Id. at 1053 (reference omitted). In other words, Congress has

the authority to regulate endangered species because Congress

believes that human ignorance is the only barrier to commercial

relevance for every species.

The problem with sustaining federal regulation on these

grounds is obvious. If Congress can regulate based upon

theoretical or speculative impacts on commerce, the commerce

power is without limitation or, rather, is limited only by the

imagination of Congress. In Lopez, this Court specifically

rejected a similar argument based upon future impacts on

commerce when it rejected the government’s “costs of crime”

reasoning. The government asserted that the Gun Free School

Zones Act was valid because the presence of guns in schools

poses a threat to learning, which results in a less productive

citizenry, and thereby affects commerce. This Court found this

rationale faulty because such a power would not be

“enumerated” at all, but would instead be limitless: “Congress

could regulate not only all violent crime, but all activities that

might lead to violent crime, regardless of how tenuously they

relate to interstate commerce.” Lopez, 115 S. Ct. at 1632. This

Court pointed out, if Congress could regulate activities on the

basis that those activities potentially affect future commerce, the

court would be “hard-pressed to posit any activity by an

individual that Congress is without power to regulate.” /d. In

this case, the theoretical commercial impact endorsed by

Judge Wald is not even tied to the activity being regulated. No

party to this case has alleged that the fly itself has a theoretical

commercial value, only that some indeterminate species that

may become extinct may prove to have commercial value some

time in the future.

Indeed, Judge Henderson found fault with Judge Wald’s

conclusion that federal jurisdiction could rest upon future effects

on commerce:

[Judge Wald’s] opinion acknowledges that it is

“impossible to calculate the exact impact” of the

economic loss of an endangered species. 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 possibility, 1 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.

NAHB, 130 F.3d at 1058. Notwithstanding this reasoning,

however, Judge Henderson concluded that a species’ existence

has a present economic impact sufficient to sustain regulation of

the fly based upon a theoretical link between species and

commerce:

The effect of a species’ continued existence on the

health of other species within the ecosystem seems

to be generally recognized among scientists.

Given the interconnectedness of species and eco-

systems, it is reasonable 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 /and

and objects that are involved in interstate commerce.

ove

Id. at 1058-59 (emphases added). Like Judge Wald, Judge

Henderson embraced the notion that Congress could regulate

based upon a theoretical view--in this case, that some

indeterminate species is essential to a given ecosystem, and that

interstate commerce is dependent upon that ecosystem.

However, Judge Henderson did not allege that the fly itself is

essential, only that the fly could affect other species which may

in turn affect not interstate commerce, but /and and objects

involved in interstate commerce.

A. The Decision of the Court Below, Finding That

Congress Can Regulate Under the Commerce

Clause Based upon Theoretical, Speculative, or

Potential Effects Upon Interstate Commerce,

Conflicts With the Fourth Circuit’s Decision in

United States v. Wilson

Though Judges Wald and Henderson could not agree on

how and why “biodiversity” affects interstate commerce, both

concluded that the federal government can regulate fly habitat

because of a theoretical, speculative, or potential link between

the fly’s relevance to biodiversity and the impact of biodiversity

on interstate commerce. However, the Fourth Circuit Court of

Appeals has held that the Commerce Clause does not enable the

federal government to exercise jurisdiction based upon potential

or speculative impacts upon commerce.

On December 27, 1997, the United States Court of

Appeals for the Fourth Circuit overturned the conviction of

James J. Wilson, prosecuted under the Clean Water Act for

filling a wetland without a permit, finding that the Army Corps

of Engineers (Corps) had exceeded its authority by asserting

jurisdiction over wetlands based upon their potential effects

upon interstate commerce. United States v. Wilson, 133 F.3d

251, 257 (4th Cir. 1997).

James J. Wilson has been developing a planned community

in St. Charles, Maryland, since 1968. /d. at 254. In concert with

county and federal housing authorities, Mr. Wilson engaged in

many land altering activities, including draining and grading

property. /d. In 1992, the Corps issued a cease and desist order

to Mr. Wilson, claiming that he had filled a wetland without a

permit in violation of the Clean Water Act. /d. at 255. In a jury

trial, Mr. Wilson was convicted and sentenced to 21 months in

prison with one year of supervised release, and fined $1 million.

Id. at 254.

On appeal, Wilson claimed that the Corps had no juris-

diction over the lands upon which he had conducted his draining

and grading activities because they bore no relation to interstate

commerce. /d. at 253. Specifically, he challenged the validity

of the regulation under which the Corps asserted jurisdiction.

The Clean Water Act prohibits the discharge, without a permit,

of pollutants into “navigable waters.” 33 U.S.C. §§ 1311(a),

1362(12\A). The Act defines “navigable waters” as “waters of

the United States.” 33 U.S.C. § 1362(7). This Court understood

that, by defining “navigable waters” to mean “waters of the

United States,” Congress intended to regulate some waters

which are not considered “navigable” as that term is normally

understood. United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 133 (1985). However, the Army Corps of

Engineers and the Environmental Protection Agency (EPA)

further defined “waters of the United States” to include:

All other waters such as intrastate lakes, rivers,

streams (including intermittent streams), mudflats,

sandflats, wetlands, sloughs, prairie potholes, wet

meadows, playa lakes, or natural ponds, the use,

degradation or destruction of which could affect

interstate or foreign commerce.

33 C.F.R. § 328.3(a)(3) (1993) (emphasis added). The Fourth

Circuit found this broad assertion of jurisdiction invalid:

This regulation purports to extend the coverage of

the Clean Water Act to a variety of waters that are

intrastate, nonnavigable, or both, solely on the basis

that the use, degradation, or destruction of such

waters could affect interstate commerce. The

regulation requires neither that the regulated activity

have a substantial effect on interstate commerce, nor

that the covered waters have any sort of nexus with

navigable, or even interstate waters. Were this

regulation a statute, duly enacted by Congress, it

would present serious constitutional difficulties,

because, at least at first blush, it would appear to

exceed congressional authority under the Commerce

Clause. ... Absent a clear indication to the

contrary, we should not lightly presume that... .

Congress authorized the Army Corps of Engineers to

assert its jurisdiction in such a sweeping and

constitutionally troubling manner.

Wilson, 133 F.3d at 257 (emphases in original). The Fourth

Circuit struck the regulation, stating that the Corps’

promulgation of the regulation exceeded its congressional

authorization under the Clean Water Act. The government’s

petition for a rehearing was denied.

The exercise of federal jurisdiction by the Fish and

Wildlife Service in this case is a direct parallel to the exercise of

federal jurisdiction by the Army Corps of Engineers in Wilson.

Nonetheless, the Fourth Circuit flatly rejected the idea that

federal jurisdiction could be based upon speculative and

potential effects upon commerce, rather than actual effects.

Indeed, it is impossible to formulate a rational distinction

between the cases that could explain the divergent results: if

“biodiversity” is sufficient to confer jurisdiction over a species,

the regulation of any water, upon which all life, and therefore all

commerce, unquestionably depends, can hardly be beyond

federal jurisdiction under the Commerce Clause.

This Court should grant the Petition for Writ of Certiorari

to resolve the conflict between the Fourth Circuit and the District

of Columbia Circuit as to whether speculative or potential effects

upon commerce are sufficient to sustain federal authority under

the Commerce Clause.

B. The Seventh and Ninth Circuits Have Held That

Federal Agencies Must Demonstrate an Actual

and Specific Connection to Commerce in Order

for Federal Agencies to Exercise Jurisdiction

Under the Commerce Clause

The opinion below, which bases its commerce finding

upon the notion that other species do or could affect interstate

commerce, is also in conflict with opinions of the Seventh and

Ninth Circuits requiring federal agencies to establish specific

federal jurisdiction when attempting to regulate private land use.

These circuits require that the federal regulatory agency

demonstrate an actua/ connection between the regulated activity

and a substantial impact on interstate commerce. In Hoffman

Homes, Inc. v. Administrator, United Staies Environmental

Protection Agency, 999 F.2d 256, 259 (7th Cir. 1993), and

Leslie Salt Co. v. United States, 55 F.3d 1388,1392 (9th Cir.

1995), cert. denied, Cargill, Inc. v. United States, 116 S. Ct. 407

(1995) (both decided prior to Lopez), these Courts of Appeals

addressed whether the federal government could assert

jurisdiction under the Clean Water Act over isolated wetlands

located on private property.

In Hoffman Homes, a developer filled a small wetland area

in order to develop his property commercially. Hoffman Homes,

999 F.2d at 258. At issue was whether the EPA had jurisdiction

consistent with the Commerce Clause to regulate the filling of an

isolated wetland--that is, a wetland not connected to any

interstate body of water. /d. at 260. The EPA argued that the

connection between the wetland and interstate commerce was

that wetlands serve as habitat for migratory birds, and that

“millions of people annually spend more than a billion dollars on

hunting, trapping, and observing migratory birds.” /d. at 261.

Though accepting this dubious commerce connection, the

Seventh Circuit nonetheless concluded that the isolated wetland

ee ee WP rn

was not subject to EPA jurisdiction because it found “the

conclusion of EPA’s [Chief Judicial Officer] that Area A was

suitable for migratory bird habitat to be unsupported by

substantial evidence on the record as a whole.” /d. at 262. The

result of this decision was to require EPA to demonstrate that the

specific regulated site was actually used by migratory birds.

Potential use, or use by migratory birds of wetlands in general,

was insufficient to validate application of the regulation.

Instead, EPA had to show that the specific wetland in dispute

substantially affected interstate commerce.

However, unlike the court in Hoffman Homes, the court

below in this case accepted the very arguments rejected by the

Seventh Circuit as untenable. Here, Fish and Wildlife argued

that its general authority to regulate wildlife under the

Endangered Species Act enables it to extend its jurisdiction to

Delhi Sands Flower-Loving Fly habitat, whether or not the fly

affects interstate commerce. Under Hoffman Homes, Fish and

Wildlife’s authority to regulate some wildlife and some activities

does not empower the government to regulate every activity

related to wildlife without demonstrating a case-specific impact

on interstate commerce. Further, while EPA could not simply

aggregate “all wetlands” into a class to validate its jurisdiction,

Fish and Wildlife here contends that it may aggregate every

variety of wildlife to demonstrate a substantial effect on

commerce. The decision below conflicts with the Seventh

Circuit’s requirement that a federal regulatory agency must show

an actual and specific connection between an activity and

interstate commerce.

In Leslie Salt, the Ninth Circuit reached essentially the

same conclusions as the Seventh Circuit in Hoffman Homes. In

Leslie Salt, the issue was whether, under the Clean Water Act,

the Army Corps of Engineers could prohibit the filling of

evaporation pits the company had created for salt manufacture.

Leslie Salt, 55 F.3d at 1390-91. Though the Ninth Circuit

accepted the Army Corps of Engineers’ “migratory bird”

argument (conceding that it “tests the limits of Congress’

commerce powers and, some would argue, the bounds of

reason,” id. at 1396), it also acknowledged that the Corps’

jurisdiction depended upon “the property's specific connections

to interstate commerce due to migratory bird use.” /d. at 1392

(emphasis added). Justice Thomas underscored the burden that

the government must show to assert jurisdiction under the

Commerce Clause:

[T}hat substantial interstate commerce depends on

the continued existence of migratory birds does not °

give the Corps carte blanche authority to regulate

every property that migratory birds use or could use

as habitat. The point of Lopez was to explain that

the activity on the land to be regulated must

substantially affect interstate commerce before

Congress can regulate it pursuant to its Commerce

Clause power.

Cargill, Inc., 116 S. Ct. at 409 (Thomas J., dissenting from the

denial of certiorari) (emphases added).

In Hoffman Homes and Leslie Salt, the government was

not entitled to exercise jurisdiction over a specific wetland on the

basis of a wetland’s potential effect on commerce, nor could the

government rely on its authority to regulate wetlands in general.

The federal government was required to demonstrate a

connection between the actual, specific activity being regulated

and its effect on interstate commerce in order to sustain

jurisdiction. These holdings are in direct conflict with the

decision of the court below, which held that theoretical,

speculative, or potential effects on interstate commerce are

sufficient to confer federal jurisdiction under the Commerce

Clause.

CONCLUSION

Congress has numerous means at its disposal to regulate

interstate commerce in wildlife. It employed some of those

means in Section 9 of the Endangered Species Act. However,

no matter how lofty the goal, Congress may not reach beyond its

constitutionally enumerated powers. Specifically, this Court has

never countenanced the proposition that Congress could use

theoretical, speculative, or potential effects upon commerce as

a basis for exercising sweeping federal jurisdiction.

The court below held that the federal government need not

demonstrate a connection between an activity being regulated

and its effect upon interstate commerce. Rather, the court held

that a theoretical link between the activity being regulated and

interstate commerce was sufficient to confer federal jurisdiction.

Because the decision of the court below conflicts with the

Fourth, Seventh, and Ninth Circuits’ understanding of federal

jurisdiction under the Commerce Clause, and this Court’s

precedent in United States v. Lopez, this Court should grant the

Petition for Writ of Certiorari.

DATED: April, 1998.

Respectfully submitted,

ANNE M. HAWKINS *M_ REED HOPPER