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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2330%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 937

## Text

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No. 97-1451 auseets
In the

Supreme Court of the United States
October Term, 1997

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7

NATIONAL ASSOCIATION OF HOME
BUILDERS, ET AL.,
Petitioners,
v.

BRUCE BABBITT, SECRETARY, UNITED STATES
DEPARTMENT OF INTERIOR, ET AL.,
Respondents.

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On Petition for Writ of Certiorari to the United States
Court of Appeals for the District of Columbia Circuit

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-

BRIEF AMICUS CURIAE OF PACIFIC
LEGAL FOUNDATION IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI

4.
vv

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

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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

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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.

2

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

3

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

4

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.
vv

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

a

5

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

6

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

7

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

8

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

9

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

10

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

1]

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

12

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

13

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”

14

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.

15

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

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

ee

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_2330%3A04. Public record. Not legal advice.