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

Supreme Court, U.S.

ae Ge ae ae

seal No. 97-1451 MAY 6 1998

IN THE | CLERK

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 Wnt of Certioran

to the United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF AMICI CURIAE

THE WASHINGTON LEGAL FOUNDATION AND

ALLIED EDUCATION FOUNDATION

IN SUPPORT OF PETITIONERS

Daniel J. Popeo

Paul D. Kamenar

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

Date: May 6, 1998

CASILLAS PRESS © 1717 K STREET, N.W. © WASHINGTON, D.C. 20006 © (202) 223-1220

TABLE OF CONTENTS

Page

ee SI i i i ie ak ie Mb eee l

ns Or I a rk ee be ois eG 3

Reasons for granting the petition ................. 6

I. The court of appeals decided an important question

of federal law that conflicts with this court’s

Commerce Clause jurisprudence ............. 6

I. The court of appeals decision does violence to

fundamental principles of federalism as articulated

SEL SS a ek ats hab ee oe a eee 14

Pi; A TO i es Ei 5 ES 14

B. State regulation of wildlife on private and

ens meee ass oo res ee 17

I i Se ak eG eR Cee Uk pee gee ewes oa ta 20

TABLE OF AUTHORITIES

Page(s)

Cases:

Askew v. American Waterways Operators, Inc.,

ERR Me 7): Re Serer eee 17

Babbitt vy. Sweet Home Chapter Communities for a

Great Oregon, 515 U.S. 687 (1995) .......... 2

Bennes v. Spear, 117%. Ce. 1154 (1997)... . 1.224. 2

Dolan vy. City of Tigard, 512 U.S. 374 (1994) ......... 2

Douglas v. Seacost Products, Inc..,

ge ie fs, eee rey eo 17

Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) ...... 15

Geer v. Connecticut, 161 U.S. 519 (1896) ........... 17

Heart of Atlanta Motel, Inc. v. United States,

See ae ee ee a exe vee bs oe Ke 9

Hodel v. Indiana, 452 U.S. 314 (1981) ............. 15

Hodel v. Virginia Surface Mining & Reclam. Ass’n,

rt ce A ls oe i i cates &h passim

NLRB vy. Jones & Laughlin Steel Corp.,

ee EE ee i hae se ee 7, 14

Perez v. United States, 402 U.S. 146 (1971) .......... g

South Dakota v. Dole, 483 U.S. 203 (1987) .......... 19

Sporhase v. Nebraska ex rel. Douglas,

ee eer eer ere 15

United States v. Byrd,

609 F.2d 1204 (7th Cir. 1979) ......... 11, 12, 13

United States v. Lopez, 514 U.S. 549 (1995) ....... passim

Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984) ..... 2. 3

Village of Belle Terre v. Borass, 416 U.S. 1 (1974) ..... 15

Wickard v. Filburn, 317 U.S. 111 (1942) ........... 8,9

Constitution and Statutes:

U.S. Const., Art. I, sec. 8, cl. 3 (Commerce Clause) . passim

i I Sy Ce ee ag we ee wie ace 14

i a a se eo eee we 3,4

ee ak eae ee ® e passim

Endangered Species Preservation Act of 1966,

Pub. L. No 89-669, 80 Stat. 926 (repealed 1973) .. 18

Endangered Species Conservation Act of 1969,

ee ea ee PS 5 ne sk 8 8s we 18

Miscellaneous:

a ek a Ge ok Fe ee nN 6

I ia Sk ok 6a Wie e SA A as eee: ae 6

oo ee ago ya Ne OE ES Fe ee 8 ee l

I i eh bad wee 0 kw 8 2

Bean, The Evolution of National Wildlife Law (1983) . 18, 19

Halter and Thomas, Recovery of Damages by States for Fish

and Wildlife Losses Caused by Pollution,

PS i, OD is 6 Sine os ne se es 17

Thomas A. Lund, American Wildlife Law (1980) .... 18, 20

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 97-1451

National Association of Home Builders, et al.,

Petitioners,

v.

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 OF AMICI CURIAE

THE WASHINGTON LEGAL FOUNDATION AND

ALLIED EDUCATIONAL FOUNDATION

IN SUPPORT OF PETITIONERS

INTEREST OF AMICI CURIAE

Pursuant to Rule 37.2(a) of the Rules of this Court, the

Washington Legal Foundation and the Allied Educational

Foundation respectfully submit this amici curiae brief in

support of the petitioners. Consent to the filing of this

2

brief has been granted by all the parties, and the consent

letters have been lodged with the Clerk.'

The Washington Legal Foundation (WLF) is a national

nonprofit public interest law and policy center based in

Washington, D.C., with supporters nationwide, including

many property owners who are subject to civil and criminal

penalties of the federal Endangered Species Act.

WLF appeared as an amicus curiae in this case before

the court of appeals because it raised serious questions

regarding the limits of the power of Congress under the

Commerce Clause to regulate traditional state and local

land use activity and wildlife management. WLF has also

appeared as amicus in numerous cases before this Court

raising related questions regarding land use activity and the

Endangered Species Act. See Bennett v. Spear, 117 S. Ct.

1154 (1997); Babbitt v. Sweet Home Chapter Communities

for a Great Oregon, 515 U.S. 687 (1995); Dolan vy. City of

Tigard, 512 U.S. 374 (1994).

The Allied Educational Foundation (AEF) is a

nonprofit charitable and educational foundation based in

New Jersey. Founded in 1964, AEF is dedicated to

promoting education in diverse areas of study, including

law and public policy, and has appeared before this Court

as amicus curiae in numerous cases along with WLF.

' Pursuant to Rule 37.6, amici state that no counsel for a

party in this case authored this brief in whole or in part, and no

persons or entities other than the Washington Legal Foundation,

its supporters, or counsel, contributed financially to the

preparation or submission of this brief.

3

STATEMENT OF THE CASE

In the interests of judicial economy, amici adopt by

reference the Statement of the Case as presented in the

petition for writ of certiorari.

In brief, this case raises the important issue of whether

there are any limits under the Commerce Clause to regulate

private and local land use activities that may affect any

federally listed endangered or threatened species (plants or

wildlife, including insects), where the connection between

that species and interstate commerce is non-existent,

speculative, or at best, tenuous.

In this case, the U.S. Fish & Wildlife Service of the

Department of Interior, restricted the petitioners from

carrying out normal and reasonable local land use

activities, including the building of a much needed hospital,

because those activities would purportedly disturb the

habitat of the Delhi Sands Flower-loving Fly (the "Fly"),

a species found only in a small local area of two counties

in Southern California. There was no showing that the Fly

has or had any commercial value, such as a pollinator of

crops sold in interstate commerce, or is likely to have such

value in the foreseeable future; rather, its value has been

essentially one of limited academic interest.

The federal government invoked its authority over this

local land use planning and activity by citing the "take"

provisions of the Endangered Species Act, 16 U.S.C. §

1538(a)(1)(B). Under the "take" provisions of the ESA,

persons are subject to civil and criminal penalties if they

"take" a species, that is, if they “harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect, or

attempt to engage in any such conduct." 16 U.S.C. §

4

1532(19). For example, a person who merely chases or

“pursues” the Fly, but does not capture it or even intend to

capture it, is subject to civil and criminal penalties under

the ESA. Indeed, a person who "attempts" to chase one of

the flies, can be prosecuted under this federal law.

In a sharply divided opinion, the court of appeals

upheld this broad assertion of federal power over local land

use activities under the Commerce Clause. Purporting to

follow this Court’s Commerce Clause jurisprudence,

including United States v. Lopez, 514 U.S. 549 (1995),

Circuit Judge Wald found that the "take" provision of the

ESA as applied in this case is constitutional because it

“substantially affects interstate commerce" in two ways: 1)

"[iJn the aggregate. . . the extinction of species and the

attendant decline in biodiversity will have a real and

predictable effect on interstate commerce," Pet. App. 54a,

and 2) the “taking” of the Fly “substantially affects

interstate commerce because it [the "taking"] is the product

of destructive interstate competition." , Id. at 58a.

Judge Henderson concurred for somewhat different

reasons, finding that while it cannot be said that the

“protection of an endangered species has any effect on

interstate commerce (much less a substantial one) * * * the

loss of biodiversity itself has a substantial effect on our

ecosystem, and likewise on interstate commerce." Jd. at

68a. Judge Henderson further found habitat protection is

within the power of Congress “insofar as application of

section 9(a)(1) of ESA here acts to regulate commercial

development of the land inhabited by the endangered

species." Jd. at 7la (emphasis added). Thus, Judge

Henderson’s as applied analysis would depend on the

fortuity of the circumstances and nature of the "take". For

example, "taking" a Fly in the form of chasing it for the

5

fun of it, or trampling or riding across the habitat area with

destructive results, with no commercial activity at stake or

involved in the activity, could not be regulated by Congress

under this theory. Presumably, Judge Wald’s "destructive

interstate commerce" argument is also dependent on the

fortuity of the nature of the cause of the habitat destruction

-- here, the building of a hospital -- as opposed to "takes"

involving non-commercial conduct.

Judge Sentelle vigorously dissented, finding no current

or reasonably foreseeable connection between the Fly and

interstate commerce. Pet. App. 72a. He further found that

the nature of the conduct constituting the "taking" in this or

any other case, is not inherently commercial. Jd. at 84a.2

* Judge Henderson disagreed with Judge Wald’s conclusion

that the Fly could be regulated on the grounds that the ESA

regulates the use of “channels of interstate commerce." Pet. App.

at 67a. Thus, only the "substantial affects interstate commerce"

rationale received two votes below and is the focus of this brief.

Neither Judge Wald nor Judge Henderson found, nor could

they, that the Fly could be regulated under the third and final

area of the exercise of Congress’s Commerce Clause power,

namely, that the Fly was an instrumentality of commerce or

article of commerce. While the district court upheld the "take"

provision in this case in part by finding that Fly was an article

of interstate commerce because five specimens of the Fly had

once been sold in interstate commerce for $10.00, see Pet. App.

at 18a, the court of appeals did not even mention this obviously

trivial and constitutionally deficient connection between the F ly

and interstate commerce.

6

REASONS FOR GRANTING THE PETITION

The petitioners and their supporting amicus Pacific

Legal Foundation have emphasized in their respective briefs

that the split in the circuits, as well as split between judges

of the same circuit, as to the meaning of this Court’s

Commerce Clause decision in United State v. Lopez are

compelling reasons to warrant this Court’s review of the

judgment below.

While amicus WLF wholeheartedly agrees that those

reasons are sufficiently compelling as envisioned by Sup.

Ct. Rule 10(a), and while we may cite additional

conflicting circuit court opinions in that regard, we believe

that review is also warranted under Sup. Ct. Rule 10(c),

namely, that the court of appeals “decided an important

question of federal law that has not been, but should be,

settled by this Court, or has decided an important federal

question in a way that conflicts with relevant decisions of

this Court."

I. THE COURT OF APPEALS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW

THAT CONFLICTS WITH THIS COURT’S

COMMERCE CLAUSE JURISPRUDENCE

There can be no doubt that the question decided by the

court below was an important question of federal law,

namely, the constitutionality of the "take" provision of the

Endangered Species Act. That provision affects literally

millions of property owners, including state and local

governments, and millions of acres of private and

nonfederal land. The court of appeals’ decision also

conflicts with this Court’s teachings on the Commerce

Clause.

7

In United States v. Lopez, 514 U.S. 549 (1995), this

Court recognized that its prior Commerce Clause

jurisprudence had not been clear as to whether the

regulated intrastate activity must “affect” or “substantially

affect” interstate commerce in order to constitute a

legitimate exercise of Congress’ limited and enumerated

power under the Commerce Clause. Chief Justice

Rehnquist, speaking for the Lopez Court, concluded that

“the proper test requires an analysis of whether the

regulated _ activity ‘substantially affects’ _ interstate

commerce.” Jd. at 559. In so doing, Chief Justice

Rehnquist essentially adopted his concurring opinion in

Hodel v. Virginia Surface Mining & Reclam. Ass’n, 452

U.S. 264, 313 (1981) (Rehnquist, J., concurring) where he

was careful to note the limits that the Commerce Clause

places on the power of Congress:

[I]t would be a mistake to conclude that Congress’

power to regulate pursuant to the Commerce

Clause is unlimited. Some activities may be so

private or local in nature that they simply may not

be in commerce. Nor is it sufficient that the

person or activity reached have some nexus with

interstate commerce. Our cases have consistently

held that the regulated activity must have a

substantial effect on interstate commerce. E. se

NLRB v. Jones & Laughlin Steel Corp. , 301 U.S.,

at 37, 57 S. Ct., at 624 (local activities may be

regulated if they have a “close and substantial

relation to interstate commerce"). Moreover,

simply because Congress may conclude that a

particular activity substantially affects interstate

commerce does not necessarily make it so. * * *

In short, unlike the reserved police powers of the

States, which are plenary unless challenged as

8

violating some specific provision of the

Constitution, the connection with interstate

commerce is itself a jurisdictional prerequisite for

any substantive legislation by Congress under the

Commerce Clause.

Id. at 310-11 (1981) (Rehnquist, J., concurring) (footnote

omitted) (emphases in original).

Unlike the as-applied challenge presented in the case

at bar, Hodel involved a facial challenge of the provisions

of the Surface Mining Act that regulated a particular kind

of local or intrastate land use -- surface coal mining --

which produces "a commodity that moves in interstate

commerce." 452 U.S. at 283. Thus, as an initial

observation, Judge Wald’s characterization of Hodel as a

case not involving an activity that is "commercial in

character" is simply wrong. See Pet. App. 59a.

But even in sustaining Congress’ power to regulate a

clearly economic activity, then-Associate Justice Rehnquist

was forced to opine: “there can be no doubt that Congress

in regulating surface mining has stretched its authority

funder the Commerce Clause] fo the ‘nth degree.’” Id. at

311 (emphasis added). The court below in the instant case

ignored the clear guidance of Lopez, stretched the limited

power of Congress under the Commerce Clause well

beyond the “nth degree,” and well beyond even Wickard v.

Fillburn, 317 U.S. 111 (1942), which the Lopez Court

characterized as “perhaps the most far reaching example of

Commerce Clause authority over intrastate activity.” 514

U.S. at 560.

In this case, the court of appeals seemed to regard the

regu ations in Wickard and Hodel as being within the

ee

9

heartland or core of Congress’s Commerce Clause power,

rather than being at its outermost edges, and moved on

from there. Amici submit that the "biodiversity" theory of

hypothetical interstate commerce is well beyond "the nth

degree" of Congress's power, and pushes the Commerce

Clause envelope into ethereal realms.

The court below erred by misapplying Lopez’s basic

teachings as to when, whether, and how to aggregate the

economic impact of the conduct that is subject to federal

regulation. If aggregation is allowed, and only if the

aggregate result demonstrates that there is a "substantial

effect on interstate commerce," then the regulation would

be upheld under the Commerce Clause. Lopez made clear

that the prerequisite inquiry is whether the law regulated

“intrastate economic activity." Id. at 559 (emphasis added)

(citing to, inter alia, Hodel v. Virginia Surface Mining &

Reclam. Ass’n, Inc. , 452 U.S. 264; Heart of Atlanta Motel,

Inc. v. United States, 379 U.S. 241 (1964); Perez v. United

States, 402 U.S. 146 (1971) and even Wickard v. Filburn,

317 U.S. 111 (1942)). In striking down the gun possession

law in Lopez, the Court said that since gun possession has

nothing to do with commerce, and is not “an essential part

of a larger regulation of economic activity," the law could

not be sustained under the Court’s cases "upholding

regulation of [intrastate] activities that arise out of or are

connected with a commercial transaction, which viewed in

the aggregate, substantially affects interstate commerce.’

Thus, the impacts of the local activity may be

aggregated for Commerce Clause purposes only where the

regulated intrastate activity is an economic or commercial

one, or, if it is not an economic activity, then aggregation

is permissible only where the non-economic intrastate

activity is "an essential part of a larger regulation of

10

economic activity." If neither of these two scenarios are

presented, then no aggregation may occur; the regulated

activity by itself must have a "substantial effect" on

interstate commerce in order to be a legitimate exercise of

congressional power under the Commerce Clause.

In this case, the "take" provisions are directed neither

at economic activity nor non-economic activity constituting

an essential part of a "larger regulation of economic

activity" as Judge Sentelle properly observed.

Consequently, the court of appeals erred by aggregating the

economic effects of the taking of all endangered species,

including wildlife, plants, and insects, in order to show a

substantial effect on interstate commerce.

Amici submit that even if activity regulated by the

"take" provision of the ESA is an economic or commercial

activity -- Or a non-economic activity that is an essential

part of a larger regulation of economic activity -- the

relevant class of activities is not the taking of all

endangered wildlife as the lower court concluded, or all

insects, but, at most, the taking of all Flies in the State of

California.

What is clear is that in as-applied challenges such as

this one, courts examine the interstate commerce effect that

the particular regulated land use activity has on the

protected resource. In Hodel v. Virginia, 452 U.S. 264

(1981), this Court stated that it "agree/d] with the lower

courts that have uniformly found the power conferred by

the Commerce Clause 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." 452 U.S. at 282 (citing

cases, id. at n.21) (emphasis added). Judge Wald cited

11

only to a portion of this passage in Hodel; she conveniently

failed to quote and consider the italicized language above

referencing relevant lower court decisions in this area. See

Pet. App. at 59a.

For example, in United States v. Byrd, 609 F.2d 1204

(7th Cir. 1979), one of the cases favorably cited in Hodel,

the Seventh Circuit, in an as-applied challenge, examined

whether Congress had authority under the Commerce

Clause to regulate certain land use activity (the filling of

wetlands adjacent to waterbodies) involving a natural

resource that was wholly intrastate, namely, an intrastate

lake.

The Byrd court made a factual finding that the

destruction of those particular wetlands adjacent to Lake

Wawasee in Indiana could likely have a “substantial

economic effect on interstate commerce" because the lake

currently attracts numerous interstate travelers for fishing

and swimming. Jd. at 1210 (emphasis added). Lake

Wawasee is a "2,500 to 3,000 acre fresh water lake

[approximately four square miles] used by interstate

travelers and seasonal residents for water-related

recreational purposes." Jd. at 1205. “Destruction of all or

most of the wetlands around Lake Wawasee...could

significantly impair the attraction the lake holds for

interstate travelers by degrading the water quality of the

lake, thereby indirectly affecting the flow of interstate

commerce." Thus, while the interstate commerce effects

were indirect, they were nevertheless found to be

"substantial."

Significantly, the Byrd court did not aggregate the

economic effects of the regulated activity with respect to all

waterbodies in the United States, or the smaller class of all

12

intrastate lakes in the United States, or even the still

smaller class of all intrastate lakes in Indiana; rather, the

court focused its analysis on the particular "endangered"

intrastate lake in question.

In Utah v. Marsh, 740 F.2d 799 (10th Cir. 1984), the

court was similarly faced with an as-applied Commerce

Clause challenge to local land use activities that affected

Lake Utah. The Tenth Circuit, noting Hodel’s language

approving the analysis of Byrd and similar environmental

cases, properly focused its analysis on the interstate

commerce effect of the lake in question rather than a larger

class of waterbodies. "Lake Utah is the largest freshwater

lake in the State of Utah, with a surface area of

approximately 150 square miles." Jd. at 803. The Tenth

Circuit found that the discharge of fill directly into Utah

Lake “could well have a substantial economic effect on

interstate commerce" because of its widespread use by

interstate travelers and other interstate impacts.’

Based on this site-specific approach, it is clear that the

interstate commerce effect of a "take" of the Fly is non-

existent or trivial compared to the impact in the Byrd and

Marsh cases. What is the economic effect on interstate

commerce of the taking of a Fly or all the Flies in this

case? If the "take" consists only of chasing after or

> The court noted that “non-resident visitation at the lake

averaged 6,919 persons per year" who came to hunt, fish, etc.,

and because waters from the Lake are used for irrigation of

crops sold in interstate commerce, as well as to support "the

State’s most valuable warm water fishery which markets most of

the catch out of state." Jd. at 803.

13

"pursuing" one or even all of the adult Flies, no economic

effect is apparent, let alone the requisite substantial one on

interstate commerce.

But even if the "take" activity is such that the Flies are

so harmed that the population is reduced further, or the Fly

becomes extinct in a few years, the economic effect is, at

best, minuscule. There is no known commercial value of

the Fly. All we are told by Judge Wald is that "it is not

beyond the realm of possibility that the genes of a wild

pollinator species like the Fly might be inbred with the

honeybee, which currently pollinates most major U.S.

crops, to produce a_ pollinator that is more disease

resistant." Pet. App. at 52a. Judge Wald tries to dress up

this hypothetical and unknown use of the species in

economic terms, referring to it as having an “option

value," Pet. App. at 53a, and therefore, justifies the

assertion of federal jurisdiction over the species because of

its possible economic value. But the mere stating of this

“realm of possibility" or "crystal ball" theory of the

exercise of commerce clause power reveals at once that it

is unprincipled and has no real limits.

Surely, the Byrd and Marsh courts, the former case

cited with approval by this Court in Hodel, would not have

found the intrastate lakes in those cases to have a

"substantial effect on interstate commerce" if the evidence

showed that only two or three interstate visitors came there

over a period of several years. Yet under Judge Wald’s

novel “realm of possibility" theory of interstate commerce

power, it was not even necessary to show that anyone ever

visited these intrastate lakes because it was within the

"realm of possibility" that somebody, someday, might do

so. In short, the vague and open-ended "realm of

possibility" standard by which courts are to judge the

ee

14

permissible reach of Congress’s exercise of its limited and

enumerate Commerce Clause power is no standard at all.

Il. THE COURT OF APPEALS DECISION DOES

VIOLENCE TO FUNDAMENTAL PRINCIPLES

OF FEDERALISM AS ARTICULATED BY THIS

COURT

The decision of the court of appeals violates the

fundamental principles of federalism embodied in the Tenth

Amendment of the Constitution and applied in Commerce

Clause challenges to federal regulation over matters that are

primarily local in nature.

A. Local Land Use Activity

As this Court made clear in United States v. Lopez:

the scope of the interstate commerce power ‘must be

considered in the light of our dual system of

government and may not be extended so as to embrace

effects upon interstate commerce so indirect and remote

that to embrace them, in view of our complex society,

would effectually obliterate the distinction between

what is national and what is local and create a

completely centralized government.’

514 U.S. at 557 (citing NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 37 (1937)) (emphasis added).

The "biodiversity/realm of possibility" rationale

adopted by the court below is even more tenuous than the

"indirect and remote" effect upon interstate commerce

condemned in Lopez. Furthermore, the regulation of local

land use activities and zoning has long been the province of

15

the States and their political subdivisions. See, e.g., Euclid

y. Ambler Realty Co., 272 U.S. 365 (1926); Village of

Belle Terre v. Borass, 416 U.S. 1, 13 (1974) (zoning “may

indeed be the most essential function performed by local

government") (Marshall, J., dissenting); Sporhase Vv.

Nebraska ex rel. Douglas, 458 U.S. 950, 956 (1982) ("a

State’s power to regulate the use of water for the purpose

of protecting the health of its citizens * * * is at the core

of its police power").

When federal legislation such as the "take" provision

of the ESA impinges on local land use, this Court has been

especially sensitive to those concerns. For example, in

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

addressed the impact of regulating strip mining, a

commercial enterprise, on local land use:

We also do not share the view of the District Court

that the Surface Mining Act is a land-use measure after

the fashion of the zoning ordinances typically enacted

by state and local governments. The prime farmland

and other provisions at issue in this case are concerned

with regulating the conditions and effect of surface

coal mining. Any restriction on land use that may be

imposed by the Act are femporary and incidental to

these primary purposes. The Act imposes no

restriction on postreclamation use of mined lands."

Id. at 330 n.18 (emphasis added).

By sharp contrast, the "take" provision of the ESA as

applied to the Fly is indeed designed after the fashion of

land-use measures like zoning. The ESA essentially

requires that the owner of the property keep some or all of

it in its natural state as a habitat for a threatened or

———

16

endangered species for the indefinite future. This federal

regulation thus constitutes a drastic example of confiscatory

downzoning. Unlike the Surface Mining Act which Hodel

found to impose "no restrictions on postreclamation use" of

the land, the ESA imposes very severe restrictions as

amply documented by the petitioners in this case, such as

the problems encountered with the building of a county

hospital, the prevention of housing development, interfering

with highway use and traffic control, and similar land use

restrictions, costing the local taxpayers millions of dollars

all in the name of the Fly. Those millions of dollars could

have been spent on health care, education, housing, and

other pressing human problems in the community.

Furthermore, the Hodel Court repeatedly emphasized

that the mining law regulates only "private individuals and

businesses"; in this case, the "take" provisions regulate

political subdivisions of the State of California, even

including iand owned by the State and local governments.

Once an endangered or threatened species is listed, the

designation of critical habitat under the ESA effectively

imposes a federal zoning overlay onto local zoning maps.

Cf. Lopez at 583 (Kennedy, J.) (1,000-foot gun-free buffer

zones around schools makes it "difficult to navigate without

infringing on those zones").

Clearly, the "take" provisions as applied to the Fly

have had a dramatic and disruptive impact on local land use

and planning, and thus, violate important principles of

federalism.

17

B. State Regulation of Wildlife on Private and

Nonfederal Lands

In addition to local land use planning and zoning, it is

clear that the States have long asserted their authority over

the regulation of wildlife. While the States do not literally

"own" the wildlife within their borders, it is also "clear

that the States have a substantial proprietary interest --

sometimes described as ‘common ownership,’ Geer v.

Connecticut, 161 U.S. 519, 529 (1896) -- in the fish and

game within their boundaries." Douglas v. Seacost

Products, Inc., 431 U.S. 265, 288-87 (1977) (Rehnquist,

J., concurring in part and dissenting part). After surveying

Supreme Court decisions on the subject up to 1960, then-

Associate Justice Rehnquist concluded that "the cases are

consistent in recognizing that the retained interests of States

in such common resources as fish and game are of

substantial legal moment, whether or not they rise to the

level of a traditional property right." Jd. (emphasis added).

States also had a common law right to seek recovery

against private parties for polluting natural resources found

within a state which has now been codified by legislation

in most states. See Halter and Thomas, Recovery of

Damages by States for Fish and Wildlife Losses Caused by

Pollution, 10 Ecol. L. Q. 5 (1982); Askew v. American

Waterways Operators, Inc., 411 U.S. 325 (1973).

Against this substantial history of the States’ consistent

exercise of their traditional police powers regulating

wildlife, the federal government began to legislate in this

area only at the beginning of this century and in a very

limited way when Congress enacted the Lacey Act.

18

While the Lacey Act inaugurated significant

federal legislation touching wildlife found within

the states, by its terms the act expressed great

deference to the leadership of state law. No

federal crime was committed by properly labeled

interstate shipment of any animal except those

taken in violation of state law. As to species not

then protected by state law, including various

endangered species, the federal legislation posed

no impediment whatever to taking. Through its

identification of a violation of state law as an

operative fact for the commission of a federal

crime, federal law continued to give highest

priority to those species most valued by state law,

sporting wildlife.

Thomas A. Lund, American Wildlife Law 87 (1980)

(emphasis added). It was not until relatively recently that

Congress began to legislate in the area of endangered

species protection. The Endangered Species Preservation

Act of 1966, Pub. L. No 89-669, 80 Stat. 926 (repealed

1973), and the Endangered Species Conservation Act of

1969, Pub. L. No 91-135, 83 Stat. 275, focused on federal

land acquisition authority for habitat and importation bans

of endangered wildlife. There was no prohibition of the

taking of endangered species, "preferring instead to leave

[undisturbed] the traditional authority of the States to

regulate the taking of resident wildlife." Bean, The

Evolution of National Wildlife Law 330 (1983) (rev. ed.)

(emphasis added).

The recognition by the federal government of the

State’s authority over wildlife within their borders abruptly

changed in 1972 when the current version of the

Endangered Species Act was passed with the current "take"

19

provision. For the first time in United States history,

federal law would henceforth govern over State law as to

the management and protection of certain wildlife on

private and nonfederal land.

More significantly, the ESA not only regulates

traditional wildlife, it also regulates plants and insects, as

evidenced by the Fly in this case. But as one commentator

recognized, "Because common law has never treated plants

[or insects] as occupying the same conceptual status as wild

animals, in terms of their susceptibility to private

ownership, there may be a major constitutional impediment

to prohibiting their taking on nonfederal lands." Bean,

supra, at 345, n.127. Amici agree.

This case is not about the wisdom of protecting

endangered species, but about the proper exercise of

federal power to advance that interest. If the judgment of

the court of appeals is reviewed and overturned, the Fly

will not become extinct. There are numerous ways to

protect the Fly in this case that are more respectful of the

Constitution and federalism, such as a captive breeding

program (which has been planned for the Fly), or the not

uncommon practice of purchasing of the habitat either

outright by the government or private conservation groups,

or through the purchase of conservation easements.

Congress is also free to encourage the States to protect

endangered local species such as the Fly by withholding

certain federal funds if the States fail to protect the species.

This practice is constitutionally permissible so long as the

withholding of funds does not become so coercive as to

result in compulsion. See South Dakota v. Dole, 483 U.S.

203 (1987).

20

If the judgment below is left unreviewed, there would

be no limit to Congress’s power over wildlife found only

within the borders of a State. For example, the federal

government could easily determine what the deer hunting

season should be in Maine or Virginia; indeed, Congress

could regulate or ban the hunting or fishing of any local

species altogether, endangered or not.

CONCLUSION

As one author candidly acknowledged in a study

funded by the National Wildlife Federation: "Since

ecologists contend that all forms of life are interdependent,

this theory [of indirect connection of wildlife to interstate

commerce] might at its logical extreme support federal

legislation with regard to everything that is alive." Lund,

American Wildlife Law 50 (1980). This is precisely the

“biodiversity/realm of possibility" theory espoused by the

court below.

This Court in Lopez made it clear that its decision, at

a minimum, amounted to a firebreak that was to check

Congress’s eagerness to disregard its limited power under

the Commerce Clause when it federalizes and criminalizes

any and all conduct for politically expedient or even noble

reasons. The court of appeals decision, if allowed to stand,

would make the Lopez decision appear to be only a quaint

and quirky decision that is easily circumvented and does

not impose any real limits on the exercise of federal power

over traditionally local matters and intrastate activity.

For the foregoing reasons and those stated by the

petitioners, the petition for writ of certiorari should be

granted.

Respectfully submitted.

Daniel J. Popeo

Paul D. Kamenar

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

Date: May 6, 1998