Petition for Writ of Certiorari — Gibbs v. Norton

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Supreme Court, U.6.

FILED

DO-844 nov 2 220

va OSCE OE INE LER

IN THE

Supreme Court of the United States

CHARLES GILBERT GIBBS, ET AL.,

Petitioners,

BRUCE BABBITT, SECRETARY OF THE INTERIOR; ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

SAM KAZMAN . Counsel of Record

— Enterprise Douc_as R. Cox

ae CC MARK A. PERRY

Washington D.C. — GIBSON, DUNN & CRUTCHER LLP

(202) 331-1010 1050 Connecticut Ave., N.W.

Washington, D.C. 20036

SEAN E. ANDRUSSIER (202) 955-8500

WOMBLE, CARLYLE,

SANDRIDGE & RICE PLLC

150 Fayetteville Street Mall

Raleigh, NC 27602

(919) 755-2199

Of Counsel Counsel for Petitioners

See

QUESTION PRESENTED

Whether the Commerce Clause authorizes federal re-

strictions on the ability of individuals to defend them-

selves and their property from wild wolves, when such

actions are wholly intrastate and noncommercial.

INTERESTED PARTIES

Petitioners, plaintiffs below, are Charles Gilbert

Gibbs; Richard Lee Mann, III; Hyde County, North

Carolina; and Washington County, North Carolina.

The federal respondents, defendants below, are

Bruce Babbitt, Secretary of the Interior; United States

Fish and Wildlife Service; United States Department of

the Interior; and Jamie Clark, Director of the United

States Fish and Wildlife Service.

The private respondent is Defenders of Wildlife,

which intervened as a defendant in the lower courts.

ill

TABLE OF CONTENTS

QUESTION PRESENTED -esessssnsesnssesntnsnenee sovaseieies i

INTERESTED PARTIES ......... sssssnscnnecenneccnnessssnnecsanecssnnecs ii

TABLE OF AUTHORITIES .............ccccsesseeseeeeeeseseneenenees iv

OPINIONS BELOW .........cccccccscccscsssscccccccceccsscsecsscsesossseseese 1

FURS DICTION .niccoccssccccsesccssscctsscecsesssaccssesescescoscoccasocesticees |

CONSTITUTIONAL PROVISION AND

REGULATION INVOLVED ...........:..:cccccessesseeeseeseeees 2

STATEMENT OF THE CASE ...........:cccccsssssssseessenennseneeees 2

REASONS FOR GRANTING THE PETITION ............... 7

I. The Petition Should Be Held Pending

The Court’s Decision in SWANCC.............0000++ 8

II. This Case Should Be Remanded To The

Court Of Appeals Regardless Of How

The Court Resolves The Constitutional

Crnsation Tit SIVANCC ....c.cccccccocccsccccsccscocsseses 15

Ill. In The Event The Court Does Not

Reach The Constitutional Question In

TABLE OF AUTHORITIES

Cases

Andrus v. Allard, 444 U.S. 51 (1979)..........sscccsssseeeeeees 11

Baldwin v. Montana Fish & Game Commission,

I Ber A icersstieniniteinnchinitincianniinininibacniiinn 26

Building Indus. Assoc. of Superior Cal. v.

Babbitt, 979 F. Supp. 893 (D.D.C. 1997) ............... 20

Cargill, Inc. v. United States, 516 U.S. 955

UPI ccnsecescicsiicbsthinsisdansnsincadiaeanmmnsainaniatdadats 12, 18, 23

Douglas v. Seacoast Products, Inc., 431 U.S. 265

COST FY cunkictidsiaisihanesicatindiiasdaaiaaiiaiaticibiadin 26, 27

Geer v. Connecticut, 161 U.S. 519 (1896) ................... 26

Hoffman Homes, Inc. v. EPA, 999 F.2d 256 (7th

os: SUP ssenniecicanisncali niece iaaeiiibidaiineaiialls 11, 23

Jones v. United States, 120 S. Ct. 1904 (2000)............. 25

Kleppe v. New Mexico, 426 U.S. 529 (1976) .............4. 27

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

is I inci heist pcchpucieadeilnclieb hccstcataianiaicaciae 23

Martin v. OSHRC, 499 U.S. 144 (1991) oe. 14

Miller v. Johnson, 515 U.S. 900 (1995) ........eeeeeeeeeeeee 14

Missouri v. Holland, 252 U.S. 416 (1920).............. 18, 27

Nat'l Ass'n of Home Builders v. Babbitt, 130

F.3d 1041 (D.C. Cir. 1997)... 19, 20, 21, 22

North Dakota v. United States, 460 U.S. 300

Le SRT PI A I EW EES A 27

Palila v. Hawaii Dep’t of Land and Natural

Resources, 471 F. Supp. 985 (D. Haw. 1979),

aff'd, 639 F.2d 495 (9th Cir. 1981)... eseseeseeees 20

Russell v. United States, 471 U.S. 858 (1985) ............. 25

Solid Waste Agency of Northern Cook County v.

United States Army Corps of Engineers, No.

ac | EPR NT EN oF, SE ins MMe ne passim

United States v. Bramble, 103 F.3d 1475 (9th Cir.

ESP TOED sasicsenssininisnieicsiniteh bideiasecndeliaiacibardeies ike anaes 20

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

United States v. Morrison, 120 S. Ct. 1740

I Ciiisscliihiictithinisiibecha Sia te eae passim

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

SHIT D ccisllenaiiislltalsaaniiiahatinicalk didi Ueda cosine 22

Statutes and Regulations

Endangered Species Act, 16 U.S.C. §§ 1531-44

CER Te CO i iveiicsininkiersenceesaas passim

OIE iis ica ie 3

TEES Toll 2 SMR Ree Ta ESS 2,3

96 UBC. © SSBB cicencencsvicnsesscccssnsesinnttenncbincnanstnnnitens 2

£6 UA © FE sceccccnssecsensenniarnssunnttaiisnianinias 3, 19, 28

06 UBL eo. B BGG D cecetsncetcinsssvesininnneneianissaimnaiinian 4

2B UGA. © TGS ED sncccacconsccensscinisssintnasimatihisdastestiinatiitiiaiie l

SS UBL. | TSSE 68 BOG. ceccceccessessccssssensensscssossevencenesunanees 8

SO CPR. 8 1 FBG scsictericcisttsininncnmpiiicnseaiiaiiaadae 15

SOCIR. § 17 BEE Sicismatiiinimemaal 2,4,9

SO CER. © 17 BOG ccccnsnsttinncsiemamaemaa 4

50 C.F.R. § 17.84(C)(9)(i) ..-oescsseessseesseessessseneesneesneessen 3,5

32 Fed. Reg. 4001 (Feb. 24, 1967) .........ssssesssessneneneenenees 3

51 Fed. Reg. 41,206 (Nov. 13, 1986) ..........:cccccseeseeeeees 8

3) FOG. ROR, GF 40,217 scccncistisininstensnsenianemeinineaiandione 8

60 Fed. Reg. 18940, 18943 (Apr. 13, 1995)................. 17

63 Fed. Reg. 54151, 54152 (Oct. 8, 1998) ......cc.csesseeoes 17

1994 N.C. Sous. Laws CR, GBS cccsisspersithissiniasicinaiaaanae 5

Other Authorities

Holman, After United States v. Lopez: Can the

Clean Water Act and the Endangered Species

Act Survive Commerce Clause Attack?, 15 Va.

Bavé. LJ. 199, ISD CIS see nnciectantnnss 16, 24

vii

Linehan, Endangered Regulation: Why the

Commerce Clause May No Longer Be

Suitable Habitat for Endangered Species and

Wetlands Regulation, 2 Tex. Rev. L. & Pol.

ee, SE Ce niente 13, 23

Nagle, The Commerce Clause Meets The Delhi

Sands Flowers-Loving Fly, 97 Mich. L. Rev.

SO QUOD cctentitninsinhiiieiiai ie Bae 23

Sherry, The Barking Dog, 46 Case W. Res. L.

a hw NN Rn ee 24

Warmer, The Potential Impact of United States v.

Lopez On Environmental Regulation, 7 Duke

Envtl L. & Policy Forum 321 (1997) .0......cccccccccesee. 24

IN THE

Supreme Court of the United States

No.

CHARLES GILBERT GIBBS, ET AL.,

Petitioners,

Vv.

BRUCE BABBITT, SECRETARY OF THE INTERIOR, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners Charles Gilbert Gibbs, et ai. respectfully

petition this Court for a writ of certiorari to review a de-

cision of the United States Court of Appeals for the

Fourth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-

55a) is reported at 214 F.3d 483. The order of the dis-

trict court (App., infra, 58a-69a) is reported at 31

F. Supp. 2d 531.

JURISDICTION

The judgment of the court of appeals was entered on

June 6, 2000. A petition for rehearing was denied on

August 25, 2000. App., infra, 56a-57a. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION

AND REGULATION INVOLVED

The Commerce Clause provides that “[t]he Congress

shall have Power ... To regulate Commerce with for-

eign Nations, and among the several States, and with the

Indian Tribes.” U.S. Const., Art. I, § 8, cl. 3.

The federal regulation at issue, 50 C.F.R. § 17.84(c),

is reproduced in the Appendix, infra, 70a-74a.

STATEMENT OF THE CASE

Petitioners challenged the constitutionality, under the

Commerce Clause, of a federal regulation that generally

prohibits individuals from protecting themselves and

- their property from the depredations of wild wolves,

even where such actions are wholly intrastate and non-

commercial in nature. The district court granted sum-

mary judgment for respondents. The court of appeals,

over Judge Luttig’s dissent, affirmed.

1. This case involves a regulation promulgated un-

der the Endangered Species Act of 1973 (“ESA”), Pub.

L. 93-205, 87 Stat. 884 (codified as amended at 16

U.S.C. §§ 1531-44 (1994 & Supp. III 1997)). The regu-

lation at issue generally prohibits human interference

with red wolves, a species of wild animal recently rein-

troduced to North Carolina by the federal government.

See 50 C.F.R. § 17.84(c).

The ESA authorizes the Secretary of the Interior to

designate animal species as “endangered” or “threat-

ened.” 16 U.S.C. § 1533. Among other prohibitions,

the ESA makes it unlawful for any person to “take” an

endangered or threatened species without a permit. 16

U.S.C. § 1538(a)(1)(B). The term “take” is defined as

inienenommneanentnmnemeaeceteeiaitiltaaatiaiaiaaaiaitaitila tain

“to harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, or collect, or to attempt to engage in any such

conduct.” 16 U.S.C. § 1532(19).

The ESA also authorizes the Secretary to release an

““experimental population’ . . . of an endangered species

or a threatened species” into areas currently unoccupied

by that species. 16 U.S.C. § 1539(j)(1)-(2)(A). A rein-

troduced experimental population is “treated as a threat-

ened species.” 16 U.S.C. § 1539(j)(2)(C). That desig-

nation allows the Secretary to specify, by rule, the pro-

hibitions of and exceptions to the ESA that apply to the

experimental population. See 16 U.S.C. § 1533(d).

Pursuant to these provisions of the ESA, and acting

under delegated authority from the Secretary of the Inte-

rior, the U.S. Fish and Wildlife Service (“FWS”) devel-

oped a special program to reintroduce the red wolf

(Canis rufus)—which had been designated an endan-

gered species in 1967, see 32 Fed. Reg. 4001 (Feb. 24,

1967)—as an experimental population. An effort was

initiated in 1980 to release red wolves in Kentucky and

Tennessee, but that plan was eventually withdrawn in

1984 due to public opposition. See App., infra, 59a-60a

n.l. A subsequent effort to release red wolves into the

Alligator River National Wildlife Refuge, located in

eastern North Carolina, was proposed in 1986 and

launched in the fall of 1987. See id. at 59a-60a. FWS

described the geographic scope of the reintroduction as

follows: “The Alligator River National Wildlife Refuge

reintroduction site is within the historic range of the spe-

cies in North Carolina, in Dare and Tyrrell Counties; be-

cause of their proximity, Beaufort, Hyde, and Washing-

ton Counties are also included in the experimental popu-

lation designation.” 50 C.F.R. § 17.84(c)(9)(i).

In conjunction with the federal government’s effort

to reintroduce red wolves to North Carolina, FWS

promulgated a regulation concerning the experimental

population. See 50 C.F.R. § 17.84(c). That regulation

prohibits, with limited exceptions, the “taking” of red

wolves by private persons. See 50 C.F.R. § 17.84(c)(2).

The ESA authorizes both civil and criminal penalties for

violations of its provisions or regulations promulgated

thereunder. See 16 U.S.C. § 1540(a)-(b).

2. Although the initial site of reintroduction was on

federal land, red wolves have wandered onto private

property with disturbing ease and frequency. “From

available data, as of February 1998 it was estimated that

about 41 of the approximately 75 wolves in the wild

may now reside on private land.” App., infra, 5a. The

federal government’s proven inability to protect private

landowners from incursions by red wolves creates an

inevitable and dangerous conflict between wolves and

humans. See App., infra, 19a (“Since reintroduction, red

wolves have strayed from federal lands onto private

lands. Indeed, wolves are known to be ‘great wander-

ers.’”) (citation omitted).

— Petitioner Richard Lee Mann, III, is a resident of

Hyde County, North Carolina, whose small son was

threatened by a red wolf. See C.A. App. 8. He was sub-

sequently prosecuted under 50 C.F.R. § 17.84(c) for kill-

ing a red wolf that he believed was a threat to his cattle.

See C.A. App. 8. Following a guilty plea, he was fined

$2,000 and sentenced to perform community service

building “‘wolfhouses” and feeding red wolves. See

App., infra, 62a. Petitioner Charles Gilbert Gibbs is also

a Hyde County resident. He has lost several calves, ap-

iil

a ee ee ee

parently to red wolf attacks, for which FWS has refused

to reimburse him. See ibid.

Petitioners Hyde County and Washington County

are, as FWS has recognized, proximate to the Alligator

River National Wildlife Refuge reintroduction area and

therefore are subject to incursion by red wolves. See 50

C.F.R. § 17.84(c)(9)(i). In response, the County Com-

mission of Washington County approved a resolution in

1992 opposing the red wolf program. See App., infra,

62a. The County Commission of Hyde County ap-

proved a resolution in 1994 requesting removal of red

wolves from private lands within the county. See ibid.

In addition to these resolutions by the county petitioners,

the North Carolina General Assembly passed a law enti-

tled “An Act to Allow the Trapping and Killing of Red

Wolves by Owners of Private Land.” Jd. at 7a, 62a-63a

(citing 1994 N.C. Sess. Laws Ch. 635). The North

Carolina Department of Agriculture has also objected to

the red wolf program. See App., infra, 62a.

3. Petitioners sued the federal agencies and officials

responsible for the red wolf reintroduction program,

challenging the constitutionality of the red wolf regula-

tion. In particular, petitioners alleged that the prohibi-

tion against the “taking” of red wolves on private prop-

erty exceeded the federal government’s authority under

the Commerce Clause. See App., infra, 8a.

a. The district court granted summary judgment for

respondents. The court recognized that the sole “nexus

between the regulation at issue and interstate commerce

is the red wolf.” App., infra, 66a. The court concluded

that red wolves “substantially affect interstate commerce

through their tourism value.” Jbid. That is because, ac-

cording to the court, “tourists do cross state lines to see

the red wolf.” Jd. at 67a. While the court acknowledged

that it was “difficult ... to fully assess the red wolf’s

impact on tourism,” the court noted that “many persons

have traveled from other states to atizad red wolf ‘howl-

ing’ events conducted at the Alligator River National

Wildlife Refuge in North Carolina.” Jd. at 67a n.9.

“Unrestricted taking of red wolves on private land,” the

court said, “would present a clear threat to this com-

merce.” Jd. at 67a.

b. The court of appeals, by divided vote, affirmed.

The panel members all agreed that the constitutionality

of the red wolf regulation had to be evaluated under the

standards articulated by this Court in United States v.

Morrison, 120 S. Ct. 1740 (2000), and United States v.

Lopez, 514 U.S. 549 (1995). They differed, however, as

to the application of those standards in this case.

The majority recognized that, “[t]o fall within Con-

gress’s commerce power, this regulation . .. must ‘sub-

stantially affect interstate commerce.” App., infra, 14a

(quoting Lopez, 514 U.S. at 559). The majority held that

this standard was satisfied because “[t]he relationship

between red wolf takings and interstate commerce is

quite direct—with no red wolves, there will be no red

wolf related tourism, no scientific research, and no

commercial trade in pelts.” App., infra, 15a-16a. The

majority also recognized that the prohibition against tak-

ing red wolves must constitute “economic activity.” Jd.

at 15a (citing Morrison, 120 S. Ct. at 1750). The major-

ity said, without citing any authority or record evidence,

that this requirement was met because “[f]armers and

ranchers take wolves mainly because they are concerned _

that the animals pose a risk to commercially valuable

livestock and crops.” App., infra, 15a. The majority

thus concluded that, “[w]hile the taking of one red wolf

on private land may not be ‘substantial,’ the takings of

red wolves in the aggregate have a sufficient impact on

interstate commerce to uphold this regulation.” Jd. at

16a.

Judge Luttig dissented. He maintained that the ma-

jority’s decision could not be reconciled with this

Court’s decisions in Lopez and Morrison. See App., in-

fra, 47a. As Judge Luttig explained, “(t}he killing of

even all 41 of the estimated red wolves that live on pri-

vate property in North Carolina would not constitute an

economic activity of the kind held by the Court in Lopez

and in Morrison to be of central concern to the Com-

merce Clause, if it could be said to constitute an eco-

nomic activity at all.” Jd. at 50a. Moreover, according

to Judge Luttig, “even assuming that such is an eco-

nomic activity, it certainly is not an activity that has a

substantial effect on interstate commerce.” Jbid Judge

Luttig concluded that the majority’s analysis was akin to

(if not more expansive than) that of the dissenters in Lo-

pez and Morrison rather than the majorities, and would,

if accepted, “consign[] to aberration” this Court’s deci-

sions in those cases. Jd. at 51a.

REASONS FOR GRANTING THE PETITION |

This case presents a constitutional question substan-

tially identical to one of the issues currently before the

Court in Solid Waste Agency of Northern Cook County

v. United States Army Corps of Engineers, No. 99-1178

(“SWANCC”). Accordingly, the petition should be held

pending the Court’s disposition of that case. If this

Court reaches the constitutional question in SWANCC,

this case should be remanded to the court of appeals re-

gardless of how the issue is resolved in SWANCC. In

the event the Court does not reach the constitutional

question in SWANCC, however, the Commerce Clause

question presented by this case warrants plenary review.

I. The Petition Should Be Held Pending The

Court’s Decision in SWANCC

At issue in SWANCC is the U.S. Army Corps of En-

gineers’ so-called “migratory bird rule.” See 51 Fed.

Reg. 41,206 (Nov. 13, 1986). This administrative inter-

pretation of the Clean Water Act (33 U.S.C. § 1251 et

seq.) purports to authorize the exercise of federal juris-

diction over isolated, intrastate waters based solely on

the presence of migratory birds. See 51 Fed. Reg. at

41,217 (asserting federal jurisdiction over all waters

“{w]hich are or would be used as habitat by . . . migra-

tory birds which cross state lines”).

The petitioner in SWANCC has presented two ques-

tions: Whether the migratory bird rule is a permissible

construction of the Clean Water Act, and, if so, whether

it is within the federal government’s authority to regu-

late interstate commerce. See Pet. Br. in SWANCC at

11-13. The latter question is substantially identical to

the question in this case.

If this Court in SWANCC concludes that the Corps’

migratory bird rule is authorized by statute, then it will

have to analyze the constitutionality of the rule under the

Commerce Clause framework set forth in Lopez and re-

iterated last Term in Morrison. In Lopez, the Court rec-

ognized three strands of Commerce Clause authority:

“First, Congress may regulate the use of channels of in-

terstate commerce. Second, Congress is empowered to

regulate and protect the instrumentalities of interstate

commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate

activities. Finally, Congress’ commerce authority in-

cludes the power to regulate those activities having a

substantial relation to interstate commerce, i.e., those

activities that substantially affect interstate commerce.”

Lopez, 514 U.S. at 558-59 (citations omitted).

As the decisions below in SWANCC and in this case

make clear, both cases turn on the scope of federal au-

thority under the third strand identified in Lopez, which

permits Congress to regulate activities that “substan-

tially affect” commerce. See SWANCC, 191 F.3d 845,

849 (7th Cir. 1999) (“The gun control law at issue in

Lopez, like the migratory bird rule challenged here,

could only have been sustained as an exercise of the

third variety of regulatory power”); App., infra, 12a (“if

50 C.F.R. § 17.84(c) [the red wolf regulation] is within

the commerce power, it must be sustained under the

third prong of Lopez”).

Moreover, the application of the “substantial effects”

test arises in similar contexts in both S WANCC and in

this case. In § WANCC, the asserted connection to inter-

State commerce is provided by wild birds; here, the

commerce nexus is purportedly provided by wild

wolves. In both cases, it is the presence of wild animals

On private property that is asserted as the sole basis for

the exercise of federal jurisdiction over human activities

on that property. Arising as they do from parallel prem-

ises, the regulations at issue in both SWANCC and this

case raise substantially the same constitutional question:

Does the mere presence of wild animals substantially

affect interstate commerce such that Congress can regu-

late human activities on private property that might im-

pact those animals?

The “substantially affects” strain of Commerce

Clause jurisprudence requires the Court to undertake

four subsidiary inquiries: (1) whether the regulation by

its terms reaches commercial or economic activity; (ii)

whether the causal link between the regulated activity

and interstate commerce is direct or attenuated; (iii)

whether the regulation contains an express jurisdictional

element; and (iv) whether Congress has made findings

regarding the regulated activity’s effect on interstate

commerce. See Morrison, 120 S. Ct. at 1749-51. Each

of these inquiries is implicated, in very similar fashion,

by both SWANCC and this case. Accordingly, this peti-

tion should be held pending the Court’s resolution of

SWANCC.

First, the Court has allowed intrastate activities to be

considered, in the aggregate, as having a substantial ef-

fect on interstate commerce only when “the regulated

activity was of an apparent commercial character.”

Morrison, 120 S. Ct. at 1750 n.4; see also Lopez, 514

U.S. at 561 (Congress may regulate those intrastate ac-

tivities that “arise out of or are connected with a com-

mercial transaction, which viewed in the aggregate, sub-

stantially. affects interstate commerce”). This is no sur-

prise, since the Commerce Clause, after all, authorizes

Congress to regulate only interstate commerce, not inter-

state activity.

An important question in both SWANCC and this

case is whether the regulated human conduct—filling

bird-habitat puddles in SWANCC, taking wolves in this

case—constitutes commercial or noncommercial activ-

ity. Neither of the challenged regulations is limited to

commercial activity, and the mere existence of wild

animals has not heretofore been considered “economic”

in nature. While the Court has suggested that the com-

merce power extends, unsurprisingly, to commercial

transactions involving captured animals or their parts

(Andrus v. Allard, 444 U.S. 51, 63 & n.19 (1979)), the

Court has never said, much less held, that the Commerce

Clause is brought into play due to the simple presence of

wild animals on private property. The Court’s resolu-

tion of this issue in the context of birds is likely to be

instructive, if not controlling, of the resolution of the

same issue in the context of wolves.

Second, the lower courts in both SWANCC and this

case concluded that human activities that might affect

wild animals may constitutionally be regulated because

of purported causal links between wild animals and eco-

nomic activity. In both cases, the courts concluded that

human-induced reductions in wildlife might depress in-

terest in interstate tourism or negatively impact the sup-

ply of a commercial resource in some manner. See

SWANCC, 191 F.3d at 850 (upholding migratory bird

tule on ground that, “throughout North America, mil-

lions of people annually spend more than a billion dol-

lars on hunting, trapping, and observing migratory

birds”) (quoting Hoffman Homes, Inc. v. EPA, 999 F.2d

256, 261 (7th Cir. 1993)); App., infra, 15a-16a (“with no

red wolves, there will be no red wolf related tourism, no

scientific research, and no commercial trade in pelts”’).

Yet both SWANCC (involving a proposed landfill on

private property) and the present case (also involving

private land) push the tourism argument to its outermost

reaches—to say the least.

Quite similar theories of causation were rejected by

the Court in Lopez and Morrison on the ground that they

involved excessively attenuated chains of causation to

link the regulated activity with its effects on interstate

commerce. See Lopez, 514 U.S. at 567 (“To uphold the

Government’s contentions here, we would have to pile

inference upon inference in a manner that would bid fair

to convert congressional authority under the Commerce

Clause to a general police power of the sort retained by

the States”). Both SWANCC and this case test the limits

of Lopez and Morrison, inviting the Court to distinguish

the impact of human activity on animals and their habi-

tats (asserted in both SWANCC and this case) from the

impact of human activity on people and their neighbor-

hoods (held insufficient in Lopez and Morrison) on in-

terstate tourism or travel. These cases also invite the

Court to contrast the commercial interest in human re-

sources, already rejected as insufficient in Lopez and

Morrison, from the commercial interest in wildlife re-

sources asserted by the government in SWANCC and

this case.

Lopez and Morrison identified causal chains that

were simply too attenuated and too speculative to consti-

tute a substantial effect on interstate commerce. The

causal chains in both SWANCC and this case bear strik-

ing resemblance to those already held insufficient. See

Cargill, Inc. v. United States, 516 U.S. 955, 957-58

(1995) (Thomas, J., dissenting from denial of certiorari)

(stating that “[t}he basis asserted to create federal juris-

diction over petitioner’s land [pursuant to the migratory

bird rule] seems to me to be even more far-fetched than

that offered, and rejected, in Lopez”); App., infra, 50a

(Luttig, J., dissenting) (“The number of inferences (not

even to mention the amount of speculation) necessary to

discern in this activity a substantial effect on interstate

commerce is exponentially greater than the number nec-

essary in Lopez ... or in Morrison”); Linehan, Endan-

gered Regulation: Why the Commerce Clause May No

Longer Be Suitable Habitat for Endangered Species and

Wetlands Regulation, 2 Tex. Rev. L. & Pol. 365, 419

(1998) (“If this elaborate chain of contingencies does

not stretch the limits of reason, it is hard to imagine a

chain that would”). The Court’s resolution of the at-

tenuation question with respect to the birds in SWANCC

will control, or at least directly impact, the resolution of

the same question as to the wolves in this case.

Third, neither the migratory bird rule nor the red

wolf regulation contains any express jurisdictional ele-

ment. Thus, both SWANCC and this case raise the ques-

tion whether the determination that wildlife preservation

constitutes a valid national concern is, alone, sufficient

to permit federal regulation of wholly intrastate, non-

commercial activity. See U.S. Br. in SWANCC at 37

(“[bJecause migratory birds are a shared resource of the

several States, their protection has traditionally been re-

garded as a task most appropriately performed by the

national government”); compare App., infra, 45a (noting

that “the national interest in the development of natural

resources” must be considered in determining the scope

of federal power under Commerce Clause) with id. at

47a-48a (Luttig, J., dissenting) (“the simple (and

frankly, considerably less incitant) question of law for us

to decide is” not whether there is a national interest in

conserving natural resources, but rather “whether ...

this one particular Fish and Wildlife regulation exceeds

Congress’ power under the Commerce Clause”). The

Court’s determination whether bird protection of itself is

a constitutionally sufficient rationale in SWANCC will

directly bear on the sufficiency of the government’s in-

terest in wolf reintroduction at issue in this case.

Fourth, both the migratory bird rule and the red wolf

regulation are administrative regulations, not statutes as

in Lopez and Morrison. As a result there are no con-

gressional findings regarding the regulated activity’s os-

tensible effect on commerce. See Lopez, 514 USS. at

562 (“as part of our independent evaluation of constitu-

tionality under the Commerce Clause we of course con-

sider legislative findings, and indeed even congressional

committee findings, regarding effect on interstate com-

merce”). Moreover, neither the Corps in announcing the

migratory bird rule nor FWS in promulgating the red

wolf regulation attempted to establish any link between

these federal proscriptions and interstate commerce.

Therefore, there are no legislative or administrative find-

ings in either SWANCC or this case to which this Court

might look, much less defer.

In any event, while “[dJue respect for the decisions

of a coordinate branch of Government demands that

[this Court] invalidate a congressional enactment only

upon a plain showing that Congress has exceeded its

constitutional bounds” (Morrison, 120 S. Ct. at 1748

(emphasis added)), the Court does not give the same

deference to constitutional interpretations made by bu-

reaucrats in the Executive Branch. See, e.g., Miller v.

Johnson, 515 U.S. 900, 922 (1995). That is particularly

true here, where the interstate commerce rationale for

the regulation has been articulated only by the govern-

ment’s lawyers in the context of this litigation. See

Martin v. OSHRC, 499 U.S. 144, 156 (1991). The dis-

trict court in this case, however, concluded that the fact

that the asserted federal authority was premised on a

regulation rather than a federal statute was of no conse-

quence to the Commerce Clause analysis. See App., in-

fra, 64a (“this Court can analyze 50 C.F.R. § 17.84 in

the same way it would had that regulation been passed

by both Houses of Congress and signed by the President,

as opposed to promulgated through the exercise of dele-

gated rulemaking authority”). The Court’s consideration

in SWANCC whether there is any constitutional signifi-

cance to the distinction between congressional enact-

ments and administrative interpretations will be disposi-

tive of the same problem in this case.

II. This Case Should Be Remanded To The Court

Of Appeals Regardless Of How The Court Re-

solves The Constitutional Question In SWANCC

In light of the many similarities between the consti-

tutional questions raised in both SWANCC and this case,

it cannot seriously be doubted that a constitutional ruling

in SWANCC will necessarily have a dramatic impact on

the validity of the Fourth Circuit’s decision—as the

government itself has already recognized. The govern-

ment has cited the court of appeals’ decision in this case

as support for upholding the migratory bird rule in

SWANCC. Its brief in SWANCC Suggests that, if the

taking of wolves substantially affects commerce, so does

the destruction of migratory bird habitat. See U.S. Br. in

SWANCC at 37-38 n.29 (discussing the decision below).

The converse equally holds: if destruction of migratory

bird habitat does not substantially affect commerce, nei-

ther does the taking of wolves. See Holman, After

United States v. Lopez: Can the Clean Water Act and

the Endangered Species Act Survive Commerce Clause

Attack?, 15 Va. Envtl. L.J. 139, 139 (1995) (“Lopez

poses a considerable threat to portions of the Endan-

gered Species Act (ESA) and the Clean Water Act

(CWA), because these two federal environmental laws,

as applied, lack a strong connection to interstate com-

merce”).

1. In the event this Court reverses on the constitu-

tional question in SWANCC, certiorari should be granted

in this case, the decision below should be vacated, and

the case should be remanded to the court of appeals for

further consideration. If the migratory bird rule is held

unconstitutional in SWANCC, grave doubts, to say the

least, will be cast on the red wolf regulation challenged

here. The court of appeals should be given the opportu-

nity to reconsider its decision in light of the Court’s de-

cision in SWANCC.

2. Even if this Court were to affirm on the constitu-

tional question in SWANCC, the Court should remand

this case to the court of appeals. |

SWANCC is the first case before this Court in which

a federal regulation of wholly intrastate, noncommercial

activities affecting wild animals has been directly chal-

lenged under the Commerce Clause. Yet there are sev-

eral differences between this case and SWANCC which

render the challenged regulation in the present case even

further outside the scope of federal commerce power

than that challenged in SWANCC.

First, the government claims in SWANCC that “[t]he

proposed activity for which petitioner sought a federal

permit—the filling of ponds in order to construct a mu-

nicipal landfill—is plainly of a commercial nature.”

U.S. Br. in SWANCC at 43. Irrespective of the merits of

this argument (which appears identical to one rejected in

Lopez, 514 U.S. at 561), it cannot save the regulation

challenged in this case.

The red wolf regulation is not a regulation of com-

merce even under the distinction urged by the govern-

ment in SWANCC. Just as in Lopez, see 514 U.S. at 567,

there is “no reason to believe” that the activity prohib-

ited by the red wolf regulation will be in any way “typi-

cal[ly]” commercial. U.S. Br. in SWANCC at 47 n.38.

In practice just as in its plain text, the red wolf regula-

tion applies to private residential properties and com-

mercial ones with equal force and regularity. Indeed,

FWS has recognized the threat posed by red wolves to

human safety and private property, making the concerns

affected by the red wolf regulation particularly non-

commercial, and thus substantially more similar to Mor-

rison and Lopez than SWANCC. See 63 Fed. Reg.

54151, 54152 (Oct. 8, 1998) (terminating red wolf re-

lease program in the Great Smoky Mountains National

Park, noting that the red wolf is “a behaviorally unsuit-

able animal” which “represents a demonstrable vo

threat to human safety”); 60 Fed. Reg. 18940, 18943

(Apr. 13, 1995) (“Wolves that come in close proximity

to private residences may cause property damage by

killing pets or removing and/or physically defacing

small property items. In addition, private individuals

may not want the animals on their property because they

fear them or consider them a nuisance.”’).

Thus, even if the Court determines that the regulation

in SWANCC, though lacking a jurisdictional “interstate

commerce” element, is sufficiently related to commer-

cial conduct to avoid the reach of Lopez, remand will be

necessary to determine whether this case falls within the

ambit of Lopez, as clarified by the Court’s decision in

SWANCC.

Second, in SWANCC the government urges that the

interstate travel of migratory birds alone is sufficient to

trigger the federal commerce power, even without any

showing of impact on interstate commerce. See U.S. Br.

in SWANCC at 39 (“[Migratory birds] can be protected

only by national action in concert with that of another

power. The subject matter is only transitorily within the

State and has no permanent habitat therein.) (quoting

Missouri v. Holland, 252 U.S, 416, 435 (1920)); id. at

40 (“Like water flowing in an interstate river, migratory

birds constitute a natural resource ... that has no per-

manent locus in a single State .. . [and thus] are appro-

priately regarded as a shared resource of the several

States”).

Justice Thomas has previously rejected such reason-

ing. See Cargill, 516 U.S. at 958 (Thomas, J., dissenting

from denial of certiorari) (rejecting argument that “the

self-propelled flight of birds across state lines creates a

sufficient interstate nexus to justify the Corps’ assertion

of jurisdiction over any standing water that could serve

as a habitat for migratory birds”). But even were the

Court to accept this novel interstate travel theory of the

commerce power in SWANCC, such reasoning would

not justify regulation of red wolves in the case at-bar.

There is no evidence that the red wolf looks to more

than one State at a time for habitat. Indeed, FWS’s

regulation implementing the red wolf experimental pro-

gram confirms that the geographical scope of the red

wolf release is limited to a handful of counties in North

Carolina, where they have adopted their “home ranges.”

See App., infra, 72a; see also Nat’l Ass’n of Home

Builders v. Babbitt, 130 F.3d 1041, 1058 (D.C. Cir.

1997) (Henderson, J., concurring) (rejecting similar ar-

gument); id. at 1063 (Sentelle, J., dissenting) (same).

' Third, in upholding the migratory bird rule, the lower

court in SWANCC relied on the government’s determi-

nation that the rule was essential to protecting migratory

bird species from the destruction of their habitat. See

SWANCC, 191 F.3d at 850 (“the destruction of migra-

tory bird habitat and the attendant decrease in the popu-

lations of these birds ‘substantially affects’ interstate

commerce”). The anti-taking rule challenged in this

case, by contrast, involves just one experimental red

wolf population. Under the ESA, the Secretary must

make a determination that such populations are not es-

sential to the continuation of the species before embark-

ing on a reintroduction program. See 16 U.S.C.

§ 1539(j)(2)(B): App., infra, 4a; id. at 60a n.2. Should

the Court determine in SWANCC that the continued ex-

istence of wildlife species as a whole substantially af-

fects commerce, remand to the court of appeals is neces-

Sary to determine whether the preservation of particular

members of the species, deemed nonessential to the con-

tinuation of the species as a whole, also substantially af-

fects commerce.

Fourth, the migratory birds in SWANCC inhabited or

visited the petitioner’s property at the time it was pur-

chased. The red wolves in this case, by contrast, were

introduced into petitioners’ vicinity by the Jederal gov-

ernment. The government’s Suggestion that it can re-

lease wild (and dangerous) animals into areas adjacent

to private land, and simultaneously assert federal juris-

diction to prohibit private landowners from interfering

ve) a pn

with those animals, is nothing other than a bootstrap ar-

gument.

For these reasons, a decision on the constitutional

question raised in SWANCC will provide further guid-

ance to the court of appeals with respect to the red wolf

program, necessitating remand regardless of how the

Court actually rules on the constitutionality of the mi-

gratory bird rule.

III. In The Event The Court Does Not Reach The

Constitutional Question In SWANCC, It Should

Grant Certiorari In This Case

The petitioner in SWANCC has challenged not only

the constitutionality of the Corps’ migratory bird rule,

but also the reasonableness of that rule as a construction

of the Clean Water Act. It is therefore possible that the

Court will reverse on the statutory issue without reach-

ing the constitutional issue. If the Court does not reach

the Commerce Clause question in SWANCC, this case

presents an ideal vehicle for the resolution of that ques-

tion.

1. Several courts of appeals have sustained the con-

stitutionality of regulations promulgated under the ESA

in the wake of Lopez. See App., infra, 1a-46a (uphold-

ing red wolf regulation); Nat’l Ass'n of Home Builders

v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (upholding

Delhi Sands Flower-Loving Fly regulation). See also

Palila v. Hawaii Dep't of Land & Natural Resources,

471 F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495

(9th Cir. 1981) (upholding Palila bird regulation before

Lopez); United States v. Bramble, 103 F.3d 1475 (9th

Cir. 1996) (upholding the Eagle Protection Act); Build-

ing Indus. Assoc. of Superior Cal. v. Babbitt, 979 F.

Supp. 893 (D.D.C. 1997) (upholding fairy shrimp regu-

lation).

Those decisions, however, have drawn considerable

criticism. Indeed, every court of appeals decision to

have upheld an ESA regulation after Lopez has drawn a

dissent (and in the D.C. Circuit, a critical separate con-

currence as well). See App., infra, 46a (Luttig, J., dis-

senting); Home Builders, 130 F.3d at 1057 (Henderson,

J., concurring); id. at 1060 (Sentelle, J., dissenting).

These splintered decisions show that the lower courts

are badly torn on the scope of federal power to regulate

noncommercial activities affecting wildlife. This con-

flict warrants this Court’s immediate attention,

In this case, the court below based its ruling uphold-

ing the red wolf regulation on several different theories

of “substantial effects.” The various theories came un-

der severe criticism from Judge Luttig, however. In his

dissent, Judge Luttig stated that the majority’s decision

relied on the kind of attenuated causation theories previ-

ously rejected in Lopez and Morrison, and in so doing

“consigned” those decisions “to aberration.” App., in-

fra, 51a (Luttig, J., dissenting). He then criticized the

majority’s attempt to avoid Lopez and Morrison by

claiming a strong national interest in wildlife preserva-

tion, stating: “The affirmative reach and the negative

limits of the Commerce Clause do not wax and wane

depending upon the subject matter of the particular leg-

islation under challenge.” Jd. at 55a (Luttig, J., dissent-

ing).

Similarly, the D.C. Circuit upheld an ESA regulation

protecting the Delhi Sands Flower-Loving Fly, but drew

a scholarly dissent from Judge Sentelle. Moreover, the

two judges who voted to uphold the regulation could not

even agree on a rationale for-connecting the regulated

activity with interstate commerce. Judge Wald con-

cluded that the regulation protected biodiversity, and

that biodiversity is an important commercial interest.

See Home Builders, 130 F.3d at 1053 (“Each time a spe-

cies becomes extinct, the pool of wild species dimin-

ishes. 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.”). This theory was rejected by Judge Hender-

son, however. See id. at 1058 (Henderson, J., concur-

ring) (“it is ... impossible to ascertain that there will be

any [] impact [on commerce] at all” from biodiversity).

Judge Henderson instead upheld the regulation on the

ground that “the loss of biodiversity itself has a substan-

tial effect on our ecosystem and likewise on interstate

commerce.” Jbid. (Henderson, J., concurring). Writing

in dissent, Judge Sentelle found the biodiversity and the

“biodiversity affecting ecosystems” rationales indistin-

guishable, and rejected both as inconsistent with Lopez.

See id. at 1065 (Sentelle, J., dissenting) (“neither Con-

gress nor the litigants, nor for that matter Judge Wald,

has pointed to any commercial activity being regulated,

any commercial competition being unfairly challenged,

or any other sort of commerce being destroyed by the

taking of the fly”).

Similar conflicts with respect to federal authority to

regulate wildlife have arisen in the context of the Clean

Water Act. The lower court in SWANCC concluded that

the migratory bird rule bore a substantial relation to in-

terstate commerce. See 191 F.3d at 849-51. That deci-

sion conflicted with United States v. Wilson, 133 F.3d

251 (4th Cir. 1997), creating a split in authority that this

Court may have granted certiorari in SWANCC to re-

solve.

As Justice Thomas explained in his dissent from the

denial of certiorari in Cargill, Inc. v. United States, the

argument that modifications of migratory bird habitat

substantially affect interstate commerce is “even more

farfetched than that offered, and rejected, in Lopez.”

516 U.S. at 958. See also Hoffman Homes, 999 F.2d at

263 (Manion, J., concurring) (“The commerce power...

is . .. not so expansive as to authorize regulation of pud-

dles merely because a bird traveling interstate might de-

cide to stop for a drink”); Leslie Salt Co. v. United

States, 55 F.3d 1388, 1396 (9th Cir. 1995) (“The migra-

tory bird rule certainly tests the limits of Congress’s

commerce powers and, some would argue, the bounds of

reason”). These objections have the same force with re-

spect to the red wolf regulation challenged in this case

as with the migratory bird rule—as the government has

already recognized. See U.S. Br. in SWANCC at 37-38

& n.29.

Given these serious disagreements in the lower

courts, it is no surprise that the constitutionality of regu-

lations promulgated under the ESA has drawn consider-

able scholarly attention. Indeed, numerous commenta-

tors have recognized that the constitutionality of certain

endangered species programs, such as the red wolf regu-

lation in this case, is doubtful in light of Lopez and Mor-

rison. See, e.g., Nagle, The Commerce Clause Meets

The Delhi Sands Flowers-Loving Fly, 97 Mich. L. Rev.

174 (1998); Linehan, Endangered Regulation: Why the

Commerce Clause May No Longer Be Suitable Habitat

for Endangered Species and Wetlands Regulation, 2

Tex. Rev. L. & Pol. 365, 419 (1998); Warner, The Po-

tential Impact of United States v. Lopez On Environ-

mental Regulation, 7 Duke Envtl L. & Policy Forum 321

(1997); Sherry, The Barking Dog, 46 Case W. Res. L.

Rev. 877, 881 (1996) (describing the destruction of

endangered species habitat by private landowners as “an

activity only speculatively related to interstate com-

merce”); Holman, After United States v. Lopez: Can the

Clean Water Act and the Endangered Species Act Sur-

vive Commerce Clause Attack?, 15 Va. Envtl. L.J. 139,

197 (1995).

The continuing uncertainty pervading the courts of

appeals respecting the limits of the federal commerce

power as regards wild animals cannot be tolerated, as

this Court may already have concluded when it granted

certiorari in SWANCC. Therefore, should the contro-

versy in SWANCC be decided on statutory grounds

alone, this case presents an ideal opportunity for the

Court finally to resolve this important question of fed-

eral power.

2. Indeed, in light of the reasoning adopted by the

court below, this case is particularly deserving of the

Court’s attention. The nexus between the red wolf regu-

lation and interstate commerce is so attenuated that the

lower court majority felt compelled to concoct a hypo-

thetical commercial market in red wolf pelts in an effort

to justify the exercise of the commerce power. Both the

majority and FWS concede, however, that no such mar-

kets currently exist. See App., infra, 20a-2la

(“{a]ithough ... red wolves were sold for their pelts

primarily in the nineteenth century, this temporal differ-

ence is beside the point”); C.A. App. 303 (September

1993 FWS environmental assessment report concluding

that “(t]he red wolf is not expected to enter into com-

mercial production or to compete with any species that

are harvested for commercial use,” nor is it “expected to

become a game species or to compete with presently

taken game species”).

This exercise in speculation exceeds what even the

lower court in SWANCC was willing to do. This Court

has never recognized that the mere possibility of a mar-

ket appearing at some unknown time in the future is

enough to satisfy the requirement of substantial effects

on commerce today. To the contrary, as Judge Luttig

correctly noted, the hypothetical market theory requires

just the kind of speculation and blind inference this

Court repudiated in Lopez and Morrison: “we are con-

fronted here with an administrative agency regulation of

an activity that ... has had no economic character for

well over a century now. [This is] [a]n activity that has

no foreseeable economic character at all, except upon

the baldest (though admittedly most humorous) of

speculation that the red wolf pelt trade will once again

emerge.” App., infra, 53a (Luttig, J., dissenting). To

State the matter simply, what might be in commerce

some day is not in commerce today. An activity’s effect

on commerce at some unknown future date—indeed, a

day that may never come—is too remote to survive scru-

tiny under Lopez and Morrison.

Moreover, the “hypothetical market” theory cannot

stand in the face of the Court’s unanimous decision last

Term to construe the federal arson Statute, in order to

avoid constitutional problems, not to apply to private,

owner-occupied residences, even though such residences

might someday become rental properties. Compare

Jones v. United States, 120 S. Ct. 1904 (2000) (refusing

to apply federal arson statute to owner-occupied private

residence), with Russell v. United States, 471 U.S. 858

(1985) (applying federal arson statute to rental prop-

erty). In doing so the Court necessarily rejected the

government’s assertion that the federal arson statute ap-

plies “even if the particular property victimized by crime

is not at the time of the criminal act devoted to commer-

cial activity, or itself on the market for rent or sale.”

U.S. Br. in Jones at 35-36.

3. The Court explained just last Term that “[tJhe

Constitution requires a distinction between what is truly

national and what is truly local.” Morrison, 120 S. Ct. at

1754; see also Lopez, 514 U.S. at 566, 567-68. The red

wolf regulation, by asserting federal authority over the

ability of North Carolinians to trap or otherwise “take”

wild animals, unnecessarily intrudes into an area of

purely local concern. In fact, the federal regulation pur-

ports to override a North Carolina state statute that spe-

cifically authorizes the taking of red wolves in certain

circumstances. See App., infra, 8a-9a.

States have long asserted plenary authority over the

wild animals within their borders. As the Court has ex-

plained, this is an incidence of sovereignty that has been

exercised at least since Roman times. Geer v. Connecti-

cut, 161 U.S. 519, 523-28 (1896); see also Douglas v.

Seacoast Products, Inc., 431 U.S. 265, 287-88 (1977)

(Rehnquist, J., concurring in part and dissenting in part)

(it is “clear that the States have a substantial proprietary

interest ... in the fish and game within their bounda-

ries”). This authority is exercised in a variety of ways,

including the establishment of hunting seasons, the vari-

ous schemes of fishing and other licenses required, lim-

its on the size and number of animals that can be caught,

and the like. See, e.g., Baldwin v. Montana Fish &

Game Commission, 436 U.S. 371 (1978).

The federal government’s authority to regulate with

respect to wild animals, by contrast, is limited to its

enumerated powers. The federal government’s property

power, for example, authorizes it to proscribe harming

wild animals on federal land. Kleppe v. New Mexico,

426 U.S. 529 (1976). Similarly, the spending power au-

thorizes the federal government to acquire, by purchase

or easement, private land that may be used as animal

habitat. North Dakota v. United States, 460 U.S. 300

(1983). The treaty power has been held to authorize the

federal government to protect animals that are the sub-

ject of international concern. Missouri v. Holland, 252

U.S. 416 (1920). And the commerce power authorizes

certain federal activity, such as regulating animals

within the territorial waters (i.e., the “channels” of

commerce). Seacoast Products, 431 U.S. 265.

The commerce power, however, has never been held

to authorize federal regulation of wild animals qua wild

animals. In fact, precisely that argument was advanced

by the Solicitor General in Missouri v. Holland, but was

rejected by this Court. Compare 252 U.S. at 423 (argu-

ment for the United States) with id. at 433-34 (opinion

of the Court). That is because such regulation is, and

always has been, the province of the several States; and

the Tenth Amendment and fundamental principles of

comity dictate that the federal-state balance not be al-

tered in this regard. The federal government has no

more rightful place prohibiting the taking of red wolves

in North Carolina, where such activity is expressly au-

thorized by state law, than it has regulating the deer-

hunting season in Virginia or the ability to fish in

Alaska’s intrastate waters. Regulation of wild animals,

including human interactions with animals on private

property, remains a matter of state concern that is out-

side the powers conferred on Congress. As a result, the

red wolf regulation cannot be sustained as a valid exer-

cise of federal authority. See Morrison, 120 S.Ct. at

1748; Lopez, 514 U.S. at 567-68.

4. This case is not an attack on the entire scheme of

federal environmental regulation. Indeed, the red wolf

regulation is not even essential to the continuation of the

species Canis rufus, or any other. See 16 U.S.C.

§ 1539(j)(2)(B). Judge Luttig correctly explained the

narrowness of the issues in this case:

While it could be lost in a reading of the ma-

jority opinion, we do not address here Congress’

power over either the channels or instrumentali-

ties of interstate commerce. We do not address

activity that is interstate in character. We do not

address in this case a statute or a regulation with

an express interstate commerce jurisdictional re-

quirement, which would all but ensure constitu-

tional validity. We do not have before us an ac-

tivity that has obvious economic character and

impact, such as is typically the case with non-

wildlife natural resources, and even with other

wildlife resources. We are not even presented

with an activity as to which a plausible case of

future economic character and impact can be

made.

To the contrary, we are confronted here with

an administrative agency regulation of an activity

that implicates but a handful of animals, if even

that, in one small region of one state. An activity

that not only has no current economic character,

but one that concededly has had no economic

character for well over a century now. ... And,

importantly, an activity that Congress could

plainly regulate under its spending power and un-

der its power over federal lands, regardless.

App., infra, 52a-53a.

Even after Lopez and Morrison, there is significant

disagreement over the extent to which the Commerce

Clause confers authority upon the federal government to

regulate wholly intrastate, noncommercial activities that

may impact wildlife. Prompt resolution of this impor-

tant and recurring issue is necessary to give lower courts

much-needed guidance. j

CONCLUSION

The petition for a wnt of certiorari should be held

pending the Court’s decision in Solid Waste Agency of

Northern Cook County v. United States Army Corps of

Engineers, No. 99-1178, and then remanded to the court

of appeals for further consideration in light of the

Court’s resolution of the Commerce Clause issue in that

case. In the event the Court does not reach the constitu-

tional question in SWANCC, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

THEODORE B. OLSON

SAM KAZMAN Counsel of Record

— Enterprise DOUGLAS R. Cox

stitute

1001 Connecticut Ave., N.W. MARK A. PERRY

Washington, D.C. 20036 GIBSON, DUNN & CRUTCHER LLP

(202) 331-1010 1050 Connecticut Ave., N.W.

Washington, D.C. 20036

SEAN E. ANDRUSSIER (202) 955-8500

WOMBLE, CARLYLE,

SANDRIDGE & RICE PLLC

150 Fayetteville Street Mall

Raleigh, NC 27602

(919) 755-2199

Of Counsel Counsel for Petitioners

November 24, 2000.

APPENDIX

No. 99-1218

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES GILBERT GIBBS; RICHARD LEE

MANN, III; HYDE COUNTY, NORTH CAROLINA;

WASHINGTON COUNTY, NORTH CAROLINA,

Plaintiffs-Appellants,

BRUCE BABBITT, Secretary of the Interior, in his offi-

cial capacity; UNITED STATES FISH AND WILD-

LIFE SERVICE; UNITED STATES DEPARTMENT

OF THE INTERIOR; JAMIE CLARK, Director of the

U.S. Fish and Wildlife Service,

Defendants-Appellees,

DEFENDERS OF WILDLIFE,

Intervenor-Appellee.

PACIFIC LEGAL FOUNDATION; NATIONAL

WILDERNESS INSTITUTE; WASHINGTON LEGAL

FOUNDATION; THE ALLIED EDUCATION

FOUNDATION; NATIONAL WILDLIFE FED-

ERATION; NORTH CAROLINA WILDLIFE

FEDERATION; ENVIRONMENTAL DEFENSE

FUND; WORLD WILDLIFE FUND; CENTER FOR

MARINE CONSERVATION,

Amici Curiae.

Decided June 6, 2000

WILKINSON, Chief Judge:

In this case we ask whether the national government

can act to conserve scarce natural resources of value to

our entire country. Appellants challenge the constitu-

tionality of a Fish and Wildlife Service regulation that

limits the taking of red wolves on private land. The dis-

trict court upheld the regulation as a valid exercise of

federal power under the Commerce Clause. We now

affirm because the regulated activity substantially af-

fects interstate commerce and because the regulation is

part of a comprehensive federal program for the protec-

tion of endangered species. Judicial deference to the

judgment of the democratic branches is therefore appro-

priate.

In response to growing concern over the extinction

of many animal and plant species, Congress enacted the

Endangered Species Act of 1973 (ESA), Pub. L. 93-205,

81 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531-

44 (1994 & Supp. III 1997)). Congress found that many

of the species threatened with extinction are of “esthetic,

ecological, educational, historical, recreational, and sci-

entific value to the Nation and its people.” 16 U.S.C.

§ 1531(a)(3) (1994). Congress also found that “various

species of fish, wildlife, and plants in the United States

have been rendered extinct as a consequence of eco-

nomic growth and development untempered by adequate

concern and conservation.” Jd. § 1531(a)(1). To ad-

dress these national concerns, the ESA sets forth a com-

prehensive regulatory scheme to conserve these species

and the ecosystems upon which they depend. The Act

provides, inter alia, for the listing of “endangered” and

“threatened” species, id. § 1533, and various recovery

plans for the “conservation and survival” of listed spe-

cies, id. § 1533(f).

The cornerstone of the statute is section 9(a)(1),

which prohibits the taking of any endangered species

without a permit or other authorization. Id. §

1538(a){1)(B). The term “take” is defined as “to harass,

harm, pursue, hunt, shoot, wound, kill, trap, capture, or

collect, or to attempt to engage in any such conduct.” Jd.

§ 1532(19). The ESA also authorizes the Fish and

Wildlife Service (FWS) to issue any necessary regula-

tions for the conservation of threatened species. Id.-

§ 1533(d). Finally, in keeping with its commitment to

species conservation, the ESA states that a state law may

be more restrictive than the provisions of the Act, but

not less. Jd. § 1535(f).

In order to increase the Service’s flexibility in rein-

troducing endangered species into portions of their his-

toric range, Congress extensively amended the ESA in

1982, Pub. L. 97-304, 96 Stat. 1426. Prior to 1982, rein-

troduced species were treated the same as any other en-

dangered species. See id. § 1536 & 1538(a) (providing

for stringent consultation and reporting requirements

and a near absolute prohibition on the taking of endan-

gered species). These strict limits led to significant local

Opposition to the reintroductions. In response to these

problems, Congress added section 10(j), which allows

the FWS to designate as “experimental” some reintro-

duced populations of endangered or threatened species.

Id. § 1539(j). Under the looser standards of section

104), members of an experimental population are gener-

ally to be treated as threatened rather than endangered.

Id. § 1539(j)(2)(C). This means that protective regula-

tions may be established for their conservation. See id.

at 1533(d). By promulgating special rules for an ex-

perimental population the Service can determine which

prohibitions and exceptions shall apply. See 50 C.F.R.

§ 17.82 (1998).

A population may be designated as “experimental”

only after the Service determines that it is not “essential”

to the continuation of the species. Jd. § 1539(j)(2)(B).

An experimental population located on private land can

be exempt from some of the more stringent requirements

for endangered species. See id. § 1539(j)(2)(C)(i). Ifa

population is found to be “non-essential” and is desig-

nated as “experimental,” the FWS can develop “special

regulations for each experimental population that will

address the particular needs of that population.” H.R.

Rep. No. 97-567, at 34 (1982), reprinted in 1982

U.S.C.C.A.N. 2807, 2834. Furthermore, “there will be

instances where the regulations allow for the incidental

take of experimental populations.” Jd. Thus, under sec-

tion 10(j), the FWS has the authority to promulgate

regulations allowing the taking of experimental reintro-

duced populations under limited circumstances.

The red wolf, Canis rufus, is an endangered species

whose protection is at issue in this case. The red wolf

was originally found throughout the southeastern United

States. It was once abundant in the “riverine habitats of

the southeast,” and was especially numerous near the

“canebrakes” that harbored large populations of swamp

and marsh rabbits, the primary prey of the red wolf. 51

Fed. Reg. 41,790, 41,791 (1986). The FWS found that

“the demise of the red wolf was directly related to man’s

activities, especially land changes, such as the drainage

of vast wetland areas for agricultural purposes ... and

predator control efforts at the private, State, and Federal

levels.” Id.

Activities such as wetlands drainage, dam construc-

tion, and hunting reduced the red wolf to such meager

numbers that it was listed as endangered in 1976. See

32 Fed. Reg. 4001 (1976). Because of the paucity of

animals left in the wild, their poor physical condition,

and the threats posed by inbreeding, the FWS decided to

trap the remaining red wolves in the mid-1970s and

place them in a captive breeding program. See 51 Fed.

Reg. at 41,791. The breeding program anticipated the

eventual reintroduction of some red wolves into the

wild. Id.

In 1986, the FWS issued a final rule outlining a rein-

troduction plan for red wolves in the 120,000-acre Alli-

gator River National Wildlife Refuge in eastern North

Carolina. See 51 Fed. Reg. 41,790. This area was

judged the ideal habitat within the red wolf’s historic

range. Jd. at 41,791. Between 1987 and 1992, a total of

42 wolves were released in the Refuge. In 1993, the re-

introduction program was expanded to include the re-

lease of red wolves in the Pocosin Lakes National Wild-

life Refuge in Tennessee. Since reintroduction, some

red wolves have wandered from federal refug*s onto

private property. From available data, as of Feoruary

1998 it was estimated that about 41 of the approximately

75 wolves in the wild may now reside on private land.!

1 The Service notes that the red wolf population lies be-

tween 53 and 101 wolves, and estimates that the actual population

[Foomote continued on next page]

This case raises a challenge to 50 C.F.R. § 17.84(c),

a regulation governing the experimental populations of

red wolves reintroduced into North Carolina and Ten-

nessee pursuant to section 10(j). The FWS has extended

the takings prohibitions of section 9(a)(1) to the experi-

mental red wolf populations with certain exceptions.

See 50 C.F.R. § 17.84(c) (1998). As noted above, the

taking provision of section 9(a)(1) prevents landowners

from harassing, harming, pursuing, hunting, shooting,

wounding, killing, trapping, capturing, or collecting any

endangered species. See 16 U.S.C. § 1532(19). How-

ever, in order to insure that other agencies and the public

would accept the proposed reintroduction, the FWS re-

laxed the taking standards for wolves found on private

land under its authority over experimental populations.

Section 17.84(c) allows a person to take red wolves

on private land “provided that such taking is not inten-

tional or willful, or is in defense of that person’s own

life or the lives of others.” Jd. § 17.84(c)(4)(i). Private

landowners may also take red wolves on their property

“when the wolves are in the act of killing livestock or

pets, Provided that freshly wounded or killed livestock

or pets are evident.” Jd. § 17.84(c)(4)(iii). A landowner

may also “harass red wolves found on his or her prop-

erty .. . Provided that all such harassment is by methods

that are not lethal or injurious to the red wolf.” Jd.

§ 17.84(c)(4)(iv). Finally, landowners may take red

[Footnote continued from previous page]

is between 70 and 80 animals. The district court also found that

approximately 75 red wolves were living in the wild in éastern

North Carolina. See Gibbs v. Babbitt, 31 F. Supp. 2d 531, 534

(E.D.N.C. 1998).

wolves after efforts by Service personnel to capture such

animals have been abandoned, and such taking has been

approved in writing. Jd. § 17.84(c)(4)(v). All of these

exceptions to the taking prohibition are subject to a 24-

hour reporting requirement. Jd. § 17.84(c)(4).

Cc.

In October 1990, plaintiff Richard Lee Mann shot a

red wolf that he feared might threaten his cattle. The

federal government prosecuted Mann under § 17.84(c),

and Mann pled guilty. Mann’s prosecution triggered

some opposition to the red wolf program in the sur-

rounding communities. After the program was in place

for several years, the FWS held meetings with local

governments and the public to receive feedback about

the reintroductions. The Service contended that most

people who commented expressed support for the pro-

gram and that the reintroductions were generally sup-

ported by local, state and federal agencies, and elected

officials. See 58 Fed. Reg. 62,086, 62,088 (1993). In

addition, owners of nearly 200,000 acres of private land

have permitted red wolves onto their land through

agreements with the FWS. Nonetheless, Hyde and

Washington Counties, and the towns of Belhaven and

Roper, passed resolutions opposing the reintroduction of

the wolves. The resolutions appeared to be based on the

farming community’s fears of prohibitions on private

land use. Jd.

In response to discontent with the reintroduction

program, the North Carolina General Assembly passed a

bill entitled “An Act to Allow the Trapping and Killing

of Red Wolves by Owners of Private Land.” The Act

makes it lawful to kill a red wolf on private property if

the landowner has previously requested the FWS to re-

move the red wolves from the property. See 1994 N.C.

Sess. Laws Ch. 635, amended by 1995 N.C. Sess. Laws

Ch. 83 (adding Beaufort and Craven Counties to the Act,

which initially covered only Hyde and Washington

Counties). This law facially conflicts with the federal

regulation. For instance, § 17.84(:) allows the taking of

red wolves “when the wolves are in the act of killing

livestock or pets,” when wounded or dead livestock or

pets are evident and the taking is reported within 24

hours. See 50 C.F.R. § 17.84(c)(4)(iii). By contrast,

the North Carolina statute makes it lawful to kill a red

wolf on private property when the landowner “reasona-

bly believes” that the wolf may be a threat to people or

livestock and the “landowner has previously requested

the [FWS] to remove the red wolves from the land-

owner’s property.” See 1994 N.C. Sess. Laws Ch. 635,

§ 1. The government reports, however, that no actual

conflicts between these laws have arisen, because there

have been no contested state or federal prosecutions for

unlawful takes since the North Carolina statute was en-

acted.

Appellants Charles Gibbs, Richard Mann, Hyde

County, and Washington County filed the instant action

challenging the federal government’s authority to pro-

tect red wolves on private land. They seek a declaration

that the anti-taking regulation, 50 C.F.R. § 17.84(c), as

applied to the red wolves occupying private land in east-

ern North Carolina, exceeds Congress’s power under the

interstate Commerce Clause, U.S. Const. art. I, § 8, cl. 3

(“Congress shall have Power . . . To regulate Commerce

... among the several States .. .”). Appellants also seek

an injunction against continued enforcement of the anti-

taking regulation on non-federal land. Appellants claim

that the red wolves have proven to be a “menace to citi-

zens and animals in the Counties.” They further allege

that because of the federal regulatory protections sur-

rounding the wolves, North Carolinians cannot effec-

tively defend their property.

On cross-motions for summary judgment, the United

States District Court for the Eastern District of North

Carolina held that Congress’s power to regulate inter-

state commerce includes the power to regulate conduct

that might harm red wolves on private land. See Gibbs

v. Babbitt, 31 F. Supp. 2d 531 (E.D.N.C. 1998). The

district court found that the red wolves are “things in in-

terstate commerce” because they have moved across

state lines and their movement is followed by “tourists,

academics, and scientists.” Jd. at 535. The court also

found that the tourism they generate substantially affects

interstate commerce. See id. The private landowners

and North Carolina Counties now appeal.

Il.

We consider this case under the framework articu-

lated by the Supreme Court in United States v. Lopez,

514 U.S. 549 (1995), and United States v. Morrison, 120

S. Ct. 1740, 2000 WL 574361 (2000), aff’g Brzonkala v.

Virginia Polytechnic Institute and State University, 169

F.3d 820 (4th Cir. 1999). While Congress’s power to

pass laws under the Commerce Clause has been inter-

preted broadly, both Lopez and Morrison reestablish that

the commerce power contains “judicially enforceable

outer limits.” See Lopez, 514 U.S. at 566; Morrison,

2000 WL 574361, at *6. It is essential to our system of

government that the commerce power not extend to ef-

fects on interstate commerce that are so remote that we

“would effectually obliterate the distinction between

10a

what is national and what is local.” National Labor Re-

lations Board v. Jones & Laughlin Steel Corp., 301 U.S.

1, 37 (1937). Indeed, the judiciary has the duty to en-

sure that federal statutes and regulations are promul-

gated under one of the enumerated grants of constitu-

tional authority. It is our further duty to independently

evaluate whether “a rational basis exists for concluding

that a regulated activity sufficiently affects interstate

commerce.” Lopez, 514 U.S. at 557.

While this is rational basis review with teeth, the

courts may not simply tear through the considered

judgments of Congress. Judicial restraint is a long and

honored tradition and this restraint applies to Commerce

Clause adjudications. “Due respect for the decisions of

a coordinate branch of Government demands that we

invalidate a congressional enactment only upon a plain

showing that Congress has exceeded its constitutional

bounds.” Morrison, 2000 WL 574361, at *6. In fact,

“the substantial element of political judgment in Com-

merce Clause matters leaves our institutional capacity

more in doubt than when we decide cases, for instance,

under the Bill of Rights.” Lopez, 514 U.S. at 579 ( Ken-

nedy, J., concurring). We must enforce the structural

limits of Our Federalism, but we must also defer to the

political judgments of Congress, recognizing that the

“Commerce Clause represents a broad grant of federal

authority.” Brzonka! ». Virginia Polytechnic Instit. and

State Univ., 169 F.3a .20, 830 (4th Cir. 1999), aff'd sub

nom. Morrison, 2000 WL 574361.

The Lopez Court recognized three broad categories

of activity that Congress may regulate under its com-

merce power. 514 U.S. at 558. “First, Congress may

regulate the use of the channels of interstate commerce.

lla

Second, Congress is empowered to regulate and protect

the instrumentalities of interstate commerce, or persons

or things in interstate commerce, even though the threat

may come only from intrastate activities. Finally, Con-

gress’ commerce authority includes the power to regu-

late those activities having a substantial relation to inter-

state commerce, i.¢., those activities that substantially

affect interstate commerce.” Jd. at 558-59 (citations

omitted).

Section 17.84(c) is “not a regulation of the use of the

channels of interstate commerce, nor is it an attempt to

prohibit the interstate transportation of a commodity

through the channels of commerce.” Lopez, 514 U.S. at

559. The term “channel of interstate commerce” refers

to, inter alia, “navigable rivers, lakes, and canals of the

United States; the interstate railroad track system; the

interstate highway system; ... interstate telephone and

telegraph lines; air traffic routes; television and radio

broadcast frequencies.” United States v. Miles, 122 F.3d

235, 245 (Sth Cir. 1997). This regulation of red wolf

takings on private land does not target the movement of

wolves or wolf products in the channels of interstate -

commerce.

This case also does not implicate Lopez’s second

prong, which protects things in interstate commerce.

Although the Service has transported the red wolves in-

terstate for the purposes of study and the reintroduction

programs, this is not sufficient to make the red wolf a

“thing” in interstate commerce. See, e.g., Lopez, 514

US. at 559 (rejecting application of prong two to Gun-

Free School Zones Act, despite the fact that the regu-

lated guns likely traveled through interstate commerce);

National Assoc. of Home Builders v. Babbitt, 130 F.3d

YTANS ES AaB Qe a eat os

12a

1041, 1046 (D.C. Cir. 1997) (“NAHB”) (rejecting no-

tion that Delhi Sands Flower-Loving Fly was a “thing”

in interstate commerce). Therefore, if 50 C.F.R. §

17.84(c) is within the commerce power, it must be sus-

tained under the third prong of Lopez.

Under the third Lopez test, regulations have been up-

held when the regulated activities “arise out of or are

connected with a commercial transaction, which viewed

in the aggregate, substantially affects interstate com-

merce.” Lopez, 514 U.S. at 561. In Morrison, the Su-

preme Court noted, “In every case where we have sus-

tained federal regulation under Wickard’s aggregation

principle, the regulated activity was of an apparent

commercial character.” Morrison, 2000 WL 574361, at

*37 n.4. The Court in Lopez likewise placed great em-

phasis on the “commercial concerns that are central to

the Commerce Clause.” Lopez, 514 U.S. at 583 ( Ken-

nedy, J., concurring); see also Hoffman v. Hunt, 126

F.3d 575, 586-87 (4th Cir. 1997) (noting the importance

of the distinction between “the regulation of, on the one

hand, those activities that are commercial or economic

in nature .. . and, on the other hand, those activities that

are not”).

Although the connection to economic or commercial

activity plays a central role in whether a regulation will

be upheld under the Commerce Clause, economic activ-

ity must be understood in broad terms. Indeed, a

cramped view of commerce would cripple a foremost

federal power and in so doing would eviscerate national

authority. The Lopez Court’s characterization of the

regulation of home-grown wheat in Wickard v. Filburn,

317 U.S. 111 (1942), as a case involving economic ac-

tivity makes clear the breadth of this concept. The Court

13a

explained that “even Wickard, which is perhaps the most

far reaching example of Commerce Clause authority

over intrastate activity, involved economic activity in a

way that the possession of a gun in a school zone does

not.” Lopez, 514 U.S. at 560; accord Morrison, 2000

WL 574361, at *7. See also Brzonkala, 169 F.3d at 835

(explaining that the Court has a “relatively broad under-

standing of such [economic] activity”). In fact, our un-

derstanding of commerce may not be limited to its

“18th-century” forms. See Lopez, 514 U.S. at 574

(Kennedy, J., concurring). While we must enforce

meaningful limits on the commerce power, we must also

be mindful of the “Court’s relatively generous concep-

tion of economic activity.” Brzonkala, 169 F.3d at 835.

Lopez and Morrison rest on the principle that where

a federal statute has only a tenuous connection to com-

merce and infringes on areas of traditional state concern,

the courts should not hesitate to exercise their constitu-

tional obligation to hold that the statute exceeds an enu-

merated federal power. Respect for our federal system

of government was integral to those decisions. See Lo-

pez, 514 U.S. at 561 n.3; Morrison, 2000 WL 574361, at

*11. Yet Lopez also counsels that “where economic ac-

tivity substantially affects interstate commerce, legisla-

tion regulating that activity will be sustained.” 514 U.S.

at 560. In enforcing limits on the Congress, we must be

careful not to overstep the judicial role. To strike down

Statutes that bear substantially upon commerce is to

Overstep our own authority even as we fault Congress

for exceeding limits on its power. The irony of disre-

garding limits on ourselves in the course of enforcing

limits upon others will assuredly not be lost on those

14a

who look to courts to respect restraints imposed by rules

of law.

With these basic principles in mind, we consider ap-

pellants’ challenge to § 17.84(c).

iil.

Appellants argue that the federal government cannot

limit the taking of red wolves on private land because

this activity cannot be squared with any of the three

categories that Congress may regulate under its com-

merce power. Appellants assert that 50 C.F.R.

§ 17.84(c) is therefore beyond the reach of congressional

authority under the Commerce Clause.

We disagree. It was reasonable for Congress and the

Fish and Wildlife Service to conclude that § 17.84(c)

regulates economic activity. The taking of red wolves

implicates a variety of commercial activities and is

closely connected to several interstate markets. The

regulation in question is also an integral part of the

overall federal scheme to protect, preserve, and rehabili-

tate endangered species, thereby conserving valuable

wildlife resources important to the welfare of our coun-

try. Invalidating this provision would call into question

the historic power of the federal government to preserve

scarce resources in one locality for the future benefit of

all Americans.

To fall within Congress’s commerce power, this

regulation must have a “substantial relation to interstate

commerce”—it must “substantially affect interstate

commerce.” Lopez, 514 U.S. at 559. The Supreme

Court recently emphasized that “in those czses where we

15a

have sustained federal regulation of intrastate activity

based upon the activity’s substantial effects on interstate

commerce, the activity in question has been some sort of

economic endeavor.” Morrison, 2000 WL 574361, at

*8. Intrastate activities may be subject to federal regula-

tion if they have a “meaningful connection with a par-

ticular, identifiable economic enterprise or transaction.”

Brzonkala, 169 F.3d at 834. We therefore must consider

whether the taking of red wolves on private land is “in

any sense of the phrase, economic activity.” Morrison,

2000 WL 574361, at *9.

Unlike the Violence Against Women Act (VAWA)

in Morrison and the Gun-Free School Zones Act

(GFSZA) in Lopez, § 17.84(c) regulates what is in a

meaningful sense economic activity. The Court in Mor-

vison explained that both the VAWA and the GFSZA

involved activity that was noneconomic and only tenu-

ously linked to interstate commerce. 2000 WL 574361,

at *7-9. Yet the taking of a red wolf on private land is

unlike gender-motivated violence or guns near schools.

The protection of commercial and economic assets is a

piimary reason for taking the wolves. Farmers and

ranchers take wolves mainly because they are concerned

that the animals pose a risk to commercially valuable

livestock and crops. Indeed, appellants’ arguments fo-

cus quite explicitly on these economic concerns—they

want freer rein to protect their property and investments

in the land. See Appellants’ Br. at 10 (“In the face of

these threats [from red wolves], North Carolinians can-

not effectively defend their property.”); id. at 12.

The relationship between red wolf takings and inter-

State commerce is quite direct—with no red wolves,

there will be no red wolf related tourism, no scientific

16a

research, and no commercial trade in pelts. We need not

“pile inference upon inference,” Lopez, 514 U.S. at 567,

to reach this conclusion. While a beleaguered species

may not presently have the economic impact of a large

commercial enterprise, its eradication nonetheless would

have a substantial effect on interstate commerce. And

through preservation the impact of an endangered spe-

cies on commerce will only increase.2

Because the taking of red wolves can be seen as eco-

nomic activity in the sense considered by Lopez and

Morrison, the individual takings may be aggregated for

the purpose of Commerce Clause analysis. See Morri-

son, 2000 WL 574361, at *37 n.4. While the taking of

one red wolf on private land may not be “substantial,”

the takings of red wolves in the aggregate have a suffi-

cient impact on interstate commerce to uphold this regu-

lation. This is especially so where, as here, the regula-

tion is but one part of the broader scheme of endangered

species legislation.

Further, § 17.84(c) is closely connected to a variety

of interstate economic activities.> Whether the impact

2 While the regulation might also reflect a moral judgment

concerning the importance of rehabilitating endangered -species,

this does not undermine the economic basis for the regulation. See

Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 257

(1964) (“Congress was not restricted by the fact that the particular

obstruction to interstate commerce with which it was dealing was

also deemed a moral and social wrong.”).

3 The Supreme Court has admonished us that “the task of a

court that is asked to determine whether a particular exercise of

congressional power is valid under the Commerce Clause is rela-

tively narrow. The court must defer to a congressional finding that

[Footnote continued on next page]

17a

of red wolf takings on any one of these activities quali-

fies as a substantial effect on interstate commerce is

something we need not address. We have no doubt that

the effect of the takings on these varied activities in

combination qualifies as a substantial one. The first

nexus between the challenged regulation and interstate

commerce is tourism. The red wolves are part of a

$29.2 billion national wildlife-related recreational indus-

try that involves tourism and interstate travel. See Heart

of Atlanta Motel, 379 U.S. at 256 (finding it is well-

established that “commerce among the States ... con-

sists of intercourse and traffic between their citizens”

(internal quotation marks omitted)). Many tourists

travel to North Carolina from throughout the country for

“howling events”—evenings of listening to wolf howls

accompanied by educational programs. These howlings

are a regular occurrence at the Alligator River National

Wildlife Refuge. According to a study conducted by Dr.

William E. Rosen of Cornell University, the recovery of

the red wolf and increased visitor activities could result

in a significant regional economic impact. See William

E. Rosen, Red Wolf Recovery in Northeastern North

Carolina and the Great Smoky Mountains National

Park: Public Attitudes and Economic Impacts (unpub-

lished, Joint Appendix at 633). Rosen estimates that

northeastern North Carolina could see an increase of be-

tween $39.61 and $183.65 million per year in tourism-

related activities, and that the Great Smoky Mountains

National Park could see an increase of between $132.09

[Footnote continued from previous page]

a regulated activity affects interstate commerce, if there is any ra-

tional basis for such a finding.” Hodel v. Virginia Surface Mining

& Reclamation Assoc., 452 U.S. 264, 276 (1981).

18a

and $354.50 million per year. This is hardly a trivial

impact on interstate commerce. Appellants under-

standably seek to criticize the Rosen study, but concede

that the howling events attract interstate tourism and that

red wolf program volunteers come from all around the

country.

While there are no formal congressional findings that

the ESA affects interstate commerce, such findings are

neither necessary nor sufficient to sustain a statute or

regulation. In Lopez, the Court said that “Congress nor-

mally is not required to make formal findings as to the

substantial burdens that an activity has on interstate

commerce.” 514 U.S. at 562; see also Perez v. United

States, 402 U.S. 146, 156 (1971) (particularized findings

are not necessary for Congress to legislate). Further, in

Morrison, the Court emphasized in the face of volumi-

nous congressional findings that “the existence of con-

gressional findings is not sufficient, by itself, to sustain

the constitutionality of Commerce Clause legislation.”

2000 WL 574361, at *10.

In evaluating whether there is a rational basis for the

promulgation of a statute or regulation under the com-

merce power, we often consider congressional commit-

tee findings. See Lopez, 514 U.S. at 562. Here, Con-

gress has provided numerous sources of informal find-

ings. Committee reports and legislat've debates have

emphasized the importance of endangered species to in-

terstate commerce. We independently evaluate the con-

Stitutionality of this regulation, but we also take account

of congressional judgment and the judgment of the

agency designated to implement the statute.

Appellants argue that the tourism rationale relates

only to howling events on national park land or wildlife

19a

refuges because people do not travel to private land.

They reason that without tourism on private land the

regulated activity does not substantially affect interstate

commerce. Yet this argument misses the mark. Since

reintroduction, red wolves have strayed from federal

lands onto private lands. Indeed, wolves are known to

be “great wanderers.” See 60 Fed. Reg. 18,940, 18,943

(1995). In 1998, it was estimated that 41 of the 75

wolves in the wild now live on private land. Because so

many members of this threatened species wander on pri-

vate land, the regulation of takings on private land is es-

sential to the entire program of reintroduction and even-

tual restoration of the species. Such regulation is neces-

Sary to conserve enough red wolves to sustain tourism.

Appellants in fact seem unmindful of the history of en-

dangered species regulation. The Endangered Species

Acts of 1966 and 1969 initially targeted conservation

efforts only on federal lands, but they met with limited

success. See Note, Evolution of Wildlife Legislation: in

the United States: An Analysis of the Legal Efforts to

Protect Endangered Species and the Prospects for the

Future, 5 Geo. Int’] Envtl. L. Rev. 441, 449-53 (1993).

The Endangered Species Act of 1973 was motivated in

part by the need to extend takings regulation beyond the

limited confines of federal land. See id. at 556. The

prohibition of takings on private land was critical to the

overall success of the ESA in halting and reversing the

near extinction of numerous species. See 16 U.S.C.

§ 1538(a)(1). The success of many commercial enter-

prises depends on some regulation of activity on private

land, and interstate tourism is no exception.

Tourism, however, is not the only interstate commer-

cial activity affected by the taking of red wolves. The

20a

reguiation of red wolf takings is also closely connected

to a second interstate market—scientific research. Sci-

entific research generates jobs. It also deepens our

knowledge of the world in which we live. The red wolf

reintroduction program has already generated numerous

scientific studies. For example, the red wolf is used as a

model for other carnivore reintroductions. See Donald

E. Moore III & Roland Smith, The Red Wolf as a Model

for Carnivore Re-introductions, 62 Symp. Zool. Soc.

Lond. 263 (1990). Scientists have also studied how the

red wolf affects small mammal populations and how the

wolves interact with the ecosystem as a whole. See, e.g.,

Bryan T. Kelly, Alligator River National Wildlife Refuge

Red Wolf (Canis Rufus) Scat Analysis: Preliminary

Analyses of Mammalian Prey Consumed by Year, Sea-

son, Pack, Sex, and Age (April 1994) (unpublished, Joint

Appendix at 942). By studying the effects of red wolves

on the ecosystem, scientists learn about the interdepend-

ence of plants and animals, as weil as how other threat-

ened species may be reintroduced in the future. Scien-

tific research can also reveal other uses for animals—for

instance, approximately 50 percent of all modern medi-

cines are derived from wild plants or animals. See Nor-

man Myers, A Wealth of Wild Species: Storehouse for

Human Welfare 4 (1983). Protection of the red wolves

on private land thus encourages further research that

may have inestimable future value, both for scientific

knowledge as well as for commercial development of

the red wolf.

The anti-taking regulation is also connected to a third

market—the possibility of a renewed trade in fur pelts.

Wolves have historically been hunted for their pelts.

See Stanley P. Young & Edward A. Goldman, The

2la

Wolves of North America I, 165-70 (1964). Congress

had the renewal of trade in mind when it enacted the

ESA. The Senate Report noted that the protection of an

endangered species “may permit the regeneration of that

species to a level where controlled exploitation of that

species can be resumed. In such a case businessmen

may profit from the trading and marketing of that spe-

cies for an indefinite number of years, where otherwise

it would have been completely eliminated from com-

mercial channels.” S. Rep. No. 91-526, at 3 (1969), re-

printed in 1969 U.S.C.C.A.N. 1413, 1415. The Ameri-

can alligator is a case in point. In 1975, the American

alligator was nearing extinction and listed as endan-

gered, but by 1987 conservation efforts restored the spe-

cies. Now there is a vigorous trade in alligator hides.

See Catharine L. Krieps, Sustainable Use of Endangered

Species Under CITES: Is it a Sustainable Alternative ?,

17 U. Pa. J. Int’l Econ. L. 461, 479-80 (1996) (explain-

ing that many environmentalists are now encouraging

the purchase of alligator products to create an incentive

for protecting alligators and their habitats). Although

alligator hides have more recently been a part of inter-

State commercial trade and red wolves were sold for

their pelts primarily in the nineteenth century, this tem-

poral difference is beside the point. It is not for the judi-

ciary to move from species to species, opining that spe-

cies A possesses great commercial potential, but species

B does not. Assessing the relative scientific value and

commercial impact of alligators and red wolves is for

Congress and the FWS, informed as they are by biolo-

gists, economists, and others whose expertise is best de-

livered to the political branches, not the courts.

22a

Finally, the taking of red wolves is connected to in-

terstate markets for agricultural products and livestock.

For instance, appellant landowners find red wolves a

menace because they threaten livestock and other ani-

mals of economic and commercial value. By restricting

the taking of red wolves, § 17.84(c) is said to impede

economic development and commercial activities such

as ranching and farming. This effect on commerce,

however, still qualifies as a legitimate subject for regula-

tion. It is well-settled under Commerce Clause cases

that a regulation can involve the promotion or the re-

striction of commercial enterprises and development.

Indeed, “the motive and purpose of a regulation of inter-

state commerce are matters for the legislative judg-

ment.” United States v. Darby, 312 U.S. 100, 115

(1941). We recognize that “Congress can regulate inter-

state commerce for any lawful motive.” United States v.

Soderna, 82 F.3d 1370, 1374 (7th Cir. 1996). The regu-

lation here targets takings that are economically moti-

vated—farmers take wolves to protect valuable livestock

and crops. It is for Congress, not the courts, to balance

economic effects—namely whether the negative effects

on interstate commerce from red wolf predation are

outweighed by the benefits to commerce from a restora-

tion of this species. To say that courts are ill-suited for

this act of empirical and political aapnapsai is an under-

statement.

It is anything but clear, for example, that red wolves

harm farming enterprises. They may in fact help them,

and in so doing confer additional benefits on commerce.

For instance, red wolves prey on animals like raccoons,

deer, and rabbits—helping farmers by killing the ani-

mals that destroy their crops. See Robert J. Esher &

23a

Theodore R. Simons, Red Wolf Propagation on Horn

Island, Miss.: Red Wolf Ecological Studies 13-16 (Sept.

1993) (unpublished, Joint Appendix at 890). On Horn

Island, for instance, researchers found evidence of in-

creased shore bird nesting, likely due to the reduction in

raccoon predation. See id. at 15. In Tennessee Valley

Authority v. Hill (“TVA”), the Supreme Court recog-

nized that one of Congress’s primary concerns in enact-

ing the ESA was “the unknown uses that endangered

species might have and about the unforeseeable place

such creatures may have in the chain of life on this

planet.” 437 U.S. 153, 178-79 (1978). It is within the

power of Congress to regulate the coexistence of com-

mercial activity and endangered wildlife in our nation

and to manage the interdependence of endangered ani-

mals and plants in large ecosystems. It is irrelevant

whether judges agree or disagree with congressional

judgments in this contentious area. Given the existing

economic and commercial activity involving red wolves

and wildlife generally, Congress could find that conser-

vation of endangered species and economic growth are

mutually reinforcing. It is simply not beyond the power

of Congress to conclude that a healthy environment ac-

tually boosts industry by allowing commercial develop-

ment of our natural resources.

Section 17.84(c) aims to reverse threatened extinc-

tion and conserve the red wolf for both current and fu-

ture use in interstate commerce. Congress is entitled to

make the judgment that conservation is potentially valu-

able, even if that value cannot be presently ascertained.

The Supreme Court has held that the congressional deci-

sion to maintain abandoned railroad track is reasonable

“even if no future rail use for it is currently foreseeable.”

{

24a

Preseault v. ICC, 494 U.S. 1, 19 (1990). The Court rea-

soned that “given the long tradition of congressional

regulation of railroad abandonments, that is a judgment

that Congress is entitled to make.” Jd. (citations omit-

ted). Similarly, Congress has long been involved in the

regulation of scarce and vital natural resources. The full

payoff of conservation in the form of tourism, research,

and trade may not be foreseeable. Yet it is reasonable

for Congress to decide that conservation of species will

one day produce a substantial commercial benefit to this

country and that failure to preserve a species will result

in permanent, though unascertainable, commercial loss.

When enacting the ESA, various legislators ex-

pressed these exact concerns, namely that species be

conserved for future scientific development:

The value of this genetic heritage is, quite liter-

ally, incalculable.... From the most narrow

possible point of view, it is in the best interests

of mankind to minimize the losses of genetic

variations. The reason is simple: they are poten-

tial resources. ... Who knows, or can say, what

potential cures for cancer or other scourges, pre-

sent or future, may lie locked up in the struc-

tures of plants which may yet be undiscovered,

much less analyzed? ... Sheer self-interest im-

pels us to be cautious.

H.R. Rep. No. 93-412, at 4-5 (1973), Extinction, after

all, is irreversible. If a species becomes extinct, we are

left to speculate forever on what we might have learned

or what we may have realized. If we conserve the spe-

cies, it will be available for the study and benefit of fu-

ture generations. In any event, it is for Congress to

25a

choose between inaction and preservation, not for the

courts.

Courts have uniformly upheld endangered species .

legislation after Lopez based on many of the same cur-

rent and future connections to interstate commerce ar-

ticulated here. In fact, no case has been brought to our

attention that invalidates any endangered species regula-

tion for exceeding the commerce power. In addressing a

post-Lopez challenge to the constitutionality of the Bald

Eagle Protection Act, 16 U.S.C. § 668 (1994), the Ninth

Circuit found that “extinction of the eagle would sub-

stantially affect interstate commerce by foreclosing any

possibility of several types of commercial activity: fu-

ture commerce in eagles or their parts; future interstate

travel for the purpose of observing or studying eagles; or

future commerce in beneficial products derived either

from eagles or from analysis of their genetic material.”

United States v. Bramble, 103 F.3d 1475, 1481 (9th Cir.

1996). Similarly, “given the interconnectedness of spe-

cies and ecosystems, it is reasonable to conclude that the

extinction of one species affects others and their ecosys-

tems and that the protection of a purely intrastate species

... Will therefore substantially affect land and objects

that are involved in interstate commerce.” See NAHB,

130 F.3d at 1059 (Henderson, J., concurring). In addi-

tion, the District of Columbia District Court upheld ap-

plication of the ESA to the fairy shrimp, a severely en-

dangered species limited to one state. See Building In-

dus. Assoc. of Superior Cal. v. Babbitt, 979 F. Supp. 893

(D.D.C. 1997). The court declined to “read Lopez as

hamstringing Congress in such an irrational fashion in a

regulatory area of such important economic, scientific

and environmental dimensions.” Jd. at 908. Pre-Lopez

26a

cases reached similar results. See, e.g., Hoffman Homes,

Inc. v. Administrator, 999 F.2d 256, 261 (7th Cir. 1993);

Palila v. Hawaii Dep’t of Land and Natural Resources,

471 F. Supp. 985, 995 (D. Haw. 1979), aff'd, 639 F.2d

495 (9th Cir. 1981).

The protection of the red wolf on both federal and

private land substantially affects interstate commerce

through tourism, trade, scientific research, and other po-

tential economic activities. To overturn this regulation

would start courts down the road to second-guessing all

kinds of legislative judgments. There is a “rational ba-

sis” as defined by Lopez for sustaining this regulation.

We therefore hold that the anti-taking provision at issue

here involves regulable economic and commercial activ-

ity as understood by current Commerce Clause jurispru-

dence.4

This regulation is also sustainable as “an essential

part of a larger regulation of economic activity, in which

the regulatory scheme could be undercut unless the in-

trastate activity were regulated.” Lopez, 514 U.S. at

561. The Supreme Court in Hodel v. Indiana stated: “A

complex regulatory program ... can survive a Com-

merce Clause challenge without a showing that every

single facet of the program is independently and directly

related to a valid congressional goal. It is enough that

4 Intervenor-appellees Defenders of Wildlife argue that this

regulation can also be upheld under the treaty power. See U.S.

Const. art. VI., cl. 2; U.S. Const. art. II, §2, cl. 2. Because we

hold that § 17.84(c) is valid under the Commerce Clause, we need

not address this alternative argument.

27a

the challenged provisions are an integral part of the

regulatory program and that the regulatory scheme when

considered as a whole satisfies this test.” 452 U.S. 314,

329 n.17 (1981).

The FWS issued this regulation pursuant to the pro-

visions of the Endangered Species Act, a comprehensive

and far-reaching piece of legislation that aims to con-

serve the health of our national environment. Congress

undoubtedly has the constitutional authority to pass leg-

islation for the conservation of endangered species. See

Babbitt v. Sweet Home Chapter of Communities for a

Great Or., 515 U.S. 687 (1995) (presupposing validity

of Endangered Species Act in upholding broad defini-

tion of “ ” as including significant habitat modifica-

tion); see also TVA v. Hill, 437 U.S. at 194 (emphasizing

that Congress has struck a balance in “favor of affording

endangered species the highest of priorities” and uphold-

ing application of the ESA because “once the meaning

of an enactment is discerned and its constitutionality de-

termined, the judicial process comes to an end”).

Appellants repeatedly argue that individual takings

of red wolves have only an insubstantial effect on inter-

state commerce and therefore that the application of the

regulation to private landowners is invalid. But we em-

phasize that the effect on commerce must be viewed not

from the taking of one wolf, but from the potential

commercial differential between an extinct and a recov-

ered species. A single red wolf taking may be insub-

stantial by some measures, but that does not invalidate a

regulation that is part of the ESA and that seeks conser-

vation not only of any single animal, but also recovery

of the species as a whole. The Supreme Court in Lopez

was emphatic on this point: “‘where a general regulatory

28a

statute bears a substantial relation to commerce, the de

minimis character of individual instances arising under

that statute is of no consequence.’” 514 U.S. at 558 (al-

teration in original) (quoting Maryland v. Wirtz, 392

U.S. 183, 197 n.27 (1968)); see also Perez v. United

States, 402 U.S. 146, 154 (1971) (“Where the class of

activities is regulated and that class is within the reach

of federal power, the courts have no power to excise, as

trivial, individual instances of the class.” (internal quota-

tion marks omitted)).

Once a species has been designated as endangered,

there are by definition only a few remaining animals.

Therefore, the effects on interstate commerce should not

be viewed from the arguably small commercial effect of

one local taking, but rather from the effect that single

takings multiplied would have on advancing the extinc-

tion of a species. Each taking impacts the overall red

wolf population, which has an effect on many dimen-

sions of commerce between the states. As the Supreme

Court has stated, “if it is interstate commerce that feels

the pinch, it does not matter how local .the operation

which applies the squeeze.” Heart of Atlanta Motel, 379

U.S. at 258 (internal quotation marks omitted). Section

17.84(c) must thus be evaluated against the overall con-

gressional goal of restoring red wolves and endangered

species generally. It would be perverse indeed if a spe-

cies nearing extinction were found to be beyond Con-

gress’s power to protect while abundant species were

subject to full federal regulatory power. Yet under ap-

pellants’ theory, the more endangered the species, the

less authority Congress has to regulate the taking of it.

According to this view, endangered species would lie

beyond congressional protection because there are too

29a

few animals left to make a commercial difference. Such

reasoning would eviscerate the comprehensive federal

scheme for conserving endangered species and turn con-

gressional judgment on its head.

Appellants protest they do not ask us to overturn the

ESA. They simply want us to excise as unconstitutional

a disfavored provision that places a strain on their agri-

cultural activities. But given that Congress has the abil-

ity to enact a broad scheme for the conservation of en-

dangered species, it is not for the courts to invalidate in-

dividual regulations. If appellants think this regulation

unwise, they must make their plea to Congress. The ju-

diciary lacks the delegated powers of the FWS or the

Environmental Protection Agency. Separation of pow-

ers principles mandate that we leave decisions such as

these to Congress and to agencies with congressionally

sanctioned expertise and authority. The Supreme Court

itself has been mindful of the “degree of regulatory ex-

peitise necessary to [the ESA’s] enforcement.” Sweet

Home, 515 U.S. at 703. Lacking such expertise, we

must decide not whether the regulation meets with judi-

cial favor, but whether it passes constitutional muster.

The specific needs of individual species, as well as

the balance to be struck with landowners in or near the

species’ habitats, present a classic case for legislative

balancing. Here § 17.84(c) was promulgated precisely

so that private landowners could take red wolves under

certain circumstances. For instance, subject to certain

reporting requirements, landowners can “take” wolves in

self-defense, see 50 C.F.R. § 17.84(c)(4)(i), or when the

wolves are found in the act of killing livestock or pets,

see id. § 17.84(c)(4)(iii). Landowners can also harass

wolves found on private property, provided that harass-

30a

ment is by methods that are not lethal or physically inju-

rious to the red wolf, see id. § 17.84(c)(4)(iv). These

provisions may ease tensions between the red wolves

and private landowners. Without these special regula-

tions, all red wolves would be subject to the absolute

taking prohibition of section 9(a), placing a much

greater burden on the property owner. Congress and the

Service have decided that these experimental wolves can

be taken under certain circumstances based on an

evaluation of competing interests. How these lines

should be drawn and this balance struck is grist for the

legislative and administrative mill and beyond the scope

of judicial competence.

IV.

Upholding this regulation is consistent with the “first

principles” of a Constitution that establishes a federal

government of enumerated powers. See Lopez, 514 U.S.

at 552. Lopez and Morrison properly emphasize that we

must carefully evaluate legislation in light of our federal

system of government. “The Constitution requires a dis-

tinction between what is truly national and what is truly

local.” Morrison, 2000 WL 574361, at *11. We must

particularly scrutinize regulated activity that “falls

within an area of the law where States historically have

been sovereign and countenance of the asserted federal

power would blur the boundaries between the spheres of

federal and state authority.” Brzonkala, 169 F.3d at 837

(internal quotation marks omitted).

It is imperative to set forth at the outset the historic

roles of federal and state authority in this area. The

regulated activity at issue here does not involve an “area

3la

of traditional state concern,” one to which “States lay

claim by right of history and expertise.” Lopez, 514

U.S. at 580, 583 (Kennedy, J., concurring).

Appellants argue that the regulation infringes on the

traditional state control over wildlife. We are cognizant

that states play a most important role in regulating wild-

life—many comprehensive state hunting and fishing

laws attest to it. State control over wildlife, however, is

circumscribed by federal regulatory power. In Minte-

sota v. Mille Lacs Band of Chippewa Indians, the Sv-

preme Court recently reiterated that “although States

have important interests in regulating wildlife and natu-

ral resources within their borders, this authority is shared

with the Federal Government when the Federal Gov-

ermment exercises one of its enumerated constitutional

powers.” 526 U.S. 172, 204 (1999). In Mille Lacs, the

Court upheld Chippewa Indian rights under an 1837

treaty that allowed the Chippewa to hunt, fish, and

gather free of territorial, and later State, regulation. /d.

These Indian treaty rights were found to be “reconcil-

able with state sovereignty over natural resources.” Jd.

at 205.

It is true that in the nineteenth century courts fol-

lowed the legal precept that wildlife was the property of

the state. See Geer v. Connecticut, 161 U.S. 519 (1896)

(upholding a Connecticut statute that prohibited the in-

terstate transportation of game birds that had been killed

within the state). But the principles in Geer were modi-

fied early in the twentieth century. See Hughes v. Okla-

homa, 441 U.S. 322, 329 (1979) (“The erosion of Geer

began only 15 years after it was decided.”). Geer was

finally overruled in 1979 by Hughes v. Oklahoma,

which held that states do not own the wildlife within

32a

their borders and that state laws regulating wildlife are

circumscribed by Congress’s commerce power. 441

U.S. at 326, 335. In light of Mille Lacs and Hughes, the

activity regulated by § 17.84(c)}—the taking of red

wolves on private property—is not an area in which the

states may assert an exclusive and traditional prerogative

in derogation of an enumerated federal power.

Appellants next argue that the application of this

regulation to private land intrudes on the state’s tradi-

tional police power to regulate local land use. Of

course, states and localities possess broad regulatory and

zoning authority over land within their jurisdictions. See

Village of Euclid v. Ambler Realty Co., 272 U.S. 365

(1926). It is well established, however, that Congress

can regulate even private land use for environmental and

wildlife conservation. Courts have consistently upheld

Congress’s authority to regulate private activities in or-

der to conserve species and protect the environment.

For example, in a post-Lopez challenge to CERCLA, the

Eleventh Circuit held that the private, on-site, intrastate

disposal of hazardous waste was within Congress’s au-

thority to regulate because such disposal “significantly

impacts interstate commerce.” United States v. Olin

Corp., 107 F.3d 1506, 1510 (ilth Cir. 1997). In Sweet

Home, the Supreme Court upheld a FWS regulation de-

fining “harm” in the Endangered Species Act to include

“significant habitat modification.” 515 U.S. at 697. The

regulation applied equally to private and public land. See

id. at 692 (challenge brought by small landowners and

logging companies). Here, the FWS similarly acted

within its authority in determining that conservation of

the red wolf population requires prohibiting certain tak-

33a

ings on private land surrounding the refuges. See 51

Fed. Reg. 41,790, 41,792-93 (1986).

Given the history of federal regulation over wildlife

and related environmental concerns, it is hard to imagine

how this anti-taking regulation trespasses impermissibly

upon traditional state functions—either control over

wildlife or local land use. Lopez and Morrison properly

caution that States should receive judicial protection

from unconstitutional federal encroachments on state

matters. Yet endangered wildlife regulation has not

been an exclusive or primary state function. In this way

the anti-taking regulation is distinctly unlike the

GFSZA, which forbade the possession of firearms in a

school zone. The Supreme Court explained that the

regulation of school zones was within the “general po-

lice power” retained by the states. See Lopez, 514 U.S.

at 567. The regulation of red wolf taking is also unlike

the VAWA, which established a “right to be free from

crimes of violence motivated by gender,” 42 U.S.C.

§ 13981(b) (1994). The Supreme Court found that the

VAWA impeded on family law and criminal matters of

traditional state concern. See Morrison, 2000 WL

574361, at *11. The Court noted, “We can think of no

better example of the police power, which the Founders

denied the National Government and reposed in the

States, than the suppression of violent crime and vindi-

cation of its victims.” Jd. at *11. Unlike the GFSZA

and the VAWA, § 17.84(c) does not invade traditional

state concerns—it is simply one small part of an ongoing

federal effort to preserve the scarcest natural resources

for future generations.

In contrast to gender-motivated violence or guns in

school yards, the conservation of scarce natural re-

ee ee ee ae BSc uments

RAP Wey A So re eet

Pn Se head Sh Ta ei >

34a

sources is an appropriate and well-recognized area of

federal regulation. The federal government has been in-

volved in a variety of conservation efforts since the be-

ginning of this century. In 1900, Congress passed the

Lacey Act, which provided penalties for the taking of

wildlife in violation of state laws. See Act of May 25,

1900, ch. 553, 31 Stat. 187 (codified as amended 16

U.S.C. § 701 (1994)). The Migratory Bird Treaty Act of

1918 forbade all takings of numerous bird species and

explicitly preempted state laws. See 16 U.S.C. §§ 703-.

12. Furthermore, Congress has regulated wildlife on

nonfederal property through numerous statutes, includ-

ing the Bald Eagle Protection Act of 1940, which pro-

hibits, inter alia, the taking, possession, selling, or ex-

porting of bald eagles or any of their parts. See 16

U.S.C. §§ 668-668d (1994). Similarly, the Marine

Mammal Protection Act of 1972 regulates the taking of

marine mammals and restricts the importing of marine

mammals and their products through an elaborate sys-

tem of permits. See 16 U.S.C. §§ 1361-1421h (1994 &

Supp. III 1997). The Magnuson Fishery Conservation

and Management Act of 1976 provides national stan-

dards for fishery conservation and management along

with an elaborate system of enforcement. See 16 U.S.C.

§§ 1801-83 (1994 & Supp. III 1997).

The Supreme Court has repeatedly upheld these stat-

utes and the conservation efforts of Congress with re-

gard to a variety of animal species. In Missouri v. Hol-

land, the Court upheld the Migratory Bird Treaty Act as

a necessary and proper means of executing Congress’s

treaty power. The conservation of endangered wildlife,

Justice Holmes stated, was a “matter [] of the sharpest

exigency for national well being.” 252 U.S. 416, 432-33

35a

(1920). In 1977, the Supreme Court held that Congress

had the power under the Commerce Clause to grant fed-

eral fishing licenses for use in state waters, thereby pre-

empting conflicting state laws. See Douglas v. Seacoast

Products, Inc., 431 U.S. 265 (1977). Later in Andrus v.

Allard, the Court emphasized that the “assumption that

the national commerce power does not reach migratory

wildlife is clearly flawed.” 444 U.S. 51, 63 n.19 (1979).

Post-Lopez cases addressing wildlife conservation

statutes do not call these cases into question, but rather

uphold the exercise of agency power over private land

use in order to conserve endangered species. In Sweet

Home, for example, the Court upheld the Service’s

broad definition of “harm” in the ESA as including “sig-

nificant habitat modification.” 515 U.S. at 708. The

lower courts have followed suit, both before and after

Lopez. For example, in United States v. Hartsell, this

court reaffirmed that Congress retains authority to regu-

late even nonnavigable waters under the Commerce

Clause. 127 F.3d 343, 348 & n.1 (4th Cir. 1997). The

Ninth Circuit reaffirmed that the Bald Eagle Protection

Act is a valid exercise of the commerce power because

Congress had a rational basis for concluding that “ex-

tinction of the eagle would have a substantial effect on

interstate commerce.” See Bramble, 103 F.3d at 1482.

In sum, it is clear from our laws and precedent that fed-

eral regulation of endangered wildlife does not trench

impermissibly upon state powers. Rather, the federal

government possesses a historic interest in such regula-

tion—an interest that has repeatedly been recognized by

the federal courts.

36a

It is important not simply to point to the historic fact

of federal efforts in the area of resource conservation.

Courts have respected the justifications for these federal

efforts as well.

The Supreme Court has recognized that protection of

natural resources may require action from Congress.

This general point holds true where endangered species

are concerned. Species conservation may unfortunately

impose additional costs on private concerns. States may

decide to forego or limit conservation efforts in order to

lower these costs, and other states may be forced to fol-

low suit in order to compete. The Supreme Court has

held that Congress may take cognizance of this dynamic

and arrest the “race to the bottom” in order to prevent

interstate competition whose overall effect would dam-

age the quality of the national environment. In Hodel v.

Virginia Surface Mining and Reclamation Ass'n, the

Court upheld provisions of the Surface Mining Control

and Reclamation Act of 1977 that regulated intrastate

mining activities. 452 U.S. 264 (1981). The Court de-

ferred to a congressional finding that nationwide stan-

dards were “essential” to insuring that competition in

interstate commerce among sellers of coal would not be

used to undermine environmental standards. See id. at

281-82. Congress expressed concern that such competi-

tion would disable states from improving and maintain-

ing “adequate standards on coal mining operations

within their borders.” Jd. (internal quotation marks

omitted). The Court emphasized, “The prevention of

this sort of destructive interstate competition is a tradi-

tional role for congressional action under the Commerce

Clause.” Jd. at 282. In Darby, the Court upheld a pro-

hibition of the interstate shipment of goods produced in

37a

violation of the Fair Labor Standards Act. 312 U.S. 100.

The Court reasoned that “interstate commerce should

not be made the instrument of competition in the distri-

bution of goods produced under substandard labor con-

ditions.” Jd. at 115.

A desire for uniform standards also spurred enact-

ment of the ESA: “Protection of endangered species is

not a matter that can be handled in the absence of coher-

ent national and international policies: the results of a

series of unconnected and disorganized policies and

programs by various states might well be confusion

compounded.” See H.R. Rep. No. 93-415, at 5. If we

struck down this regulation under the commerce power,

we would throw into question much federal environ-

mental legislation. This would be a portentous step,

leaving many environmental harms to be dealt with

through state tort law. Such a movement might well

subject interstate companies to a welter of conflicting

obligations. If Congress is constitutionally forbidden

from even enacting uniform environmental rules, the

confusion for interstate commercial enterprises might

increase exponentially.

In examining the justifications for federal action in

this area it is important to understand the ESA as a cul-

mination of a long legislative process of trial and error.

This font of experience is something courts lack. As we

noted earlier, preliminary efforts at endangered species

regulation were widely viewed as inadequate precisely

because they did not control private activities. The En-

dangered Species Act of 1966 established a National

Wildlife Refuge System and prohibited disturbing ani-

mals or habitat within the System. See Pub. L. No. 89-

669, § 4, 80 Stat. 926. The Endangered Species Act of

38a

1969 required the Secretary of the Interior to develop a

list of endangered species, and prohibited the importa-

tion of these animals or any of their byproducts without

a permit. See Pub. L. No. 91-135, § 3(a), § 2, 83 Stat.

275. These statutes also required federal agencies to

conserve species “insofar as is practicable,” § 1(b), 80

Stat. at 926, and to the “extent practicable,” § 3(a), 83

Stat. at 275. In response to concerns that these Acts had

little impact, Congress amended the ESA in 1973 to

abandon the practicability standards and to prohibit tak-

ings on private land. See 16 U.S.C. § 1538. According

to the General Accounting Office, in 1993 there were

781 species listed under the ESA—over 90 percent of

these species have some or all of their habitat on non-

federal lands. Nearly three-fourths of the listed species

had over 60 percent of their habitat on nonfederal lands.

Courts cannot simply ignore or negate congressional ef-

forts to devise a more effective solution to a oe

national problem.

Cc.

This regulation does not blur the boundaries between

federal and state responsibility for the conservation of

species. Disturbing the balance of federal and state

power was a primary concern in both Lopez and Morri-

son. In Lopez, Justice Kennedy argued that one of the

great dangers of the federal government regulating areas

of traditional state concern is that “the boundaries be-

tween the spheres of federal and state authority would

blur and political responsibility would become illusory.”

514 U.S. at 577 (Kennedy, J., concurring). In Brzonkala

this court observed that because the VAWA supple-

mented and interfered with state remedies, “the citizens

of the States would not know which sovereign to hold

39a

accountable for any failure to address adequately gen-

der-motivated crimes of violence.” 169 F.3d at 842.

Section 17.84(c) is distinguishable from both the

GFSZA and the VAWA because the ultimate responsi-

bility for the red wolf lies with the federal government.

The regulation outlines the responsibilities and obliga-

tions of landowners with regard to any red wolves on

their property. See 50 C.F.R. § 17.84(c). The FWS has

also distributed fact sheets about the wolves and held

meetings with local residents to explain the regulation

and the reintroduction. From the time of reintroduction

until 1994, North Carolina had no law or regulation con-

cerning the red wolf. A recently passed North Carolina

law bears a title starkly at odds with the federal regula-

tion: “An Act to Allow the Trapping and Killing of Red

Wolves by Owners of Private Land.” 1994 N.C. Sess.

Laws Ch. 635. Unlike the GFSZA and the VAWA,

§ 17.84(c) does not duplicate or supplement state and

local regulation. Quite to the contrary, it simply pro-

vides federal support for an endangered species. The

dangers of blurring are minimal where the federal role in

the protection of endangered species has traditionally

been so clear.

Congress, however, did not simply sweep away the

role of the states by enacting a national solution to the

problem of red wolf conservation. The ESA and

§ 17.84(c) embody principles of cooperative federalism

and seek to involve the states in the conservation effort.

Such cooperative federalism does not blur state and fed-

eral roles. First, a species is listed as endangered or

threatened only after reviewing “those efforts, if any,

being made by any State . . . to protect such species.” 16

U.S.C. § 1533(b)(1)(A). Second, once the species has

40a

recovered and is “delisted,” management responsibility

will return to the states. See id. § 1532(3) (defining

“conservation” as “the use of all methods and proce-

dures which are necessary to bring any endangered spe-

cies or threatened species to the point at which the

measures provided pursuant to this chapter are no longer

necessary”). States can then regulate the species for

hunting and resource management as it sees fit. For in-

stance, in Minnesota, citizens have expressed interest in

hunting the grey wolf, which is expected to be delisted

soon and its management returned to the state. See Feds

Again Delay Wolf Management Plan: Officials Had to

Do Some Rework After Legislature Failed to Pass State

Plan, Star-Tribune (Minneapolis), Nov. 29, 1999, at B7

(explaining that wolf numbers were strong enough to

drop federal protection, but that the Minnesota legisla-

ture failed to pass a management plan for the wolves).

Indeed, there is evidence that the recovery of the red

wolf could allow a renewed trade in wolf pelts. For ex-

ample, in the Northwestern Territories of Canada where

wolves are plentiful, a hunter can command about $300

per pelt. See Fred Langan, Hunters on Snowmobiles Cut

Down Wolf Count in N.W.T., Calgary Herald, Mar. 3,

1998, at A7.

This regulation simply does not implicate any “im-

mediate and concrete” federalism concerns by negating

state contributions to species protection. Brzonkala, 169

F.3d at 840. Quite to the contrary, invalidating this

regulation would deal a damaging blow to the essential

place of the enumerated powers in preserving scarce re-

sources of all sorts for the common good.

4la

Unlike the statutes in Lopez and Brzonkala,

§ 17.84(c) can be upheld while observing principled

limitations on federal power. The regulation applies

only to a single limited area—endangered species. It

does not in any way grant Congress “an unlimited police

power inconsistent with a Constitution of enumerated

and limited federal powers.” Brzonkala, 169 F.3d at

852. Nor does the regulation “obliterate the Constitu-

tion’s distinction between national and local authority.”

Morrison, 2000 WL 574361, at *10. In Lopez, the Court

rejected the “costs of crime” and “national productivity”

justifications for the GFSZA, because under these theo-

nes it was “difficult to perceive any limitation on federal

power, even in areas such as criminal law enforcement

or education where States historically have been sover-

eign.” 514 U.S. at 564.

But these concerns are simply not implicated by

§ 17.84(c). Rather, the ESA and this regulation in par-

ticular permit the exercise of federal power only to con-

serve those species that are “endangered” or “threat-

ened.” The Secretary must determine whether a species

is endangered or threatened “solely on the basis of the

best scientific and commercial data available to him af-

ter conducting a review of the status of the species.” 16

U.S.C. § 1533(b)(1)(A). Only after determining that a

species is endangered or threatened can Congress regu-

late it. The rationale for upholding § 17.84(c), and the

ESA generally, is restricted to the special relationship

between endangered species and interstate commerce as

drawn in Part III. It is not a connection that can be

drawn outside of the endangered species context to sup-

port federal regulation of just any local or intrastate ob-

ject with a medical, scientific, or economic value.

42a

The rationale for this regulation thus stops far short

of conferring upon Congress a broad police power. It is

instead appellants’ arguments for invalidating this regu-

lation that go too far. If the federal government cannot

regulate the taking of an endangered or threatened spe-

cies on private land, its conservation and preservation

efforts would be limited to only federal lands. A ruling

to this effect would place in peril the entire federal regu-

latory scheme for wildlife and natural resource

conservation.

V~.

Finally, we offer a brief response to the views of our

dissenting brother. According to the dissent, Lopez and

Morrison require us to hold that the regulation at issue

exceeds Congress’s commerce power. We cannot ac-

cept this view. To invalidate this regulation would re-

quire courts to move abruptly from preserving tradi-

tional state roles to dismantling historic federal ones. .

The dissenting opinion regrettably offers no legal ba-

sis for taking such a leap. Instead, the dissent expresses

a bevy of unsupported opinions. It offers ‘its conclusory

belief that the taking of a red wolf does not constitute an

economic activity. Postat__. It announces with some

confidence that trade in wolf pelts wiil never revive.

Post at ___. And it dismisses the available studies on

the red wolf’s ecological and commercial value without

offering the slightest bit of evidence to contradict them.

Post at ____. Where exactly the dissent derives its view

of the inconsequential status of this species is a mystery

to us. But it cannot be that the mere expression of judi-

cial derision for the efforts of the democratic branches is

enough to discard them.

43a

There should be no doubt about the implications of

the dissenting opinion. Our dissenting colleague would

rework the relationship between the judiciary and its co-

ordinate branches. It is apparent that the dissent regards

§ 17.84(c) as ill-advised. That is fair enough, but a

jJudge’s view of the wisdom of enacted policies affords

no warrant for declaring them unconstitutional. See TVA

v. Hill, 437 U.S. at 195 (“In our constitutional system

the commitment to the separation of powers is too fun-

damental for us to pre-empt congressional action by ju-

dicially decreeing what accords with ‘common sense

and the public weal.’ Our Constitution vests such re-

sponsibilities in the political branches.”). In recognition

of the fact that the wisdom of legislation is different

from its constitutionality, courts have always started

with a presumption in favor of an enactment’s constitu-

tionality. Lopez and Morrison have not shifted this pre-

sumption. In fact, they have carefully maintained it.

See Morrison, 2000 WL 574361, at *6 (“Due respect for

the decisions of a coordinate branch of Government de-

mands that we invalidate a congressional enactment only

upon a plain showing that Congress has exceeded its

constitutional bounds.”); Lopez, 514 U.S. at 568. Our

dissenting brother proceeds on the quite contrary prem-

ise that the burden now rests with those who wish to up-

hold legislation. We know of no other way to interpret

the dissent’s view that the empirical underpinnings of

this regulation are inadequate.

Reversing the presumption in favor of constitutional-

ity plunges our dissenting brother into the thick of po-

litical controversy. As the arguments and briefs in this

case attest, the matter in question involves a rather tradi-

tional struggle between property owners on the one hand

Petts a EU eee

44a

and environmentalists on the other. Both sides in this

political standoff have their legitimate points to make.

Property owners understandably seek more freedom to

take wolves on their property. Those opposing them

seek to impress the fact that even private property has

historically been imbued with public responsibilities.

Why the judicial branch should place its thumb on either

side of this old political scale is simply beyond our

comprehension. Both concern for property rights and

concem for the environment play important roles in

shaping political decisions. But neither can automati-

cally be allowed to grind the nation’s commerce power

to a constitutional halt. An indiscriminate willingness to

constitutionalize recurrent political controversies will

weaken democratic authority and spell no end of trouble

for the courts.

This danger is made more acute by the failure of the

dissent to adopt any limiting principle for its approach.

The dissent dismisses the regulation at issue as implicat-

ing nothing more than “a handful of animals, if even

that, in one small region of one state.” Post at. It

declares that because there are only 41 wolves on private

land, “the killing of even all 41 of the estimated red

wolves” cannot have a substantial effect on interstate

commerce. Post at __. Far from being a limiting ap-

proach, the dissent’s formulation is one of unprece-

dented breadth. It holds in essence that an endangered

species can have no effect on interstate commerce on

account of its endangered status and that scarce re-

sources are on account of their scarcity too trivial to jus-

tify protection. The dissent further ignores the fact that

the scarcest of natural resources, be they wildlife or

mineral, will often be found in one limited locality. For

45a

the federal courts to constitutionally disable the federal

government from acting in the face of scarcity is to deal

a severe blow to national strength.

Sapping the national ability to safeguard natural re-

sources is not a course supported by precedent. After

Lopez, the Supreme Court upheld a broad interpretation

of the Endangered Species Act, see Sweet Home, 515

U.S. 687. And in Morrison the Supreme Court cited

Wickard v. Filburn and Heart of Atlanta Motel for the

proposition that the authority of the national government

to regulate intrastate economic activity in proper cir-

cumstances had not been dismembered. 2000 WL

574361, at *7. Yet in the truncated legal universe of the

dissent, the national interest in the development of natu-

ral resources counts for naught, and these cases and

propositions have little, if any, role to play.

Finally, the dissenting opinion works a rent in the

fabric of Our Federalism. Striking down this regulation

will turn federalism on its head. Lopez and Morrison

rightly emphasized the fact that the federal involvement

with local school zones and the creation of civil causes

of action to prevent gender-motivated violence en-

croached on what are traditional state functions. By

contrast, the preservation of endangered species is his-

torically a federal function. Lopez and Morrison recog-

nized the importance of judicial review under the Com-

merce Clause. But, unlike the dissent, those cases set

boundaries to that review and did not transform the re-

viewing function from a shield protecting state activities

into a sword dismembering a long recognized federal

one. It is as threatening to federalism for courts to erode

the historic national role over scarce resource conserva-

tion as it is for Congress to usurp traditional state pre-

46a

rogatives in such areas as education and domestic rela-

tions. Courts seeking to enforce the structural constraints

of federalism must respect the balance on both sides.°

Of course natural resource conservation is economic

and commercial. If we were to decide that this regula-

tion lacked a substantial effect on commerce and there-

fore was invalid, we would open the door to standardless

judicial rejection of democratic initiatives of all sorts.

Courts need not side with one party or the other on the

wisdom of this endangered species regulation. We hold

only as a basic maxim of judicial restraint that Congress

may constitutionally address the problem of protecting

endangered species in the manner undertaken herein.

The political, not the judicial, process is the appropriate

arena for the resolution of this particular dispute. The

judgment of the district court is accordingly

AFFIRMED.

LUTTIG, Circuit Judge, dissenting:

I wrote extensively on the Supreme Court’s decision

in United States v. Lopez, 514 U.S. 549 (1995), and on

5 Emphasizing the political nature of this particular dispute

does not consign Commerce Clause adjudications to the political

processes, but rather takes account of the faci that judicial review

is limited by the due respect that we must have for the decisions of

a coordinate branch. See Morrison, 2000 WL 574361, at *6. It is

therefore both amusing and incorrect for the dissent to suggest that

upholding this endangered species regulation would somehow ren-

der Lopez or Morrison an “aberration,” post at __. The dissent

ignores the significant differences between those cases and the pre-

sent one—differences that we have chronicled in detail and with

which the dissent has made no effort to deal.

47a

the Commerce Clause in the wake of that decision, in

Brzonkala v. Virginia Polytechnic Institute, 169 F.3d

820 (4th Cir. 1999). And the Supreme Court has now

provided even further guidance for the lower courts

through its decision in Brzonkala, which is ultimately

styled in that court as United States v. Morrison, 2000

WL 574361 (May 15, 2000). If one holds the views ex-

pressed by the Supreme Court majority in Lopez and

Morrison, and by our court in Brzonkala, a belabored

discussion of the implications of those decisions for the

regulation at issue before us today is not necessary.

Here, the Fish and Wildlife Service has promulgated

a regulation that prohibits private landowners from

shooting, wounding, killing, trapping, or otherwise

harming the canis rufus, or the red wolf, even when the

wolves are on the private landowners’ property and

threatening their crops and livestock. However, in what

the majority characterizes as an act of beneficence by

the government to benefit the landowners, the govern-

ment does allow a property owner—even on his own

Property—to kill a wolf if the wolf is about to kill the

property owner himself or his family. Ante at os ae

question presented to us for decision is not “whether the

national government can act to conserve scarce natural

resources of value to our entire country,” ante at __,

whether we should “hold as a basic maxim of judicial

restraint that Congress may constitutionally address the

problem of protecting endangered species,” tee

whether our decision today will “work[ ] a rent in the

fabric of Our Federalism,” ___, “turn federalism on its

head,” id., or “open the door to standardless judicial re-

jection of democratic initiatives of all sorts,” _.

Rather, the simple (and frankly, considerably less inci-

48a

tant) question of law for us to decide is whether, assum-

ing its validity under statute, this one particular Fish and

Wildlife regulation exceeds Congress’ power under the

Commerce Ciause.

As the majority recites, there are an estimated 41 red

wolves resident on private property and 75 red wolves

total, in eastern North Carolina. The majority sustains

the Fish and Wildlife’s regulation unhesitatingly on the

ground that the taking of the 41 red wolves that might

occur as property owners attempt to protect themselves

and their families, their property, their crops, and their

livestock from these wolves, will have a “substantial ef-

fect” on interstate commerce. This substantial effect on

interstate commerce comprises, according to the major-

ity, four separate effects on such commerce, each of

which the majority views as “substantial.”

First, the majority concludes, in exclusive reliance

upon a Cornell University professor’s unpublished study

entitled “Red Wolf Recovery in Northeastern North

Carolina and the Great Smoky Mountains National

Park,” that “many tourists travel to North Carolina from

throughout the country for ‘howling events’—evenings

of listening to wolf howls accompanied by educational

programs,” _, and thus that the taking of these wolves

will have a substantial effect on the interstate commer-

cial industry of tourism.

Second, the majority concludes, largely in reliance,

not upon their substantive conclusions, but rather upon

the fact of the generation of two articles—“The Red

Wolf as a Model for Carnivore Reintroductions,” which

was published in the Symposium of the Zoological So-

ciety of London, and the 1994 unpublished study “Alli-

gator River National Wildlife Refuge Red Wolf (Canis

49a

Rufus) Scat Analysis”—that the taking of these red -

wolves will have a substantial effect on the “«nterstate

market” of “scientific research.” mre

Third, the majority concludes, largely on the strength

of an article that appears in the University of Pennsyl-

vania Journal of International Economic Law, that the

taking of these wolves will have a substantial effect on

the majority-anticipated resurrection of an interstate

trade in fur pelts. Ante at__. In reliance upon an arti-

cle that appeared two years ago in the Calgary Herald

entitled “Hunters on Snowmobiles Cut Down Wolf

Count in N.W.T.,” the majority observes that “for ex-

ample, in the Northwestern Territories of Canada where

wolves are plentiful, a hunter can command about $ 300

per pelt.” Ante at __. The majority frankly acknowl-

edges that there has not been a trade in wolf pelts since

the 1800s, ante at __, but, to the majority, “this tempo-

ral difference is beside the point.” Jd.

Finally, in reliance upon yet another unpublished

Study by Robert Esher and Theodore Simons entitled

“Red Wolf Propagation on Hom Island, Mississippi:

Red Wolf Ecological Studies,” and by analogy to the

finding therein of “increased shore bird nesting, likely

due to the reduction in raccoon predation,” ante at __,

the majority concludes that the red wolves which the

farmers and landowners have heretofore thought threat-

ened their families, their crops, and their livestock, actu-

ally help the farmers, by killing the animals that destroy

the farmers’ crops, and thereby substantially affect inter-

State commerce. Anteat __.

That these conclusions are not even arguably sus-

tainable under Lopez, Morrison, and Brzonkala, much

less for the reasons cobbled together by the majority, is

7 50a

evident from the mere recitation of the conclusions. The

killing of even all 41 of the estimated red wolves that

live on private property in North Carolina would not

constitute an economic activity of the kind held by the

Court in Lopez and in Morrison to be of central concern

to the Commerce Clause, if it could be said to constitute

an economic activity at all. | Morrison, 2000 WL

574361, at *8 (“[A] fair reading of Lopez shows that the

noneconomic, criminal nature of the conduct at issue

was central to our decision in that case.”). It is for this

reason that the majority’s attempted aggregation is im-

permissible: “While we need not adopt a categorical

rule against aggregating the effects of any noneconomic

activity in order to decide these cases, thus far in our

Nation’s history our cases have upheld Commerce

Clause regulation of intrastate activity only where that

activity is economic in nature.” 2000 WL 574361, at *9

(citations omitted). But even assuming that such is an

economic activity, it certainly is not an activity that has

a substantial effect on interstate commerce. The number

of inferences (not even to mention the amount of specu-

lation) necessary to discern in this activity a substantial

effect on interstate commerce is exponentially greater

than the number necessary in Lopez to show a substan-

tial effect on interstate commerce from the sale of guns

near schools or in Morrison to show a substantial effect

on interstate commerce from domestic assault. The

number (and the speculation) is even greater than that

necessary in Wickard v. Filburn, 317 U.S. 111 (1942).

And, it bears reminding, the regulated activity in Lopez

and Wickard at least was in some sense economic in

character.

Sla

In a word, the expansive view of the Commerce

power expressed by the majority today is closely akin to

that separately expressed by Justice Breyer in his dissent

in Lopez and Justice Souter in his dissent in Morrison,

and certainly more closely akin to those dissenting Jus-

tices’ views than it is to the view of the Lopez majority

in Lopez and Morrison. Indeed, all in all, it is a view far

more expansive than that expressed by any of the dis-

senting Justices in either Lopez or Morrison—a fact con-

firmed by the dissents in Morrison, ironically the case

for which the majority herein unnecessarily held this

case in abeyance. See Order of April 21, 2000 ( Luttig,

J., dissenting from abeyance order). It goes without say-

ing that it is much more like that of the dissent in Brzon-

kala than that of the majority in our court. Brzonkala

v. Virginia Polytechnic Institute, 169 F.3d 820, 905

(Motz, J., dissenting).

Indeed, if the Supreme Court were to render tomor-

row the identical opinion that the majority does today

(not necessarily the decision, but the opinion, worded

capaciously as it is), both Lopez and Morrison would be

consigned to aberration. And, by deciding this case as it

does, and on the particular reasoning that it does, the

majority would have all but consigned to aberration our

own decision in Brzonkala were it not for the Supreme

Court’s recent affirmance of that decision.

I would invalidate this particular agency regulation

under Lopez, Morrison, and Brzonkala, and instead rec-

ognize as the aberration that action of invalidation,

rather than the opinions in Lopez, Morrison, and Brzon-

kala, as does the majority. Compare Morrison, 2000

WL 574361, at *30 (Souter, J., dissenting) (similarly to

majority, characterizing Lopez and Morrison, and by

52a

implication Brzonkala, as aberrational vis-a-vis the sixty

years of jurisprudence predating Lopez and predicting

that Lopez and Morrison will not be “enduring law”);

see also Morrison, 2000 WL 574361, at *35 (Breyer, J.,

dissenting) (“And even were I to accept Lopez as an ac-

curate statement of the law, which I do not ....”). I

would do so without any fear whatsoever that such

“would place in peril the entire federal regulatory

scheme for wildlife and natural resource conservation,”

ante at __, as the majority over-rhetorically predicts

would result from the invalidation of this lone regula-

tion. No more so than in Brzonkala will “maintaining

the integrity of the enumerated powers” by invalidating

this single regulation “mean that statutes will topple like

falling dominos.” Brzonkala, 169 F.3d at 897 (Wilkin-

son, J., concurring).

While it could be lost in a reading of the majority

opinion, we do not address here Congress’ power over

either the channels or instrumentalities of interstate

commerce. We do not address activity that is interstate

in character. We do not address in this case a statute or

a regulation with an express interstate commerce juris-

dictional requirement, which would all but ensure con-

stitutional validity. We do not have before us an activity

that has obvious economic character and impact, such as

is typically the case with non-wildlife natural resources,

and even with other wildlife resources. We are not even

presented with an activity as to which a plausible case of

future economic character and impact can be made.

To the contrary, we are confronted here with an ad-

ministrative agency regulation of an activity that impli-

cates but a handful of animals, if even that, in one small

region of one state. An activity that not only has no cur-

53a

rent economic character, but one that concededly has

had no economic character for well over a century now.

An activity that has no foreseeable economic character

at all, except upon the baldest (though admittedly most

humorous) of speculation that the red wolf pelt trade

will once again emerge as a centerpiece of our Nation’s

economy. And, importantly, an activity that Congress

could plainly regulate under its spending power and un-

der its power over federal lands, regardless.

Judge Wilkinson, for his part, has written that he re-

gards Lopez, Brzonkala, and presumably now Morrison,

as examples in a “spate of decisions” of “contemporary

judicial activism,” Brzonkala, 169 F.3d 820, 892-93

(Wilkinson, J., concurring), as he similarly regards the

Supreme Court’s decisions in Printz v. United States,

521 U.S. 898 (1997); City of Boerne v. Flores, 521 U.S.

507 (1997); Seminole Tribe v. Florida, 517 U.S. 44

(1996); and New York v. United States, 505 U.S. 144

(1992). See id. The dissenting Justices in both Lopez and

Morrison similarly regard these decisions. See, e.g.,

Morrison, 2000 WL 574361, at *17 (Souter, J., dissent-

ing); see also Morrison, 2000 WL 574361, at *30

(Breyer, J., dissenting). But I do not regard these deci-

sions as such, and I certainly do not understand the ma-

jority of the Supreme Court to so regard these decisions.

Nor, in the wake of Lopez and Morrison, can I accept

my colleagues’ view of the appropriate role of the judi-

ciary in Commerce Clause disputes. As Judge Wilkin-

son’s view of Lopez mirrors that of the dissenters in Lo-

pez and Morrison, so also does my colleagues’ view of

the judiciary’s role in Commerce Clause conflicts mirror

that of the Lopez and Morrison dissenters. The majority

herein, like the dissents in both Lopez and Morrison,

54a

takes the view that the political processes are the safe-

guard against federal encroachment upon the states.

Thus, the majority concludes its opinion: “The political,

not the judicial, process is the appropriate arena for the

resolution of this particular dispute.” See ante at __.

Accord Morrison, 2000 WL 574361 at *26 (Souter, J.,

dissenting) (“The defect, in essence, is the majority’s

rejection of the Founders’ considered judgment that

politics, not judicial review, should mediate between

state and nationai interests ....”); id. at *27 (“As with

‘conflicts of economic interest,’ so with supposed con-

flicts of sovereign political interests implicated by the

Commerce Clause: the Constitution remits them to poli-

tics.”); id. (Breyer, J., dissenting) (citing Souter, J., dis-

senting, in Morrison; Stevens, J., dissenting, in Kimel v.

Florida Bd. of Regents,528 U.S. ____ (2000); and Black-

mun, J., for the court, in Garcia v. San Antonio Metro-

politan Transit Authority, 469 U.S. 528 (1985)).

The majority of the Supreme Court in Lopez and

Morrison has left no doubt, however, that the interpreta-

tion of this clause of the Constitution, no less so than

any other, must ultimately rest not with the political

branches, but with the judiciary. See Lopez, 514 US.

549, 557 n.2 (“Whether particular operations affect in-

terstate commerce sufficiently to come under the consti-

tutional power of Congress to regulate them is ulti-

mately a judicial rather than a legislative question, and

can be settled finally only by this Court.”) (quoting

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

273 (1964) (Black, J., concurring)); Morrison, 2000 WL

574361, at *10 n.7 (“Departing from their parliamentary

past, the Framers adopted a written Constitution that fur-

ther divided authority at the federal level so that the

55a

Constitution’s provisions would not be defined solely by

the political branches nor the scope of legislative power

limited only by public opinion and the legislature’s self-

restraint. See, e.g., Marbury v. Madison, | Cranch 137,

176 (1803) (Marshall, C.J.).”).

Accordingly, I would faithfully apply in this case the

Supreme Court’s landmark decisions in Lopez and Mor-

rison, as | would in any other case. The affirmative

reach and the negative limits of the Commerce Clause

do not wax and wane depending upon the subject matter

of the particular legislation under challenge.

56a

No. 99-1218

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES GILBERT GIBBS; RICHARD LEE

MANN, III; HYDE COUNTY, NORTH CAROLINA;

WASHINGTON COUNTY, NORTH CAROLINA,

Plaintiffs-Appellants,

BRUCE BABBITT, Secretary of the Interior, in his offi-

cial capacity, UNITED STATES FISH AND WILD-

LIFE SERVICE; UNITED STATES DEPARTMENT

OF THE INTERIOR; JAMIE CLARK, Director of the

U.S. Fish and Wildlife Service,

Defendants-Appellees,

DEFENDERS OF WILDLIFE,

Intervenor-Appellee.

PACIFIC LEGAL FOUNDATION; NATIONAL

WILDERNESS INSTITUTE; WASHINGTON LEGAL

FOUNDATION; THE ALLIED EDUCATION

FOUNDATION; NATIONAL WILDLIFE FED-

ERATION; NORTH CAROLINA WILDLIFE

FEDERATION; ENVIRONMENTAL DEFENSE

FUND; WORLD WILDLIFE FUND; CENTER FOR

MARINE CONSERVATION,

Amici Curiae.

Filed August 25, 2000

57a ,

ON PETITION FOR REHEARING EN BANC

Appellants' petition for rehearing en banc was sub-

mitted to this Court. As no member of this Court re-

quested a poll on the petition for rehearing en banc,

IT IS ORDERED that the petition for rehearing en

banc is denied.

58a

No. 4-97-CV-41-BO

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF NORTH CAROLINA,

EASTERN DIVISION

CHARLES GILBERT GIBBS, SR.; RICHARD LEE

MANN; HYDE COUNTY, NORTH CAROLINA; and

WASHINGTON COUNTY, NORTH CAROLINA,

Plaintiffs,

Vv.

BRUCE BABBITT, U.S. SECRETARY OF THE

INTERIOR, in his official capacity; U.S. DEPART-

MENT OF THE INTERIOR; JAMIE CLARK, DIR-

ECTOR U.S. FISH AND WILDLIFE SERVICE, in her

official capacity; and U.S. FISH AND WILDLIFE

SERVICE,

Federal Defendants, and

DEFENDERS OF WILDLIFE,

Defendant-Intervenor.

Decided December 21, 1998

ORDER

This matter is before the Court on three motions for

summary judgment: one each from the Plaintiffs, Fed-

eral Defendants, and Defendant-Intervenors. The under-

lying action, in its present form, is for relief from al-

leged violations of the Constitution, and especially the

Tenth Amendment, by the United States Fish and Wild-

life Service (“FWS”). Plaintiffs seek various forms of

relief, including a declaration that all federal regulations

59a

relating to the taking of red wolves on private land are

invalid, a declaration of the primacy of North Carolina

laws regarding the red wolves over conflicting federal

regulation, an injunction against FWS enforcement of

federal regulations relating to the taking of red wolves

on private land in Hyde and Washington Counties, and

an award of attorney’s fees and costs.

PROCEDURAL BACKGROUND

Plaintiffs filed suit against Defendants on March 3,

1997, initially presenting four claims for relief. On June

29, 1998, this Court received a stipulation of dismissal

of the Plaintiffs’ first, second, and third claims, leaving

only one claim for relief, centering around alleged viola-

tion of the Tenth Amendment. On October 27, 1997,

this Court granted a motion to intervene by the group

Defenders of Wildlife, who were accordingly added as

to the case as Defendant-Intervenors. A hearing was

held in this matter on October 21, 1998. Discovery is

complete in this matter, and the three motions for sum-

mary judgment before this Court are ripe for decision.

STATEMENT OF FACTS

The saga of the red wolf! in eastern North Carolina

began in 1986, when the United States Fish and Wildlife

l The red wolf (Canis Rufus) was designated an en-

dangered species in 1967. There is some question in the scientific

community as to whether the red wolf is a “species,” for purposes

ef the ESA, or a “hybrid,” a result of crossbreeding between the

gray wolf and the coyote. In the 1970s the FWS trapped the last

red wolves in the wild and established a number of Captive breed-

ing programs. The success of these captive breeding programs

allowed the FWS to consider reintroducing the red wolf to the

[Footote continued on next page]

60a

Service announced that it was proposing to introduce an

“experimental”? population of red wolves into the Alli-

gator River National Wildlife Refuge. After a period of

public comment, the FWS issued a final rule outlining

its release plan for red wolves on November 19, 1986.

In the fall of 1987, the FWS released four pairs of

captive red wolves into the Alligator River National

Wildlife Refuge. Significant resources have been de-

voted to this program, and the population of red wolves

in the wild has grown. As the red wolves have begun to

establish themselves, they have, of course, wandered off

of federal land and on to surrounding private land.

This movement of red wolves onto private land pro-

vides the basis of this case. Under the Endangered Spe-

cies Act (“ESA”), as well as the current rule relating to

red wolves, the FWS regulates the extent to which citi-

zens can take? a red wolf that has strayed off govern-

[Footnote continued from previous page]

wild. A previous proposal to release red wolves in Kentucky and

Tennessee was withdrawn due to public opposition. -

2 The “experimental” designation allows the gov-

ernment to introduce experimental populations of endangered or

threatened species into areas unoccupied by that species. Such a

release is, of course, a risk to the individual animals involved, and

the government can only conduct such experiments with popula-

tions considered “nonessential” to “the continued existence of an

endangered species or threatened species.” See 16 U.S.C.

§ 1539()).

3 In the context of this order, “taking” is used not as

a constitutional term of art, but as it is defined in the Endangered

Species Act: “The term ‘take’ means to harass, harm, pursue,

hunt, shoot, wound, kill, trap, capture, or collect [an endangered

[Footnote continued on next page]

6la

ment land. See 50 C.F.R. § 17.84(c).4 This regulation is

promulgated pursuant to § 9(a)(1) of the ESA. See 16

[Footnote continued from previous page]

species], or to attempt to engage in any such conduct.” 16 U.S.C.

§ 1532 (19).

4 The relevant text of the regulation is as follows:

(4)(1) Any person may take red wolves found on private

land in the areas defined in paragraphs (c)(9)(i) and (ii) of this

section, provided that such taking is not intentional or willful,

or is in defense of that person’s own life or the lives of others;

and that such taking is reported within 24 hours to the refuge

manager (for the red wolf population defined in paragraph

(c)(9)(i) of this section), the Park superintendent (for the red

wolf population defined in paragraph (c)(9)(ii) of this section),

- or the State wildlife enforcement officer for investigation. . . .

(ii) Any private landowner, or any other individual having

his or her permission, may take red wolves found on his or her

property in the areas defined in paragraphs (c)(9)(i) and (ii) of

this section when the wolves are in the act of killing livestock

or pets, provided that freshly wounded or killed livestock or

pets are evident and that all such taking shall be reported

within 24 hours to the refuge manager (for the red wolf popu-

lation defined in paragraph (c)(9)(i) of this section), the Park

superintendent (for the red wolf population defined in para-

graph (c)(9)(ii) of this section), or the State wildlife enforce-

ment officer for investigation.

(iv) Any private landowner, or any other individual having

his or her permission, may harass red wolves found on his or

her property in the areas defined in paragraphs (c)(9)(i) and (ii)

of this section, provided that all such harassment is by methods

that are not lethal or physically injurious to the red wolf and is

reported within 24 hours to the refuge manager (for the red

wolf population defined in paragraph (c)(9)(i) of this section),

the Park superintendent (fo

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