Amicus Curiae Brief — GDF Realty Investments, Ltd. v. Norton

Supreme Court, U.S.

FILED

2 AUG 2 4 2004

OFFICE OF THE CLERK

No. 03-1619

In The

Supreme Court of the United States

GDF REALTY INVESTMENTS, LTD.;

PARKE PROPERTIES I, L.P.; &

PARKE PROPERTIES II, L.P.,

Petitioners,

v.

GALE A. NORTON, Secretary of the Interior, et al.,

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE

NATIONAL ASSOCIATION OF HOME BUILDERS

IN SUPPORT OF THE PETITIONERS

Thomas J. Ward*

Felicia K. Watson

National Association of

Home Builders

1201 15" Street, NW

Washington, D.C. 20005

(202) 866-8200

* COUNSEL OF RECORD

1

INTEREST OF AMICUS CURIAE

The National Association of Home _ Builders

(“NAHB”) has received the parties’ written consent to file

this brief as Amicus Curiae in support of Petitioner. Letters

of consent have been filed with the Clerk of the Court.’

NAHB represents over 215,000 builder and associate

members throughout the United States. Its members

include not only individuals and firms that construct and

supply single-family homes, but also apartment,

condominium, multi-family, commercial and industrial

builders, land developers and remodelers. NAHB is the

voice of the American shelter industry. Through the

regular course of operating their businesses, NAHB’s

members are subject to regulations under the Endangered

Species Act (“ESA”). Therefore, NAHB is knowledgeable

of the ramifications of inequitable regulatory actions and

time-consuming processes that are often involved with land

development.

Furthermore, NAHB has c» tivated expertise in the

constitutional and _ statutory issues in this matter,

particularly in light of its status as the lead plaintiff in

National Ass'n of Home Builders, et al. v. Babbitt, 130 F.3d

1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 937 (1998).

The matter concerned the constitutionality of regulating

land development due to a fly that only lives in California.

' Pursuant to Rule 37.6 of this Court, Amicus Curiae states that

its counsel authored this brief and amicus paid for it. The brief

was not written in whole or part by counsel for a party, and no

one other than amicus made monetary contribution to its

preparation.

il

Finally, NAHB has been before the Court as amicus

curiae or “of counsel” to the landowner in a significant

number of land regulation cases. These include Agins v.

City of Tiburon, 447 U.S. 255 (1980); San Diego Gas &

Elec. Co. v. City of San Diego, 450 U.S. 621 (1981);

Williamson County Reg’l Planning Comm’n vy. Hamilton

Bank, 473 U.S. 172 (1985); MacDonald, Sommer & Frates

v. Yolo County, 477 U.S. 340 (1986); First English

Evangelical Lutheran Church of Glendale v. Los Angeles

County, 482 U.S. 304 (1987); Nollan v. California Coastal

Comm’n, 483 U.S. 825 (1987);? Yee v. City of Escondido,

503 U.S. 519 (1992); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003 (1992); Dolan v. City of Tigard,

512 U.S. 374 (1994); Babbitt v. Sweet Home Chapter of

Communities for a Great O~., 515 U.S. 687 (1995); Suitum

v. Tahoe Reg’! Planning Agency, 520 U.S. 725 (1997); City

of Monterey v. Del Monte Dunes at Monterey, Ltd., 526

U.S. 687 (1999); Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001); Palazzolo

v. Rhode Island, 533 U.S. 606 (2001); Tahoe-Sierra Pres.

Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.

302 (2002); Borden Ranch P’ship v. U.S. Army Corps of

Eng’rs, 537 U.S. 99 (2002); City of Cuyahoga Falls v.

Buckeye Cmty. Hope Found., 538 U.S. 188 (2003); S. Fla.

Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 124 S.

Ct. 1537 (2004).

? The Court’s opinion cited NAHB’s brief. 483 U.S. at 840.

ill

TABLE OF CONTENTS

Page

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

I cic asececsssscicossinsesoscovscesonvveseosons 1

Nee cailleesciepsspuiaoustoneet 2

I. THE FIFTH CIRCUIT’S ANALYSIS VIOLATED

TWO RULES OF STATUTORY CONSTRUCTION

EMPLOYED BY THIS COURT ...........:ccsccscesseeseeees 2

A. The Fifth Circuit Failed to Abide by The Clear

Statement Rule Thereby Reaching a Constitutional

Issue it Should Have Avoided................0:0000 seed

1. If an Agency Determination Invokes The Outer

Limits of Congress’ Power, Courts Must Find a

Clear Indication From Congress Before

Addressing Constitutional Questions............. 3

2. The Fifth Circuit Should Have Avoided

Deciding That “Taking” an Endangered

Species is The Precise “Regulated Activity”

I css sackeosvscnkabeiciarekenosavecreesennecersaveseorcees 5

3. The Fifth Circuit Should Have Avoided

Deciding the Constitutional Issue Because

FWS’s Interpretation Raises Serious

Federalism Concerms..............:cccscsssesessrreeeeeeees 6

4. The Fifth Circuit Should Have Avoided The

“Far Reaching” Aggregation Theory of

Commerce Clause Jurisdiction...................006 6

1V

B. The Fifth Circuit Should Not Have Upheld The

FWS’s Interpretation in Light of The ESA’s Civil

And Criminal Penalties ........ccccrseessssessesevsersencese 9

II. CERTIORARI IS WARRANTED TO CLARIFY THE

CONFUSION IN THE LOWER COURTS ON THE

IMPORTANCE OF THE “JURISDICTIONAL

SNES ecscntinisintvintisneseveninbscvimeniiestamsastlicdveniins 12

CRITE EY cicccevsnernictiinetsncietsnajaevianinquiibadoestaceinietiis 15

Vv

TABLE OF AUTHORITIES

CASES Page(s)

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council,

ID EE. SIS Cae v vines vv vsradbesnsesesivssvecsmvevtannicinngunits 3,4

GDF Realty Investments, LTD v. Norton, 326 F.3d 622 :

(5" Cir. 2003), reh’g and reh’g en banc denied,

362 F.3d 286 (5™ Cir. 2004), petition for cert. filed,

No. 03-1619 (U.S. May 27, 2004) oo... eens passim

Klinger v. Director, Department of Revenue,

366 F.3d 614 (8 Cir. 2004) o...ccecccccccsesessesessssesesseeeeees 14

Liparota v. United States, 471 U.S. 419 (1985)............. 11

Moskal v. United States, 498 U.S. 103 (1990)......... 11,12

Solid Waste Agency of N. Cook County v. U.S. Army °

Corps of Eng’rs, 531 U.S. 159 (2001)........... 3, 4, 5, 6,8

United States v. Bass, 404 U.S. 336 (1971)...............008 11

United States v. Lopez, 514 U.S. 549 (1995)............. 8,12

United States v. McCoy, 323 F.3d 1114

Cs aii nitiievtiectnns midiicieteresicentenderrnavenne 13

United States v. Morrison,

SAS TG. Fa I isvvcsessvcosisnscisciseseneveisnenscensons 9,12, 14

United States v. Universal C.I.T. Credit Crop.,

DIT TB. SIG CU ss cis isentevcsvccasvasasnsncsscssinanespdencsoveries 11

vi

TABLE OF AUTHORITIES

Continued

CASES Page(s)

Wickard v. Filburn, 317 U.S. 111 (1942) ......ccecccceeeeee 7,8

STATUTES

Be EE Oe eR cncsssiveicecincsrverpetnsnensdonennebedottinoetoes 2,10

Be eae eB FE cnctnerecceciinsasscccsertdesanneeesonetiodeontonsiin 1, 6, 10

Be TE © CSOD ccccsvcstsictnssnnciincnivnsesntonteedetneitictenevevemaierses 2

Be irs 0 Be visecesecrvntasicrinennscindarssceecnnistemeninbasinictnatinn ]

i Oe BOD wiktccivervncteisscinsonerseomenotacniecsntendonnionnenennin )

BG CB BIE iecicesisennccsecseteevensienmensicemenpinearintnseniints 13

REGULATIONS

SGD FES seececsesscsnsororessnsecsecgssccvnnesinnrreancasipivedl 6, 10

OTHER

Laurence Tribe, American Constitutional Law Vol. |

OEE OE TE vicricedsstscesncsesennotel osiongeenesteneconenvecntonaseeseith 3

Jim Chen, Filburn’s Legacy, 52 Emory L.J. 1719

l

INTRODUCTION

Under the Endangered Species Act (“ESA”), it is

unlawful to “take” an endangered species without a permit.

| To “take” a species is to harass, harm, hunt or kill it. See

16 U.S.C. § 1532. The Fish and Wildlife Service (“FWS”)

may issue permits to “take” endangered species incidental

to conducting an otherwise legal activity. 16 U.S.C. §

1539. In the case below, the FWS denied the Petitioners a

permit to “take” a certain number of insects (karst

invertebrates) as an incident to developing their property.

In the courts below, the Petitioners argued that the

application of the “take” prohibition to the intrastate, non-

economic karst invertebrates violates the Commerce

Clause.

The Court of Appeals for the Fifth Circuit, affirming

the District Court opinion, held that the FWS’s application

of the “take” prohibition in this case did not violate the

Commerce Clause. In an opinion that ignored the

Petitioners’ as applied challenge, the Fifth Circuit explained

that the “taking” of karst invertebrates would not have a

substantial relationship to interstate commerce. Yet, it held

that because the taking of all endangered species would

have an impact on interstate commerce, the FWS did not

violate the Commerce Clause by applying the ESA’s “take”

provision to the karst invertebrates.

By upholding FWS’s interpretation and addressing the

question of whether that interpretation was constitutional,

the Fifth Circuit opinion conflicts with two rules of

statutory construction as established by this Court. In

addition, in conducting its Commerce Clause analysis, the

Fifth Circuit expanded its review beyond the facts of this

case. This analysis differs from the analyses conducted by

other Circuit Courts and illustrates how the lower courts are

inconsistently examining statutes that do not contain a

URE Oret ore es 0 Oa One oe

2

“jurisdictional element.” Certiorari is warranted in this

matter to address these issues.

ARGUMENT

I. THE FIFTH CIRCUIT’S ANALYSIS VIOLATED

TWO RULES OF STATUTORY CONSTRUCTION

EMPLOYED BY THIS COURT.

Congress enacted ‘’ > Endangered Species Act (“ESA”)

to “provide a program for the conservation of [ ]

endangered species.” 16 U.S.C. §1531(b). One means of

conservation is the prohibition against “taking” species that

the Secretary of the Interior, through the Fish and Wildlife

Service (“FWS”),’ has declared “endangered.” See 16

U.S.C. §§ 1533, 1538. In the case below, the Fifth Circuit

addressed whether the FWS’s application of the “take”

prohibition to the Petitioners (“GDF Realty”) request to

modify “karst invertebrate” habitat violated the Commerce

Clause. The Court of Appeals upheld FWS’s interpretation

of the ESA without any clear indication that Congress

meant to reach wholly intrastate, non-commercial species.

GDF Realty Investments, LTD v. Norton, 326 F.3d 622 (5"

Cir. 2003), reh’g and reh’g en banc denied, 362 F.3d 286

(5" Cir. 2004), petition for cert. filed, No. 03-1619 (U.S.

May 27, 2004). The Fifth Circuit’s analysis violated two

tenets of statutory construction.

> For certain fish species the Secretary of Commerce, through

the NOAA Fisheries, determines whether the species is

“endangered.”

3

A. The Fifth Circuit Failed to Abide by The Clear

Statement Rule Thereby Reaching a

Constitutional Issue it Should Have Avoided.

The “most important” rule of statutory construction “is

the clear statement rule.” See Laurence Tribe, American

Constitutional Law Vol. I, § 5-9 at 853 (3d ed. 2000). By

addressing the constitutionality of the ESA take prohibition,

the Fifth Circuit ignored the clear statement rule and

contravened the precedent of this Court.

1. If an Agency Determination Invokes The

Outer Limits of Congress’s Power, Courts

Must Find a Clear Indication From Congress

Before Addressing Constitutional Questions

In Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568 (1988), this

Court addressed the tension between a_ statutory

interpretation of the National Labor Relations Board

(“NLRB”) that proscribed a union from handing out leaflets

(handbilling) and the First Amendment’s protection of free

speech. In analyzing the NLRB interpretation, the Court

explained, “where an otherwise acceptable construction of a

statute would raise serious constitutional problems, the

Court will construe the statute to avoid such problems

unless such construction is plainly contrary to the intent of

Congress.” Jd. at 575. Thus, because the NLRB’s

construction “pose[d] serious questions . . . under the First

Amendment” without a clear indication from Congress that

the statute should proscribe peaceful handbilling, the Court

struck down NLRB’s interpretation. Jd. at 576.

Similarly, in Solid Waste Agency of N. Cook County v.

U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001)

(hereinafter “SWANCC”), the Court addressed the tension

4

between a statutory interpretation’ of the Army Corps of

Engineers, allowing it to regulate isolated ponds due to the

presence of migratory birds, and Congress’s authority to

regulate interstate commerce. Citing Edward J. DeBartolo,

the Court clarified that when “an administrative

interpretation of a statute invokes the outer limits of

Congress’ power, [it expects] a clear indication that

Congress intended that result.” Jd. at 172. In applying this

rule, the Court focused on two issues raised by the Corps’s

interpretation. First, by regulating isolated ponds, the

Corps’s construction “result[ed] in a significant

impingement of the States’ traditional and primary power

over land use and water.” Jd. at 173. Second, for the Court

to resolve whether the Corps’s interpretation was lawful

under the Cozamerce Clause, it would have had to decide

whether the activity that the Corps was regulating was the

filling of the ponds, or the Petitioner’s construction and

operation of a municipal landfill. Jd. The SWANCC Court

explained that these issues raised “significant constitutional

questions.” Jd. at 174. Therefore, since there was not a

clear statement from Congress that it meant for the statute

to reach the isolated ponds, the Court avoided the

constitutional issues and did not accept the Corps’s

interpretation. Jd.

Similar to the Corps’s interpretation of the CWA in

SWANCC, here FWS’s application of the take prohibition

to the Petitioners “invoke[d] the outer limits of Congress’

power” in at least three different ways. Jd. at 172.

Therefore, in accordance with the clear statement rule,

before reaching the constitutionality of the FWS’s

application of the ESA under the Commerce Clause, the

. = SWANCC, the Corps had construed the Clean Water Act

(“CWA”) to allow itself to regulate isolated ponds and lakes.

SWANCC, 531 U.S. at 168.

5

Fifth Circuit needed to search for and find a clear indication

from Congress that it meant for the ESA to protect

intrastate, non-commercial species. It failed to do either.

2. The Fifth Circuit Should Have Avoided

Deciding That “Taking” an Endangered

Species is The Precise “Regulated Activity” at

Issue. ;

In the case below, the Fifth Circuit faced the exact same

question this Court faced in SWANCC. It was asked to

address whether an agency’s (FWS) interpretation of a

statute (ESA) violated the Commerce Clause. This

required the court to either decide what activity was being

regulated (GDF’s planned development or the taking of

karst invertebrates), or interpret the statute in a reasonable

fashion as to avoid the constitutional question. The Fifth

Circuit, disagreeing with the District Court’s

characterization of the regulated activity, wrestled with the

constitutional question and (correctly) determined that the

regulated activity was the taking of karst invertebrates.

However, as this Court explained in SWANCC, simply

deciding what activity is actually being regulated raises a

“significant constitutional question[].” SWANCC, 531 U.S.

at 174. The Fifth Circuit violated the clear statement rule

by addressing the FWS’s application of the ESA without

first finding a clear indication that Congress intended for

the “take” prohibition to attach to an intrastate, non-

commercial species, such as karst invertebrates.

6

3. The Fifth Circuit Should Have Avoided

Deciding the Constitutional Issue Because

FWS’s Interpretation Raises Serious

Federalism Concerns

The FWS’s denial of the Petitioners’ request to modify

karst invertebrate habitat raises serious federalism concerns

that the Fifth Circuit failed to address. Pursuant to the

ESA, it is unlawful to “take” an endangered species, which

“means to harass, harm, pursue, hunt, shoot wr und, kill ....”

16 U.S.C. §§ 1532, 1538 (emphasis added). Furthermore,

the FWS has defined “harm” to mean an act that injures

wildlife, including “significant habitat modification or

degradation ....” 50 C.F.R. § 17.3. The Petitioners wished

to commercially develop their property. This would have

required them to modify land inhabited by karst

invertebrates. By regulating the Petitioners’ land

modification, the FWS clearly regulated land use. Such

regulation impinged upon a “traditional and pl.mary

power” of the States. SWANCC, 531 U.S. at 174. Thus,

FWS’s construction of the ESA “teadjust[s] the federal-

state balance” thereby raising serious federalism questions.

SWANCC, 531 U.S. at 174. In light of such concers,

before addressing the constitutionality of FWS’s

interpretation, the clear statement rule required the Fifth

Circuit to find a clear indication from Congress that it

meant for the take prohibition to apply to wholly intrastate,

non-economic species.

4. The Fifth Circuit Should Have Avoided The

“Far Reaching” Aggregation Theory of

Commerce Clause Jurisdiction.

Finally, since the Fifth Circuit had to resort to “far

reaching” Congressional authority to hold that the FWS’s

interpretation did not violate the Commerce Clause, it

~~ —— =

7

should have looked for a statement that Congress meant to

protect intrastate, non-economic species. In the case below,

the court explained that to be lawful under the Commerce

Clause, FWS’s regulation of the Petitioners’ “takes” must

substantially affect interstate commerce. GDF Realty, 326

F.3d at 635. It began its analysis by determining that the

ESA is an “economic regulation.” Jd. at 639-40. Then,

according to the Fifth Circuit, it was proper to aggregate the

taking of karst invertebrates with the taking of all other

endangered species and determine whether this aggregate

had a substantial effect on interstate commerce (the

aggregation principle). Jd. at 640. The Petitioners had

conceded that this aggregate would have a substantial

impact on interstate commerce. Jd. at 639. Thus, the Fifth

Circuit held that the FWS’s application of the take

prohibition to the Petitioners did not exceed Congress’

authority under the Commerce Clause. /d. at 641.

Wickard v. Filburn, 317 U.S. 111 (1942), is recognized

as the father of the aggregation principle. See Jim Chen,

Filburn’s Legacy, 52 Emory L.J. 1719, 1743 (2003) (The

“crucial observation about the consumption of homegrown

wheat enabled the Court to make the ‘aggregation’

argument for which Wickard v. Filburn is best known today

...). In Wickard, the government charged the owner of a

small farm with a penalty for growing wheat in excess of

the allotments allowed under the Agricultural Adjustment

Act of 1938, as amended. The owner countered that a

portion of the wheat he grew was for consumption on his

farm (i.e. poultry feed, making flour, seeding) and

therefore the Federal government could not regulate it

pursuant to its authority over interstate commerce. The

parties “stipulated a summary of the economics of the

wheat industry” and the Court explaiied, “[c]ommerce

amonp the states in wheat is large and important.” 317 U.S.

at 125. Thus, even though the owner’s growing of wheat

for personal consumption had a trivial effect on interstate

commerce, “his contribution, taken together with that of

many others similarly situated, [was] far from trivial.”> Jd.

at 128.

In United States v. Lopez, this Court recognized

Wickard as a case involving the regulation of economic

activity. Moreover, it explained that Wickard “is perhaps

the most far reaching example of Commerce Clause

authority over intrastate activity.” Lopez, 514 U.S. at 560.

If, considering the importance of the wheat market,

Congress’s regulation of growing wheat for personal use is

“far reaching,” then its regulation of harm to an intrastate

species for which there is no market reaches even further.

By relying on the aggregation principle, the court below

skirted the Constitution’s outer bounds. Thus, before

resolving whether the FWS’s application of the ESA

violated the Commerce Clause, the court should have

searched for a clear statement that the ESA’s take

prohibition covers intrastate, non-economic species.

Hence, the FWS’s interpretation of the ESA

* forced the Fifth Circuit to decide what activity

the ESA regulates;

= raised serious federalism concerns; and

* required the court to use a “far reaching”

principle to hold that the interpretation was

constitutional.

> The Wickard Court explained that “[cJonsumption on the farm

where grown appears to vary in an amount greater than 20 per

cent of average production.” Wickard 317 U.S. at 127. |

9

Therefore, the FWS’s interpretation invoked the “outer

limits of Congress’ power.” SWANCC, 531 U.S. at 172.

Consequently, the clear statement rule required the Fifth

Circuit to search for and find a clear indication from

Congress that the ESA’s take prohibition attaches to wholly

intrastate, non-economic species. It failed to do so.

Moreover, had it looked, it would have come up empty

handed.

B. The Fifth Circuit Should Not Have Upheld The

FWS’s Interpretation in Light of The ESA’s

Civil And Criminal Penalties.

A species that is solely intrastate, and that has no

market or commercial value beyond mere “conjecture,”® is

not one for which Petitioners should be subject to the

ESA’s civil and criminal sanctions for taking species.

Because violations can result in serious civil and criminal

penalties,’ and Congress was not clear as to whether the

ESA attaches to wholly intrastate, non-economic species,

the Fifth Circuit should have construed the “take” provision

in favor of the Petitioners.

° GDF — Investments, LTD v. Norton, 326 F.3d 622, 638

(5" Cir. 2003) (stating “The possibility of future substantial

effects of the Cave Species on interstate commerce, through

industries such as medicine, is simply too hypothetical and

attenuated from the regulation in question to pass constitutional

muster .... Cave Species takes are neither economic nor

commercial. There is no market for them; any future market is

conjecture.”) ra in oniginal) (citing United States v.

Morrison, 529 U.S. 598, 612 (2000)).

” The ESA provides civil penalties of up to $25,000 for each

knowing violation of the “take” pene. Criminal penalties

include fines up to $50,000 for knowing violations and

imprisonment for up to one year. See 16 U.S.C. § 1540(a)(1)

(civil penalties); 16 U.S.C. § 1540(b)(1) (criminal violations).

10

The statutory definition of “take” does not answer the

question whether that term necessarily includes species that

are solely intrastate and without any identifiable market or

commercial value. Indeed, the statute does not say that

solely intrastate species are subject to regulation. 16 U.S.C.

§ 1531, et seg.; 16 U.S.C. § 1532(19) (see supra, discussing

definition of “take”). The regulations are similarly silent.

See, e.g., 50 C.F.R. § 17.3 (“harm” defined).

Moreover, the legislative history does not answer the

question of whether FWS can regulate an intrastate species

that has no market or no commercial value. See GDF

Realty, 326 F.3d at 367. Similarly, the plain meaning of the

Statute, in context with other sections of the ESA, is also

silent on this question. See, e.g., 16 U.S.C. § 1531, et seq.

Furthermore, the opinion below is itself contrary to any

contention by FWS that it can regulate solely intrastate

species. See generally, GDF Realty, 326 F.3d 622.

Pointedly, while analyzing whether the “take” of the karst

invertebrates would substantially affect interstate

commerce, the court below stated, “To the extent FWS

contends that the loss of the Cave Species would affect the

scientific travel or publication industries, it offers no

evidence that it would substantially do so. In fact, the

minimal evidence presented by FWS indicates such an

effect would be negligible.” GDF Realty, 326 F.3d at 637.

Despite its recognition that the “effect would be

negligible,” the court held the “take” provision, as applied

in this case, would substantially affect interstate commerce

and accordingly held the statute applicable to Petitioners.

Id.

Because the statute is imprecise on the question whether

Congress intended to regulate wholly intrastate species, and

11

because the statute allows imposition of penalties involving

significant fines and imprisonment,® a court should construe

any ambiguity in the statute in favor of Petitioners. As this

Court stated in United States v. Bass, “ambiguity

conceming the ambit of criminal statutes should be

resolved in favor of lenity.” 404 U.S. 336, 347 (1971)

(setting aside the conviction “because the government has

failed to show the requisite nexus with interstate

commerce”) (internal citation omitted).

Two policies serve as the basis for the rule of lenity.

First, it serves to protect a person’s right to fair warning:

“Application of the rule of lenity ensures that criminal

statutes will provide fair warning concerning conduct

rendered illegal ....” Liparota v. United States, 471 U.S.

419, 427 (1985). Second, because of the “seriousness of

criminal penalties, and because criminal punishment

usually represents the moral condemnation of the

community, legislatures and not courts should define

criminal activity.” Bass, 404 U.S. at 348 (internal citations

omitted). Thus, the rule of lenity is “reserved ... for those

situations in which a reasonable doubt persists about a

Statute’s intended scope even after resort to ‘the language

and structure, legislative history, and motivating policies’

of the statute.” Moskal v. United States, 498 U.S. 103, 108

(1990) (internal citations omitted; emphasis in original).

Moreover, this Court has stated, “when choice has to be

made between two readings of what conduct Congress has

made a crime, it is appropriate, before we choose the

harsher alternative to require that Congress should have

spoken in language that is clear and definite.” Bass, 404

® Indeed, one of the Petitioners was “notified b FWS that he

was under federal criminal err cre for possible endangered

species takes.” GDF Realty, 326 F.3d at 626.

12

U.S. at 347 (quoting United States v. Universal C.LT.

Credit Corp., 344 U.S. 218, 221-222 (1952)). Under the

circumstances of Petitioners’ case, even after examining the

language, structure, and legislative history of the statute,

uncertainty remains over whether Congress intended to

extend the scope of the ESA to regulate wholly intrastate

species that have no commercial or market value. Moskal,

498 US. at 108.

The Court’s review is necessary to clarify the scope of

FWS’s jurisdiction over wholly intrastate species, which ~

the ESA does not address, because severe civil and criminal

penalties attach for any violations of the “take” prohibition.

II. Certiorari is Warranted to Clarify The Confusion in

The Lower Courts on The Importance of The

“Jurisdictional Element”

In United States v. Lopez, 514 U.S. 549, 558 (1995),

this Court “identified three broad categories of activity that

Congress may regulate under its commerce power.” One of

these categories is “activities that substantially affect

interstate commerce.” /d. at 559. Furthermore, United

States v. Morrison, 529 U.S. 598 (2000), clarified that a

court must consider four factors when determining whether

a statute can be upheld as regulating an activity that

substantially affects interstate commerce. The second of

these factors is whether the legislation in question contains

a “jurisdictional element” which might limit the statute’s

reach to a discrete set of activities that have an explicit

connection to interstate commerce. Jd. at 612. In Lopez,

the Court described the jurisdictional element as language

that would “ensure, through a case-by-case inquiry,” that

the regulated activity affects interstate commerce. Lopez,

514 US. at 561.

A a AR ey nD ONIN tac

13

In both Lopez and Morrison, the lack of a jurisdictional

element weighed in favor of finding that the statue at issue

violated the Commerce Clause. Lopez, 514 U.S. at 561-62;

Morrison, 529 U.S. at 611-13. Since Lopez and Morrison

were decided, the lower courts have not consistently

weighed the presence, or lack, of a jurisdictional element

when determining whether Congress can constitutionally

regulate an activity as one that substantially affects

interstate commerce. Certiorari is necessary so the Court

can clarify the importance of the “jurisdiction element” in

deciding whether the application of particular legislation

violates the Commerce Clause.

For example, in United States v. McCoy, 323 F.3d 1114,

1126 (9" Cir. 2003), the Ninth Circuit analyzed the

application of a statute that contained a jurisdictional

element that was “useless.” McCoy was charged with

possessing child pornography made with materials that

traveled in interstate commerce in violation of 18 U.S.C. §

2252(a)(4)(B). Section 2252(a)(4)(B) provides that it is

unlawful to produce sexually explicit pictures of a minor if.

the materials used to produce the picture have “been mailed

or ... shipped or transported ....”. The Ninth Circuit

explained that the above quoted jurisdictional element

“does not serve to limit application of the statute to a

discrete set of cases that have a substantial effect on

interstate commerce.” McCoy, 323 F.3d at 1130. Thus, in

light of a “useless” jurisdictional element, the Ninth Circuit

looked to see whether there was “any substantial

connection between [McCoy’s] conduct and any interstate

commercial activity.” Jd. at 1132. Finding none, the Court

held that the statute was unconstitutional as applied.

The Fifth Circuit should have used an analysis similar

to the Ninth Circuit’s in McCoy because the take provision

of the ESA does not contain a j' risdictional element. A

nonexistent jurisdictional element is obviously less

informative than a “useless” one. Thus, applying the Ninth

Circuit’s reasoning to the GDF case would lead a court to

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determine whether GDF’s conduct had a “substantial

connection [to] any interstate commercial activity.” Jd. The

Fifth Circuit held that GDF’s conduct did not. GDF Realty,

326 F.3d at 636-39. However, it did not end its analysis at

that point. Instead, the Fifth Circuit expanded its review

beyond the facts of the case to include the “interdependence

of [ail] species” and examined whether the taking of all

endangered species, in the aggregate, would substantially

affect interstate commerce. /d. at 640.

In a case analogous to GDF Realty, the Eighth Circuit

reviewed the constitutionality of applying the Americans

With Disabilities Act (ADA) to prohibit Missouri from

collecting a $2.00 annual fee in exchange for a placard that

allowed disabled persons to use reserved parking spaces.

Klinger v. Director, Department of Revenue, 366 F.3d 614

(8" Cir. 2004). The court reviewed the four Morrison

factors and found the application of the ADA exceeded

Congress’s authority under the Commerce Clause. In

addressing Congress’s failure to include a jurisdictional

element in the ADA, the Eighth Circuit explained such

absence “might indicate that a statute is overinclusive,

unconstitutionally sweeping within its ambit activities that

have no explicit connection with or effect on interstate

commerce.” /d. at 618.

The Fifth Circuit, in contrast, placed little weight on the

lack of a jurisdictional element in the ESA. Indeed, the

Fifth Circuit’s analysis seems to suggest that because there

is no jurisdictional element to limit the ESA’s “take”

prohibition, it was free to broaden its review to include the

impacts of all species on interstate commerce. See GDF

Realty, 326 F.3d at 640 (agreeing with FWS that “takes of

any species threaten the ‘interdependent web’ of all

species.”). Such an analysis conflicts with Klinger, and this

Court’s decisions, because under the Fifth Circuit’s

reasoning the lack of a jurisdictional element apparently

makes it more likely that a statute would be found

constitutional. Certiorari is therefore warranted to clarify

——————

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15

that when lower courts analyze statutes that do not contain

a jurisdictional element, their analysis must-ensure that the

lack of such an element weighs in favor of the statute being

found unconstitutional.

CONCLUSION

The Fifth Circuit failed to follow two fundamental rules

of statutory construction that this Court has established.

Furthermore, the lower courts are not clear on the

importance of the “jurisdiction element” when examining

whether an intrastate activity substantially affects interstate

commerce. NAHB respectfully requests that the Court

grant certiorari to address both of these issues.

August 19, 2004

Respectfully submitted,

Thomas J. Ward*

Felicia K. Watson

National Association of

Home Builders

* Counsel of Record