UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51099
GDF REALTY INVESTMENTS, LTD.; PARKE PROPERTIES I, L.P.; PARKE
PROPERTIES II, L.P.,
Plaintiffs-Appellants,
versus
GALE A. NORTON, Secretary, U.S. Department of the Interior;
MARSHALL P. JONES, Director, U.S. Fish and Wildlife Service,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
March 26, 2003
Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
The Endangered Species Act of 1973, 16 U.S.C. § 1531, et seq.
(ESA), contains a “take” provision, 16 U.S.C. § 1538(a)(1)(B). For
this challenge to Congress' Commerce Clause power, U.S. CONST. art.
I, § 8, cl. 3, at issue is whether ESA's take provision is
unconstitutional as applied to six species of subterranean
invertebrates found only within two counties in Texas (Cave
Species). Central to this question is whether, to demonstrate the
requisite substantial effect on interstate commerce, Cave Species
“takes” may be aggregated with those of all other endangered
species. They can be; the judgment is AFFIRMED.
I.
In 1983, Dr. Fred Purcell and his brother purchased an
interest in 216 acres in Travis County, Texas, near the City of
Austin (the property). The property (lying within approximately
1,200 acres known as the Parke) consists of seven tracts in which
the Purcells, as the limited partners in Parke Properties I, L.P.,
and Parke Properties II, L.P., hold a 70 percent interest. GDF
Realty Investments, Ltd., holds the remaining interest in the
property. It is located at the intersection of two major highways
in what is, commercially and residentially, a rapidly growing area.
The property is part of the Jollyville Plateau and is
characterized by karst topography, in which water percolating
through limestone rock creates caves, sinkholes, and canyons. The
property contains a number of caves, including Tooth, Kretschmarr,
Root, Gallifer, and Amber, as well as a collection of caves known
as the Cave Cluster.
Since acquiring the property, the Purcells and their partners
(Purcells) have attempted to develop it commercially, including the
installation of water and wastewater gravity lines, force mains,
lift stations, and other utilities. These improvements have been
dedicated to the City of Austin; a right-of-way, to Travis County.
2
In 1988, the United States Fish and Wildlife Service (FWS), an
agency under the auspices of the Department of the Interior, issued
a Rule listing five subterranean invertebrate species as endangered
under § 4 of ESA, 16 U.S.C. § 1533(a)(1). 53 Fed. Reg. 36,029 (16
Sept. 1988). A sixth species was similarly listed in 1993. 58
Fed. Reg. 43,818 (18 Aug. 1993). These six species are found on
the property; they are the Bee Creek Cave Harvestman, the Bone
Creek Harvestman, the Tooth Cave Pseudoscorpion, the Tooth Cave
Spider, the Tooth Cave Ground Beetle and the Kretschmarr Cave Mold
Beetle. The Rules were issued in order to protect the Cave Species
from increasing dangers, primarily new development. 16 U.S.C. §
1531 (a)(1); 53 Fed. Reg. 36,029.
The Bee Creek Cave Harvestman, the Bone Creek Harvestman, and
the Tooth Cave Pseudoscorpion are subterranean, eyeless arachnids
(arthropods bearing four pairs of legs and no antennae); they range
in size from 1.4 to 4 mm. The Tooth Cave Spider, a subterranean
arachnid with eyes, measures 1.6 mm in length. The Tooth Cave
Ground Beetle and the Kretschmarr Cave Mold Beetle are subterranean
insects, the latter being eyeless; they vary in size from 3 to 8
mm.
The Cave Species were listed as endangered for a number of
reasons. First, as noted, they were primarily being threatened
with “potential loss of habitat owing to ongoing development
activities”. 53 Fed. Reg. 36,031. Second, no state or federal laws
3
were in place to protect them or their habitat. Id. at 36,031-32.
Finally: “[The Cave Species] require the maximum possible
protection provided by [ESA] because their extremely small,
vulnerable, and limited habitats are within an area that can be
expected to experience continued pressures from economic and
population growth”. Id. at 36,032.
Pursuant to § 9(a)(1) of ESA, 16 U.S.C. § 1538(a)(1)(B), it is
unlawful to “take” a member of a species listed as endangered. ESA
defines “take” as to “harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, or collect....” 16 U.S.C. § 1532(19).
Pursuant to authority given it by § 4(d) of ESA, 16 U.S.C. §
1533(d), FWS has defined “harm” to include significant
modifications or degradations of a habitat which kill or injure
protected wildlife “by significantly impairing essential behavioral
patterns, including breeding, feeding or sheltering”. 50 C.F.R. §
17.3.
The Cave Species are found only in underground portions of
Travis and Williamson Counties, Texas. There is no commercial
market for the Cave Species. At least 14 scientific articles
concerning the Cave Species have been published in journals or
other publications by 15 scientists. Some of them have visited
Texas in order to study the Cave Species. For this research,
members of the Cave Species have been transported to and from
4
museums in New York, California, Pennsylvania, Illinois, and
Kentucky.
In 1989, FWS notified the Purcells that their development
plans might constitute a Cave Species take. In 1990, in an effort
to alleviate FWS’ concerns, the Purcells deeded approximately six
acres of the property to Texas Systems of Natural Laboratories,
Inc., a non-profit environmental organization. The gifted acres
included various caves and sinkholes in which the Cave Species were
known to live. The Purcells also constructed gates covering the
most ecologically sensitive caves. These acts conformed to
recommendations made by an expert on the Cave Species.
In 1991, the Purcells contracted to sell a portion of the
property. Because FWS refused to state, however, that future
development would not constitute a take, the agreement fell
through. After clearing brush from the property in 1993, Dr.
Purcell was advised by FWS that he was under federal criminal
investigation for possible endangered species takes.
Subsequent to these incidents, the Parke's owners (including
plaintiffs) filed in federal court for a declaratory judgment that
development of the Parke would not constitute an endangered species
take. Four Points Util. Joint Venture v. United States, No. 93-CV-
655 (W.D. Tex. 1993). The district court ordered FWS to conduct an
environmental review of the Parke.
5
In a 1994 letter summarizing that review, FWS notified the
Parke's owners that the proposed development would likely
constitute a take of the Cave Species, as well as of two bird
species (golden-cheeked warbler and black-capped vireo). FWS'
letter also noted that the Purcells’ property within the Parke
“could be developed without causing a take if development, among
other things, [was] scaled back from the canyons, and surface and
subsurface drainage and nutrient exchange [was] provided for”.
The district court dismissed the action in September 1994. It
ruled that FWS had to first determine whether a take had occurred;
as FWS’ letter indicated, it had not made that determination.
In 1997, the Purcells attempted to obtain ESA § 10(a)
incidental take permits. See 16 U.S.C. § 1539(a). These permits
allow takes of endangered species under certain circumstances, as
listed in 16 U.S.C. § 1539 (a)(2)(B).
The Purcells first sought the permit from the Balcones
Canyonlands Conservation Plan, a regional body from which
landowners obtain § 10(a) permits to develop protected land by
paying “mitigation fees”. It refused the application, however,
because the relevant land was entirely within a protected area.
The Purcells next applied to FWS for the permit. See 16
U.S.C. 1539(a)(1). Their applications stated they planned to
develop a shopping center (including a Wal-Mart), a residential
subdivision, and office buildings (commercial development). FWS
6
decided that the deeded preserves were inadequate to protect the
Cave Species. As a result, the Purcells were unable to contract
for the purchase and development of the property.
In July 1998, FWS advised the Purcells that the permits would
be denied, but did not issue the denials. This effectively
prevented the Purcells from challenging FWS’ action.
Therefore, the Purcells filed suit in federal court, seeking
a declaration that the permits had been denied de facto. GDF
Realty, Ltd. v. United States, No. 98-CV-772 (W.D. Tex. 1998). FWS
then issued a formal statement, denying the permits based on its
conclusion that, inter alia, Cave Species takes would occur if
development were allowed. The district court ruled the permits had
been denied. It also admonished FWS for delaying the denials when
it had never intended to grant the permits.
In 1999, plaintiffs filed two actions in federal court. In
the instant Commerce Clause action, they claim that, pursuant to
United States v. Lopez, 514 U.S. 549 (1995), amplified post-filing
of this action by United States v. Morrison, 529 U.S. 598 (2000),
the ESA take provision, as applied to the Cave Species, is
unconstitutional. (The second action, in the Court of Claims, No.
99-CV-513 (Fed. Cl. 1999), claims an unconstitutional taking under
the Fifth Amendment. It has been stayed pending this action.) In
2000, Parke Properties I, L.P., and GDF Realty Investments, Ltd.,
filed for bankruptcy under Chapter 11. In re Parke Properties I,
7
L.P., No. 00-12587FM (Bankr. W.D. Tex. 2000); In re GDF Realty
Investments, Ltd., No. 00-12588FM (Bankr. W.D. Tex. 2000).
For this action, the parties agreed there are no factual
disputes. Therefore, they filed cross-motions for summary
judgment. In 2001, the district court granted summary judgment to
defendants (FWS), holding the take provision constitutional under
the Commerce Clause. GDF Realty Investments, Ltd. v. Norton, 169
F. Supp. 2d 648 (W.D. Tex. 2001). The district court analyzed the
application of the take provision in the light of plaintiffs’
proposed property development. Being “hard-pressed to find a more
direct link to interstate commerce than a Wal-Mart [(as noted, one
was to be located on the property)]”, id. at 662, the court held
the take provision’s incorporation of the Cave Species, as applied
to plaintiffs, was substantially related to interstate commerce,
id. at 664.
II.
A summary judgment, reviewed de novo, e.g., Horton v. City of
Houston, 179 F.3d 188, 191 (5th Cir.), cert. denied, 528 U.S. 1021
(1999), is proper if “there is no genuine issue as to any material
fact and ... the [movant] is entitled to a judgment as a matter of
law”. FED. R. CIV. P. 56(c). E.g., Celotex Corp. v. Catrett, 477
U.S. 317 (1986). Because there are no material fact issues, the
only question is the constitutionality vel non of the take
provision as applied to the Cave Species and pursuant to the power
8
granted Congress under the Commerce Clause. U.S. CONST. art. I, §
8, cl. 3.
“In reviewing an act of Congress passed under its Commerce
Clause authority, we apply the rational basis test as interpreted
by the Lopez court.” Groome Resources, Ltd. v. Parish of
Jefferson, 234 F.3d 192, 203 (5th Cir. 2000). In other words:
“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, 529 U.S. at 607 (emphasis added).
Recently, our court extensively discussed the history of the
Commerce Clause and the earlier noted landmark Lopez and Morrison
decisions relied upon by plaintiffs. United States v. Ho, 311 F.3d
589 (5th Cir. 2002). We need only briefly revisit that discussion.
Ho concerned using less expensive procedures for removal and
disposal of asbestos than necessary to comply with, inter alia, 42
U.S.C. §§ 7412(h) and 7414(a) of the Clean Air Act, 42 U.S.C. §
7401 et seq., and implementing regulations, 40 C.F.R. § 61.145. Ho
claimed these statutes and regulations, as applied to him, violated
the Commerce Clause. Our court held the sections of the Clean Air
Act were constitutional exercises of Congress’ power to regulate
interstate commerce. Ho, 311 F.3d at 603-04. In doing so, our
court described “first principles” of commerce clause
jurisprudence. Id. at 596-601. No authority need be cited for the
9
fundamental and well-known limitation on the power of our Federal
Government: the Constitution grants it limited and enumerated
powers; those powers not so granted the Federal Government are
retained by the States.
This division of powers was thought necessary “to ensure
protection of our fundamental liberties”. Id. at 596 (quoting
Lopez, 514 U.S. at 552 (internal citation omitted)). Justice
Kennedy summarized this point in his Lopez concurrence:
Though on the surface the idea may seem
counterintuitive, it was the insight of the
Framers that freedom was enhanced by the
creation of two governments, not one. “In the
compound republic of America, the power
surrendered by the people is first divided
between two distinct governments, and then the
portion allotted to each subdivided among
distinct and separate departments. Hence a
double security arises to the rights of the
people. The different governments will control
each other, at the same time that each will be
controlled by itself.”
514 U.S. at 576 (Kennedy, J., concurring) (quoting THE FEDERALIST NO.
51, at 323 (James Madison)(C. Rossiter ed., 1961)). In keeping
with the subject at hand, the strength of this governmental system
is aptly described by Kipling: “For the strength of the pack is
the wolf and the strength of the wolf is the pack”. RUDYARD KIPLING,
THE SECOND JUNGLE BOOK, The Law of the Jungle 189 (Penguin Books 1987)
(1895).
As noted, one of the Federal Government’s enumerated powers is
“to regulate Commerce ... among the several States ...” (interstate
10
commerce). U.S. CONST. art. I, § 8, cl. 3. Since NLRB v. Jones &
Laughlin Steel Corp., 301 U.S. 1 (1937), “Congress has had
considerably greater latitude in regulating conduct and
transactions under the Commerce Clause” than it had previously been
afforded. Morrison, 529 U.S. at 608. On the other hand, our
constitutional structure mandates a distinction between “what is
truly national and what is truly local”. Id. at 617-18; Lopez, 514
U.S. at 567-68.
The Court’s fairly recent decisions in Morrison and Lopez have
defined the outer limits of Commerce Clause power. Lopez described
three categories of activity which Congress may regulate under it:
“the use of the channels of interstate commerce”; “the
instrumentalities of interstate commerce”; and “those activities
having a substantial relation to interstate commerce, i.e., those
activities that substantially affect interstate commerce”. 514
U.S. at 558-559. As the parties note, at issue is the third
category — “those activities that substantially affect interstate
commerce”.
The Cave Species exist only in Texas. Therefore, at issue are
ESA takes concerning intrastate, not interstate, activity.
Pursuant to Lopez, Morrison identified four considerations for use
in deciding whether intrastate activity substantially affects
interstate commerce. 529 U.S. at 609.
11
The first consideration is the economic nature vel non of the
intrastate activity. Id. at 610-11. Along this line, Morrison
cited Lopez’s cautionary language:
Admittedly, a determination whether an
intrastate activity is commercial or
noncommercial may in some cases result in
legal uncertainty. But, so long as
Congress’ authority is limited to those
powers enumerated in the Constitution,
and so long as those enumerated powers
are interpreted as having judicially
enforceable outer limits, congressional
legislation under the Commerce Clause
will always engender “legal uncertainty”.
Id. at 610 (quoting Lopez, 514 U.S. at 566).
The second consideration is the presence vel non of a
jurisdictional element in the statute, which limits its application
to instances affecting interstate commerce. Id. at 611-12.
The third consideration is any Congressional findings in the
statute or its legislative history concerning the effect the
regulated activity has on interstate commerce. Id. at 612.
The final consideration is the attenuation of the link between
the intrastate activity and its effect vel non on interstate
commerce. Id.
As described in Ho, there are two ways in which intrastate
activity might substantially affect interstate commerce. 311 F.3d
at 598-99. FWS urges that Cave Species takes have this effect
under each method.
12
First, the activity alone might have such an effect. See,
e.g., Jones v. Laughlin Steel Corp., 301 U.S. 1 (1937). Second, in
some circumstances, the activity's effects may be aggregated with
those of other similar activities, the sum of which might be
substantial in relation to interstate commerce. Morrison, 529 U.S.
at 613 (striking down civil remedy provision of Violence Against
Women Act, 42 U.S.C. § 13981, while not adopting “a categorical
rule against aggregating the effects of any noneconomic activity”).
See also, e.g, Lopez, 514 U.S. at 559-61; Hodel v. Virginia Surface
Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981); Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964); Wickard
v. Filburn, 317 U.S. 111 (1942).
Whether and how Congress may apply the
aggregation principle are controversial
questions. The pitfalls are apparent. For
example, any imaginable activity of mankind
can affect the alertness, energy, and mood of
human beings, which in turn can affect their
productivity in the workplace, which when
aggregated together could reduce national
economic productivity. Such reasoning would
eliminate any judicially enforceable limit on
the Commerce Clause, thereby turning that
clause into what it most certainly is not, a
general police power.
Ho, 311 F.3d at 599 (emphasis added).
In other words, and as the Supreme Court has made quite clear,
the aggregation principle has limits. For example, Lopez held
that gun possession near schools could not be regulated under the
Commerce Clause power. The statute at issue proscribed knowing
13
possession of “a firearm at a place that [an individual] knows ...
is a school zone”. 18 U.S.C. § 922(q)(1)(A) (1988). The Court
held the statute had “nothing to do with ‘commerce’ or any sort of
economic enterprise”. 514 U.S. at 561.
It bears reminding that at issue is the power to regulate
interstate commerce. In that sense, commerce is “[t]he exchange of
goods and services” or “[t]rade and other business activities”.
BLACK’S LAW DICTIONARY 263 (7th Ed. 1999). Commerce is traffic, “but
it is something more: it is intercourse”. Lopez, 514 U.S. at 553
(quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 189-90 (1824)).
In Wickard, for example, the intrastate activity (wheat produced
solely for producer's personal use) was held “commercial” because
it affected market conditions. 317 U.S. at 128. In this regard,
Groome noted the “broad reading [to be given] commercial and
economic activities under the Commerce Clause”. 234 F.3d at 208-
09.
As mentioned, Morrison noted, for aggregation purposes, the
importance of the economic nature of the regulated activity:
“While we need not adopt a categorical rule against aggregating the
effects of noneconomic activity in order to decide these cases,
thus far ... our cases have upheld Commerce Clause regulation of
intrastate activity only where that activity is economic in
nature”. 529 U.S. at 613 (emphasis added).
14
Lopez did, however, approve the standard provided in Maryland
v. Wirtz, 392 U.S. 183 (1968) (holding constitutional the 1961 and
1966 extensions of the Fair Labor Standards Act, 29 U.S.C. §§ 203,
206, and 207). Lopez stated: “[W]here a general regulatory scheme
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 (emphasis in original; internal
citation omitted). The de minimis instance, however, must be “an
essential part of a larger regulation of economic activity, in
which the regulatory scheme could be undercut unless the intrastate
activity were regulated”. Id. at 561 (emphasis added). See also
Hodel v. Indiana, 452 U.S. 314, 329 n.17 (1981); United States v.
Ballinger, 312 F.3d 1264, 1270 (11th Cir. 2002); Freier v.
Westinghouse Electric Corp., 303 F.3d 176, 201-03 (2nd Cir. 2002),
petition for cert. filed (U.S. 6 Jan. 2003) (No. 02-1036); United
States v. Cortes, 299 F.3d 1030, 1035 (9th Cir. 2002).
Ho held such a regulatory scheme existed with regard to
asbestos removal:
First, the regulated intrastate activity,
asbestos removal, is very much a commercial
activity in today's economy. It is a booming
industry, given the hazardous nature of
asbestos and its seeming ubiquity in older
buildings. There is nothing inherently
criminal or disfavored about asbestos removal;
in fact, it might be considered a public
service, and many reputable and certified
15
businesses exist solely to remove asbestos
from contaminated buildings.
Both the state and federal governments license
businesses and individuals in the field. Most,
if not all, asbestos removal projects have a
commercial purpose, because handling toxic
carcinogens is not something many people enjoy
for its own sake. Unless the owner of an
asbestos-containing building needs to renovate
the building or demolish it for use of the
land on which it sits, he is very likely to
let sleeping dogs lie and not incur the costs
or dangers of asbestos removal.
311 F.3d at 602. Moreover, by using methods less expensive than
those required to comply with the regulatory scheme, Ho was able to
gain a commercial advantage over his competitors, thereby
substantially affecting, or undercutting, the economic regulatory
scheme. Id. at 603. In addition to the economic nature of the
activity, Ho examined the other three Morrison considerations in
holding aggregation proper. 311 F.3d at 602-04.
In the light of Lopez and Morrison, the key question for
purposes of aggregation is whether the nature of the regulated
activity is economic. As noted, Morrison and Lopez recognize this
question is likely to generate “legal uncertainty”. Morrison, 529
U.S. at 610; Lopez, 514 U.S. at 566. One way in which the
regulated activity might be economic is when, as discussed earlier,
the intrastate activity is part of an economic regulatory scheme
which could be undercut but for the particular intrastate
regulation. Lopez, 514 U.S. at 561.
16
Post-Lopez, our court has faced these questions. A pre-
Morrison decision, United States v. Bird, 124 F.3d 667, amended by
1997 U.S. App. LEXIS 33988 (5th Cir. 1997), cert. denied, 523 U.S.
1006 (1998), affirmed a conviction under the Freedom of Access to
Clinic Entrances Act, 18 U.S.C. § 248. Bird held that
noncommercial, intrastate activity (threats and intimidation
directed at provider of abortion services) may be aggregated to
find a substantial effect on interstate commerce. Id. at 676-82.
For that holding, the determining factor was that “there is a
national commercial market in abortion-related services such that
the regulated conduct—considered in light of the size and scope of
the benchmark market—substantially affects interstate commerce”.
Id. at 677. See id. at 681-82.
Noting Bird was decided pre-Morrison, Ho seems to leave open
the question whether aggregation can be extended to non-economic
activity. 311 F.3d at 600, n.10. Further, in United States v.
Hickman, 179 F.3d 230 (5th Cir. 1999)(pre-Morrison), cert. denied,
530 U.S. 1203 (2000), and United States v. McFarland, 311 F.3d 376
(5th Cir. 2002)(post-Morrison), petition for cert. filed, (U.S. 7
Jan. 2003) (No. 02-8338), our evenly divided en banc court
addressed aggregating individual, intrastate robberies to find a
substantial effect on interstate commerce under the Hobbs Act, 18
U.S.C. § 1951 (criminalizing efforts to “obstruct[], delay[], or
17
affect[] commerce or the movement of any article or commodity in
commerce, by robbery or extortion ...”).
The dissent in Hickman, adopted by half of our en banc court,
stated:
[I]ndividual acts cannot be aggregated if
their effects on commerce are causally
independent of one another. That is, if the
effect on interstate commerce directly
attributable to one instance of an activity
does not depend in substantial part on how
many other instances of the activity occur,
there is an insufficient connection—in other
words, an interactive effect—and the effect of
different instances cannot be added. If, on
the other hand, the occurrence of one instance
of the activity makes it substantially more or
less likely that other instances will occur,
then there is an interactive effect and the
effects of different instances can be added.
179 F.3d at 233 (Higginbotham, J., dissenting).
This “interactive effect” requirement flows from the
requirement in Lopez that failure to regulate the intrastate
activity could “undercut” the entire scheme. Along this line, Ho
held that the instance of intrastate asbestos removal had an effect
on the larger economic regulation of the asbestos industry. 311
F.3d at 602.
In addressing the Hobbs Act issue faced in Hickman, one
dissent in McFarland, again adopted by half of our en banc court,
stated:
Assuming, arguendo, that there is a class of
[Lopez] category three cases [substantial
effect] as to which there are no restraints
whatever on aggregation, we conclude that such
18
a class would exclude instances where “the
regulated activity” is not properly described
as “commercial” or “economic” in the same
general sense as “commercial.”
311 F.3d at 396 (Garwood, J., dissenting) (emphasis in original).
In the intervening light of Morrison, that dissent agreed with the
Hickman dissent.
Where the Supreme Court has applied
aggregation to uphold federal regulation of
intrastate conduct against constitutional
challenge under the Commerce Clause, there has
always been a rational basis to find
sufficient interrelationship or commonality of
effect on interstate commerce among the
discrete intrastate instances regulated and
between them and a scheme of regulation
(protection, enhancement or restriction) of
some particular interstate market or activity
such that the regulation of those intrastate
activities can rationally be viewed as
necessary to the effectiveness of or a
meaningfully supporting part of the scheme of
regulation of that particular interstate
activity or market.
Id. at 401 (emphasis added).
Plaintiffs maintain that Cave Species takes have no
relationship, let alone a substantial one, to interstate commerce.
They concede, however, that all takes of endangered species, if
aggregated, would have the requisite substantial effect; but, they
maintain, aggregation is not proper because Cave Species takes are
non-economic in nature and not an essential part of a regulatory
scheme.
ESA was enacted in 1973 in response to threats to fish,
wildlife, and plants (wildlife). 16 U.S.C. § 1531(a)(1). These
19
threats arose principally from “pollution, destruction of habitat
and the pressures of trade”. H.R. Rep. No. 93-412, at 2 (1973)
(emphasis added). Congress noted that “the pace of disappearance
of species is accelerating”. Id. at 4. This acceleration was
troubling because, inter alia, “it is in the best interest of
mankind to minimize the losses of genetic variations”. Id. at 5.
That interest, Congress said, was “simple: [the genetic variations]
are potential resources”. Id.
They are keys to puzzles which we cannot
solve, and may provide answers to questions
which we have not yet learned to ask.
To take a homely, but apt, example: one
of the critical chemicals in the regulation of
ovulation in humans was found in a common
plant. Once discovered and analyzed, humans
could duplicate it synthetically, but had it
never existed — or had it been driven out of
existence before we knew its potentialities —
we would never have tried to synthesize it in
the first place.
Who knows, or can say, what potential
cures for cancer or other scourges, present or
future, may lie locked up in the structures of
plants which may yet be undiscovered, much
less analyzed? More to the point, who is
prepared to risk ... those potential cures by
eliminating those plants for all time? Sheer
self-interest impels us to be cautious.
Id.
Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978) (TVA),
the famous snail darter decision, reviewed ESA's legislative
history in the process of upholding an injunction pursuant to the
Secretary of the Interior’s determination that the operation of a
20
federal dam would eradicate an endangered species. At issue was 16
U.S.C. § 1536, which requires federal agencies to consult with the
Secretary regarding projects and to “utilize their authorities in
furtherance of the purposes of [ESA]....” The Court recognized
Congress' “newly declared national policy of preserving endangered
species”, id. at 176, and held: “The plain intent of Congress in
enacting [ESA] was to halt and reverse the trend toward species
extinction, whatever the cost”, id. at 184 (emphasis added).
Of course, notwithstanding this “plain intent”, ESA's take
provision as applied in this case must have firm footing in the
Commerce Clause. In this regard, ESA’s take provision has no
jurisdictional requirement that might otherwise limit its
application to species bearing some relationship to interstate
commerce. Nor does the take provision list the species to be
protected. Instead, ESA incorporates listings, promulgated from
time to time by FWS, that determine which species are covered by
the take provision. 16 U.S.C. § 1533(c).
A.
Aggregation or no, the first of the four Morrison
considerations concerns the economic nature vel non of the
regulated activity. On this key point, at issue is what
constitutes the “regulated activity”. Plaintiffs assert that, for
evaluating substantial effect, we should look only to the expressly
regulated activity — Cave Species takes. FWS responds that, in
21
addition, we should consider such regulation in the light of
plaintiffs’ planned commercial development and, by extension, its
effect on interstate commerce.
The district court agreed with FWS and looked primarily to
plaintiffs’ planned development:
[T]he regulated activity in this case is
plaintiffs’ alleged take of the Cave Species
by their planned development of the Property.
This development includes plans to build “a
shopping center, a residential subdivision,
and office buildings” on the Property.... This
activity, standing alone, “would easily be
classified as substantially affecting
interstate commerce.”
169 F. Supp. 2d at 658 (internal citations omitted).
The district court characterized plaintiffs’ challenge as
being “as-applied”. Whether it is “as-applied” or “facial”, the
district court correctly concluded it should evaluate plaintiffs’
conduct in determining whether the take provision, as applied to
the Cave Species, was unconstitutional. See City of Chicago v.
Morales, 527 U.S. 41, 78 n.1 (1999) (Scalia, J., dissenting) (aside
from First Amendment “overbreadth” cases, “a facial attack, since
it requires unconstitutionality in all circumstances, necessarily
presumes that the litigant presently before the court would be able
to sustain an as-applied challenge”); see also United States v.
Salerno, 481 U.S. 739 (1987). The above-quoted passage from the
district court opinion reflects, however, that the court extended
the scope of this relevant conduct beyond plaintiffs' Cave Species
22
takes; it primarily considered plaintiffs’ commercial motivations
that would underlie the takes. As discussed below, and consistent
with the Supreme Court’s interpretation of the Commerce Clause, we
conclude that the scope of inquiry is primarily whether the
expressly regulated activity substantially affects interstate
commerce, i.e., whether takes, be they of the Cave Species or of
all endangered species in the aggregate, have the substantial
effect.
In this regard, neither this court, nor the Supreme Court, has
explicitly determined the scope of the substantial effects
analysis. Nonetheless, the Supreme Court has expressed concerns
about this issue. In Solid Waste Agency of Northern Cook County v.
United States Army Corps of Eng'rs, 531 U.S. 159 (2001), under §
404(a) of the Clean Water Act, 33 U.S.C. § 1344(a), the Corps of
Engineers claimed jurisdiction over abandoned sand and gravel pits
which had become seasonal ponds and, concomitantly, habitats for
migratory birds. As a result, the Corps prevented construction of
a landfill on a site. The landfill developers contended that,
through such regulation, the Corps overstepped its statutorily-
prescribed jurisdictional bounds, and, alternatively, Congress
exceeded its Commerce Clause power.
Resolving the case by interpreting the Clean Water Act, the
Court avoided the constitutional issue. Nevertheless, it shed
light on the scope-issue at hand:
23
[The Government] ... note[s] that the
protection of migratory birds is a national
interest of very nearly the first magnitude,
and that, as the Court of Appeals found,
millions of people spend over a billion
dollars annually on recreational pursuits
relating to migratory birds. These arguments
raise significant constitutional questions.
For example, we would have to evaluate the
precise object or activity that, in the
aggregate, substantially affects interstate
commerce. This is not clear, for although the
Corps has claimed jurisdiction over
petitioner’s land because it contains water
areas used as habitat by migratory birds,
respondents now, post litem motam, focus upon
the fact that the regulated activity is
petitioner’s municipal landfill, which is
plainly of commercial nature. But this is a
far cry, indeed, from the “navigable waters”
and “waters of the United States” to which the
statute by its terms extends.
Id. at 173 (emphasis added; internal citation and quotation
omitted).
Again, we must resolve the question of which activities are to
be primarily considered in order to determine substantial effect
vel non. Each of the three Lopez categories recognizes Congress’
power to regulate where the object of regulation relates to
interstate commerce: channels, instrumentalities, or activities.
Neither the plain language of the Commerce Clause, nor judicial
decisions construing it, suggest that, concerning substantial
effect vel non, Congress may regulate activity (here, Cave Species
takes) solely because non-regulated conduct (here, commercial
development) by the actor engaged in the regulated activity will
have some connection to interstate commerce.
24
In expanding its scope—inquiry to plaintiffs’ commercial
motivations, the district court relied on Groome, which evaluated
Congress’ Commerce Clause power to regulate under the Fair Housing
Act, 42 U.S.C. § 3604(f)(3)(B). Groome stated that, in Lopez and
Morrison, “neither the ‘actors’ nor the ‘conduct’ of the regulation
had a commercial character”. 234 F.3d at 204 (emphasis added).
Groome recognized that, in analyzing the effect on interstate
commerce, courts look only to the expressly regulated activity. In
Groome, that was the sale and rental of housing. The actor’s
conduct was commercial in nature, but that characteristic was only
relevant insofar as it fell within the regulated activity. Id. at
205-16.
Unlike Groome, the district court in this case looked
primarily beyond the regulated conduct — Cave Species takes — in
order to assess effect on interstate commerce. It looked to
plaintiffs’ planned commercial development of the property where
the takes would occur. True, the effect of regulation of ESA takes
may be to prohibit such development in some circumstances. But,
Congress, through ESA, is not directly regulating commercial
development.
To accept the district court’s analysis would allow
application of otherwise unconstitutional statutes to commercial
actors, but not to non-commercial actors. There would be no limit
to Congress’ authority to regulate intrastate activities, so long
25
as those subjected to the regulation were entities which had an
otherwise substantial connection to interstate commerce.
Along this line, looking primarily beyond the regulated
activity in such a manner would “effectually obliterate” the
limiting purpose of the Commerce Clause. Jones & Laughlin Steel
Corp., 301 U.S. at 37. Concomitantly, the facial challenges in
Lopez and Morrison would have failed. For instance, regulation of
gun possession near schools, at issue in Lopez, would arguably pass
constitutional muster as applied to a possessor who was a
significant gun salesman. Therefore, § 922(q)(1)(A) could not have
been facially unconstitutional. See Salerno, 481 U.S. at 745.
Similarly, the Violence Against Women Act, at issue in Morrison,
would arguably have been a constitutional exercise of Congressional
power if it were used to prosecute a person who committed violence
against women and then sold a substantial number of videotapes of
the encounter in interstate markets. It too would have withstood
a facial attack. Such results, of course, run contrary to Lopez
and Morrison.
Ho ruled that “the regulated intrastate activity, asbestos
removal, is very much a commercial activity in today’s economy....
Both the state and federal governments license businesses and
individuals in the field. Most, if not all, asbestos projects have
a commercial purpose....” 311 F.3d at 602. Thus Ho primarily
analyzed the expressly regulated activity. Only after doing so did
26
Ho note: “Moreover, [plaintiff’s] activities were driven by
commercial considerations”. Id.
Two circuits have published opinions upholding ESA's
constitutionality; they looked, at times, to the nature of the
actor’s general conduct. National Association of Home Builders v.
Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 524 U.S. 937
(1998) (NAHB) (pre-Morrison); Gibbs v. Babbitt, 214 F.3d 483 (4th
Cir. 2000), cert. denied, Gibbs v. Norton, 531 U.S. 1145 (2001).
(In addition, the Ninth Circuit, in upholding the constitutionality
of the Eagle Protection Act, 16 U.S.C. 668, approvingly cited a
district court decision, 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), concerning ESA’s effect on interstate commerce. United
States v. Bramble, 103 F.3d 1475, 1481 (9th Cir. 1997).)
In NAHB and Gibbs, however, the actor's general conduct was
not the sole basis for finding economic activity or a substantial
effect on interstate commerce. To this extent, NAHB and Gibbs are
consistent with the analysis in Ho.
NAHB, decided pre-Morrison, considered whether Congress had
the power to regulate takes of the Delhi Sands Flower-Loving Fly,
a species found only in California. The takes were caused by a
planned hospital renovation. For a divided panel, two members held
27
ESA constitutional, each on different grounds; one member opined it
was unconstitutional.
In the main opinion, Judge Wald upheld ESA on two bases: as
a valid regulation of the channels of interstate commerce; and
because the takes substantially affected interstate commerce. For
the substantial effect analysis, she did not look beyond the
expressly-regulated activity. She did so, however, for the
“channels of interstate commerce” analysis. 130 F.3d at 1048.
There is, of course, good reason to look beyond the regulated
activity to determine whether such channels are being used; whether
an actor deals in these channels is directly relevant.
In her NAHB concurrence, Judge Henderson concluded the takes
affected biodiversity, which in turn substantially affected
interstate commerce. She briefly noted, however, that the
regulation plainly affected interstate commerce because “[it]
relates to both the proposed redesigned traffic intersection and
the hospital it is intended to serve ....” NAHB, 130 F.3d at 1059
(Henderson, J., concurring).
Of course, the ESA regulation at issue in NAHB did not relate
to traffic intersections; it related to fly takes. Judge Henderson
relied, in part, on the following language from Heart of Atlanta
Motel to support her conclusion: “The facilities and
instrumentalities used to carry on this commerce such as railroads,
truck lines, ships, rivers, and even highways are also subject to
28
congressional regulation, so far as is necessary to keep interstate
traffic upon fair and equal terms.” 379 U.S. at 271 (emphasis
added). This statement provides an example of Congress’ power to
regulate the use of the channels of interstate commerce, rather
than those activities having a substantial effect on interstate
commerce.
While the take provision may have prevented the hospital
renovations in NAHB or the commercial developments in the case at
hand, ESA does not directly regulate these activities. The NAHB
dissent noted:
An alternative reading of Judge Henderson’s
second justification with its stress on the
effect of the regulation upon the highway and
hospital is that she concludes that Congress
may regulate purely intrastate activities –
e.g., the habitat modification of the fly –
where the regulation will then affect items
which are arguably in interstate commerce.
Again, I do not see the stopping point.
Congress is not empowered either by the words
of the Commerce Clause or by its
interpretation in Lopez to regulate any non-
commercial activity where the regulation will
substantially affect interstate commerce....
Nowhere is it suggested that Congress can
regulate activities not having a substantial
effect on commerce because the regulation
itself can be crafted in such a fashion as to
have such an effect.
Id. at 1067 (Sentelle, J., dissenting)(emphasis added). As noted,
however, Judge Henderson did not rely primarily on the commercial
development, but instead analyzed the expressly regulated activity
— the takes’ effect on biodiversity.
29
Gibbs held Congress did not exceed its Commerce Clause power
by regulating red wolf takes. 214 F.3d at 487. The wolves had
been reintroduced on federal land, but had roamed onto private land
in North Carolina and Tennessee. In holding the wolves had a
substantial effect on interstate commerce, a divided panel noted
that the take provision limited the ability to protect livestock
and other agricultural products from the wolves: “The regulation
here targets takings that are economically motivated – farmers take
wolves to protect valuable livestock and crops.” Id. at 495
(emphasis added). As discussed infra, Gibbs held primarily,
however, that the expressly regulated activity — red wolf takes,
regardless of farmers’ motivations — was economic in nature.
In the light of the successful facial challenges in Lopez and
Morrison and the emphasis our court and sister circuits have placed
on the economic nature vel non of the expressly regulated activity,
the district court erred in looking primarily to plaintiffs'
commercial motivations.
B.
As discussed earlier, there are two ways in which intrastate
activity can substantially affect interstate commerce: the
activity can be of a nature and scope that it, alone, has such an
effect; and, in certain circumstances, the activity can be
aggregated with similar activities, so that the sum of the
activities has the requisite substantial effect. As also
30
discussed, FWS contends regulation of Cave Species takes is proper
under either method. For either, the goal remains the same:
distinguishing between “what is truly national and what is truly
local”. Morrison, 529 U.S. at 617-18; Lopez, 514 U.S. at 567-68;
Ho, 311 F.3d at 601.
1.
In urging Cave Species takes, alone, have a “direct
relationship” with, and substantial effect on, interstate commerce,
FWS claims two significant effects: the “substantial” scientific
interest generated by the Cave Species; and their possible future
commercial benefits.
a.
Concerning the scientific interest effect, some scientists
have studied the Cave Species. In doing so, some of them have
traveled to Texas. In coordination with this research, some Cave
Species have been transported to and from museums in five States.
Finally, articles about the Cave Species have been published in
scientific journals.
According to FWS, this demonstrates the Cave Species “play a
role in interstate commerce”. Obviously, even assuming this is
true, this does not necessarily constitute the substantial effect
mandated by Lopez and Morrison. 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
31
substantially do so. In fact, the minimal evidence presented by
FWS indicates such an effect would be negligible.
In upholding the red wolf take provision, Gibbs held the takes
“implicate[d] a variety of commercial activities and [was] closely
connected to several interstate markets”. 214 F.3d at 492. Chief
among them were red-wolf-related tourism, “scientific research”,
and the “commercial trade” in pelts. Id. at 493-95. Gibbs held
the “takings of red wolves in the aggregate have a sufficient
impact on interstate commerce”. Id. at 493. (As discussed, Gibbs
also observed that the takes were motivated by commercial
incentives.)
Obviously, the commercial impact of red wolves is
significantly greater than that of the Cave Species. See id. at
493-94 (“According to a study ... the recovery of the red wolf and
increased visitor activities could result in a significant regional
economic impact. [The study’s author] estimates that northeastern
North Carolina could see an increase of between $39.61 and $183.65
million per year in tourism-related activities” (internal citation
omitted).).
In the case of the Cave Species, any connection between takes
and impact on the scientific travel or publication industries is,
as noted, negligible. Under Morrison’s fourth consideration, any
claim that the connection rises to a “substantial relationship” is
far too attenuated to pass muster.
32
b.
Alternatively, FWS claims future commercial benefits derived
from the Cave Species will be significant enough to substantially
affect interstate commerce. Research concerning certain endangered
species has been used in the treatment of disease. See, e.g.,
Holly Doremus, Patching the Ark: Improving Legal Protection of
Biological Diversity, 18 ECOLOGY L.Q. 265, 270-71 (1991) (study of
endangered pupfish in relation to kidney disease); Keith Rizzardi,
Toothless? The Endangered Manatee and the Florida Manatee Sanctuary
Act, 24 FLA. ST. U. L. Rev. 377, 380 (1997) (study of endangered
manatees in relation to hemophilia).
FWS posits here:
The value of the cave species ... may be even
more significant than those of the pupfish and
the manatee, given the unique features of cave
species. Although little is yet understood
about these particular species, scientists
have long observed that cave species, because
of their peculiar habitats, often exhibit
incredibly low metabolic rates and possess
extremely long life-spans ... compared to
other invertebrates. Such characteristics
suggest that further study of these species
could lead to important developments in our
understanding of longevity....
(Emphasis added; internal citations and quotations omitted). In
short, this claim is not supported by evidence concerning Cave
Species. It is conjecture.
This contention, whatever its merits may ultimately be, runs
afoul of the attenuation consideration. The possibility of future
33
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. See Morrison, 529 U.S. at 612.
2.
In the alternative, FWS contends that Cave Species takes may
be aggregated with those of all other endangered species. As
noted, plaintiffs concede this aggregation would have the requisite
substantial effect on interstate commerce. See NAHB, 130 F.3d at
1053-54 (“In the aggregate, however, we can be certain that the
extinction of the species and the attendant decline in biodiversity
will have a real and predictable effect on interstate commerce.”).
At issue is what circumstances must be present in order to
justify aggregation when, as in this case, intrastate activity has
a de minimis effect on interstate commerce. As noted, Lopez and
Morrison instruct courts to consider, inter alia, the activity's
economic or commercial nature. And, as discussed supra, one key
way by which intrastate activity may be considered “economic” or
“commercial” is through its importance to an economic regulatory
scheme.
As noted earlier, whether an activity is economic or
commercial is to be given a broad reading in this context. Groome,
234 F.3d at 208-09. Nevertheless, in a sense, Cave Species takes
are neither economic nor commercial. There is no market for them;
34
any future market is conjecture. If the speculative future
medicinal benefits from the Cave Species makes their regulation
commercial, then almost anything would be. Moreover, unlike the
red wolves (and their pelts) in Gibbs, there is no historic trade
in the Cave Species, nor do tourists come to Texas to view them.
FWS posits that, because, in the aggregate with other
endangered species, Cave Species takes will have a substantial
effect on interstate commerce, these takes can be classified as
commercial. To accept such a justification would render
meaningless any “economic nature” prerequisite to aggregation. An
activity cannot be aggregated based solely on the fact that, post-
aggregation, the sum of the activities will have a substantial
effect on commerce. This would vitiate Lopez and Morrison’s
seeming requirement that the intrastate instance of activity be
commercial. Noneconomic and noncommercial activity could be
aggregated so long as, if aggregated, it would have a substantial
effect. Lopez and Morrison stand against such a proposition.
On the other hand, the regulation of the Cave Species is part
of a larger regulation of activity. The take provision as applied
to the Cave Species is part of the take provision generally and ESA
as a whole. More is required, however. As discussed earlier, non-
commercial, intrastate activities must be “essential” to an
economic regulatory scheme’s efficacy in order, under this
rationale, for aggregation to be appropriate.
35
First, the larger regulation must be directed at activity that
is economic in nature. Lopez, 514 U.S. at 561. See also Morrison,
529 U.S. at 610. ESA states that endangered species are of
“esthetic, ecological, educational, historical, recreational, and
scientific value....” 16 U.S.C. § 1531(a)(3). Along this line,
courts may also look to ESA’s legislative history. Morrison, 529
U.S. at 612. In this light, ESA’s protection of endangered species
is economic in nature. As noted, ESA's drafters were concerned by
the “incalcuable” value of the genetic heritage that might be lost
absent regulation. See H.R. Rep. No. 93-412, at 4. With regard to
a precursor to ESA, the Senate Report observed:
From a pragmatic point of view, the protection
of an endangered species of wildlife with some
commercial value 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 species for an
indefinite number of years, where otherwise it
would have been completely eliminated from
commercial channels in a very brief span of
time. Potentially more important, however, is
the fact that with each species we eliminate,
we reduce the [genetic] pool ... available for
use by man in future years. Since each living
species and subspecies has developed in a
unique way to adapt itself to the difficulty
of living in the world's environment, as a
species is lost, its distinctive gene
material, which may subsequently prove
invaluable to mankind in improving domestic
animals or increasing resistance to disease or
environmental contaminant, is also
irretrievably lost.
S. Rep. No. 91-526, at 1415 (1969) (emphasis added).
36
Aside from the economic effects of species loss, it is obvious
that the majority of takes would result from economic activity.
See, e.g., 16 U.S.C. § 1531(a)(1) (“various species of fish,
wildlife, and plants in the United States have been rendered
extinct as a consequence of economic growth and development
untempered by adequate concern and conservation”); 16 U.S.C. §
1533(f) (recovery plans should give priority to species that are in
“conflict with construction or other development projects or other
forms of economic activity...”). Indeed, Congress’ findings are
reflected in the case at hand: the Cave Species takes would occur
as a result of plaintiffs’ planned commercial development.
Moreover, ESA is “truly national” in scope. See Morrison, 529
U.S. at 617-18; Lopez, 514 U.S. at 567-68. This is the case,
despite the concerns raised by amicus State of Texas. It is true
that land use and wildlife preservation are traditional areas of
state concern. Nevertheless, “this authority is shared with the
Federal Government when [it] exercises one of its enumerated
constitutional powers”. Minnesota v. Mille Lacs Band of Chippewa
Indians, 526 U.S. 172, 204 (1999).
Second, in order to aggregate, the regulated intrastate
activity must also be an “essential” part of the economic
regulatory scheme. Judge Wald’s opinion in NAHB held ESA’s take
provision constitutional as applied to an intrastate species of
insect. Key to this conclusion, and challenged by the other two
37
panel members, was the determination that individual takes of the
species could be aggregated. The opinion assumed aggregation,
holding that, because “biodiversity has a ... substantial ...
effect on ... interstate commerce, ‘the de minimis character of
individual instances arising under [ESA] is of no consequence’”.
130 F.3d at 1053, n. 14 (quoting Lopez, 514 U.S. at 558).
The opinion did not discuss, however, Lopez’ earlier
requirement that de minimis instances of activity subsumed within
a regulatory scheme must be essential to that scheme, so that it
could be undercut without the particular regulation. 514 U.S. at
561. Along this line, the NAHB dissent noted: “There is no
showing, but only the rankest of speculation, that a reduction or
even complete destruction of the viability of the [species] will in
fact affect land and objects that are involved in interstate
commerce”. 130 F.3d at 1065 (Sentelle, J., dissenting) (internal
citations and quotations omitted).
In TVA, however, the Court recognized that “Congress was
concerned [not only] about the unknown uses that endangered species
might have[, but also] about the unforeseeable place such creatures
may have in the chain of life on this planet”. 437 U.S. at 178-79
(emphasis in original). Citing that portion of TVA, Gibbs
reaffirmed Congress’ power to “manage the interdependence of
endangered animals and plants in large ecosystems”. 214 F.3d at
496. See also NAHB, 130 F.3d at 1052 n.11; id. at 1058 (Henderson,
38
J., concurring) (“The effect of a species’ continued existence on
the health of other species within the ecosystem seems to be
generally recognized among scientists.”).
FWS contends: “Allowing a particular take to escape
regulation because, viewed alone, it does not substantially affect
interstate commerce, would undercut the ESA scheme and lead to
piece-meal extinctions”. Along this line, it maintains that takes
of any species threaten the “interdependent web” of all species.
Congress described this “critical nature of the interrelationships
of plants and animals between themselves and with their
environment”. H.R. Rep. No. 93-412, at 6. In fact, according to
Congress, the “essential purpose” of ESA is “to protect the
ecosystems upon which we and other species depend”. Id. at 10.
ESA's take provision is economic in nature and supported by
Congressional findings to that effect. Although, as noted, there
is no express jurisdictional element in ESA, our analysis of the
interdependence of species compels the conclusion that regulated
takes under ESA do affect interstate commerce. In this sense,
ESA's take provision is limited to instances which “have an
explicit connection with or effect on interstate commerce”.
Morrison, 529 U.S. at 611-12 (internal quotations omitted).
Finally, the link between species loss and a substantial
commercial effect is not attenuated. This holding will not allow
Congress to regulate general land use or wildlife preservation.
39
See id. at 612-13 (“We rejected these ... arguments because they
would permit Congress to ‘regulate not only all violent crime, but
all activities that might lead to violent crime....’” (quoting
Lopez, 514 U.S. at 564)).
ESA is an economic regulatory scheme; the regulation of
intrastate takes of the Cave Species is an essential part of it.
Therefore, Cave Species takes may be aggregated with all other ESA
takes. As noted, plaintiffs concede such aggregation substantially
affects interstate commerce. In sum, application of ESA's take
provision to the Cave Species is a constitutional exercise of the
Commerce Clause power.*
III.
For the foregoing reasons, the judgment is
AFFIRMED.
*
FWS also contends that the “take” provision enables the
United States to meet its treaty obligations and was enacted
because of a concern about Congress’ Commerce Clause power,
pursuant to Article I, § 8, cl. 3, “[t]o regulate Commerce with
foreign Nations”. We need not reach this issue.
40
DENNIS, Circuit Judge, concurring:
I join in the Court’s opinion and write separately only to set
forth additional analysis in support of the Court’s conclusion.
The plaintiffs contend that Congress lacks the authority to
regulate, under the ESA, activity that endangers or threatens
intrastate, non-commercial species. The Court correctly upholds
the challenged ESA provision as applied to such species.
One express purpose of the ESA is to provide a comprehensive
program for the conservation of endangered and threatened species
and the ecosystems upon which they depend. The extinction or harm
of endangered or threatened species has a substantial impact upon
interstate commerce because in many cases those species or products
derived from them are articles of commerce. Further, their
extinction or harm could have a significant deleterious effect upon
interstate commerce between the states by adversely affecting the
commercial intercourse of non-endangered species or their
derivatives. Finally, the conservation of the ecosystems upon
which these commercial species depend may require the regulation of
activities harmful to non-commercial species concentrated within a
single state or region. Consequently, Congress has the authority
to make a rational determination to conserve such non-commercial,
intrastate species as an essential or integral part of the
comprehensive ESA program that regulates activities having a
substantial impact on interstate commerce.
41
At least as early as United States v. Darby, the Supreme Court
recognized that Congress has the power to regulate intrastate
activities that it rationally finds necessary to regulate in order
to effectuate its regulation of interstate commerce.1 In Darby,
emphasis was placed on whether the regulation was an “appropriate
means to the attainment of a legitimate end, the exercise of the
granted power of Congress to regulate interstate commerce.”2 This
approach harks back to McCulloch v. Maryland, which noted that the
Constitution authorizes Congress to make “all laws which shall be
necessary and proper for carrying into execution the foregoing
powers.”3 Chief Justice Marshall found that the Necessary and
Proper clause accords to Congress
that discretion, with respect to the means by which the
powers it confers are to be carried into execution, which
will enable that body to perform the high duties assigned
to it, in the manner most beneficial to the people. Let
the end be legitimate, let it be within the scope of the
constitution, and all means which are appropriate, which
are plainly adapted to that end, which are not
prohibited, but consist with the letter and spirit of the
constitution, are constitutional.4
Darby also pointed out that the Court had often sustained
legislation enacted under powers other than the Commerce Clause,
1
312 U.S. 100 (1941).
2
Id. at 118.
3
17 U.S. 316, 411-12 (1819) (quoting U.S. Const. art. I, § 8,
cl. 18); see Robert L. Stern, The Commerce Clause and the National
Economy, 1933-1946, 59 Harv. L. Rev. 883, 890 (1946).
4
McCulloch, 17 U.S. at 421.
42
“when the means chosen, although not themselves within the granted
power, were nevertheless deemed appropriate aids to the
accomplishment of some purpose within an admitted power of the
national government.”5 A similar approach had been used in cases
applying the Commerce Clause to intrastate activities “when the
intrastate transactions were so commingled with or related to
interstate commerce as to demand that all be regulated if the
interstate commerce were to be effectively controlled.”6
Indeed, the Supreme Court’s cases, from Darby to the present,
confirm that Congress has the authority under the Constitution,
through the intersection of the Commerce Clause and the Necessary
and Proper Clause, to regulate an intrastate activity that it could
not reach standing alone, if the regulation is essential or
integral to the maintenance of a larger regulatory scheme properly
governing interstate commerce.7 This rule has recently been
5
Darby, 312 U.S. at 121 (citing Jacob Ruppert, Inc. v.
Caffey, 251 U.S. 264 (1920); James Everard’s Breweries v. Day, 265
U.S. 545, 560 (1924); Westfall v. United States, 274 U.S. 256, 259
(1927)).
6
Stern, The Commerce Clause, 59 Harv. L. Rev. at 891 (citing
Houston, E.& W. Tex. Ry. Co. v. United States, 234 U.S. 342 (1914)
(Shreveport Rate Cases); Railroad Comm’n of Wis. v. Chicago
Burlington & Quincy Ry. Co., 257 U.S. 563 (1922); Southern Ry. Co.
v. United States, 222 U.S. 20 (1911); Baltimore & Ohio Ry. Co. v.
ICC, 221 U.S. 612 (1911)).
7
See, e.g., United States v. Lopez, 514 U.S. 549, 561 (1995)
(finding that the regulation of gun possession near schools under
the Gun-Free School Zones Act was “not an essential part of a
larger regulation of economic activity, in which the regulatory
scheme could be undercut unless the intrastate activity were
regulated”); Hodel v. Indiana, 452 U.S. 314, 329 n.17 (1981) (“A
43
designated by one scholar as the “comprehensive scheme” principle.8
This Court and its judges have, in effect, recognized the principle
by concluding that both commercial and noncommercial activity may
be regulated by Congress if the regulation is an essential or
integral part of a larger comprehensive scheme properly regulating
activity substantially affecting interstate commerce.9
complex regulatory program . . . can survive a Commerce Clause
challenge without showing that every single facet of the program is
independently and directly related to a valid congressional goal.
It is enough that the challenged provisions are an integral part of
the regulatory program and that the regulatory scheme when
considered as a whole satisfies [the substantial effect] test.”);
Maryland v. Wirtz, 392 U.S. 183, 192-93 (1968) (refusing to
“excise, as trivial, individual instances” of regulation because
the effect of such excision would be to undermine the effectiveness
of the regulatory program); United States v. Wrightwood Dairy Co.,
315 U.S. 110, 121 (1942) (stating that Congress has the power to
enact such regulations of intrastate activity as are “necessary and
appropriate” to make the regulation of interstate commerce
effective); Darby, 312 U.S. at 118 (“[Congress’s power] extends to
those activities intrastate which so affect interstate commerce or
the exercise of the power of Congress over it as to make regulation
of them appropriate means to the attainment of a legitimate end,
the exercise of the granted power of Congress to regulate
interstate commerce.”); NLRB v. Jones & Laughlin Steel Corporation,
301 U.S. 1, 36 (1937) (“The congressional authority to protect
interstate commerce from burdens and obstructions is not limited to
transactions which can be deemed to be an essential part of a
'flow' of interstate or foreign commerce.”).
8
See Adrian Vermeule, Does Commerce Clause Review Have
Perverse Effects? 46 Vill. L. Rev. 1325 (2001); Adrian Vermeule,
Centralization and the Commerce Clause, 31 Envtl. L. Rep. 11334
(2001).
9
See Groome Resources Ltd. v. Parish of Jefferson, 234 F.3d
192, 205 (5th Cir. 2000) (“[A] close reading of Lopez . . .
provides two recognized and historically rooted means of
congressional regulation under the commerce power: (1) whether the
activity is ‘any sort of economic enterprise, however broadly one
might define those terms’; or (2) whether the activity exists as
‘an essential part of a larger regulation of economic activity, in
44
The free-standing statutes at issue in Lopez and United States
v. Morrison10 addressed intrastate offenses of the kind that have
been traditionally dealt with by state legislation. Neither
statute was an integral or ancillary part of a comprehensive scheme
reasonably designed to regulate activity having a substantial
effect on interstate commerce. In Lopez the Court held that the
Gun-Free School Zones Act, which made it a federal offense to
knowingly possess a firearm in a known or reasonably recognizable
school zone, exceeded Congress’ commerce clause authority because
the criminalized conduct was not an economic activity that
substantially affected interstate commerce. The Court expressly
which the regulatory scheme could be undercut unless the intrastate
activity were regulated.’” (quoting Lopez, 514 U.S. at 561));
United States v. Bird, 124 F.3d 667, 675 (5th Cir. 1997) (“As a
federal criminal statute regulating intrastate noncommercial
conduct, [the challenged section of the Freedom of Access to Clinic
Entrances Act] must be justified, if at all, as ‘an essential part
of a larger regulation of economic activity, in which the
regulatory scheme could be undercut unless the intrastate activity
were regulated.’” (quoting Lopez, 514 U.S. at 561)); see also
United States v. Hickman, 179 F.3d 230, 231 (5th Cir. 1999) (en
banc) (Higginbotham, J., dissenting) (“Congress may protect,
enhance, or restrict some particular interstate economic market,
such as those in wheat, credit, minority travel, abortion service,
illegal drugs, and the like, and Congress may regulate intrastate
activity as part of a broader scheme.”); United States v. Kirk, 105
F.3d 997, 1014 (5th Cir. 1997) (en banc) (Jones, J., dissenting)
(stating that the most critical consideration in determining the
constitutionality of a statute prohibiting certain possessions of
machine guns is whether it “fulfills the mission of regulating
interstate commerce as (1) a regulation of economic activity which,
although itself local, has substantial effect on interstate
commerce, or (2) a regulation of activity which is essential to
maintaining a larger, interstate regime of economic activity.”).
10
United States v. Morrison, 529 U.S. 598 (2000).
45
noted that the statue was not an essential part of a larger
regulation of economic activity, in which the regulatory scheme
would be undercut unless the intrastate activity were regulated.11
Similarly, in Morrison the Court held that the Commerce Clause does
not authorize Congress to enact a federal civil remedy for the
victims of gender-motivated violence. The Court stated that
gender-motivated crimes of violence are not economic activity
substantially affecting interstate commerce.12
In this case, by contrast, the prohibition of the Cave Species
takes is integral to achieving Congress’s rational purpose in
enacting the ESA. In particular, the ESA regulates interstate
commerce by attempting to prevent the extinction of both commercial
and non-commercial species. Regulations under the ESA therefore
significantly affect the nation’s economy and welfare. Non-
commercial species are in many instances vital to the survival of
ecosystems upon which commercial species are dependent. The
interrelationship of commercial and non-commercial species is so
complicated, intertwined, and not yet fully understood that
Congress acted rationally in seeking to protect all endangered or
threatened species from extinction or harm. The ESA is a necessary
and proper means not only to conserve the nation’s valuable
biological resources, but also to promote interstate commerce
11
Lopez, 514 U.S. at 561.
12
Morrison, 529 U.S. at 613.
46
involving those resources. While some states, including Texas,
have taken steps to protect species against extinction, the threat
of extinction of species and loss of their habitat is both a
worldwide and a national problem that requires at least a
comprehensive national solution. Furthermore, as the Congress
recognized, some of the presently covered non-commercial species
will prove to be of “incalculable” future value to the nation and
its economy because they are sources of genetic, scientific, and
biomedical research and development that will likely facilitate the
production of commercial goods, services, and techniques.
Thus, as the opinion states, the constitutionality of the
FWS’s regulation of the Cave Species takes does not depend on
aggregating the effects of all takes of endangered species in order
to arrive at a sum effect on interstate commerce that is, post-
aggregation, substantial. Put another way, the constitutionality
of any particular application of the ESA take provision does not
depend on adding up “a large number of small but definite
[economic] impacts from each insect or plant of an endangered
species” to reach a substantial effect on interstate commerce.13
Rather, the FWS can prohibit the Cave Species takes because such
regulation is essential to the efficacy of—that is, the regulation
is necessary and proper to—the ESA’s comprehensive scheme to
13
Charles Tiefer, After Morrison, Can Congress Preserve
Environmental Laws from Commerce Clause Challenge? 30 Envt’l L.
Rep. 10888 (2000).
47
preserve the nation’s genetic heritage and the “incalculable” value
inherent to that scarce natural resource, and because that
regulatory scheme has a very substantial impact on interstate
commerce.
48