United States Court of Appeals
Fifth Circuit
F I L E D
REVISED MARCH 25, 2004
February 27, 2004
Charles R. Fulbruge III
UNITED STATES COURT OF APPEALS Clerk
FOR THE FIFTH CIRCUIT
____________________
No. 01-51099
____________________
GDF REALTY INVESTMENTS, LTD; PARKE PROPERTIES I, LP;
PARKE PROPERTIES II, LP
Plaintiffs - Appellants
v.
GALE A NORTON, Secretary, US Department of the Interior;
MARSHALL P JONES, Director, US Fish & Wildlife Service
Defendants - Appellees
Appeal from the United States District Court for the
Western District of Texas, Austin.
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion 3/26/03, 5 Cir.,_______, _______ F.3d ______)
Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is DENIED and the court having
been polled at the request of one of the members of the court and
a majority of the judges who are in regular active service not
having voted in favor, (FED. R. APP. P. and 5TH CIR. R. 35) the
Petition for Rehearing En Banc is also DENIED.
1
EDITH H. JONES, Circuit Judge, joined by JOLLY, SMITH, DEMOSS,
CLEMENT and PICKERING, Circuit Judges, dissenting from the denial
of rehearing en banc:
A majority of the court has refused to rehear this
significant Endangered Species Act case en banc. I respectfully
dissent. For the sake of species of 1/8-inch-long cave bugs,
which lack any known value in commerce, much less interstate
commerce, the panel crafted a constitutionally limitless theory
of federal protection. Their opinion lends new meaning to the
term reductio ad absurdum.
The panel holds that because “takes” of the Cave
Species ultimately threaten the “interdependent web” of all
species, their habitat is subject to federal regulation by the
Endangered Species Act. Such unsubstantiated reasoning offers
but a remote, speculative, attenuated, indeed more than
improbable connection to interstate commerce. Chief Justice
Marshall stated in Cohens v. Virginia, 19 U.S. 264 (1821), that
Congress has no general right to punish murder or felonies
generally. Surely, though, there is more force to an
“interdependence” analysis concerning humans, and thus a more
obvious series of links to interstate commerce, than there is to
“species.” Yet the panel’s “interdependent web” analysis of the
Endangered Species Act gives these subterranean bugs federal
protection that was denied the school children in Lopez and the
rape victim in Morrison. The panel’s commerce clause analysis is
in error.
I. Background
To recap the facts, this case involves a 20-year effort
to develop a large tract of land west of Austin, Texas. This
once-rural property contains a cluster of limestone caves. After
obtaining all necessary state and local permits, the landowner-
appellants began commercial development. Between 1988 and 1993,
however, the United States Fish and Wildlife Service (“FWS”),
designated six species (“Cave Species”) of tiny bugs, which dwell
solely in the caves and never emerge on the surface of the land,
as endangered under section 4 of the ESA. See 16 U.S.C. §
33(a)(1). Pursuant to section 9(a)(1) of the ESA, it became
unlawful to take a member of the endangered species. A “take”
means to “harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture or collect . . . .” 16 U.S.C. § 1532(19). The ESA
broadly defines “harm” as including 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.
After years of wrangling with and attempting to appease
the FWS, the landowners remained unable to commercially develop
their land. Accordingly, they sued on the theory that the ESA
3
“take” provision is unconstitutional as applied to these Cave
Species. The district court granted summary judgment to FWS,
finding that it would be “hard-pressed to find a more direct link
to interstate commerce than a Wal-Mart.” GDF Realty Investment,
Ltd. v. Norton, 169 F.Supp 2d 648, 662 (W.D. Tex. 2001). On
appeal, the panel affirmed the district court’s judgment on
wholly different grounds.
II. Discussion
Congress’s power “to regulate commerce . . . among the
several states . . .” is, like all enumerated powers, subject to
outer limits. See United States v. Lopez, 514 U.S. 549, 556-57
(1995); Solid Waste Agency of North Cook County v. U.S. Army
Corps of Engineers, 531 U.S. 159, 173 (2001) (reiterating that
“the grant of authority to Congress under the commerce clause,
though broad, is not unlimited”). The commerce clause “may not
be extended so as to embrace effects upon interstate commerce so
indirect and remote that to embrace them, in view of our complex
society, would effectually obliterate the distinction between
what is national and what is local and create a completely
centralized government.” NLRB v. Jones and Laughlin Steel, 301
U.S. 1, 37 (1937).
It is unnecessary to recapitulate the Supreme Court’s
Lopez and Morrison cases at any length. See, generally, United
4
States v. Morrison, 529 U.S. 598 (2000). Lopez defines three
categories of federal regulation that are consistent with the
commerce clause. Lopez 514 U.S. at 558. At issue here is
whether federal regulation of the Cave Species is permissible
under the third Lopez category — i.e., whether takes of the Cave
Species “substantially affect interstate commerce.” Lopez, 514
U.S. at 558-59.1
In Lopez, reiterated in Morrison, the Court outlined
four considerations in determining whether purely intrastate
activity substantially affects interstate commerce: (1) the
commercial or economic nature of the intrastate activity; (2) the
presence of a jurisdictional element in the statute; (3) the
existence of congressional findings or legislative history
demonstrating a link between the regulated activity and
interstate commerce; and (4) how attenuated is the link between
the intrastate activity and its effect on interstate commerce.
See Morrison, 529 U.S. 609-12 (2000).2
1
The panel found, and the parties do not dispute, that the
first two Lopez categories, involving the channels or
instrumentalities of interstate commerce, do not justify
regulation of the Cave Species. GDF Realty, 326 F.3d at 629.
2
Pertinent parts of the Endangered Species Act contain no
statutory jurisdictional link between federal regulation and
interstate commerce. Likewise, legislative history and
congressional findings fail to tie species protection to
commerce. These parts of the analysis concerning federal regula-
tion of intrastate activity do not favor FWS.
5
In certain instances, an intrastate activity alone may
substantially affect interstate commerce. See Jones and Laughlin
Steel, 301 U.S. at 22 (NLRB order concerning unfair labor
practices at a steel mill directly affected interstate commerce).
In other instances, “the regulation can reach intrastate
commercial activity that by itself is too trivial to have a
substantial effect on interstate commerce but which when
aggregated with similar and related activity, can substantially
affect interstate commerce.” United States v. Ho, 311 F.3d 589,
599 (5th Cir. 2002); see also Wickard v. Filburn, 317 U.S. 111,
127-28 (1942).
As an initial matter, the panel correctly determined,
unlike other courts, that the “regulated activity” under the ESA
is Cave Species takes, not the appellants’ planned commercial
development of the land. GDF Realty, 326 F.3d at 633-34
(recognizing that “looking beyond the regulated activity . . .
would ‘effectually obliterate’ the limiting purpose of the
Commerce Clause”) (citing Jones and Laughlin Steel, 301 U.S. at
37); Ho, 311 F.3d at 602 (recognizing that the regulated activity
at issue was asbestos removal, rather than the plaintiff’s
commercial enterprise); but see Rancho Viejo, LLC v. Norton, 323
F.3d 1062 (D.C. Cir. 2003) (finding that the regulated activity
6
was not the ESA take but rather the “construction of a commercial
housing development”).
Next the panel examined whether Cave Species takes,
alone, have a “direct relationship” with and substantial effect
on interstate commerce. GDF Realty, 326 F.3d at 637. FWS
offered two theories for such a “direct relationship:” (1) the
“substantial” scientific interest the Cave Species generate; and
(2) possible future commercial benefits. The panel properly
rejected each argument as speculative or too attenuated to
commerce.
The panel finally turned to FWS’s argument that Cave
Species takes, although intrastate and non-economic in
themselves, may be aggregated with all other endangered species,
permitting the entirety of the regulatory scheme to pass
constitutional muster.3 “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.” GDF Realty, 326 F.3d at 638. The panel concluded
that this case warranted aggregation under Lopez and Morrison,
because FWS’s actions are essential to preserving an “economic”
3
The appellants concede that, if aggregated with all
endangered species, the Cave Species takes would have a
substantial effect on interstate commerce.
7
regulatory program. Id. at 639. I respectfully disagree. The
panel’s approval of aggregation in this case would not only
sustain every conceivable application of the ESA, but entirely
undercuts Lopez and Morrison.
To explain the problem, a brief historical review of
the aggregation principle is required. This court recognized in
Ho that the aggregation principle “reached its zenith in Wickard,
‘perhaps the most far-reaching example of commerce clause
authority over intrastate activity.’” Ho, 311 F.3d at 599
(quoting Lopez, 514 U.S. at 560). In Wickard, the Supreme Court
upheld regulation of an intrastate farmer’s personal consumption
of home-grown wheat under the Agricultural Adjustment Act of 1938
because, “. . . his contribution [to the wheat market], taken
together with that of many others similarly situated, is far from
trivial.” Wickard, 317 U.S. at 127-28. A primary purpose of the
act in question was, as the Court noted, “to increase the market
price of wheat and to that end to limit the volume thereof that
could affect the market.” Id. at 90.
After Wickard, the Court has sustained commerce clause
legislation using aggregation in instances where Congress was
regulating commercial activity. See Katzenbach v. McClung, 379
U.S. 294 (1964) (prohibiting refusal of restaurant service to
interstate travelers); Heart of Atlanta Motel v. United States,
8
379 U.S. 241 (1964) (prohibiting refusal of hotel accommodations
to interstate travelers); Maryland v. Wirtz, 392 U.S. 183 (1968)
(regulating wages of employees of business engaged in interstate
commerce); Perez v. United States, 402 U.S. 146 (1971)
(regulating loan sharking); Hodel v. Virginia Surface Mining and
Reclamation Association,452 U.S. 246 (1981) (regulating coal
industry); see Lopez, 514 U.S. at 560 (recognizing these
“examples are by no means exhaustive, but the pattern is clear”).
In both Lopez and Morrison, by contrast, the federal
government’s efforts to sustain non-economic criminal laws under
the commerce clause through aggregation were rebuffed. In Lopez,
only Justice Breyer’s dissent accepted the theory that discrete
instances of gun possession in a school zone, when aggregated,
increased the costs of crime and reduced national productivity so
as to justify the Gun-Free School Zones Act of 1990. See Lopez,
514 U.S. at 618-624 (Breyer, J. dissenting). The Court majority
rejected aggregation, because it would allow Congress to regulate
“all activities that might lead to violent crime, regardless of
how tenuously they relate to interstate commerce.” Id. at 564.
The Court concluded that, “if we were to accept the government’s
arguments, we are hard pressed to posit any activity by an
individual that Congress is without power to regulate.” Id.
9
Likewise, in Morrison, the Court rejected arguments
concerning the aggregate effects of sex-based crime on national
productivity, increased medical and other costs, and a decreased
supply and demand for interstate goods. Morrison, 529 U.S. at
615. Again, the Court concluded that aggregation “would allow
Congress to regulate any crime as long as the nationwide,
aggregated impact of that crime has substantial effects on
employment, production, transit or consumption.” Id. (adding
that “the concern we expressed in Lopez that Congress might use
the Commerce Clause to completely obliterate the Constitution’s
distinction between national and local authority seems well-
founded”) (citing Lopez, 514 U.S. at 564).
Together, these cases strongly suggest that when the
Supreme Court has sustained Commerce Clause regulation under the
aggregation principle, “the regulated activity was of an apparent
commercial character.” Morrison, 529 U.S. at 611. Nevertheless,
Morrison declined to create a categorical rule “against
aggregating the effects of non-economic activity,” even as it
observed, “thus far in our nation’s history our cases have upheld
Commerce Clause regulation of intrastate activity only where the
activity is economic in nature.” Id. at 613.
The panel recognized that “[i]n light of Lopez and
Morrison, the key question for purposes of aggregation is whether
10
the nature of the regulated activity is economic.” GDF Realty,
326 F.3d at 630. The panel conceded that “in a sense, Cave
Species takes are neither economic nor commercial. There is no
market for them; any future market is conjecture.” GDF Realty,
326 F.3d at 638. The panel added that “[i]f the speculative
future medical benefits from Cave Species makes their regulation
commercial, then almost anything would be.” Id. Furthermore,
“there is no historic trade in the Cave Species, nor do tourists
come to Texas to view them.” Id. Finally, the panel rejected
the government’s argument that Cave Species takes become
commercial in character once aggregated with other endangered
species. Id. “To accept such a justification would render
meaningless any ‘economic nature’ prerequisite to aggregation.”
Id.
Nevertheless, the panel aggregated the Cave Species
takes with all takes of all endangered species because: (1) they
are part of a larger regulation that is “directed at activity
that is economic in nature” and (2) the intrastate activity (Cave
Species takes) is an “essential part of the economic regulatory
scheme.” Id. at 639 (internal citations and quotations omitted).
How the panel’s conclusion follows from its generally
excellent preceding discussion of Lopez and Morrison, I cannot
fathom. The panel offers little reasoning why any take of a Cave
11
Species is (a) part of a larger “economic” regulatory scheme;
(b) so essential to the larger national scheme that the
accidental crushing of one Cave Species underfoot (or even the
diminutive species’ destruction) threatens to undo the national
program; and (c) so significant to the commerce clause that
Congress, for the first time in U.S. history, is authorized to
aggregate purely intrastate, non-economic activity.
It is undeniable that many ESA-prohibited takings of
endangered species may be regulated, and even aggregated, under
Lopez and Morrison because they involve commercial or
commercially-related activities like hunting, tourism and
scientific research. On this basis, the Fourth Circuit decision
in Gibbs v. Babbitt, 214 F.3d 483, 493-96 (4th Cir. 2000),
approved federal red wolf regulations. Under reasoning like that
in Gibbs, aggregation may be sustained on a species-by-species
basis or across certain categories of species. The pursuit of
hunting trophies, for instance, affects markets for hunting,
outfitting, taxidermy, etc. Where the link between endangered
species takes and commercial or economic activity is plain,
courts need not be concerned about the limits of the aggregation
principle.
But in this case, there is no link — as the panel
concedes — between Cave Species takes and any sort of commerce,
12
whether tourism, scientific research, or agricultural markets.
Compare Gibbs, 214 F.3d at 493-95. The cautions expressed in
Morrison about aggregation of wholly intrastate non-economic
activity should be taken seriously by the courts. See GDF
Realty, 326 F.3d at 628. Elsewhere in its opinion, the panel was
quite emphatic about this, saying “the possibility of future
substantial effects of the Cave Species on interstate commerce .
. . is simply too hypothetical and attenuated from the regulation
to pass constitutional muster.” Id. (citing Morrison, 529 U.S.
at 612) (emphasis in original).
When the panel nevertheless approves the application of
the ESA to these Cave Species, its opinion becomes confusing and
self-contradictory. First, the panel attempts to convert the ESA
to an economic regulatory statute by opining that the majority of
species takes would result from economic activity, and “the Cave
Species takes would occur as a result of plaintiffs’ planned
commercial development.” GDF Realty, 326 F.3d at 639. The panel
had, however, rejected this argument earlier, when it found that
the regulated activity is the take, not the planned commercial
land development. GDF Realty, 326 F.3d at 633-34. As the panel
itself understood, this “analysis would allow application of
otherwise unconstitutional statutes to commercial actors, but not
non-commercial actors. There would be no limit to Congress’
13
authority to regulate intrastate activities, so long as those
subjected to the regulation were entities which had an otherwise
substantial connection to interstate commerce.” Id. at 634.4
Second, the panel states that Cave Species takes are
essential to the ESA, because any take of any species
“threaten[s] the interdependent web of all species.” GDF Realty,
326 F.3d at 640 (internal quotations omitted). Under the panel’s
approach, “the essential purpose of the ESA is to protect the
ecosystems upon which we and other species depend.” Id. (quoting
H.R. Rep. No. 93-412, at 10). Further, every take is “essential”
to the ESA because the extinction of any species risks the
extinction of all species, and the extinction of all species
could lead to the extinction of ecosystems. GDF Realty, 326 F.3d
at 640. At one level, this is no more than the “but-for-causal
chain” approach twice rejected by the Supreme Court in Lopez and
Morrison. Hence, “the Lopez Court declined to apply the
aggregation principle in conjunction with long chains of causal
inference that would have been necessary to arrive at a
substantial effect on interstate commerce.” United States v.
Wang, 222 F.3d 234, 239 (6th Cir. 2000). An even more obvious
4
Arguably, Congress could pass a statute prohibiting anyone
engaged in interstate commerce from “taking” endangered species.
But Congress did not do so in these parts of the statute.
14
dissonance between the panel opinion and Lopez, Morrison and the
Constitution is that the Commerce Clause regulates commerce, not
ecosystems.5
Third, while the panel acknowledges the Supreme Court’s
concern that federal legislation under the Commerce Clause must
have a limiting principle so as not to obliterate the distinction
between that which is truly national and that which is local, the
panel’s conclusion tramples that precept. The panel concludes,
summarily, that its “interdependent web” approach “will not allow
Congress to regulate land use or wildlife preservation.” GDF
Realty, 326 F.3d at 640. I disagree. Once the FWS designates a
species as endangered, the Government has functional control over
the land designated as its habitat. If such authority is not
justified by a federal interest in regulating interstate
5
That a true, not merely conjectural, economic activity must
be the subject of Congress’s regulation is reinforced by our
court’s debates over the Hobbs Act. In United States v.
Robinson, 119 F.3d 1205 (5th Cir. 1997), the panel reasoned that
any robbery of a business that has an effect on interstate
commerce under the Hobbs Act’s express jurisdictional
requirements may be aggregated with other similar crimes for
purposes of establishing a “substantial effect.” Here, there is
no jurisdictional element, and the only aggregate effect
articulated by the panel is on biodiversity, which the panel
somehow equates with “economic” or commercial activity. It seems
clear, though, that biodiversity is a condition of nature, not a
human activity. The panel’s opinion goes farther than Robinson
in permitting aggregation to overcome a commerce clause
challenge.
15
commerce, it “would result in a significant impingement of the
States’ traditional and primary power over land and water use.”
Solid Waste Agency, 531 U.S. at 173-74.6
Perversely, federal protection of the Cave Species has
become a device to thwart not only these appellants’ prospects of
land development but also the State’s construction of a highway,
the quintessential modern artery of commerce. See “Dateline
Texas: Officials at Odds over Spider Habitat,” Houston Chron.,
Feb. 22, 2004, at 35A (to get federal approval for highway
construction over two limestone caverns housing the Cave Species,
“state highway administrators must find a site in Williamson
County that is also home to the endangered species and
permanently preserve that site”).
6
Contrary to recent Supreme Court authority, the panel
interprets the Endangered Species Act extremely broadly to permit
the federal government to regulate a matter of unique local
concern. See Solid Waste Agency, 531 U.S. at 172-173
(Congressional authority must be narrowly construed “where the
administrative interpretation alters the federal-state framework
by permitting federal encroachment upon a traditional state
power.”). Further, “where an otherwise acceptable construction of
a statute would raise serious constitutional problems, [courts]
will construe the statute to avoid such problems unless such
construction is plainly contrary to the intent of Congress.” Id.
(quoting Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988)). Regulation of
land use is traditionally the province of state and local
governments. Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30,
44 (1994).
16
The panel also concludes, without explanation, that
“the link” between Cave Species takes “and a substantial
commercial effect is not attenuated.” GDF Realty, 326 F.3d at
640. The panel’s reasoning — all takes are essential, therefore,
all takes have a substantial commercial effect — is circular.
Even aside from this problem, the Fifth Circuit and other courts
have recognized that in an otherwise constitutional federal
regulatory scheme, some applications may go too far. See e.g.,
United States v. Collins, 40 F.3d 95, 99 (5th Cir. 1994) (robbery
of an individual citizen not covered under the Hobbs Act); United
States v. Wang, supra (same); United States v. Quigley, 53 F.3d
909, 910-11 (8th Cir. 1995). In fact, the panel’s reasoning
contradicts Collins, inasmuch as it would authorize federal
criminal prosecution under the ESA of a landowner, or even an FWS
agent, who climbed down into one of the caves in order to study
the Cave Species and crushed one. See 16 U.S.C. §§ 1538-1540;
compare Rancho Viejo, supra, 323 F.3d at 1080 (Ginsburg, J.,
concurring) (“. . . our rationale for concluding the take of the
arroyo toad affects interstate commerce does indeed have a
logical stopping point . . . Just as important, however, the lone
hiker in the woods, or the homeowner who moves dirt in order to
landscape his property, though he takes the toad, does not affect
interstate commerce.”).
17
In the end, the panel is unable to refute the
attenuation concern of Lopez and Morrison because its analysis
rests on the false implication that all takes of all species
necessarily relate to an ecosystem, which by its very grandiosity
must at some point be “economic” in actuality or in effect. This
is precisely the reasoning rejected by the Supreme Court. Not
all crime is “economic” for commerce clause purposes, in
actuality or effect, even though any or all of its human victims
may become impoverished. Not all crimes against women are
“economic” in practicality or effect, despite the same possible
consequences. The Commerce Clause does not regulate crime,
sexual inequity, or ecosystems as such — it regulates commerce.
Thus, I reiterate: many applications of the ESA may be
constitutional, but this one simply goes too far. To be faithful
to the Supreme Court’s principles in Lopez and Morrison and this
court’s Commerce Clause decisions, we should rehear this case en
banc.
18