National Ass'n of Home Builders v. Babbitt

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 3, 1997 Decided December 5, 1997

No. 96-5354

National Association of Home Builders, et al.,

Appellants

v.

Bruce Babbitt, Secretary,

United States Department of Interior and

Mollie Beattie, Director,

United States Fish and Wildlife Service,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 95cv01973)

Thomas C. Jackson argued the cause for appellants, with
whom Patrick J. Hurd, Arthur S. Garrett III, Martha E.
Marrapese, Glen F. Koontz and Alec I. Ugol were on the
briefs. Alan K. Marks entered an appearance.

David C. Shilton, Attorney, United States Department of
Justice, argued the cause for appellees, with whom Lois J.
Schiffer, Assistant Attorney General, and J. Carol Williams,
Attorney, were on the brief. John A. Bryson, Attorney,
entered an appearance.

William R. Irvin, Kathleen Rogers, Josh Eagle and Mi-
chael J. Bean were on the brief for amici curiae Center for
Marine Conservation, et al.

Robin L. Rivett and Anne M. Hawkins were on the brief
for amicus curiae Pacific Legal Foundation.

Daniel J. Popeo and Paul D. Kamenar were on the brief
for amicus curiae Washington Legal Foundation.

Paul M. Terrill, III was on the brief for amicus curiae
American Land Foundation.

Before: Wald, Sentelle and Henderson, Circuit Judges.

Opinion filed by Circuit Judge Wald.

Concurring opinion filed by Circuit Judge Henderson.

Dissenting opinion filed by Circuit Judge Sentelle.

Wald, Circuit Judge: The National Association of Home
Builders of the United States, the Building Industry Legal
Defense Fund, the County of San Bernardino, and the City of
Colton, California brought this action in the United States
District Court for the District of Columbia to challenge an
application of section 9(a)(1) of the Endangered Species Act
("ESA"), 16 U.S.C. s 1538(a)(1), which makes it unlawful for
any person to "take"--i.e., "to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or collect, or attempt to
engage in any such conduct," 16 U.S.C. s 1532(19)--any
endangered species. The plaintiffs sought a declaration that
the application of section 9 of the ESA to the Delhi Sands
Flower-Loving Fly ("the Fly"), which is located only in
California, exceeds Congress' Commerce Clause power and
an injunction against application of the section to the plain-
tiff's construction activities in areas containing Fly habitat.

This dispute arose when the Fish and Wildlife Service
("FWS") placed the Fly, an insect that is native to the San
Bernardino area of California, on the endangered species list.
The listing of the Fly, the habitat of which is located entirely
within an eight mile radius in southwestern San Bernardino
County and northwestern Riverside County, California,
forced San Bernardino County to alter plans to construct a
new hospital on a recently purchased site that the FWS had
determined contained Fly habitat. The FWS and San Ber-
nardino County agreed on a plan that would allow the County
to build the hospital and a power plant in the area designated
as Fly habitat in return for modification of the construction
plans and purchase and set aside of nearby land as Fly
habitat. In November 1995, FWS issued a permit to allow
construction of the power plant. During the same month,
however, the County notified the FWS that it planned to
redesign a nearby intersection to improve emergency vehicle
access to the hospital. The FWS informed the County that
expansion of the intersection as planned would likely lead to a
"taking" of the Fly in violation of ESA section 9(a). After
brief unsuccessful negotiations between the County and FWS,
the County filed suit in district court challenging the applica-
tion of section 9(a)(1) to the Fly.

The district court held that application of section 9(a)(1) of
the Endangered Species Act to the Fly is a valid exercise of
Congress' power pursuant to the Commerce Clause. Accord-
ingly, the court entered summary judgment on behalf of the
government. See National Association of Home Builders v.
Babbit, 949 F. Supp. 1, 2 (D.D.C. 1996). Because we also find
that the application of section 9(a)(1) of the Endangered
Species Act to the Fly does not exceed Congress' Commerce
Clause power, we affirm the district court's decision to grant
the government's motion for summary judgment.1

__________
1 Summary judgment is appropriate when all of the submissions
"show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56.

I. Factual and Procedural Background

The Delhi Sands Flower-Loving Fly, which lives only in
the "Delhi series" soils found in southwestern San Bernardino
County and northwestern Riverside County, California, is the
only remaining subspecies of its species. The other subspe-
cies, the El Segundo Flower-Loving Fly, is believed to be
extinct due to destruction of its habitat through urban devel-
opment. See Brief of Amici Curiae Center for Marine
Conservation, Defenders of Wildlife, Environmental Defense
Fund, National Audubon Society, and World Wildlife Fund
("Brief of Amici Curiae for Appellees") at 4. The Fly is also
one of only a few North American species in the "mydas flies"
family and one of only a few species in that family that visit
flowers in search of nectar, thereby pollinating native plant
species. See id. at 1.

Over 97 percent of the historic habitat of the Fly has been
eliminated, and, prior to its listing as endangered, its remain-
ing habitat was threatened by urban development, unautho-
rized trash dumping, and off-road vehicle use. See Endan-
gered and Threatened Wildlife and Plants; Determination of
Endangered Status for the Delhi Sands Flower-loving Fly, 58
Fed. Reg. 49,881, 49,885 (1993) (codified at 50 C.F.R. pt. 17).
There are currently 11 known populations of the Fly, all of
which occur within an eight mile radius of one another. See
Declaration of Christopher D. Nagano (Apr. 30, 1996) at p 14
("Nagano Declaration"). The size of the entire population of
Flies was recently estimated in the low hundreds. See U.S.
Fish and Wildlife Service, Technical/Agency Draft Recovery
Plan for the Delhi Sands Flower-Loving Fly 12 (1996).

In 1990, after receiving two petitions asking that the Fly be
placed on the endangered species list, the FWS began an
investigation into whether listing of the Fly as endangered
was warranted. Soon thereafter, the FWS found that sub-
stantial information had been presented to indicate that the
Fly was an endangered species. Two years later, the FWS
published its final determination that the Fly is "in imminent
danger of extinction due to extensive habitat loss and degra-
dation that has reduced its range by 97 percent." 58 Fed.

Reg. at 49,881. The listing of the Fly as endangered trig-
gered the automatic statutory prohibitions of section 9(a)(1) of
the ESA, 16 U.S.C. s 1538(a)(1). As a result, commercial
trade in the species could no longer occur lawfully and no
person could "take" individuals of the species without a
permit or an exemption.

For several years prior to the listing of the Fly as endan-
gered, the County of San Bernardino had been planning to
build a $470 million earthquake-proof "state of the art"
hospital to serve as the central emergency medical center for
the San Bernardino County area in the event of an earth-
quake and to serve as a primary burn care center and
teaching facility. In July 1992, two years after the FWS had
published its notice that sufficient information had been pre-
sented to justify listing the Fly as endangered but before the
Fly was actually so listed, the Board of the new San Bernar-
dino County hospital acquired the final site parcels for the
hospital. The 76-acre site that the board acquired contained
habitat of the Fly.

In November 1992, the FWS notified the County that the
Fly was likely to be listed as endangered, and in May 1993--
after the Fly was listed--the FWS advised the County that
the hospital site was occupied by the Fly and that construc-
tion of the facility as then proposed would likely "take"
members of the species in violation of the ESA. The County
decided to modify the layout and design of the hospital to
eliminate direct and indirect impacts to the Fly and to
eliminate the need for a section 10 "incidental take permit." 2

__________
2 Under section 10 of the ESA, the Secretary of the FWS may
permit a taking of an endangered species otherwise prohibited by
section 9(a)(1) if the taking is incidental to carrying out an other-
wise lawful activity. No permit may be issued until after the
applicant submits a conservation plan, the Secretary offers opportu-
nity for public comment on the plan, and the Secretary finds, among
other things, that the taking will be incidental, the impacts of the
taking will be minimized to the extent practicable, adequate funding
for the plan is available, and the taking will not appreciably reduce
the likelihood of the survival and recovery of the species. See 16
U.S.C. s 1539(a).

One of the modifications to the original design for the hospital
included in the plan was to move the hospital 250 feet north
to "avoid[ ] direct impact to the entire area identified as
occupied or suitable Delhi Fly habitat." Habitat Preserva-
tion, Habitat Enchangement [sic] and Impact Avoidance Plan
for the Delhi Sands Flower-Loving Fly at the San Bernardi-
no County Hospital Replacement Site 8 (Dec. 1, 1993). This
resulted in an 8.35 acre Delhi Fly habitat preserve. Id. The
plan also created a 100-foot wide corridor to link two Fly
habitat areas and permit interbreeding between Fly colonies.

In October 1994, the County approached FWS with a
proposal to construct a substation to power the hospital on
"the best remaining habitat" for the Fly. See Declaration of
Jeffery M. Newman 8 (Apr. 29, 1996) ("Newman Declara-
tion"). The County submitted an application for incidental
"take" of the Fly, which would permit it to build on about 4
acres of Fly habitat. To offset this reduction in Fly habitat,
the County proposed to acquire and manage a nearby 7.5 acre
site as Fly habitat. In November 1995, the FWS issued the
section 10 permit for the substation and construction began
shortly thereafter. See id. at 9.

In November 1995, the County informed FWS of its plans
to redesign an intersection near the hospital that the County
argues is critical to emergency vehicle access to the new
hospital. The FWS determined that the plan, which called
for a reduction of the 100 foot wide corridor to an 18 foot wide
corridor, a reduction of 70 to 80 percent, would "greatly
reduce, if not effectively eliminate, the entire corridor area
set aside as a critical part of the County's efforts to avoid a
take" of the Fly. Newman Declaration at 7. The FWS
advised the County that the redesign of the intersection
would probably cause a "take" of the Fly in violation of
section 9 of the ESA.

On October 20, 1995, the National Association of Home
Builders of the United States, the Building Industry Legal
Defense Fund, the County of San Bernardino, and the City of
Colton, California filed a complaint seeking a declaration that
the taking prohibition of section 9 of the ESA was unconstitu-

tional as applied to "takes" of the Fly and asking for an
injunction barring application of the provision. An amended
complaint later added the California Building Industry Asso-
ciation and the City of Fontana as plaintiffs. On December 6,
1996, the district court granted the government's motion for
summary judgment. See National Association of Home
Builders, 949 F. Supp. 1. This appeal ensued.

II. Discussion

Appellants challenge the application of section 9(a)(1) of the
ESA, which makes it unlawful for any person to "take any
[endangered or threatened] species within the United States
or the territorial sea of the United States," 16 U.S.C.
s 1538(a)(1), to the Delhi Sands Flower- Loving Fly. See also
Babbitt v. Sweet Home Chapter of Communities for a Greater
Oregon, 515 U.S. 687 (1995) (upholding agency's interpreta-
tion of the term "take" to include significant habitat degrada-
tion). Appellants argue that the federal government does not
have the authority to regulate the use of non-federal lands in
order to protect the Fly, which is found only within a single
state. Indeed, they claim that "the Constitution of the Unit-
ed States does not grant the federal government the authori-
ty to regulate wildlife, nor does it authorize federal regulation
of nonfederal lands." Brief for Appellants at 17.

The district court held that the application of section 9(a)(1)
of the ESA to the Fly is constitutional. It concluded that the
federal government's "limited and enumerated" powers in-
clude the power to regulate wildlife and non-federal lands
that serve as the habitat for endangered species. The court
also concluded that the ESA provides for a regulatory scheme
that is within the bounds of Congress' power under the
Commerce Clause. The district court thus granted the gov-
ernment's motion for summary judgment. We affirm the
district court's decision.

Appellants' Commerce Clause challenge to the application
of section 9(a)(1) of the ESA to the Fly rests on the Supreme
Court's decision in United States v. Lopez, 514 U.S. 549

(1995). In Lopez, the Court held that the Gun-Free School
Zones Act of 1990, 18 U.S.C. s 922(q), which made possession
of a gun within a school zone a federal offense, exceeded
Congress' Commerce Clause authority. Drawing on its earli-
er Commerce Clause jurisprudence, see especially Perez v.
United States, 402 U.S. 146, 150 (1971), the Lopez Court
explained that Congress could regulate three broad catego-
ries of activity: (1) "the use of the channels of interstate
commerce," (2) "the instrumentalities of interstate commerce,
or persons or things in interstate commerce, even though the
threat may come only from intrastate activities," and (3)
"those activities having a substantial relation to interstate
commerce ... i.e., those activities that substantially affect
interstate commerce." Lopez, 514 U.S. at 558-59 (citations
omitted). Possession of a gun within 1000 feet of a school,
the Court explained, clearly did not fit the first two catego-
ries. In addition, it could not be regulated under the third
category as an activity that "substantially affects" interstate
commerce because it was not commercial in nature and was
not an essential part of a larger regulation of economic
activity. Moreover, the Court explained, Congress had made
no findings about the effect of gun possession in school zones
on interstate commerce. Thus, concluding that Congress had
no rational basis for finding that gun possession within school
zones had a substantial effect on interstate commerce, the
Court declared the statute unconstitutional. See id. at 567-
68.

It is clear that, in this instance, section 9(a)(1) of the ESA
is not a regulation of the instrumentalities of interstate
commerce or of persons or things in interstate commerce. As
a result, only the first and the third categories of activity
discussed in Lopez will be examined. In evaluating whether
ESA section 9(a)(1) is a regulation of the use of the channels
of interstate commerce or of activity that substantially affects
interstate commerce, we may look not only to the effect of the
extinction of the individual endangered species at issue in this
case, but also to the aggregate effect of the extinction of all
similarly situated endangered species. As the Lopez Court
explained, " 'where a general regulatory statute bears a sub-

stantial relation to commerce, the de minimis character of
individual instances arising under the statute is of no conse-
quence.' " Lopez, 514 U.S. at 558 (quoting Maryland v.
Wirtz, 392 U.S. 183, 197 n.27 (1968), overruled on other
grounds, National League of Cities v. Usery, 426 U.S. 833
(1976), overruled by Garcia v. San Antonio Metro. Transit
Auth., 469 U.S. 528 (1985) (first emphasis added)). If a
statute regulates "a class of activities ... within reach of the
federal power," Perez, 402 U.S. at 154, the courts have "no
power 'to excise, as trivial, individual instances' of the class,"
id. Because section 9(a)(1) of the ESA regulates a class of
activities--takings of endangered species--that is within Con-
gress' Commerce Clause power under both the first and third
Lopez categories, application of section 9(a)(1) to the Fly is
constitutional.3

A. Channels of Interstate Commerce

Application of section 9(a)(1) of the ESA to the Fly can be
viewed as a proper exercise of Congress' Commerce Clause
power over the first category of activity that the Lopez Court
identified: the use of the "channels of interstate commerce."
Lopez, 514 U.S. at 558. Although this category is commonly
used to uphold regulations of interstate transport of persons
or goods, it need not be so limited. Indeed, the power of
Congress to regulate the channels of interstate commerce
provides a justification for section 9(a)(1) of the ESA for two
reasons. First, the prohibition against takings of an endan-

__________
3 Judge Henderson's concurring opinion expresses the view that
the first Lopez category does not apply; as to the third Lopez
category, however, I find our reasoning to be substantially similar.
We agree that "the loss of biodiversity itself has a substantial effect
on our ecosystem and likewise on interstate commerce," Concurring
opinion ("Conc. op.") at 2 (footnote omitted); cf. infra subsection
II.B.1, and that "at the time it passed ESA the Congress contem-
plated protecting endangered species through regulation of land
and its development, which is precisely what the Department has
attempted to do here. Such regulation, apart from the characteris-
tics or range of the specific endangered species involved, has a plain
and substantial effect on interstate commerce," Conc. op. at 4; cf.
infra subsection II.B.2.

gered species is necessary to enable the government to
control the transport of the endangered species in interstate
commerce. Second, the prohibition on takings of endangered
animals falls under Congress' authority " 'to keep the chan-
nels of interstate commerce free from immoral and injurious
uses.' " Id. (quoting Heart of Atlanta Motel Inc. v. United
States, 379 U.S. 241, 256 (1964)).4

The ESA's prohibition on takings of endangered species
can be justified as a necessary aid to the prohibitions in the
ESA on transporting and selling endangered species in inter-
state commerce. In this sense, the prohibition against tak-
ings of endangered species is analogous to the prohibition
against transfer and possession of machine guns (including
purely intrastate possession) of 18 U.S.C. s 922(o), which has
been upheld by the Fifth, Sixth, Ninth, and Eleventh Circuits

__________
4 Judge Sentelle unsuccessfully attempts to draw a parallel be-
tween the statute at issue in Lopez, which the Supreme Court
determined was not a regulation of the use of the channels of
interstate commerce, and the statute at issue in this case. In fact,
the two statutes are different in material respects. First, s 922(q)'s
prohibition against possession of a firearm in a school zone clearly
was not necessary to enable the government to control the trans-
portation of firearms in interstate commerce. Yet, as noted above
and discussed in greater depth below, the ESA's prohibition against
taking endangered species is necessary to enable the government to
control the transport of endangered species in interstate commerce.
Thus, in this respect, ESA section 9(a)(1) is much more similar to
the prohibition against transfer and possession of machine guns of
18 U.S.C. s 922(o), which has been repeatedly found constitutional,
than it is to s 922(q). See infra text accompanying notes 5 & 6.
Second, s 922(q)'s prohibition against possession of a firearm in a
school zone clearly did not fall under Congress' authority " 'to keep
the channels of interstate commerce free from immoral and injuri-
ous uses,' " Heart of Atlanta, 379 U.S. at 256, because it regulated
possession of firearms within only a very limited area. However, as
is again discussed in greater depth below, the ESA's prohibition on
taking endangered animals clearly does fall under Congress' author-
ity to keep the channels of interstate commerce free from immoral
and injurious uses in cases where the pressures of interstate
commerce place the existence of species in peril.

as a regulation of the channels of interstate commerce. In
United States v. Rambo, 74 F.3d 948, 951 (9th Cir.), cert.
denied, 117 S. Ct. 72 (1996), for instance, the Ninth Circuit
upheld section 922(o) against a Lopez-inspired Commerce
Clause challenge. The court held that the statute was a
" 'regulation of the use of the channels of interstate com-
merce' " because "[b]y regulating the market in machineguns,
including regulating intrastate machinegun possession, Con-
gress has effectively regulated the interstate trafficking in
machineguns." Id. at 952 (quoting Lopez, 514 U.S. at 559).5
Thus, section 922(o) is properly classified as a first category
regulation because " 'federal regulation of intrastate incidents
of transfer and possession is essential to effective control of

__________
5 The other circuits that held that section 922(o) is a proper
exercise of Congress' power to regulate the "channels of interstate
commerce" employed similar reasoning. See United States v.
Wright, 117 F.3d 1265, 1270 (11th Cir. 1997) (upholding section
922(o) on the ground that Congress had a rational basis to deter-
mine that a total ban on possession of machineguns would have a
substantial effect on interstate commerce because "the connection
between the elimination of the lawful demand for machineguns and
the manufacture, importation, and interstate transfer of these prod-
ucts is obvious and direct"); United States v. Beuckelaere, 91 F.3d
781, 784 (6th Cir. 1996) (upholding 19 U.S.C. s 922(o) as a first
category regulation because "s 922(o) regulates the 'extensive, in-
tricate, and definitely national market for machineguns' by prohibit-
ing the transfer and possession of machineguns acquired after May
19, 1986") (citations omitted); United States v. Kirk, 70 F.3d 791,
796-97 (5th Cir. 1995), aff'd, 105 F.3d 997 (5th Cir. 1996) (en banc),
cert. denied, 118 S. Ct. 47 (1997) (holding that "section 922(o) is a
regulation which attempts 'to prohibit the interstate transportation
of a commodity through the channels of commerce," because the
ban on possession of machineguns controls "the interstate market
for machineguns by creating criminal liability for those who would
constitute the demand side of the market") (citations omitted). The
en banc court in United States v. Kirk, 105 F.3d 997, was equally
divided, with eight judges voting to affirm and eight judges voting
to reverse the district court judgment. In addition, there were two

the interstate incidents of such traffic.' " Id. (quoting United
States v. Kirk, 70 F.3d 791, 797 (5th Cir. 1995), aff'd, 105 F.3d
997 (5th Cir. 1996) (en banc), cert. denied, 118 S. Ct. 47
(1997). In other words, it is necessary to regulate possession
of machineguns in order to effectively regulate the interstate
traffic in machineguns because it is impossible to sell ma-
chineguns in interstate commerce without first possessing
them. Similarly, the prohibition on "taking" endangered
species is properly classified as a first category regulation
because one of the most effective ways to prevent traffic in
endangered species is to secure the habitat of the species
from predatory invasion and destruction. Therefore, like
section 922(o), section 9(a)(1) of the ESA can be properly
upheld as a regulation of the use of the channels of interstate
commerce.6

The prohibition on takings of endangered animals also falls
under Congress' authority to prevent the channels of inter-
state commerce from being used for immoral or injurious
purposes. This authority was perhaps best described by the
Supreme Court in Heart of Atlanta, 379 U.S. 241, which the
Lopez Court cited and quoted in its reference to Congress'
power to regulate the use of the "channels of interstate
commerce." In Heart of Atlanta, the Supreme Court upheld
a prohibition on racial discrimination in places of public
accommodation serving interstate travelers against a Com-
merce Clause challenge. The Court explained that " 'the
authority of Congress to keep the channels of interstate

__________
separate opinions affirming the judgment of the district court.
Neither of the affirming opinions directly addresses the issue of
whether section 922(o) is a regulation of the "channels of interstate
commerce." Therefore, I cite the Fifth Circuit's panel decision not
for its precedential value but because I find its reasoning instruc-
tive.

6 The District Court of Massachusetts used similar reasoning in
upholding against a Commerce Clause challenge the conviction of a
defendant who purchased a guide and hunted Alaskan wildlife with
a false residential hunting license in violation of the Lacey Act. See
United States v. Romano, 929 F. Supp. 502 (D. Mass. 1996). The
court explained that "Congress may employ reasonable means to
rid the channels of interstate commerce of illegally taken wildlife."
See id. at 509 (citations omitted).

commerce free from immoral and injurious uses has been
frequently sustained, and is no longer open to question.' " Id.
at 256 (citation omitted) (quoted in Lopez, 514 U.S. at 558).
It does not matter if the activities that are regulated are of a
"purely local character," the Court elaborated, " '[i]f it is
interstate commerce that feels the pinch, it does not matter
how local the operation which applies the squeeze.' " Id. at
258 (citation omitted). Thus, the power of Congress over
interstate commerce "also includes the power to regulate the
local incidents thereof, including local activities in both the
States of origin and destination, which might have a substan-
tial and harmful effect upon that commerce." Id. This same
principle was elaborated in the seminal case of United States
v. Darby, 312 U.S. 100 (1940), which was the only other case
cited by the Lopez Court in its description of the first
category of activity that Congress can regulate under its
commerce power. In Darby, the Court upheld federal wage
and hour regulations against a Commerce Clause challenge,
noting that such regulations were necessary to prevent states
with higher regulatory standards from being disadvantaged
vis--vis states with lower regulatory standards. In uphold-
ing the regulation, the Court explained that "Congress, fol-
lowing its own conception of public policy concerning the
restrictions which may appropriately be imposed on interstate
commerce," is free to exclude from commerce goods that will
have injurious effects in the state in which they are produced
or to which they are destined. Id. at 114. This is true even
though the activity prohibited by the regulation at issue in
Darby--failure to meet minimum wage and maximum hour
requirements--might have had little or no direct effect out-
side the state in which the goods were produced.

This same reasoning that the Supreme Court applied in
Darby and Heart of Atlanta is applicable to the case at hand.
In those cases as well as here, Congress used its authority to
rid the channels of interstate commerce of injurious uses to
regulate the conditions under which goods are produced for
interstate commerce. In Darby, Congress used this authori-
ty to prevent labor exploitation of employees producing lum-
ber for interstate commerce. In Heart of Atlanta, Congress
used this authority to prevent racial discrimination by a hotel

serving an interstate clientele. Similarly, in this case, Con-
gress used this authority to prevent the eradication of an
endangered species by a hospital that is presumably being
constructed using materials and people from outside the state
and which will attract employees, patients, and students from
both inside and outside the state. Thus, like regulations
preventing racial discrimination or labor exploitation, regula-
tions preventing the taking of endangered species prohibit
interstate actors from using the channels of interstate com-
merce to "promot[e] or spread[ ] evil, whether of a physical,
moral or economic nature." North American Co. v. S.E.C.,
327 U.S. 686, 705 (1946). Congress is therefore empowered
by its authority to regulate the channels of interstate com-
merce to prevent the taking of endangered species in cases
like this where the pressures of interstate commerce place
the existence of species in peril.

In his dissent, Judge Sentelle claims that this analysis of
Darby and Heart of Atlanta is "far off the mark." Dissenting
opinion ("Diss. op.") at 7. It is his analysis, however, that is
inconsistent with the reasoning and results in these cases. In
Judge Sentelle's view, the only regulations that would qualify
as a proper regulation of the channels of interstate commerce
are direct regulations of persons or things that move across
state lines. This view is simply not consistent with the
Court's decisions in Darby and Heart of Atlanta, which I
again note are the only two cases the Lopez Court cited to
illustrate its first category of authorized regulation. Neither
Darby nor Heart of Atlanta involved a direct regulation of
persons or things that moved across state lines. The statute
challenged in Darby set wage and hour requirements for
lumber factory employees, while the statute in Heart of
Atlanta prohibited racial discrimination against hotel custom-
ers. Judge Sentelle's argument thus proves too much: If
only direct regulation of goods that travel in interstate com-
merce can be upheld as valid under the channels of interstate
commerce prong of Lopez, both of these statutes must fail as
well, a result patently inconsistent with the Court's express
affirmance of them in Lopez. Therefore, contrary to Judge
Sentelle's assertion, see Diss. op. at 7-8, the argument that
access to the channels of interstate commerce may be regu-

lated in order to prevent injurious local practices that in turn
have a substantial harmful effect on interstate commerce
either by discouraging such commerce or by inciting a race to
the bottom is neither novel nor unduly extensive; indeed, it is
the core reasoning of Darby and Heart of Atlanta.

B. Substantially Affects Interstate Commerce

The takings clause in the ESA can also be viewed as a
regulation of the third category of activity that Congress may
regulate under its commerce power. According to Lopez, the
test of whether section 9(a)(1) of the ESA is within this
category of activity "requires an analysis of whether the
regulated activity 'substantially affects' interstate commerce."
514 U.S. at 559. A class of activities can substantially affect
interstate commerce regardless of whether the activity at
issue--in this case the taking of endangered species--is com-
mercial or noncommercial. As the Lopez Court, quoting
Wickard v. Filburn, 317 U.S. 111 (1942), noted:

"[E]ven if appellee's activity be local and though it may
not be regarded as commerce, it may still, whatever its
nature, be reached by Congress if it exerts a substantial
economic effect on interstate commerce, and this irre-
spective of whether such effect is what might at some
earlier time have been defined as 'direct' or 'indirect.' "

Lopez, 514 U.S. at 556 (quoting Wickard, 317 U.S. at 125).7

This interpretation of the Lopez decision is consistent with
this court's recent decision in Terry v. Reno, 101 F.3d 1412
(D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997). In
Terry, we upheld the Freedom of Access to Clinic Entrances
Act against a Commerce Clause challenge, concluding that
the Lopez decision did not restrict Congress' Commerce
Clause power to activity that is "commercial." We rejected

__________
7 Indeed, the case at hand is in many ways directly analogous to
Wickard. In both cases, the appellee's activity, growing wheat for
personal consumption and taking endangered species, is local and is
not "regarded as commerce." Wickard, 317 U.S. at 125. However,
in both cases, the activity exerts a substantial economic effect on
interstate commerce--by affecting the quantity of wheat in one
case, and by affecting the quantity of species in the other.

the argument that Congress could not regulate protest in
front of abortion clinics because protest is an intrastate,
noncommercial activity, explaining that "Congress has au-
thority to regulate 'activities that substantially affect inter-
state commerce.' " Id. at 1417 (quoting Lopez, 514 U.S. at
559 (emphasis added)). We further explained that in order to
be subject to Congress' Commerce Clause power, "[t]he
regulated activity--in this case, interfering with abortion
clinics--need not be commercial, so long as its effect on
interstate commerce is substantial." Id.8

Other circuits have also held that a statute need not
regulate economic activity directly in order to fall under
Congress' Commerce Clause power. For instance, the Fifth
Circuit upheld the Freedom of Access to Clinic Entrances Act
against a challenge alleging that the Act constitutes an uncon-
stitutional exercise of Congress' Commerce Clause power
because it proscribes intrastate, noncommercial activity.
United States v. Bird, 124 F.3d 667, 669-70 (5th Cir. 1997).
Acknowledging that the statute regulates intrastate, noncom-
mercial protest activity, the court held that the statute was a
proper exercise of Congress' Commerce Clause power be-
cause it had a substantial effect on interstate commerce. The
court explained, "[a]fter Wickard--and its reaffirmance in
Lopez--there can be no question that Congress is able to
regulate noncommercial, intrastate activity that substantially
affects interstate commerce...." Id. at 676. Similarly, the

__________
8 Interestingly, Judge Sentelle, who concurred in the Court's
opinion in Terry v. Reno, 101 F.3d 1412, fails to cite the case in his
dissenting opinion. Indeed, he appears to assert propositions that
are directly at odds with the Court's reasoning in that case. For
instance, he claims that ESA section 9(a)(1)(B) is not a permissible
exercise of Congress' commerce power because "like the statute
challenged in Lopez, [it] does not regulate commerce." Diss. op. at
4. Yet in Terry v. Reno, this Court clearly indicated that Congress'
Commerce Clause power is not limited to regulating commercial
activity. Rather, it is limited to regulating activity that has a
substantial effect on interstate commerce. See Terry, 101 F.3d at
1417. Were we to apply Judge Sentelle's reasoning in his dissent-
ing opinion here to Terry, it would dictate a result contrary to the
Court's holding in that case.

Eleventh Circuit recently upheld the Comprehensive Envi-
ronmental Response, Compensation and Liability Act
("CERCLA") against a Commerce Clause challenge by the
operator of a chemical manufacturing facility that was re-
quired to pay for the cleanup of entirely localized environ-
mental contamination caused by the facility. See U.S.A. v.
Olin Corp., 107 F.3d 1506, 1510 (11th Cir. 1997). The court
explained that a statute need not "regulate economic activity
directly to satisfy the Commerce Clause" because "Lopez
reiterates that a statute will pass constitutional muster if it
regulates an activity, whatever its nature, 'that arise[s] out of
or [is] connected with a commercial transaction, which viewed
in the aggregate, substantially affects interstate commerce.' "
Id. (quoting Lopez, 514 U.S. at 561).

A recent Supreme Court decision confirms our holding in
Terry, 101 F.3d 1412, that activity need not be commercial in
character in order to be regulated by Congress under the
Commerce Clause. In Camps Newfound/Owatonna, Inc. v.
Town of Harrison, Maine, 117 S. Ct. 1590, 1602 (1997), which
involved a Commerce Clause challenge to an otherwise gener-
ally applicable state property tax exemption for charitable
institutions that excluded organizations operated principally
for the benefit of nonresidents, the Supreme Court held that
the Commerce Clause applies to activity regardless of wheth-
er it was undertaken with the intention of earning a profit.
Citing its earlier opinion in Edwards v. California, 314 U.S.
160 (1941), in which the Court had held that interstate
transportation of indigent persons was "commerce" regard-
less of whether it was "commercial in character," id. at 172
n. 1, the Court explained that it had "already held that the
dormant Commerce Clause is applicable to activities under-
taken without the intention of earning a profit." 117 S. Ct. at
1602. This decision confirms that the proper test of whether
an activity can be regulated under the Commerce Clause is
not whether the activity is itself commercial or economic but
rather whether the activity has a substantial effect on inter-
state commerce.

In evaluating the effect of the regulated activity on inter-
state commerce, I begin, as we did in Terry, 101 F.3d 1412,
with the legislative history of the Act under challenge. As we
explained in Terry, "we consider 'even congressional commit-

tee findings' regarding the effect on interstate commerce of
the regulated activity." 101 F.3d at 1415 (quoting Lopez, 514
U.S. at 562).

The Committee Reports on the ESA reveal that one of the
primary reasons that Congress sought to protect endangered
species from "takings" was the importance of the continuing
availability of a wide variety of species to interstate com-
merce. As the House Report explained:

... As we homogenize the habitats in which these
plants and animals evolved, and as we increase the
pressure for products that they are in a position to
supply (usually unwillingly) we threaten their--and our
own--genetic heritage.

The value of this genetic heritage is, quite literally,
incalculable....

...

From the most narrow possible point of view, it is in
the best interests of mankind to minimize the losses of
genetic variations. The reason is simple: they are po-
tential resources. They are keys to puzzles which we
cannot solve, and may provide answers to questions
which we have not yet learned to ask.

...

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 being [sic] those potential cures by eliminating
those plants for all time? Sheer self interest impels us
to be cautious.

H.R. Rep. No. 93-412, at 4-5 (1973). Similarly, the Senate
Report on the precursor to the ESA, noted:

... 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 indefi-
nite 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 spe-
cies 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 3 (1969).

This legislative history distinguishes the ESA from the
statute at issue in Lopez. In Lopez, the Court noted that "as
part of our independent evaluation of constitutionality under
the Commerce Clause we of course consider legislative find-
ings, and indeed even congressional committee findings re-
garding effect on interstate commerce." 514 U.S. at 562
(citations omitted). The Lopez Court found, however, that
there were no "congressional findings [that] would enable [it]
to evaluate the legislative judgment that the activity in ques-
tion substantially affected interstate commerce." Id. at 563.
In this case, in contrast, the committee reports on the ESA
discuss the value of preserving genetic diversity and the
potential for future commerce related to that diversity. See
also Tennessee Valley Auth. v. Hill, 437 U.S. 153, 178-79
(1978) (recognizing that one of the primary concerns underly-
ing the Endangered Species Act was concern "about the
unknown uses that endangered species might have and about
the unforeseeable place such creatures may have in the chain
of life on this planet").9

__________
9 Despite the Supreme Court's directive in Lopez that a court
reviewing the constitutionality of a statute consider congressional
findings, see Lopez, 514 U.S. at 557, 562, and the extensive case law
indicating that the role of a reviewing court is to determine whether
there is "any rational basis" for a congressional finding that a
regulated activity substantially affects interstate commerce, see,
e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc.,
452 U.S. 276 (1981); United States v. Wright, 117 F.3d 1265, 1269
(11th Cir. 1997), Judge Sentelle totally ignores the extensive legisla-
tive history of the ESA.

These congressional findings, while highly informative, are
of course not sufficient by themselves to make the statute
constitutional. The courts evaluating Commerce Clause chal-
lenges to federal statutes must determine that there was a
rational basis for Congress' conclusion that a regulated activi-
ty substantially affects interstate commerce. As the Elev-
enth Circuit recently explained, "Lopez did not alter our
approach to determining whether a particular statute falls
within the scope of Congress's Commerce Clause authori-
ty.... When ruling on a Commerce Clause challenge, we
must determine, as always, 'whether a rational basis existed
for concluding that a regulated activity sufficiently affected
interstate commerce.' " United States v. Wright, 117 F.3d
1265, 1269 (11th Cir. 1997) (quoting Lopez, 514 U.S. at 557);
see also Hodel v. Virginia Surface Mining & Reclamation
Ass'n, Inc., 452 U.S. 264, 276 (1981) ("The task of a court that
is asked to determine whether a particular exercise of con-
gressional power is valid under the Commerce Clause is
relatively narrow. The court must defer to a congressional
finding that a regulated activity affects interstate commerce,
if there is any rational basis for such a finding.") (citations
omitted) (quoted in Terry, 101 F.3d at 1416).

Congress could rationally conclude that the intrastate activ-
ity regulated by section 9 of the ESA substantially affects
interstate commerce for two primary reasons. First, the
provision prevents the destruction of biodiversity and thereby
protects the current and future interstate commerce that
relies upon it. Second, the provision controls adverse effects
of interstate competition.10

__________
10 Judge Sentelle asserts that these rationales have "no stopping
point." See Diss. op. at 11, 13. In fact, however, they have very
clear and obvious limits. In the case of the first rationale, the
argument stops at endangered species. Activities that threaten a
species' existence threaten to reduce biodiversity and thereby have
a substantial negative effect on interstate commerce. Thus, the
biodiversity rationale offered here provides support for the Endan-
gered Species Act only insofar as the Act prevents activities that
are likely to cause the elimination of species. In the case of the
second rationale, the argument stops at activities are the product of
destructive interstate competition. Under this rationale, interstate
competition that is likely to produce destructive results, such as

1. Biodiversity

Approximately 521 of the 1082 species in the United States
currently designated as threatened or endangered are found
in only one state. See Brief of Amici Curiae for Appellees at
20-21. The elimination of all or even some of these endan-
gered species would have a staggering effect on biodiversi-
ty--defined as the presence of a large number of species of
animals and plants--in the United States and, thereby, on the
current and future interstate commerce that relies on the
availability of a diverse array of species.

The variety of plants and animals in this country are, in a
sense, a natural resource that commercial actors can use to
produce marketable products. In the most narrow view of
economic value, endangered plants and animals are valuable
as sources of medicine and genes.11 Fifty percent of the most

__________
elimination of endangered species' habitat, environmental degrada-
tion, or exploitation of labor, can be regulated by Congress. Thus,
the destructive interstate competition rationale provides support for
the Endangered Species Act only insofar as the Act prevents a
bidding down of regulatory standards that is likely to result in the
elimination of endangered species' habitat.

11 This is a necessarily constrained view of the "value" of biodiver-
sity. Endangered species of course have value beyond the profit
they can produce as sources of medicine and genes. For example,
tourists travel to see them, scientists study and learn from them,
and people get aesthetic pleasure from them. In addition, every
species offers some clues to the path of the evolutionary chain that
produced it and to the role of certain genes also found in humans.
For instance, researchers have recently concluded that basic re-
search into the genes of the common fruit fly " 'can yield crucial
clues to human development.' " Jennifer Ackerman, Journey to the
Center of the Egg, N.Y. Times, Oct. 12, 1997, s 6, at 45 (quoting
biologist Christiane Nsslein-Volhard). Moreover, every species
has a place in the ecosystem. Extinction of a species can therefore
have an important effect on the larger system of which it is a part.
As biologist Edward O. Wilson explained:

... The traditional econometric approach, weighing market
price and tourist dollars, will always underestimate the true
value of wild species. None has been totally assayed for all of

frequently prescribed medicines are derived from wild plant
and animal species.12 Such medicines were estimated in 1983
to be worth over $15 billion a year. See id. at 11. In
addition, the genetic material of wild species of plants and
animals is inbred into domestic crops and animals to improve
their commercial value and productivity. As Amici Curiae
explained: "Fortifying the genetic diversity of U.S. crops
played a large part in the explosive growth in farm produc-
tion since the 1930s, accounting for at least one-half of the
doubling in yields of rice, soybeans, wheat, and sugarcane,
and a three-fold increase in corn and potatoes. Genetic
diversity provided by wild plants also protects domestic crops
from disease and pest damage." Id. at 12. Similar genetic
engineering can be used with animals. For instance, it is not
beyond the realm of possibility that the genes of a wild
pollinator species like the Fly might be inbred with the

__________
the commercial profit, scientific knowledge, and aesthetic plea-
sure it can yield. Furthermore, none exists in the wild all by
itself. Every species is part of an ecosystem, an expert
specialist of its kind, tested relentlessly as it spreads its
influence through the food web. To remove it is to entrain
changes in other species, raising the populations of some,
reducing or even extinguishing others, risking a downward
spiral of the larger assemblage.

Edward O. Wilson, The Diversity of Life 308 (1992).

12 For example, the venom of a species of South American pit
viper led to the discovery of the angiotensin system that regulates
blood pressure in human beings. This helped scientists devise a
molecule that alters blood pressure and is the preferred prescrip-
tion drug for hypertension, bringing the pharmaceutical company
that manufactures it $1.3 billion a year in sales. Biodiveristy II:
Understanding and Protecting Our Biological Resources 9 (Mar-
joie L. Reaka-Kudla et al. eds. 1997). Similarly, the saliva of the
leech led to the development of the anticoagulant hirudin, which is
used to treat hemorrhoids, rheumatism, thrombosis, and contusions
and to dissolve blood clots that threaten skin transplants, and the
saliva of the vampire bat of Central and South America is used to
open clogged arteries and thereby prevent heart attacks. See
Wilson, supra note 11, at 285-86.

honeybee, which currently pollinates most major U.S. crops,
to produce a pollinator that is more disease resistant.

Each time a species becomes extinct, the pool of wild
species diminishes. This, in turn, has a substantial effect on
interstate commerce by diminishing a natural resource that
could otherwise be used for present and future commercial
purposes. Unlike most other natural resources, however, the
full value of the variety of plant and animal life that currently
exists is uncertain. Plants and animals that are lost through
extinction undoubtedly have economic uses that are, in some
cases, as yet unknown but which could prove vitally important
in the future.13 A species whose worth is still unmeasured
has what economists call an "option value"--the value of the
possibility that a future discovery will make useful a species
that is currently thought of as useless. See Bryan Nolan,
Commodity, Amenity, and Morality: The Limits of Quanti-
fication in Valuing Biodiveristy, in Biodiversity 200, 202
(Edward O. Wilson ed., 1988). To allow even a single species
whose value is not currently apparent to become extinct
therefore deprives the economy of the option value of that
species. Because our current knowledge of each species and
its possible uses is limited, it is impossible to calculate the
exact impact that the loss of the option value of a single
species might have on interstate commerce.14 See Alan

__________
13 Some of the most important medical products derive from
organisms that were once considered worthless or nearly so. For
example, Penicillium mold, which "sparked the concept of antibiot-
ics," was at one time valued only for the flavor it added to blue
cheeses. See Biodiversity II, supra note 12, at 9.

14 Both Judge Sentelle and Judge Henderson appear to misunder-
stand this argument. See Conc. op. at 2; Diss. op. at 9. Although
both quote the statement it is "impossible to calculate the exact
impact" of the extinction of a single species, both ignore the second
half of the argument: that in the aggregate we can be certain that a
decline in biodiversity will have a "real and predictable " effect on
interstate commerce. As a result of this omission, both misportray
the argument as claiming that the extinction of a single endangered
species, by itself, has a substantial effect on interstate commerce.
Indeed, Judge Sentelle goes so far as to describe the argument as

Randall, What Mainstream Economists Have to Say about
the Value of Biodiversity, in Biodiversity, supra, at 217. In
the aggregate, however, we can be certain that the extinction
of species and the attendant decline in biodiversity will have a
real and predictable effect on interstate commerce.

The few federal courts that have considered post-Lopez
Commerce Clause challenges to federal wildlife protection
have found that the extinction of animals substantially affects
interstate commerce.15 In United States v. Bramble, 103

__________
follows: "because of some undetermined and indeed undeterminable
possibility that the fly might produce something at some undefined
and undetermined future time which might have some undefined
and undeterminable medical value, which in turn might affect
interstate commerce at that imagined future point, Congress can
today regulate anything which might advance the pace at which the
endangered species becomes extinct." Diss. op. at 9. This is
inaccurate. To the contrary, the argument is that because biodiver-
sity has a real, substantial, and predictable effect on both the
current and future interstate commerce, "the de minimis character
of individual instances arising under [the ESA] is of no conse-
quence." Lopez, 514 U.S. at 558. In other words, because we know
that in the aggregate the extinction of endangered species will have
a substantial effect on interstate commerce, it does not matter that
it is "impossible to calculate the exact impact" of the extinction of a
single species such as the Fly.

15 Prior to Lopez, the federal courts repeatedly concluded that
congressional efforts at protecting endangered and migratory spe-
cies are constitutional under the Commerce Clause. See Andrus v.
Allard, 444 U.S. 51, 63 n.19 (1979) (discussing Migratory Bird
Treaty Act and noting that the "assumption that the national
commerce power does not reach migratory wildlife is clearly
flawed"); Leslie Salt Co. v. United States, 896 F.2d 354, 360 (9th
Cir. 1990) ("Leslie I"), cert. denied, 498 U.S. 1126 (1991) ("The
commerce clause power ... is broad enough to extend [federal]
jurisdiction to local waters which may provide habitat to migratory
birds and endangered species."), cert. denied, 498 U.S. 1126 (1991);
id. at 361 n.1 (Rymer, J., concurring) ("Congress does have power
under the Commerce Clause to regulate wildlife and endangered
species."); Leslie Salt Co. v. United States, 55 F.3d 1388, 1396 (9th
Cir.) (declining to reconsider Leslie I), cert. denied, 116 S. Ct. 407

F.3d 1475 (9th Cir. 1996), the Ninth Circuit held that the
Eagle Protection Act was a valid exercise of Congress' Com-
merce Clause power because "[e]xtinction of the eagle would
substantially affect interstate commerce by foreclosing any
possibility of several types of commercial activity." Id. at
1481; see also United States v. Lundquist, 932 F. Supp. 1237,
1245 (D. Or. 1996) (holding that "the possession of eagle parts
is an activity which affects a broad regulatory scheme relat-
ing to commercial transactions and which, when viewed in the
aggregate with similar activities nationwide, substantially af-
fects interstate commerce") (citing Lopez, 514 U.S. at 561).
Similarly, in United States v. Romano, 929 F. Supp. 502, 507-
09 (D. Mass. 1996), the District Court of Massachusetts
upheld the Lacey Act, 16 U.S.C. ss 3371-78, which prohibits
any person from importing, exporting, transporting, selling,
receiving, acquiring, or purchasing in interstate or foreign
commerce any fish or wildlife taken, possessed, transported,
or sold in violation of state or foreign law. Citing Congress'
findings that the protection of endangered species protects
future commercial activity, the court held that the Act was
within Congress' Commerce Clause power. See Romano, 929
F. Supp. at 508.16

__________
(1995); see also Hughes v. Oklahoma, 441 U.S. 322, 329-36 (1979)
(holding that state regulations of intrastate wildlife are within
dormant Commerce Clause).

16 The District Court of Hawaii relied on a similar reasoning in an
earlier case involving a Commerce Clause challenge to the ESA,
Palila v. Hawaii Dept. of Land and Natural Resources, 471
F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981). In
that case, the court pointed to the interstate commerce effects of
protecting endangered species to support its decision to uphold the
Endangered Species Act. The court explained: "In this context, a
national program to protect and improve the natural habitats of
endangered species preserves the possibilities of interstate com-
merce in these species and of interstate movement of persons, such
as amateur students of nature or professional scientists who come
to a state to observe and study these species, that would otherwise
be lost by state inaction." Id. at 995. The court thus concluded
that the state's program of preserving herds of "wild" sheep and

I join these courts in concluding that the extinction of
animals substantially affects interstate commerce. More spe-
cifically, I find that the scientific evidence that is currently
available provides sufficient support for Congress' conclusion
that regulation of the "taking" of endangered animals is
within its Commerce Clause power because such takings, if
permitted, would have a substantial effect on interstate com-
merce by depriving commercial actors of access to an impor-
tant natural resource--biodiversity.

2. Destructive Interstate Competition

The taking of the Fly and other endangered animals can
also be regulated by Congress as an activity that substantially
affects interstate commerce because it is the product of
destructive interstate competition. It is a principle deeply
rooted in Commerce Clause jurisprudence that Congress is
empowered to act to prevent destructive interstate competi-
tion. As the Supreme Court explained in Hodel v. Virginia
Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981)
("Hodel v. Virginia"), a case that the Lopez Court cited
repeatedly, "prevention of ... destructive interstate competi-
tion is a traditional role for congressional action under the
Commerce Clause." Id. at 282.

The case at hand bears a substantial similarity to the three
cases in which the Supreme Court best articulated the princi-
ple that Congress may act to prevent interstate competition
that has a destructive effect: Hodel v. Virginia, 452 U.S. 264,
Hodel v. Indiana, 452 U.S. 314 (1981) ("Hodel v. Indiana"),
and United States v. Darby, 312 U.S. 100 (1941). In Hodel v.
Virginia, the Supreme Court considered a challenge to the
constitutionality of the Surface Mining Control and Reclama-
tion Act of 1977. The Surface Mining Act required mine
operators to restore the land after mining to its prior condi-
tion, including its approximate original contour, topsoil, hy-
drologic balance, and vegetation in order to "protect society
and the environment from the adverse effects of surface coal
mining operations." 452 U.S. at 268. An association of coal

__________
goats which destroyed the habitat of an endangered bird constituted
an unlawful "taking" of the bird by the state. Id.

producers in Virginia challenged the Act, which it claimed
"regulat[ed] the use of private lands within the borders of the
States," as beyond Congress' Commerce Clause power. Id.
at 275. The Court held that the Act was a valid exercise of
Congress' power under the Commerce Clause because "Con-
gress rationally determined that regulation of surface coal
mining is necessary to protect interstate commerce from
adverse effects that may result from that activity." Id. at
281. Moreover, the Court concluded that "the power con-
ferred by the Commerce Clause [is] broad enough to permit
congressional regulation of activities causing air or water
pollution, or other environmental hazards that may have
effects in more than one State." Id. at 282.

The parallels between Hodel v. Virginia and the case at
hand are obvious. The ESA and the Surface Mining Act both
regulate activities--destruction of endangered species and
destruction of the natural landscape--that are carried out
entirely within a State and which are not themselves commer-
cial in character. The activities, however, may be regulated
because they have destructive effects, on environmental quali-
ty in one case and on the availability of a variety of species in
the other, that are likely to affect more than one State.17 In
each case, moreover, interstate competition provides incen-
tives to states to adopt lower standards to gain an advantage
vis--vis other states: In Hodel v. Virginia, 452 U.S. 264, the
states were motivated to adopt lower environmental stan-
dards to improve the competitiveness of their coal production
facilities, and in this case, the states are motivated to adopt
lower standards of endangered species protection in order to
attract development.18

__________
17 See supra subsection II.B.1 for a discussion of how biodiversity
affects interstate commerce.

18 In his dissent, Judge Sentelle attempts to distinguish Hodel v.
Virginia, 452 U.S. 264, Hodel v. Indiana, 452 U.S. 314, and United
States v. Darby, 312 U.S. 100, from the case at hand by asserting
that "[i]n the present case neither Congress nor the litigants, nor
for that matter Judge Wald, has pointed to any commercial activity
being regulated, any commercial competition being unfairly chal-

The Supreme Court adopted similar reasoning in Hodel v.
Indiana, 452 U.S. 314, which was decided on the same day as
Hodel v. Virginia, and involved a challenge to different
provisions of the same Act. Hodel v. Indiana, 452 U.S. 314,
involved a constitutional challenge to the "prime farmland"
provisions of the Surface Mining Act, which established spe-
cial requirements for surface coal mining operations conduct-
ed on land that qualified as prime farmland and that had
historically been used as cropland. The Court held that the
provisions did not violate the Commerce Clause. The Act
was adopted, the Court explained, "to ensure that production
of coal for interstate commerce would not be at the expense
of agriculture, the environment, or public health and safety,
injury to any of which interests would have deleterious effects
on interstate commerce." Id. at 329. Moreover, the Court
noted, the Act reflected a congressional desire to "protect[ ]
mine operators in States adhering to high ... standards from
disadvantageous competition with operators in States with
less rigorous regulatory programs." Id.

The parallels between Hodel v. Indiana, 452 U.S. 314, and
the case at hand are again striking. In both cases, the
statutes under challenge regulated intrastate activity that is
not itself commercial and that can be carried out entirely
within a State: the destruction of farmland and the destruc-
tion of endangered species. Just as the prime farmland
provisions of the Surface Mining Act were adopted to protect
agriculture, the environment, and health and safety, injury to
which would have deleterious effects on interstate commerce,

__________
lenged, or any other sort of commerce being destroyed by the
taking of the fly." Diss. op. at 13. Again, this is inaccurate. In
addition to arguing that a decline in biodiversity would have a
substantial and predictable destructive effect on interstate com-
merce, see supra subsection II.B.1, this section of the opinion refers
repeatedly to the fact that the ESA regulates the conditions under
which development takes place, and thereby prevents states from
adopting lower standards of endangered species protection in order
to attract development (e.g., construction of a hospital, power plant,
and intersection)--activity that even Judge Sentelle presumably
would admit is commercial in nature.

section 9(a)(1) of the ESA was adopted to ensure that
"growth and development," H.R. 37 ("Endangered and
Threatened Species Conservation Act of 1973") (Findings,
Purpose, and Policy), reprinted at 119 Cong. Rec. 25,694,
25,694 (1973), would not be at the expense of the conservation
and protection of a variety of species, injury to which would
have equally deleterious consequences for interstate com-
merce.19 Thus, in both cases, the activity at issue may be
regulated because it is likely to have destructive effects on
interstate commerce.

Finally, the Supreme Court's decision in United States v.
Darby, 312 U.S. 100 (1941), also concluded that activity could
be regulated under the Commerce Clause if it involved de-
structive interstate competition. In Darby, the Court upheld
wage and hour regulations for employees engaged in the
production of lumber for interstate commerce. Although the
statute "undertakes to regulate wages and hours within the
state contrary to the policy of the state which has elected to
leave them unregulated," 312 U.S. at 114, the Court held that
the statute was within the Commerce Clause power because it
was necessary to control destructive interstate competition.
The Court explained that "Congress, following its own con-
ception of public policy concerning the restrictions which may
be appropriately imposed on interstate commerce, is free to
exclude from the commerce articles whose use in the states
for which they are destined it may conceive to be injurious to
the public health, morals or welfare, even though the state
has not sought to regulate their use." Id. (citations omitted).
The Court further explained that "interstate commerce
should not be made the instrument of competition in the
distribution of goods produced under substandard labor con-
ditions, which competition is injurious to the commerce and to
the states from and to which the commerce flows." Id. at
115.

Like Darby, 312 U.S. 100, the case at hand involves a
regulation of the conditions under which commercial activity
takes place. The statute in Darby regulated the wages and

__________
19 See id.

hours of workers in Georgia who were engaged in producing
lumber for interstate commerce. Similarly, the statute in this
case regulates the taking of endangered species in the pro-
cess of constructing a hospital, power plant, and intersection
that will likely serve an interstate population. In both cases,
Congress passed the statute in part to prevent states from
gaining a competitive advantage by enacting lower regulatory
standards than other states. Congress was aware that no
state could be expected to require significantly more rigorous
labor standards or endangered species protection than other
states, because for each individual state, the cost of providing
better working conditions or preserving a species outweighs
the benefits even though in aggregate, the benefits of better
labor standards and biodiversity outweigh the costs.20

__________
20 Indeed, both the House and Senate recognized this as a reason
for passing the Endangered Species Act. In its Declaration of
Policy, the Senate stated as follows:

... The Congress finds and declares that--

(1) various species of fish, wildlife, and plants in the United
States have been rendered extinct as a consequence of econom-
ic growth and development untempered by adequate concern
and conservation;

....

(5) encouraging the States, through Federal financial assis-
tance and a system of incentives, to develop and maintain
conservation, protection, restoration, and propagation pro-
grams which meet national and international standards is a key
to meeting the Nation's international commitments and to
better safeguarding, for the benefit of all citizens, the Nation's
heritage in fish and wildlife.

S. 1983 ("Endangered Species Act of 1973") (Declaration of Policy),
reprinted at 119 Cong. Rec. 30,157, 30,157 (1973). Similarly, in its
declaration of findings, purpose, and policy, the House stated:

... The Congress finds and declares that one of the unfortu-
nate consequences of growth and development in the United
States and elsewhere has been the extermination of some
species or subspecies of fish, wildlife, and plants; that serious
losses in species of wild animals with educational, historical,
recreational, and scientific value have occurred and are occur-
ring ...; that a key to more effective protection and manage-

As the cases discussed above illustrate, the Court has long
held that Congress has the power under the Commerce
Clause to prevent destructive interstate commerce similar to
that at issue in this case. I therefore find that Congress has
the power to prevent interstate competition that will result in
the destruction of endangered species just as it has the power
to prevent interstate competition that will result in harm to
the environment, Hodel v. Virginia, 452 U.S. 264, the de-
struction of "prime farm land," Hodel v. Indiana, 452 U.S. at
324, or the employment of people under substandard labor
conditions, Darby, 312 U.S. 100.

III. Conclusion

We hold that the section 9(a)(1) of the Endangered Species
Act is within Congress' Commerce Clause power and that the
Fish and Wildlife Service's application of the provision to the
Delhi Sands Flower-Loving Fly was therefore constitution-
al.21 The district court's decision granting the Government's
motion for summary judgment is therefore

__________
ment of native fish and wildlife that are endangered or threat-
ened is to encourage and assist the States in developing
programs for such fish and wildlife; and that the conservation,
protection, restoration, or propagation of such species will inure
to the benefit of all citizens.

H.R. 37 ("Endangered and Threatened Species Conservation Act of
1973") (Findings, Purpose, and Policy), reprinted at 119 Cong. Rec.
25,694, 25,694 (1973).

21 In the conclusion to his dissent, Judge Sentelle quotes a
portion of Justice Story's Commentaries on the Constitution. See
Diss. op. at 15. Justice Story was undoubtedly an eloquent and
brilliant scholar. As Justice Thomas recently noted, however,
Justice Story's views "represent only his own understanding" of the
Constitution. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779,
856 (1995) (Thomas, J., dissenting). Today few would agree with
Justice Story's claim that the "power to regulate manufactures"
falls outside Congress' Commerce Clause power. Indeed, the Lo-
pez Court clearly established the principle that where activity,
including manufacturing activity, "substantially affects interstate

Affirmed.

__________
commerce, legislation regulating that activity will be sustained."
Lopez, 514 U.S. at 559.

Karen LeCraft Henderson, Circuit Judge, concurring:

I agree with Judge Wald's conclusion that the "taking"
prohibition in section 9(a)(1) of the Endangered Species Act
(ESA) constitutes a valid exercise of the Congress's authority
to regulate interstate commerce under the Commerce
Clause.1 I cannot, however, agree entirely with either of her
grounds for reaching the result and instead arrive by a
different route.

Judge Wald first asserts that section 9(a)(1) is a proper
regulation of the "channels of commerce." In support she
cites decisions upholding regulation of commercially market-
able goods, such as machine guns and lumber,2 and public
accommodations.3 In each case, the object of regulation was
necessarily connected to movement of persons or things
interstate and could therefore be characterized as regulation
of the channels of commerce. Not so with an endangered
species, as the facts here graphically demonstrate. The Delhi
Sands Flower-loving Flies the Department of the Interior
seeks to protect are (along with many other species no doubt)
entirely intrastate creatures. They do not move among

__________
1 It is beyond question that the development San Bernardino
County proposes is not only a "discomfit[ure]"of the Delhi Sands
Flower-loving Fly, see Dissent at 1, but also a "taking" within the
meaning of ESA, see Babbitt v. Sweet Home Chapter of Communi-
ties for a Greater Oregon, 515 U.S. 687, 691 (1995) (upholding
Department of Interior's interpretation in 50 C.F.R. s 17.3 of
statutory definition of "take" to include "an act which actually kills
or injures wildlife," which "may include significant habitat modifica-
tion or degradation where it actually kills or injures wildlife by
significantly impairing essential behavioral patterns, including
breeding, feeding, or sheltering"). Further, the extent of inconve-
nience the County experiences if the unlawful taking is prevented,
see Dissent at 1-2, is irrelevant so long as the prevention is
authorized under the Commerce Clause.

2 United States v. Rambo, 74 F.3d 948 (9th Cir. 1995); United
States v. Darby, 312 U.S. 100 (1941).

3 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241
(1964).

states either on their own or through human agency. As a
result, like the Gun-Free School Zones Act in Lopez, the
statutory protection of the flies "is not a regulation of the use
of the channels of interstate commerce." 115 S. Ct. at 1630.

Judge Wald also justifies the protection of endangered
species on the ground that the loss of biodiversity "substan-
tially affects" interstate commerce because of the resulting
loss of potential medical or economic benefit. Yet her opinion
acknowledges that it is "impossible to calculate the exact
impact" of the economic loss of an endangered species. Wald
Op. at 23. As far as I can tell, it is equally impossible to
ascertain that there will be any such impact at all. It may
well be that no species endangered now or in the future will
have any of the economic value proposed. Given that possi-
bility, I do not see how we can say that the protection of an
endangered species has any effect on interstate commerce
(much less a substantial one) by virtue of an uncertain
potential medical or economic value. Nevertheless, I believe
that the loss of biodiversity itself has a substantial effect on
our ecosystem 4 and likewise on interstate commerce. In
addition, I would uphold section 9(a)(1) as applied here be-
cause the Department's protection of the flies regulates and
substantially affects commercial development activity which is
plainly interstate.

First, I agree with Judge Wald that biodiversity is impor-
tant to our understanding of ESA and its relation to inter-
state commerce. As Judge Wald's opinion notes:

Every species is part of an ecosystem, an expert special-
ist of its kind, tested relentlessly as it spreads its influ-
ence through the food web. To remove it is to entrain
changes in other species, raising the populations of some,
reducing or even extinguishing others, risking a down-
ward spiral of a larger assemblage.

__________
4 An ecosystem consists of "[t]he organisms in a community plus
the associated abiotic factors with which they interact." Helena
Curtis & N. Sue Barnes, Biology glossary at G-7 (5th ed. 1989).

Wald Op. at 21 n.11 (quoting Edward O. Wilson, The Diversi-
ty of Life 308 (1992)). The effect of a species' continued
existence on the health of other species within the ecosystem
seems to be generally recognized among scientists. See
Stephen M. Johnson, United States V. Lopez: A Misstep, but
Hardly Epochal for Federal Environmental Regulation, 5
N.Y.U. Envtl. L.J. 33, 79 (1996) ("It is a fundamental princi-
ple of ecology that ecosystems are composed of interdepen-
dent parts that play vital roles in preserving the ecosystem.
As an ecosystem becomes less diverse, it becomes less adapt-
able to stresses that are placed on it.") (footnotes omitted);
Myrl L. Duncan, Property as a Public Conversation, Not a
Lockean Soliloquy: A Role for Intellectual and Legal Histo-
ry in Takings Analysis, 26 Envtl. L. 1095, 1129 (1996)
("[S]cientists have rediscovered that the world cannot mean-
ingfully be broken down into isolated parts, that every part is
connected to every other part. Perhaps the strongest state-
ments about interconnectedness come from scientists, schol-
ars, and regulators working in the field of conservation
biology who are critical of the species-by-species, reaction-to-
crisis approach taken by the Endangered Species Act. They
understand that species protection issues cannot be separated
from those of ecosystem health.") (footnotes omitted). Some
studies show, for example, that the mere presence of diverse
species within an ecosystem (biodiversity) by itself contrib-
utes to the ecosystem's fecundity. See Yvonne Baskin, Ecolo-
gists Dare to Ask: How Much Does Diversity Matter? 264
Science 202 (1994). The Congress recognized the intercon-
nection of the various species and the ecosystems when it
declared that the "essential purpose" of ESA, which protects
endangered species, is in fact "to protect the ecosystem upon
which we and other species depend." H.R. Rep. No. 93-412,
at 10 (1973); see also 16 U.S.C. s 1531 (finding that endan-
gered species "are of aesthetic, ecological, educational, histor-
ical, recreational, and scientific value") (emphasis added); cf.
16 U.S.C. s 1361(5)(b) (congressional finding in support of
Marine Mammal Protection Act of 1972 that "marine mam-
mals ... affect the balance of marine ecosystems in a manner
which is important to other animals and other animal prod-

ucts which move in interstate commerce, and that the protec-
tion and conservation of marine mammals and their habitats
is therefore necessary to insure the continuing availability of
those products which move in interstate commerce"). Given
the interconnectedness of species and ecosystems, it is rea-
sonable to conclude that the extinction of one species affects
others and their ecosystems and that the protection of a
purely intrastate species (like the Delhi Sands Flower-loving
Fly) will therefore substantially affect land and objects that
are involved in interstate commerce. There is, therefore, "a
rational basis" for concluding that the "taking" of endangered
species "substantially affects" interstate commerce so that
section 9(a)(1) is within the Congress's Commerce Clause
authority. See Lopez, 115 S. Ct. at 1629.

The interstate effect of a taking is particularly obvious here
given the nature of the taking the County proposes. In
enacting ESA, the Congress expressed an intent to protect
not only endangered species but also the habitats that they,
and we, occupy. See H.R. Rep. No. 93-412, at 10 (1973)
(identifying ESA's "essential purpose" as "to protect the
ecosystem upon which we and other species depend"); S.
Rep. No. 93-307 at 4 ("Often, protection of habitat is the only
means of protecting endangered animals which occur on non-
public lands."); Babbitt v. Sweet Home Chapter of Communi-
ties for a Great Oregon, 115 S. Ct. 2407, 2416-18 (1995)
(statutory definition of "take" as "harm" encompasses habitat
modification). At the same time, the Congress expressly
found that "economic growth and development untempered
by adequate concern and conservation" was the cause for
"various species of fish, wildlife, and plants in the United
States hav[ing] been rendered extinct." 16 U.S.C.
s 1531(a)(1). It is plain, then, that at the time it passed ESA
the Congress contemplated protecting endangered species
through regulation of land and its development, which is
precisely what the Department has attempted to do here.
Such regulation, apart from the characteristics or range of
the specific endangered species involved, has a plain and
substantial effect on interstate commerce. In this case the

regulation relates to both the proposed redesigned traffic
intersection and the hospital it is intended to serve, each of
which has an obvious connection with interstate commerce.
See Terry v. Reno, 101 F.3d 1412, 1416-17 (D.C. Cir. 1996)
(concluding abortion clinic activities substantially affect inter-
state commerce); Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241, 271 (1964) (concluding that "facilities and
instrumentalities used to carry on [interstate] commerce, such
as railroads, truck lines, ships, rivers, and even highways are
also subject to congressional regulation, so far as is necessary
to keep interstate traffic upon fair and equal terms") (empha-
sis added).5 Insofar as application of section 9(a)(1) of ESA
here acts to regulate commercial development of the land
inhabited by the endangered species, "it may ... be reached
by Congress" because "it asserts a substantial economic effect
on interstate commerce." Wickard v. Filburn, 317 U.S. 111,
125 (1942), quoted in United States v. Lopez, 514 U.S. 549,
556 (1995).6

For the preceding reasons I believe that the Department of
the Interior's regulation of the County's proposed "taking" of
the endangered Delhi Sands Flower-loving Fly, pursuant to
section 9(a)(1) of ESA, is a lawful exercise of governmental
authority under the Commerce Clause.7

__________
5 In light of these authorities I cannot agree with my dissenting
colleague that "[t]he activity regulated in the present case involves"
only "local land use." Dissent at 10.

6 The dissent suggests this justification has no "stopping point" as
required by Lopez. See Dissent at 10-11; Lopez, 514 U.S. at 564.
In Lopez the Court was concerned that the "theories" offered by
the government would authorize regulation of "all activities that
might lead to violent crime, regardless of how tenuously they relate
to interstate commerce" and "any activity that it found was related
to the economic productivity of individual citizens." Id. The
rationale on which I rely permits regulation only of activities
(including land use) that adversely affect species that affect, or are
involved in, interstate commerce.

7 In so concluding, I note that neither the Supreme Court nor any
circuit court has used Lopez to strike down an attempted regulation

__________
outside the criminal arena. For cases rejecting post-Lopez chal-
lenges to noncriminal statutes, see Wald Op. at 16-17.

Sentelle, Circuit Judge, dissenting: This case concerns
the efforts of San Bernardino County, California ("the Coun-
ty"), to construct a hospital and supporting infrastructure for
its citizens and other humans. Unfortunately, those efforts
discomfit an insect--the Delhi Sands Flower-Loving Fly.
According to the parties in this case, there are fewer than 300
breeding individuals of this species, all located within forty
square miles in southern California. These flies live as larvae
for nearly two years under Delhi Sands, a particular type of
grit, apparently found only in those forty square miles of
southern California, after which they emerge to feed and
breed for two weeks before dying.

In 1982, the County began considering construction of a
$470 million "state-of-the-art," "earthquake-proof" hospital
complex. The day before ground breaking was scheduled to
occur in 1993, the U.S. Fish and Wildlife Service ("Service")
of the Department of the Interior ("Interior") added the fly to
the endangered species list and notified the County that
construction of the hospital, on County land using County
funds, would harm a colony of six to eight flies and would
therefore violate federal law. To prevent being prosecuted
by the Service, County officials were forced to move the
hospital complex 250 feet northward and to set aside 8 acres
of land for the fly, delaying construction for a year and
costing County taxpayers around $3.5 million. The Service
also imposed a variety of other stringent requirements, in-
cluding preservation of a flight corridor for the insect which
today prevents improvements to a traffic intersection neces-
sary to allow emergency access and avoid "virtual gridlock"
when the hospital opens. At one point, the Service threat-
ened to require shutting down the eight-lane San Bernardino
Freeway (US 10, one of the most heavily traveled in southern
California) for two months every year (I am not making this
up). It did later drop this demand. The Service has also
impeded several localities from complying with County-
mandated weed-control programs which are an integral part
of preventing brush fires in the area. Construction planning
and projects, including an electrical substation and housing

developments, have also been threatened, impeded, or prohib-
ited because of the fly. Local land-use planning, including
the authority to balance environmental concerns with devel-
opment in a way to best serve citizens' interests, has been
disrupted; the financial health of the local governments has
been impacted; a local enterprise zone has been threatened;
and private land development has been impeded.

Statutory Justification

What business, one might ask, does the federal government
have disrupting these activities of the unit of local govern-
ment, which range from the purely local to the generally local
in nature? The government's answer begins with a statutory
justification. It acts under the authority conferred upon it by
the Endangered Species Act ("ESA"), specifically, section
9(a)(1) of that Act, which makes it unlawful, inter alia, to "(B)
take any such species within the United States or the territo-
rial seas of the United States." 16 U.S.C. s 1538(a)(1)(B).
Next, one might ask, what does that statute have to do with
the regulation of the County's activities in building a hospital
and the supporting infrastructure? It is not apparent that
the hospital plans to "take" any insects, or any other species.
It proposes to construct structures for human use, and the
humans using those structures propose to drive automobiles,
each of which might disturb the fly, but would not entail
anything that most users of the English language would
recognize as "taking" the fly. Unfortunately for the County
and its citizens, however, the Secretary of the Interior has
determined that the word "take" includes within its definition
"harm" and, therefore, activities which alter the habitat of an
endangered species are covered by the statute prohibiting the
taking of that species since the habitat modification might
harm it. Even more unfortunately for the County and the
citizens, the Supreme Court has agreed with that expansive
definition of "take." Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 515 U.S. 687 (1995).
Therefore, we may take it as a given that the statute forbid-
ding the taking of endangered species can be used, provided
it passes constitutional muster, to prevent counties and their

citizens from building hospitals or from driving to those
hospitals by routes in which the bugs smashed upon their
windshields might turn out to include the Delhi Sands Flow-
er-Loving Fly or some other species of rare insect. That
leaves the question for today as: by what constitutional
justification does the federal government purport to regulate
local activities that might disturb a local fly?

The Constitutional Justifications

The Department of Interior asserts that section 9(a)(1)(B)
of the ESA, and specifically its use of that section to prohibit
activities in southern California which might disturb a fly
existing only in southern California, are constitutional under
the Commerce Clause. U.S. Const. Art. I, s 8, cl. 3. That
clause empowers Congress to "regulate commerce with for-
eign nations, and among the several states, and with the
Indian tribes." This brings the next question: Can Congress
under the Interstate Commerce Clause regulate the killing of
flies, which is not commerce, in southern California, which is
not interstate? Because I think the answer is "no," I can not
join my colleagues' decision to affirm the district court's
conclusion that it can.

Analysis

The proposition that the federal government can, under the
Interstate Commerce Clause, regulate an activity which is
neither interstate nor commerce, reminds me of the old
chestnut: If we had some ham, we could fix some ham and
eggs, if we had some eggs. With neither ham nor eggs, the
chances of fixing a recognizable meal requiring both amount
to nil. Similarly, the chances of validly regulating something
which is neither commerce nor interstate under the heading
of the interstate commerce power must likewise be an empty
recitation. I recognize that for some decades of jurispruden-
tial development, the Commerce Clause has been used as the
justification for the regulation of a plethora of activities not
apparently within its text. See, e.g., Wickard v. Filburn, 317
U.S. 111 (1942) (regulating the consumption of home-grown

wheat). So wide-ranging has been the application of the
Clause as to prompt one writer to "wonder why anyone would
make the mistake of calling it the Commerce Clause instead
of the 'hey-you-can-do-whatever-you-feel-like clause.' "
Judge Alex Kozinski, Introduction to Volume 19, 19 Harv. J.
L. Pub. Pol. 1, 5 (1995). However, in 1995, the Supreme
Court brought an end to the galactic growth of the Clause's
application and reminded Congress that the words of that
Clause, like the rest of the Constitution, have content, in
United States v. Lopez, 514 U.S. 549 (1995). While I would
have found the present application of the ESA to be outside
the enumerated powers of Congress under the Commerce
Clause even in the world before Lopez, after that controlling
decision, I think there can be no doubt.

In Lopez, the Supreme Court considered the constitutional-
ity of the Gun-Free School Zones Act of 1990, in which
Congress made it a federal offense "for any individual know-
ingly to possess a firearm at a place that the individual
knows, or has reasonable cause to believe, is a school zone."
18 U.S.C. s 922(q)(1)(A) (Supp. V 1988). The Court conclud-
ed that because "[t]he Act neither regulates a commercial
activity nor contains a requirement that the possession be
connected in any way to interstate commerce," the statute
"exceeds the authority of Congress" to regulate commerce
under the Interstate Commerce Clause. 514 U.S. at 551.
For the same reasons, I would hold that the challenged
subsection of the ESA likewise exceeds that authority.

First, ESA section 9(a)(1)(B), like the statute challenged in
Lopez, does not regulate commerce. In Lopez, the Supreme
Court repaired to first principles. It reminded us that the
Commerce Clause, unsurprisingly, regulates "commerce," and
that "commerce ... is traffic ... it is intercourse ... com-
mercial intercourse between nations, and parts of nations," as
relevant here, between states. Id. at 553 (quoting Gibbons v.
Ogden, 9 Wheat. 1, 189-190 (1824)). The Lopez Court then
went on to analyze the developments of Commerce Clause
jurisprudence through the next 171 years after Gibbons v.
Ogden. Specifically, the Court noted such significant devel-
opments as the enactment of the Interstate Commerce Act,

24 Stat. 379 (1887), and the Sherman Antitrust Act, 26 Stat.
209 (1890), as amended, 15 U.S.C. s 1 et seq., and the era of
federal regulation which they ushered into our jurisprudence.
Coupling this with the development of the negative Com-
merce Clause, see authorities collected in Lopez, 514 U.S. at
554, the Lopez Court traced Commerce Clause jurisprudence
to NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937),
and the growing extension of congressional authority to the
regulation of essentially intrastate activities that " 'have such
a close and substantial relation to interstate commerce that
their control is essential or appropriate to protect that com-
merce from burdens and obstructions' [which] are within
Congress' power to regulate." Lopez, 514 U.S. at 555 (quot-
ing Jones & Laughlin Steel, 301 U.S. at 37). Following that
through Wickard v. Filburn, supra, the Lopez Court finally
analyzed the present state of our commerce jurisprudence.

The Court identified "three broad categories of activity that
Congress may regulate under its commerce power." Id. at
558-59. Under the Lopez analysis, these three categories
are: (1) "Congress may regulate the use of the channels of
interstate commerce"; (2) "Congress is empowered to regu-
late and protect the instrumentalities of interstate commerce,
or persons or things in interstate commerce, even though the
threat may come only from intrastate activities"; (3) "Con-
gress' commerce authority includes the power to regulate
those activities having a substantial relation to interstate
commerce." Id. (citations omitted). My colleagues and I
agree that Lopez recognizes the limitation of the power of
Congress to act under the Commerce Clause to these three
categories. Opinion of Judge Wald ("Wald Op.") at 8; Opin-
ion of Judge Henderson ("Henderson Op.") at 1. They
further agree with each other that the federal government's
actions in this case come within its Commerce Clause authori-
ty as defined in Lopez. They cannot, however, agree as to
how it fits within the Lopez analysis.

I find this inability to agree unsurprising, as this effort to
regulate does not fit any of those categories. First, category
(2) of constitutional commerce regulation is definitely unavail-

able. Judge Wald expressly agrees that "section 9(a)(1) of
the ESA is not a regulation of the instrumentalities of inter-
state commerce or of persons or things in interstate com-
merce." Wald Op. at 8. Apparently Judge Henderson agrees
sub silentia, as she never asserts the second category of
Lopez analysis as a foundation for upholding this application
of the Act. That said, we are left with potential justification
of the Act only as regulation of the use of channels of
interstate commerce or as an exercise of Congress' power to
regulate those activities having a substantial relationship to
interstate commerce. My colleagues accept differing argu-
ments as to why one or both of those rationales underpins the
exercise of federal authority over purely local actions disturb-
ing a purely local fly.

Judge Wald first asserts that the action taken by the
Service under section 9(a)(1)(B) is a constitutional regulation
of "the use of the 'channels of interstate commerce.' " Wald
Op. at 9 (quoting Lopez, 514 U.S. at 558). The short disposi-
tion of this argument is to say it does not command a
majority even without me. Judge Henderson rejects it out of
hand, noting, correctly, that all authority offered by Judge
Wald in support of the channels-of-commerce rationale upheld
regulation "necessarily connected to movement of persons or
things interstate...." Henderson Op. at 1 (citing United
States v. Rambo, 74 F.3d 948 (9th Cir. 1995); United States v.
Darby, 312 U.S. 100 (1941); and Heart of Atlanta Motel, Inc.
v. United States, 379 U.S. 241 (1964)). As Judge Henderson
goes on to note, neither the whole of the endangered species,
nor any of the individuals comprising it, travel interstate.
The Delhi Sands Flower-Loving Fly is an inveterate stay-at-
home, a purely intrastate creature. The Gun-Free School
Zones Act, stricken as unconstitutional by the Supreme Court
in Lopez, involved purely local possession of firearms, objects
which do move in interstate commerce, presumably through
its channels. The Supreme Court without difficulty deter-
mined that that section was "not a regulation of the use of the
channels of interstate commerce." Neither is this. It does

not purport to be.1

Not only do I join Judge Henderson in rejecting any claim
that section 9(a)(1)(B) is constitutional as a proper regulation
of the channels of commerce, but I would go further than she
and note that Judge Wald's supporting analysis of Darby and
Heart of Atlanta is far off the mark.

As Judge Wald notes, both Darby and Heart of Atlanta
concerned congressional efforts to "rid the channels of inter-
state commerce of injurious uses." Wald Op. at 13. But, for
reasons I have already described, supra n.1, preventing habi-
tat destruction contributes nothing to the goal of eliminating
the fly, or any other endangered species, from the channels of
commerce. The fact that activities like the construction of a
hospital might involve articles that have traveled across state
lines cannot justify federal regulation of the incidental local
effects of every local activity in which those articles are
employed. Judge Wald seems to be trying to extend Con-
gress' power over the channels of commerce to allow direct
federal regulation of any local effects caused by any activity
using those channels of commerce. She focuses not on the fly
in the channels of commerce, but everything else moving in
the channels of commerce that may affect the fly. But this
improperly inverts the third prong of Lopez and extends it
without limit. Under Judge Wald's theory, instead of being

__________
1 Judge Wald unsuccessfully attempts to distinguish Lopez by
claiming that a prohibition against habitat destruction is "necessary
to enable the government to control the transport of endangered
species in interstate commerce." Wald Op. at 10. The fly is not an
article of interstate commerce, and does not travel the channels of
commerce. The issue before us is not possession or sale of flies,
but, essentially, destruction of flies. Congress may have the au-
thority to prevent interstate transportation of flies, and that aspect
of the ESA is not challenged here. But preventing destruction of
local flies cannot reasonably be held to be either "necessary" or
"proper" to keeping the channels of commerce free from their
interstate transportation. While prohibiting the local possession
and exchange of flies might arguably be necessary to preventing
interstate transportation or exchange of flies, prohibiting destruc-
tion of fly habitat is not.

limited to activities that substantially affect commerce, Con-
gress may also regulate anything that is affected by com-
merce.

While Judge Henderson agrees with me that category (1)
of Lopez regulation does not support the Department's posi-
tion, she agrees with Judge Wald that the statutory protec-
tion of the flies can be justified under category (3): that is,
that it is the regulation of "activities that substantially affect
interstate commerce." Lopez, 514 U.S. at 558-59. Once
again, however, my colleagues cannot agree as to a rationale.
Before responding to their differing opinions on why the
regulation of intrastate fly killing falls within Congress' "pow-
er to regulate those activities having a substantial relation to
interstate commerce," I pause to further elaborate the Su-
preme Court's analysis of that category of legitimate regula-
tory power from Lopez. Because category (3) was the only
category which even arguably could have permitted Congress
to regulate the purely intrastate possession of firearms con-
sidered in Lopez, the Supreme Court afforded it a more
thorough analysis than the other two categories and, in so
doing, established three areas of inquiry necessitated by a
claim of interstate commerce authority under the "substantial
effects" category. Thus, in considering whether or not to
uphold regulation under that rationale, we must examine
whether:

-- the regulation controls a commercial activity, or an
activity necessary to the regulation of some commercial
activity;

-- the statute includes a jurisdictional nexus require-
ment to ensure that each regulated instance of the
activity affects interstate commerce; and

-- the rationale offered to support the constitutionality
of the statute (i.e., statutory findings, legislative history,
arguments of counsel, or a reviewing court's own attribu-
tion of purposes to the statute being challenged) has a
logical stopping point so that the rationale is not so broad

as to regulate on a similar basis all human endeavors,
especially those traditionally regulated by the states.2

None of the rationales offered by my colleagues pass this
examination. Judge Wald offers two possible explanations as
to why the challenged regulatory activity falls within category
(3). First, she puts forth the "biodiversity" rationale. Under
this rationale, she argues that the extinction of a species, and
the concomitant diminution of the pool of wild species, "has a
substantial effect on interstate commerce by diminishing a
natural resource that could otherwise be used for present and
future commercial purposes." Wald Op. at 23. As I under-
stand her argument, because of some undetermined and
indeed undeterminable possibility that the fly might produce
something at some undefined and undetermined future time
which might have some undefined and undeterminable medi-
cal value, which in turn might affect interstate commerce at
that imagined future point, Congress can today regulate
anything which might advance the pace at which the endan-
gered species becomes extinct. Judge Henderson rejects this
rationale, noting cogently that our colleague admits "that it is
'impossible to calculate the exact impact' of the economic loss
of an endangered species," Henderson Op. at 2 (quoting Wald
Op. at 23). Judge Henderson further notes that "it is equally
impossible to ascertain that there will be any such impact at
all." Id. She then reasons, and I agree, that we cannot then
"say that the protection of an endangered species has any
effect on interstate commerce (much less a substantial one)
by virtue of an uncertain potential medical or economic
value." Id. I would further note that Judge Wald's first
rationale fails under each of the subsidiary inquiries of cate-
gory (3) discussed above.

First, the regulation does not control a commercial activity,
or an activity necessary to the regulation of some commercial

__________
2 This specific formulation of the inquiries necessary under cate-
gory (3) is drawn from United States v. Wall, 92 F.3d 1444, 1455-56
(6th Cir. 1996) (Boggs, J., dissenting in part). However, each of the
points summarized in Judge Boggs's formulation is taken directly
from Lopez, 514 U.S. at 559-65.

activity. Neither killing flies nor controlling weeds nor dig-
ging holes is either inherently or fundamentally commercial
in any sense. Like the criminal statute struck down in Lopez,
the challenged section of the ESA "by its terms has nothing
to do with 'commerce' or any sort of economic enterprise,
however broadly one might define those terms." Lopez, 514
U.S. at 561. In applying that test in Lopez, the Supreme
Court noted that "[s]ection 922(q) is a criminal statute" and
that "under our federal system, the States possess primary
authority for defining and enforcing the criminal law." Id. at
561 & n.3 (citations and internal quotations omitted). The
activity regulated in the present case involves local land use, a
similar traditional stronghold of state authority.

As to the second subsidiary inquiry, the Supreme Court
noted in Lopez that the statute before it contained "no
jurisdictional element which would ensure, through case-by-
case inquiry, that the firearms possession in question affects
interstate commerce." Id. at 562. Just so with the ESA.
Nothing in section 9(a)(1)(B) of the Act or any other govern-
ing section requires that the regulated activity affect inter-
state commerce or provides any jurisdictional nexus support-
ing such a test. Like the statute in Lopez, it falls outside the
authority granted by the Commerce Clause.3

Third, the rationale offered by Judge Wald to support this
intrastate application of a statute unlimited by either of the
other two subsidiary inquiries has no logical stopping point.
As Judge Henderson suggests, the rationale dependent upon
the purely speculative future impact of an action with no

__________
3 Judge Wald chides me for not discussing Terry v. Reno, 101
F.3d 1412 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997). See
Wald Op. at 16 n.8. In Terry, the effect on commercial activity was
obvious--persons blocking access to clinics directly affected the
business of abortion doctors serving interstate customers. The
taking of a purely local fly, a harm without even a remote effect on
commerce, cannot be reasonably likened to local activities undertak-
en with the purpose and effect of directly impeding interstate
commerce.

demonstrable impact at all cannot be said to "ha[ve] any
effect on interstate commerce (much less a substantial
one)...." Henderson Op. at 2. If it could, then I do not see
how Congress could be prohibited from regulating any action
that might conceivably affect the number or continued exis-
tence of any item whatsoever. A creative and imaginative
court can certainly speculate on the possibility that any object
cited in any locality no matter how intrastate or isolated
might some day have a medical, scientific, or economic value
which could then propel it into interstate commerce. There is
no stopping point. If we uphold this statute under Judge
Wald's first rationale, we have indeed not only ignored
Lopez but made the Commerce Clause into what Judge Ko-
zinski suggested: the "hey-you-can-do-whatever-you-feel-like
clause." Kozinski, supra.

Though Judge Henderson rejects Judge Wald's "biodiversi-
ty" rationale, she relies on a related justification of her own,
which is to me indistinguishable in any meaningful way from
that of Judge Wald. As I understand her rationale, it
depends on "the interconnectedness of species and ecosys-
tems," which she deems sufficient for us "to conclude that the
extinction of one species affects others and their ecosystems
and that the protection of a purely intrastate species [con-
cededly including the Delhi Sands Flower-Loving Fly] will
therefore substantially affect land and objects that are in-
volved in interstate commerce." Henderson Op. at 4. I see
this as no less of a stretch than Judge Wald's rationale.
First, the Commerce Clause empowers Congress "to regulate
commerce" not "ecosystems." The Framers of the Constitu-
tion extended that power to Congress, concededly without
knowing the word "ecosystems," but certainly knowing as
much about the dependence of humans on other species and
each of them on the land as any ecologist today. An ecosys-
tem is an ecosystem, and commerce is commerce.

Granted, years of jurisprudence have extended that regula-
tory authority to encompass "activities having a substantial
effect on interstate commerce," the third category of Lopez
legitimacy, but Judge Henderson's rationale fails the analysis
of this third category as completely as does Judge Wald's. I

will not rehash the first two subsidiary requirements, because
the failure is for precisely the same reasons set forth above.
As to the third subsidiary test, it fails for substantially the
same reasons as Judge Wald's--it has no stopping point.
There is no showing, but only the rankest of speculation, that
a reduction or even complete destruction of the viability of
the Delhi Sands Flower-Loving Fly will in fact "affect land
and objects that are involved in interstate commerce,"
Henderson Op. at 4, let alone do so substantially.4 Nothing
in the statute certainly necessitates such a nexus, nor has my
colleague supplied a reason why this basis of regulation would
apply to the preservation of a species any more than any
other act potentially affecting the continued and stable exis-
tence of any other item of a purely intrastate nature upon
which one might rest a speculation that its loss or change
could somehow affect some other object, land, or otherwise,
that might be involved in interstate commerce.

In addition to their biodiversity/ecosystem justifications,
each of my colleagues offers a second rationale for justifying
Interior's actions under the third category of Lopez regula-
tion. Judge Wald asserts that "[t]he taking of the Fly and
other endangered animals can also be regulated by Congress
as an activity that substantially affects interstate commerce
because it is the product of destructive interstate competi-
tion." Wald Op. at 26. I am not at all certain what that
means in relation to the application of the ESA to the
building of a hospital and supporting infrastructure in a single
intrastate location. She relies on Hodel v. Virginia, 452 U.S.
264 (1981), Hodel v. Indiana, 452 U.S. 314 (1981), and United
States v. Darby, 312 U.S. 100 (1940). Although she asserts
"striking parallels" between those cases and the present one,
I see no parallel at all. In each of those cases, Congress
regulated arguably intrastate commercial activities, specifi-
cally mining and lumber production for interstate commerce.

__________
4 Indeed, there is nothing in either Judge Henderson's opinion or
the record to support speculation that the extinction of the Delhi
Sands Flower-Loving Fly would have any effect on any other
species.

In each of those cases, the Supreme Court upheld the rele-
vant statutes, noting that the regulated actors would either
destroy other commercial activities or be able to unfairly
compete with interstate competitors subject to higher regula-
tory standards protective of other elements of commerce. In
the present case neither Congress nor the litigants, nor for
that matter Judge Wald, has pointed to any commercial
activity being regulated, any commercial competition being
unfairly challenged, or any other sort of commerce being
destroyed by the taking of the fly. With reference to her
other rationale, I saw no stopping point; here, I am not even
sure what the beginning point is, let alone the terminus. I do
not think a decision upholding the challenged section of the
ESA on this rationale can exist in the same jurisprudence as
Lopez.

Finally, Judge Henderson would justify the challenged
section on the basis that "in enacting the ESA, the Congress
expressed an intent to protect not only endangered species,
but also the habitats that they, and we, occupy." Henderson
Op. at 4. I see no legally significant distinction between this
justification and her "ecosystems" justification. The Com-
merce Clause empowers Congress to regulate "commerce,"
not habitat. People and animals lived in habitats at the time
of the adoption of the Constitution, and we live in habitats
now. Because the power to regulate habitats was "not dele-
gated to the United States by the Constitution, nor prohibited
by it to the states," that power is "reserved to the states
respectively, or to the people." U.S. Const. Amend. X. For
the reasons outlined with reference to the ecosystem justifica-
tion, the habitat justification fails as well.

Judge Henderson would support her view that Commerce
Clause authority extends to the regulation of "land inhabited
by the endangered species," with the language of Wickard v.
Filburn, 317 U.S. 111, 125 (1942), that a subject matter "may
... be reached by Congress" because "it asserts a substantial
economic effect on interstate commerce." I do not see the
applicability of the Wickard language to our present contro-
versy. The statute in Wickard involved the regulation of the
interstate wheat market. The issue in Wickard involved the
production and consumption of homegrown wheat. Where

Congress has acted to regulate interstate commerce in a
commodity, the intrastate production and consumption of that
commodity in fact has an obvious effect on the impact of the
regulatory scheme. While the effect of one farmer's produc-
tion and consumption may not by itself be substantial, "his
contribution, taken together with that of many other similarly
situated, is far from trivial." Wickard 317 U.S. at 127-28,
quoted in Lopez 514 U.S. at 556. In discussing Wickard, the
Lopez Court rejected the notion that the Wickard precedent
establishes that "all activities affecting commerce, even in the
minutest degree, may be regulated and controlled by Con-
gress." Lopez 514 U.S. at 558 (citation and internal punctua-
tion omitted). It went on to note that the Court in Maryland
v. Wirtz, 392 U.S. 183 (1968), had rejected that expansive
reading of Wickard and held that "neither here nor in Wick-
ard has the Court declared that Congress may use a relative-
ly trivial impact on commerce as an excuse for broad general
regulation of state or private activities." Id. at 197 n.27,
quoted in Lopez 514 U.S. at 558. Here, there is no general
regulatory scheme of interstate commerce in a commodity
such that the cumulative effect of purely local state and
private activities could substantially affect it. There is no
commerce in the Delhi Sands Flower-Loving Fly.

An alternate reading of Judge Henderson's second justifi-
cation 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 modifi-
cation 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. The
most expansive view of Lopez is that Congress can regulate
"those activities having a substantial relation to interstate
commerce." Nowhere is it suggested that Congress can
regulate activities not having a substantial effect on com-
merce because the regulation itself can be crafted in such a
fashion as to have such an effect.

In the end, attempts to regulate the killing of a fly under
the Commerce Clause fail because there is certainly no
interstate commerce in the Delhi Sands Flower-Loving Fly.
The whole effort to employ a clause that empowers Congress
to regulate commerce in order to serve a perhaps worthy but
wholly non-commercial goal of preserving an endangered fly
calls to mind the thoughts of the first great commentator on
the Constitution, Justice Joseph Story. Story considered the
then-current question of whether the constitutional authority
to regulate commerce could be applied to the perhaps worthy
"purpose of encouraging and protecting domestic manufac-
tures." He declared,

If this were admitted, the enumeration of the powers of
congress would be wholly unnecessary and nugatory.
Agriculture, colonies, capital, machinery, the wages of
labour, the profits of stock, the rents of land, the punctu-
al performance of contracts, and the diffusion of knowl-
edge would all be within the scope of the power; for all
of them bear an intimate relation to commerce. The
result would be, that the powers of congress would
embrace the widest extent of legislative functions, to the
utter demolition of all constitutional boundaries between
the state and national governments.... The power to
regulate manufactures is no more confided to congress,
than the power to interfere with the systems of edu-
cation, the poor laws, or the road laws of the states.

Joseph Story, 2 Commentaries on the Constitution s 1075
(1833).

Conclusion

I dissent from the decision of this court to uphold that
regulation.