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Filed: June 20, 2000
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 99-1218
(CA-97-41-4-BO)
Charles Gilbert Gibbs, et al.,
Plaintiffs - Appellants,
versus
Bruce Babbitt, etc., et al.,
Defendants - Appellees.
O R D E R
The court amends its opinion filed June 6, 2000, as follows:
On page 36, fourth full paragraph, line 5 -- the cross-reference is corrected to read "Ante at 17."
For the Court - By Direction
/s/ Patricia S. Connor
PUBLISHED Clerk
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHARLES GILBERT GIBBS; RICHARD
LEE MANN, III; HYDE COUNTY,
NORTH CAROLINA; WASHINGTON
COUNTY, NORTH CAROLINA,
Plaintiffs-Appellants,
v.
BRUCE BABBITT, Secretary of the
Interior, in his official capacity;
UNITED STATES FISH AND WILDLIFE
SERVICE; UNITED STATES
DEPARTMENT OF THE INTERIOR; JAMIE
CLARK, Director of the U.S. Fish
and Wildlife Service,
Defendants-Appellees, No. 99-1218
DEFENDERS OF WILDLIFE,
Intervenor-Appellee.
PACIFIC LEGAL FOUNDATION;
NATIONAL WILDERNESS INSTITUTE;
WASHINGTON LEGAL FOUNDATION;
THE ALLIED EDUCATION FOUNDATION;
NATIONAL WILDLIFE FEDERATION;
NORTH CAROLINA WILDLIFE
FEDERATION; ENVIRONMENTAL
DEFENSE FUND; WORLD WILDLIFE
FUND; CENTER FOR MARINE
CONSERVATION,
Amici Curiae.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, Chief District Judge.
(CA-97-41-4-BO)
Argued: October 28, 1999
Decided: June 6, 2000
Before WILKINSON, Chief Judge, and LUTTIG
and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
majority opinion, in which Judge Michael joined. Judge Luttig wrote
a dissenting opinion.
_________________________________________________________________
COUNSEL
ARGUED: Sean Eric Andrussier, WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, P.L.L.C., Raleigh, North Carolina, for Appellants.
Andrew Christopher Mergen, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C.; Timothy Joseph Preso, MILLER,
CASSIDY, LARROCA & LEWIN, L.L.P., Washington, D.C., for
Appellees. ON BRIEF: E. Lawrence Davis, III, Christopher T.
Graebe, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C.,
Raleigh, North Carolina, for Appellants. Peter Coppelman, Acting
Assistant Attorney General, David C. Shilton, Charles Carson, Envi-
ronmental & Natural Resources Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; John Ebersole,
David Gayer, UNITED STATES DEPARTMENT OF THE INTE-
RIOR, Washington, D.C., for Federal Appellees. Scott L. Nelson,
MILLER, CASSIDY, LARROCA & LEWIN, L.L.P., Washington,
D.C.; Katherine Meyer, MEYER & GLITZENSTEIN, Washington,
D.C.; Derb S. Carter, Jr., SOUTHERN ENVIRONMENTAL LAW
CENTER, Chapel Hill, North Carolina, for Appellee Defenders of
Wildlife. M. Reed Hopper, Anne M. Hayes, PACIFIC LEGAL
FOUNDATION, Sacramento, California, for Amici Curiae Pacific
Legal Foundation, et al. Daniel J. Popeo, Paul D. Kamenar, WASH-
INGTON LEGAL FOUNDATION, Washington, D.C., for Amici
Curiae Washington Legal Foundation, et al. James B. Dougherty,
Washington, D.C., for Amici Curiae National Wildlife Federation, et
2
al. Louis R. Cohen, James R. Wrathall, Matthew A. Brill, Susan A.
MacIntyre, WILMER, CUTLER & PICKERING, Washington, D.C.;
Michael J. Bean, ENVIRONMENTAL DEFENSE FUND, Washing-
ton, D.C.; Christopher E. Williams, WORLD WILDLIFE FUND,
Washington, D.C.; Wm. Robert Irvin, CENTER FOR MARINE
CONSERVATION, Washington, D.C., for Amici Curiae Environ-
mental Defense Fund, et al.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
In this case we ask whether the national government can act to con-
serve scarce natural resources of value to our entire country. Appel-
lants challenge the constitutionality of a Fish and Wildlife Service
regulation that limits the taking of red wolves on private land. The
district court upheld the regulation as a valid exercise of federal
power under the Commerce Clause. We now affirm because the regu-
lated activity substantially affects interstate commerce and because
the regulation is part of a comprehensive federal program for the pro-
tection of endangered species. Judicial deference to the judgment of
the democratic branches is therefore appropriate.
I.
A.
In response to growing concern over the extinction of many animal
and plant species, Congress enacted the Endangered Species Act of
1973 (ESA), Pub. L. 93-205, 81 Stat. 884 (codified as amended at 16
U.S.C. §§ 1531-44 (1994 & Supp. III 1997)). Congress found that
many of the species threatened with extinction are of "esthetic, eco-
logical, educational, historical, recreational, and scientific value to the
Nation and its people." 16 U.S.C. § 1531(a)(3) (1994). Congress also
found that "various species of fish, wildlife, and plants in the United
States have been rendered extinct as a consequence of economic
growth and development untempered by adequate concern and con-
servation." Id. § 1531(a)(1). To address these national concerns, the
3
ESA sets forth a comprehensive regulatory scheme to conserve these
species and the ecosystems upon which they depend. The Act pro-
vides, inter alia, for the listing of "endangered" and "threatened" spe-
cies, id. § 1533, and various recovery plans for the "conservation and
survival" of listed species, id. § 1533(f).
The cornerstone of the statute is section 9(a)(1), which prohibits
the taking of any endangered species without a permit or other autho-
rization. Id. § 1538(a)(1)(B). The term "take" is defined as "to harass,
harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to
attempt to engage in any such conduct." Id. § 1532(19). The ESA also
authorizes the Fish and Wildlife Service (FWS) to issue any necessary
regulations for the conservation of threatened species. Id. § 1533(d).
Finally, in keeping with its commitment to species conservation, the
ESA states that a state law may be more restrictive than the provisions
of the Act, but not less. Id. § 1535(f).
In order to increase the Service's flexibility in reintroducing endan-
gered species into portions of their historic range, Congress exten-
sively amended the ESA in 1982, Pub. L. 97-304, 96 Stat. 1426. Prior
to 1982, reintroduced species were treated the same as any other
endangered species. See id. § 1536 & 1538(a) (providing for stringent
consultation and reporting requirements and a near absolute prohibi-
tion on the taking of endangered species). These strict limits led to
significant local opposition to the reintroductions. In response to these
problems, Congress added section 10(j), which allows the FWS to
designate as "experimental" some reintroduced populations of endan-
gered or threatened species. Id. § 1539(j). Under the looser standards
of section 10(j), members of an experimental population are generally
to be treated as threatened rather than endangered. Id. § 1539(j)(2)(C).
This means that protective regulations may be established for their
conservation. See id. at 1533(d). By promulgating special rules for an
experimental population the Service can determine which prohibitions
and exceptions shall apply. See 50 C.F.R.§ 17.82 (1998).
A population may be designated as "experimental" only after the
Service determines that it is not "essential" to the continuation of the
species. Id. § 1539(j)(2)(B). An experimental population located on
private land can be exempt from some of the more stringent require-
ments for endangered species. See id. § 1539(j)(2)(C)(i). If a popula-
4
tion is found to be "non-essential" and is designated as
"experimental," the FWS can develop "special regulations for each
experimental population that will address the particular needs of that
population." H.R. Rep. No. 97-567, at 34 (1982), reprinted in 1982
U.S.C.C.A.N. 2807, 2834. Furthermore, "there will be instances
where the regulations allow for the incidental take of experimental
populations." Id. Thus, under section 10(j), the FWS has the authority
to promulgate regulations allowing the taking of experimental reintro-
duced populations under limited circumstances.
B.
The red wolf, Canis rufus, is an endangered species whose protec-
tion is at issue in this case. The red wolf was originally found
throughout the southeastern United States. It was once abundant in
the "riverine habitats of the southeast," and was especially numerous
near the "canebrakes" that harbored large populations of swamp and
marsh rabbits, the primary prey of the red wolf. 51 Fed. Reg. 41,790,
41,791 (1986). The FWS found that "the demise of the red wolf was
directly related to man's activities, especially land changes, such as
the drainage of vast wetland areas for agricultural purposes . . . and
predator control efforts at the private, State, and Federal levels." Id.
Activities such as wetlands drainage, dam construction, and hunt-
ing reduced the red wolf to such meager numbers that it was listed as
endangered in 1976. See 32 Fed. Reg. 4001 (1976). Because of the
paucity of animals left in the wild, their poor physical condition, and
the threats posed by inbreeding, the FWS decided to trap the remain-
ing red wolves in the mid-1970s and place them in a captive breeding
program. See 51 Fed. Reg. at 41,791. The breeding program antici-
pated the eventual reintroduction of some red wolves into the wild.
Id.
In 1986, the FWS issued a final rule outlining a reintroduction plan
for red wolves in the 120,000-acre Alligator River National Wildlife
Refuge in eastern North Carolina. See 51 Fed. Reg. 41,790. This area
was judged the ideal habitat within the red wolf's historic range. Id.
at 41,791. Between 1987 and 1992, a total of 42 wolves were released
in the Refuge. In 1993, the reintroduction program was expanded to
include the release of red wolves in the Pocosin Lakes National Wild-
5
life Refuge in Tennessee. Since reintroduction, some red wolves have
wandered from federal refuges onto private property. From available
data, as of February 1998 it was estimated that about 41 of the
approximately 75 wolves in the wild may now reside on private land.1
This case raises a challenge to 50 C.F.R. § 17.84(c), a regulation
governing the experimental populations of red wolves reintroduced
into North Carolina and Tennessee pursuant to section 10(j). The
FWS has extended the takings prohibitions of section 9(a)(1) to the
experimental red wolf populations with certain exceptions. See 50
C.F.R. § 17.84(c) (1998). As noted above, the taking provision of sec-
tion 9(a)(1) prevents landowners from harassing, harming, pursuing,
hunting, shooting, wounding, killing, trapping, capturing, or collect-
ing any endangered species. See 16 U.S.C. § 1532(19). However, in
order to insure that other agencies and the public would accept the
proposed reintroduction, the FWS relaxed the taking standards for
wolves found on private land under its authority over experimental
populations.
Section 17.84(c) allows a person to take red wolves on private land
"[p]rovided that such taking is not intentional or willful, or is in
defense of that person's own life or the lives of others." Id.
§ 17.84(c)(4)(i). Private landowners may also take red wolves on their
property "when the wolves are in the act of killing livestock or pets,
Provided that freshly wounded or killed livestock or pets are evident."
Id. § 17.84(c)(4)(iii). A landowner may also "harass red wolves found
on his or her property . . . Provided that all such harassment is by
methods that are not lethal or injurious to the red wolf." Id.
§ 17.84(c)(4)(iv). Finally, landowners may take red wolves after
efforts by Service personnel to capture such animals have been aban-
doned, and such taking has been approved in writing. Id.
§ 17.84(c)(4)(v). All of these exceptions to the taking prohibition are
subject to a 24-hour reporting requirement. Id. § 17.84(c)(4).
_________________________________________________________________
1 The Service notes that the red wolf population lies between 53 and
101 wolves, and estimates that the actual population is between 70 and
80 animals. The district court also found that approximately 75 red
wolves were living in the wild in eastern North Carolina. See Gibbs v.
Babbitt, 31 F. Supp. 2d 531, 534 (E.D.N.C. 1998).
6
C.
In October 1990, plaintiff Richard Lee Mann shot a red wolf that
he feared might threaten his cattle. The federal government prose-
cuted Mann under § 17.84(c), and Mann pled guilty. Mann's prosecu-
tion triggered some opposition to the red wolf program in the
surrounding communities. After the program was in place for several
years, the FWS held meetings with local governments and the public
to receive feedback about the reintroductions. The Service contended
that most people who commented expressed support for the program
and that the reintroductions were generally supported by local, state
and federal agencies, and elected officials. See 58 Fed. Reg. 62,086,
62,088 (1993). In addition, owners of nearly 200,000 acres of private
land have permitted red wolves onto their land through agreements
with the FWS. Nonetheless, Hyde and Washington Counties, and the
towns of Belhaven and Roper, passed resolutions opposing the rein-
troduction of the wolves. The resolutions appeared to be based on the
farming community's fears of prohibitions on private land use. Id.
In response to discontent with the reintroduction program, the
North Carolina General Assembly passed a bill entitled "An Act to
Allow the Trapping and Killing of Red Wolves by Owners of Private
Land." The Act makes it lawful to kill a red wolf on private property
if the landowner has previously requested the FWS to remove the red
wolves from the property. See 1994 N.C. Sess. Laws Ch. 635,
amended by 1995 N.C. Sess. Laws Ch. 83 (adding Beaufort and Cra-
ven Counties to the Act, which initially covered only Hyde and Wash-
ington Counties). This law facially conflicts with the federal
regulation. For instance, § 17.84(c) allows the taking of red wolves
"when the wolves are in the act of killing livestock or pets," when
wounded or dead livestock or pets are evident and the taking is
reported within 24 hours. See 50 C.F.R.§ 17.84(c)(4)(iii). By con-
trast, the North Carolina statute makes it lawful to kill a red wolf on
private property when the landowner "reasonably believes" that the
wolf may be a threat to people or livestock and the"landowner has
previously requested the [FWS] to remove the red wolves from the
landowner's property." See 1994 N.C. Sess. Laws Ch. 635, § 1. The
government reports, however, that no actual conflicts between these
laws have arisen, because there have been no contested state or fed-
7
eral prosecutions for unlawful takes since the North Carolina statute
was enacted.
Appellants Charles Gibbs, Richard Mann, Hyde County, and
Washington County filed the instant action challenging the federal
government's authority to protect red wolves on private land. They
seek a declaration that the anti-taking regulation, 50 C.F.R.
§ 17.84(c), as applied to the red wolves occupying private land in
eastern North Carolina, exceeds Congress's power under the interstate
Commerce Clause, U.S. Const. art. I, § 8, cl. 3 ("Congress shall have
Power . . . To regulate Commerce . . . among the several States . . .").
Appellants also seek an injunction against continued enforcement of
the anti-taking regulation on non-federal land. Appellants claim that
the red wolves have proven to be a "menace to citizens and animals
in the Counties." They further allege that because of the federal regu-
latory protections surrounding the wolves, North Carolinians cannot
effectively defend their property.
On cross-motions for summary judgment, the United States District
Court for the Eastern District of North Carolina held that Congress's
power to regulate interstate commerce includes the power to regulate
conduct that might harm red wolves on private land. See Gibbs v.
Babbitt, 31 F. Supp. 2d 531 (E.D.N.C. 1998). The district court found
that the red wolves are "things in interstate commerce" because they
have moved across state lines and their movement is followed by
"tourists, academics, and scientists." Id. at 535. The court also found
that the tourism they generate substantially affects interstate com-
merce. See id. The private landowners and North Carolina Counties
now appeal.
II.
We consider this case under the framework articulated by the
Supreme Court in United States v. Lopez, 514 U.S. 549 (1995), and
United States v. Morrison, No. 99-5, 2000 WL 574361 (May 15,
2000), aff'g Brzonkala v. Virginia Polytechnic Institute and State
University, 169 F.3d 820 (4th Cir. 1999). While Congress's power to
pass laws under the Commerce Clause has been interpreted broadly,
both Lopez and Morrison reestablish that the commerce power con-
tains "judicially enforceable outer limits." See Lopez, 514 U.S. at 566;
8
Morrison, 2000 WL 574361, at *6. It is essential to our system of
government that the commerce power not extend to effects on inter-
state commerce that are so remote that we "would effectually obliter-
ate the distinction between what is national and what is local."
National Labor Relations Board v. Jones & Laughlin Steel Corp., 301
U.S. 1, 37 (1937). Indeed, the judiciary has the duty to ensure that
federal statutes and regulations are promulgated under one of the enu-
merated grants of constitutional authority. It is our further duty to
independently evaluate whether "a rational basis exist[s] for conclud-
ing that a regulated activity sufficiently affect[s] interstate com-
merce." Lopez, 514 U.S. at 557.
While this is rational basis review with teeth, the courts may not
simply tear through the considered judgments of Congress. Judicial
restraint is a long and honored tradition and this restraint applies to
Commerce Clause adjudications. "Due respect for the decisions of a
coordinate branch of Government demands that we invalidate a con-
gressional enactment only upon a plain showing that Congress has
exceeded its constitutional bounds." Morrison, 2000 WL 574361, at
*6. In fact, "[t]he substantial element of political judgment in Com-
merce Clause matters leaves our institutional capacity more in doubt
than when we decide cases, for instance, under the Bill of Rights."
Lopez, 514 U.S. at 579 (Kennedy, J., concurring). We must enforce
the structural limits of Our Federalism, but we must also defer to the
political judgments of Congress, recognizing that the "Commerce
Clause represents a broad grant of federal authority." Brzonkala v.
Virginia Polytechnic Instit. and State Univ., 169 F.3d 820, 830 (4th
Cir. 1999), aff'd sub nom. Morrison, 2000 WL 574361.
The Lopez Court recognized three broad categories of activity that
Congress may regulate under its commerce power. 514 U.S. at 558.
"First, Congress may regulate the use of the channels of interstate
commerce. Second, Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come only from
intrastate activities. Finally, Congress' commerce authority includes
the power to regulate those activities having a substantial relation to
interstate commerce, i.e., those activities that substantially affect
interstate commerce." Id. at 558-59 (citations omitted).
9
Section 17.84(c) is "not a regulation of the use of the channels of
interstate commerce, nor is it an attempt to prohibit the interstate
transportation of a commodity through the channels of commerce."
Lopez, 514 U.S. at 559. The term "channel of interstate commerce"
refers to, inter alia, "navigable rivers, lakes, and canals of the United
States; the interstate railroad track system; the interstate highway sys-
tem; . . . interstate telephone and telegraph lines; air traffic routes;
television and radio broadcast frequencies." United States v. Miles,
122 F.3d 235, 245 (5th Cir. 1997). This regulation of red wolf takings
on private land does not target the movement of wolves or wolf prod-
ucts in the channels of interstate commerce.
This case also does not implicate Lopez's second prong, which pro-
tects things in interstate commerce. Although the Service has trans-
ported the red wolves interstate for the purposes of study and the
reintroduction programs, this is not sufficient to make the red wolf a
"thing" in interstate commerce. See, e.g., Lopez, 514 U.S. at 559
(rejecting application of prong two to Gun-Free School Zones Act,
despite the fact that the regulated guns likely traveled through inter-
state commerce); National Assoc. of Home Builders v. Babbitt, 130
F.3d 1041, 1046 (D.C. Cir. 1997) ("NAHB") (rejecting notion that
Delhi Sands Flower-Loving Fly was a "thing" in interstate com-
merce). Therefore, if 50 C.F.R. § 17.84(c) is within the commerce
power, it must be sustained under the third prong of Lopez.
Under the third Lopez test, regulations have been upheld when the
regulated activities "arise out of or are connected with a commercial
transaction, which viewed in the aggregate, substantially affects inter-
state commerce." Lopez, 514 U.S. at 561. In Morrison, the Supreme
Court noted, "In every case where we have sustained federal regula-
tion under Wickard's aggregation principle, the regulated activity was
of an apparent commercial character." Morrison, 2000 WL 574361,
at *37 n.4. The Court in Lopez likewise placed great emphasis on the
"commercial concerns that are central to the Commerce Clause."
Lopez, 514 U.S. at 583 (Kennedy, J., concurring); see also Hoffman
v. Hunt, 136 F.3d 575, 586-87 (4th Cir. 1997) (noting the importance
of the distinction between "the regulation of, on the one hand, those
activities that are commercial or economic in nature. . . and, on the
other hand, those activities that are not").
10
Although the connection to economic or commercial activity plays
a central role in whether a regulation will be upheld under the Com-
merce Clause, economic activity must be understood in broad terms.
Indeed, a cramped view of commerce would cripple a foremost fed-
eral power and in so doing would eviscerate national authority. The
Lopez Court's characterization of the regulation of home-grown
wheat in Wickard v. Filburn, 317 U.S. 111 (1942), as a case involving
economic activity makes clear the breadth of this concept. The Court
explained that "[e]ven Wickard, which is perhaps the most far reach-
ing example of Commerce Clause authority over intrastate activity,
involved economic activity in a way that the possession of a gun in
a school zone does not." Lopez, 514 U.S. at 560; accord Morrison,
2000 WL 574361, at *7. See also Brzonkala, 169 F.3d at 835
(explaining that the Court has a "relatively broad understanding of
such [economic] activity"). In fact, our understanding of commerce
may not be limited to its "18th-century" forms. See Lopez, 514 U.S.
at 574 (Kennedy, J., concurring). While we must enforce meaningful
limits on the commerce power, we must also be mindful of the
"Court's relatively generous conception of economic activity." Brzon-
kala, 169 F.3d at 835.
Lopez and Morrison rest on the principle that where a federal stat-
ute has only a tenuous connection to commerce and infringes on areas
of traditional state concern, the courts should not hesitate to exercise
their constitutional obligation to hold that the statute exceeds an enu-
merated federal power. Respect for our federal system of government
was integral to those decisions. See Lopez, 514 U.S. at 561 n.3; Mor-
rison, 2000 WL 574361, at *11. Yet Lopez also counsels that
"[w]here economic activity substantially affects interstate commerce,
legislation regulating that activity will be sustained." 514 U.S. at 560.
In enforcing limits on the Congress, we must be careful not to over-
step the judicial role. To strike down statutes that bear substantially
upon commerce is to overstep our own authority even as we fault
Congress for exceeding limits on its power. The irony of disregarding
limits on ourselves in the course of enforcing limits upon others will
assuredly not be lost on those who look to courts to respect restraints
imposed by rules of law.
With these basic principles in mind, we consider appellants' chal-
lenge to § 17.84(c).
11
III.
Appellants argue that the federal government cannot limit the tak-
ing of red wolves on private land because this activity cannot be
squared with any of the three categories that Congress may regulate
under its commerce power. Appellants assert that 50 C.F.R.
§ 17.84(c) is therefore beyond the reach of congressional authority
under the Commerce Clause.
We disagree. It was reasonable for Congress and the Fish and
Wildlife Service to conclude that § 17.84(c) regulates economic activ-
ity. The taking of red wolves implicates a variety of commercial
activities and is closely connected to several interstate markets. The
regulation in question is also an integral part of the overall federal
scheme to protect, preserve, and rehabilitate endangered species,
thereby conserving valuable wildlife resources important to the wel-
fare of our country. Invalidating this provision would call into ques-
tion the historic power of the federal government to preserve scarce
resources in one locality for the future benefit of all Americans.
A.
To fall within Congress's commerce power, this regulation must
have a "substantial relation to interstate commerce" -- it must "sub-
stantially affect interstate commerce." Lopez , 514 U.S. at 559. The
Supreme Court recently emphasized that "in those cases where we
have sustained federal regulation of intrastate activity based upon the
activity's substantial effects on interstate commerce, the activity in
question has been some sort of economic endeavor." Morrison, 2000
WL 574361, at *8. Intrastate activities may be subject to federal regu-
lation if they have a "meaningful connection with[a] particular, iden-
tifiable economic enterprise or transaction." Brzonkala, 169 F.3d at
834. We therefore must consider whether the taking of red wolves on
private land is "in any sense of the phrase, economic activity." Morri-
son, 2000 WL 574361, at *9.
Unlike the Violence Against Women Act (VAWA) in Morrison
and the Gun-Free School Zones Act (GFSZA) in Lopez, § 17.84(c)
regulates what is in a meaningful sense economic activity. The Court
in Morrison explained that both the VAWA and the GFSZA involved
12
activity that was noneconomic and only tenuously linked to interstate
commerce. 2000 WL 574361, at *7-9. Yet the taking of a red wolf
on private land is unlike gender-motivated violence or guns near
schools. The protection of commercial and economic assets is a pri-
mary reason for taking the wolves. Farmers and ranchers take wolves
mainly because they are concerned that the animals pose a risk to
commercially valuable livestock and crops. Indeed, appellants' argu-
ments focus quite explicitly on these economic concerns -- they want
freer rein to protect their property and investments in the land. See
Appellants' Br. at 10 ("In the face of these threats [from red wolves],
North Carolinians cannot effectively defend their property."); id. at
12.
The relationship between red wolf takings and interstate commerce
is quite direct -- with no red wolves, there will be no red wolf related
tourism, no scientific research, and no commercial trade in pelts. We
need not "pile inference upon inference," Lopez, 514 U.S. at 567, to
reach this conclusion. While a beleaguered species may not presently
have the economic impact of a large commercial enterprise, its eradi-
cation nonetheless would have a substantial effect on interstate com-
merce. And through preservation the impact of an endangered species
on commerce will only increase.2
Because the taking of red wolves can be seen as economic activity
in the sense considered by Lopez and Morrison, the individual takings
may be aggregated for the purpose of Commerce Clause analysis. See
Morrison, 2000 WL 574361, at *37 n.4. While the taking of one red
wolf on private land may not be "substantial," the takings of red
wolves in the aggregate have a sufficient impact on interstate com-
merce to uphold this regulation. This is especially so where, as here,
the regulation is but one part of the broader scheme of endangered
species legislation.
_________________________________________________________________
2 While the regulation might also reflect a moral judgment concerning
the importance of rehabilitating endangered species, this does not under-
mine the economic basis for the regulation. See Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241, 257 (1964) ("Congress was not
restricted by the fact that the particular obstruction to interstate com-
merce with which it was dealing was also deemed a moral and social
wrong.").
13
Further, § 17.84(c) is closely connected to a variety of interstate
economic activities.3 Whether the impact of red wolf takings on any
one of these activities qualifies as a substantial effect on interstate
commerce is something we need not address. We have no doubt that
the effect of the takings on these varied activities in combination
qualifies as a substantial one. The first nexus between the challenged
regulation and interstate commerce is tourism. The red wolves are
part of a $29.2 billion national wildlife-related recreational industry
that involves tourism and interstate travel. See Heart of Atlanta Motel,
379 U.S. at 256 (finding it is well-established that "[c]ommerce
among the States . . . consists of intercourse and traffic between their
citizens" (internal quotation marks omitted)). Many tourists travel to
North Carolina from throughout the country for "howling events" --
_________________________________________________________________
3 The Supreme Court has admonished us that "[t]he task of a court that
is asked to determine whether a particular exercise of congressional
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 find-
ing." Hodel v. Virginia Surface Mining & Reclamation Assoc., 452 U.S.
264, 276 (1981).
While there are no formal congressional findings that the ESA affects
interstate commerce, such findings are neither necessary nor sufficient to
sustain a statute or regulation. In Lopez, the Court said that "Congress
normally is not required to make formal findings as to the substantial
burdens that an activity has on interstate commerce." 514 U.S. at 562;
see also Perez v. United States, 402 U.S. 146, 156 (1971) (particularized
findings are not necessary for Congress to legislate). Further, in Morri-
son, the Court emphasized in the face of voluminous congressional find-
ings that "the existence of congressional findings is not sufficient, by
itself, to sustain the constitutionality of Commerce Clause legislation."
2000 WL 574361, at *10.
In evaluating whether there is a rational basis for the promulgation of
a statute or regulation under the commerce power, we often consider
congressional committee findings. See Lopez, 514 U.S. at 562. Here,
Congress has provided numerous sources of informal findings. Commit-
tee reports and legislative debates have emphasized the importance of
endangered species to interstate commerce. We independently evaluate
the constitutionality of this regulation, but we also take account of con-
gressional judgment and the judgment of the agency designated to imple-
ment the statute.
14
evenings of listening to wolf howls accompanied by educational pro-
grams. These howlings are a regular occurrence at the Alligator River
National Wildlife Refuge. According to a study conducted by Dr.
William E. Rosen of Cornell University, the recovery of the red wolf
and increased visitor activities could result in a significant regional
economic impact. See William E. Rosen, Red Wolf Recovery in
Northeastern North Carolina and the Great Smoky Mountains
National Park: Public Attitudes and Economic Impacts (unpublished,
Joint Appendix at 633). Rosen estimates that northeastern North Car-
olina could see an increase of between $39.61 and $183.65 million
per year in tourism-related activities, and that the Great Smoky
Mountains National Park could see an increase of between $132.09
and $354.50 million per year. This is hardly a trivial impact on inter-
state commerce. Appellants understandably seek to criticize the
Rosen study, but concede that the howling events attract interstate
tourism and that red wolf program volunteers come from all around
the country.
Appellants argue that the tourism rationale relates only to howling
events on national park land or wildlife refuges because people do not
travel to private land. They reason that without tourism on private
land the regulated activity does not substantially affect interstate com-
merce. Yet this argument misses the mark. Since reintroduction, red
wolves have strayed from federal lands onto private lands. Indeed,
wolves are known to be "great wanderers." See 60 Fed. Reg. 18,940,
18,943 (1995). In 1998, it was estimated that 41 of the 75 wolves in
the wild now live on private land. Because so many members of this
threatened species wander on private land, the regulation of takings
on private land is essential to the entire program of reintroduction and
eventual restoration of the species. Such regulation is necessary to
conserve enough red wolves to sustain tourism. Appellants in fact
seem unmindful of the history of endangered species regulation. The
Endangered Species Acts of 1966 and 1969 initially targeted conser-
vation efforts only on federal lands, but they met with limited success.
See Note, Evolution of Wildlife Legislation in the United States: An
Analysis of the Legal Efforts to Protect Endangered Species and the
Prospects for the Future, 5 Geo. Int'l Envtl. L. Rev. 441, 449-53
(1993). The Endangered Species Act of 1973 was motivated in part
by the need to extend takings regulation beyond the limited confines
of federal land. See id. at 556. The prohibition of takings on private
15
land was critical to the overall success of the ESA in halting and
reversing the near extinction of numerous species. See 16 U.S.C.
§ 1538(a)(1). The success of many commercial enterprises depends
on some regulation of activity on private land, and interstate tourism
is no exception.
Tourism, however, is not the only interstate commercial activity
affected by the taking of red wolves. The regulation of red wolf tak-
ings is also closely connected to a second interstate market -- scien-
tific research. Scientific research generates jobs. It also deepens our
knowledge of the world in which we live. The red wolf reintroduction
program has already generated numerous scientific studies. For exam-
ple, the red wolf is used as a model for other carnivore reintroduc-
tions. See Donald E. Moore III & Roland Smith, The Red Wolf as a
Model for Carnivore Re-introductions, 62 Symp. Zool. Soc. Lond.
263 (1990). Scientists have also studied how the red wolf affects
small mammal populations and how the wolves interact with the
ecosystem as a whole. See, e.g., Bryan T. Kelly, Alligator River
National Wildlife Refuge Red Wolf (Canis Rufus) Scat Analysis: Pre-
liminary Analyses of Mammalian Prey Consumed by Year, Season,
Pack, Sex, and Age (April 1994) (unpublished, Joint Appendix at
942). By studying the effects of red wolves on the ecosystem, scien-
tists learn about the interdependence of plants and animals, as well as
how other threatened species may be reintroduced in the future. Sci-
entific research can also reveal other uses for animals -- for instance,
approximately 50 percent of all modern medicines are derived from
wild plants or animals. See Norman Myers, A Wealth of Wild Species:
Storehouse for Human Welfare 4 (1983). Protection of the red wolves
on private land thus encourages further research that may have inesti-
mable future value, both for scientific knowledge as well as for com-
mercial development of the red wolf.
The anti-taking regulation is also connected to a third market --
the possibility of a renewed trade in fur pelts. Wolves have histori-
cally been hunted for their pelts. See Stanley P. Young & Edward A.
Goldman, The Wolves of North America I, 165-70 (1964). Congress
had the renewal of trade in mind when it enacted the ESA. The Senate
Report noted that the protection of an endangered species "may per-
mit the regeneration of that species to a level where controlled exploi-
tation of that species can be resumed. In such a case businessmen may
16
profit from the trading and marketing of that species for an indefinite
number of years, where otherwise it would have been completely
eliminated from commercial channels." S. Rep. No. 91-526, at 3
(1969), reprinted in 1969 U.S.C.C.A.N. 1413, 1415. The American
alligator is a case in point. In 1975, the American alligator was near-
ing extinction and listed as endangered, but by 1987 conservation
efforts restored the species. Now there is a vigorous trade in alligator
hides. See Catharine L. Krieps, Sustainable Use of Endangered Spe-
cies Under CITES: Is it a Sustainable Alternative?, 17 U. Pa. J. Int'l
Econ. L. 461, 479-80 (1996) (explaining that many environmentalists
are now encouraging the purchase of alligator products to create an
incentive for protecting alligators and their habitats). Although alliga-
tor hides have more recently been a part of interstate commercial
trade and red wolves were sold for their pelts primarily in the nine-
teenth century, this temporal difference is beside the point. It is not
for the judiciary to move from species to species, opining that species
A possesses great commercial potential, but species B does not.
Assessing the relative scientific value and commercial impact of alli-
gators and red wolves is for Congress and the FWS, informed as they
are by biologists, economists, and others whose expertise is best
delivered to the political branches, not the courts.
Finally, the taking of red wolves is connected to interstate markets
for agricultural products and livestock. For instance, appellant land-
owners find red wolves a menace because they threaten livestock and
other animals of economic and commercial value. By restricting the
taking of red wolves, § 17.84(c) is said to impede economic develop-
ment and commercial activities such as ranching and farming. This
effect on commerce, however, still qualifies as a legitimate subject for
regulation. It is well-settled under Commerce Clause cases that a reg-
ulation can involve the promotion or the restriction of commercial
enterprises and development. Indeed, "[t]he motive and purpose of a
regulation of interstate commerce are matters for the legislative judg-
ment." United States v. Darby, 312 U.S. 100, 115 (1941). We recog-
nize that "Congress can regulate interstate commerce for any lawful
motive." United States v. Soderna, 82 F.3d 1370, 1374 (7th Cir.
1996). The regulation here targets takings that are economically moti-
vated -- farmers take wolves to protect valuable livestock and crops.
It is for Congress, not the courts, to balance economic effects --
namely whether the negative effects on interstate commerce from red
17
wolf predation are outweighed by the benefits to commerce from a
restoration of this species. To say that courts are ill-suited for this act
of empirical and political judgment is an understatement.
It is anything but clear, for example, that red wolves harm farming
enterprises. They may in fact help them, and in so doing confer addi-
tional benefits on commerce. For instance, red wolves prey on ani-
mals like raccoons, deer, and rabbits -- helping farmers by killing the
animals that destroy their crops. See Robert J. Esher & Theodore R.
Simons, Red Wolf Propagation on Horn Island, Miss.: Red Wolf Eco-
logical Studies 13-16 (Sept. 1993) (unpublished, Joint Appendix at
890). On Horn Island, for instance, researchers found evidence of
increased shore bird nesting, likely due to the reduction in raccoon
predation. See id. at 15. In Tennessee Valley Authority v. Hill
("TVA"), the Supreme Court recognized that one of Congress's pri-
mary concerns in enacting the ESA was "the unknown uses that
endangered species might have and about the unforeseeable place
such creatures may have in the chain of life on this planet." 437 U.S.
153, 178-79 (1978). It is within the power of Congress to regulate the
coexistence of commercial activity and endangered wildlife in our
nation and to manage the interdependence of endangered animals and
plants in large ecosystems. It is irrelevant whether judges agree or dis-
agree with congressional judgments in this contentious area. Given
the existing economic and commercial activity involving red wolves
and wildlife generally, Congress could find that conservation of
endangered species and economic growth are mutually reinforcing. It
is simply not beyond the power of Congress to conclude that a healthy
environment actually boosts industry by allowing commercial devel-
opment of our natural resources.
Section 17.84(c) aims to reverse threatened extinction and conserve
the red wolf for both current and future use in interstate commerce.
Congress is entitled to make the judgment that conservation is poten-
tially valuable, even if that value cannot be presently ascertained. The
Supreme Court has held that the congressional decision to maintain
abandoned railroad track is reasonable "even if no future rail use for
it is currently foreseeable." Preseault v. ICC, 494 U.S. 1, 19 (1990).
The Court reasoned that "[g]iven the long tradition of congressional
regulation of railroad abandonments, that is a judgment that Congress
is entitled to make." Id. (citations omitted). Similarly, Congress has
18
long been involved in the regulation of scarce and vital natural
resources. The full payoff of conservation in the form of tourism,
research, and trade may not be foreseeable. Yet it is reasonable for
Congress to decide that conservation of species will one day produce
a substantial commercial benefit to this country and that failure to
preserve a species will result in permanent, though unascertainable,
commercial loss.
When enacting the ESA, various legislators expressed these exact
concerns, namely that species be conserved for future scientific devel-
opment:
The value of this genetic heritage is, quite literally, incalcu-
lable. . . . 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 potential
resources. . . . 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? . . . Sheer self-interest
impels us to be cautious.
H.R. Rep. No. 93-412, at 4-5 (1973). Extinction, after all, is irrevers-
ible. If a species becomes extinct, we are left to speculate forever on
what we might have learned or what we may have realized. If we con-
serve the species, it will be available for the study and benefit of
future generations. In any event, it is for Congress to choose between
inaction and preservation, not for the courts.
Courts have uniformly upheld endangered species legislation after
Lopez based on many of the same current and future connections to
interstate commerce articulated here. In fact, no case has been brought
to our attention that invalidates any endangered species regulation for
exceeding the commerce power. In addressing a post-Lopez challenge
to the constitutionality of the Bald Eagle Protection Act, 16 U.S.C.
§ 668 (1994), the Ninth Circuit found that"[e]xtinction of the eagle
would substantially affect interstate commerce by foreclosing any
possibility of several types of commercial activity: future commerce
in eagles or their parts; future interstate travel for the purpose of
observing or studying eagles; or future commerce in beneficial prod-
19
ucts derived either from eagles or from analysis of their genetic mate-
rial." United States v. Bramble, 103 F.3d 1475, 1481 (9th Cir. 1996).
Similarly, "[g]iven the interconnectedness of species and ecosystems,
it is reasonable to conclude that the extinction of one species affects
others and their ecosystems and that the protection of a purely intra-
state species . . . will therefore substantially affect land and objects
that are involved in interstate commerce." See NAHB, 130 F.3d at
1059 (Henderson, J., concurring). In addition, the District of Colum-
bia District Court upheld application of the ESA to the fairy shrimp,
a severely endangered species limited to one state. See Building
Indus. Assoc. of Superior Cal. v. Babbitt, 979 F. Supp. 893 (D.D.C.
1997). The court declined to "read Lopez as hamstringing Congress
in such an irrational fashion in a regulatory area of such important
economic, scientific and environmental dimensions." Id. at 908. Pre-
Lopez cases reached similar results. See, e.g., Hoffman Homes, Inc.
v. Administrator, 999 F.2d 256, 261 (7th Cir. 1993); Palila v. Hawaii
Dep't of Land and Natural Resources, 471 F. Supp. 985, 995 (D.
Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981).
The protection of the red wolf on both federal and private land sub-
stantially affects interstate commerce through tourism, trade, scien-
tific research, and other potential economic activities. To overturn this
regulation would start courts down the road to second-guessing all
kinds of legislative judgments. There is a "rational basis" as defined
by Lopez for sustaining this regulation. We therefore hold that the
anti-taking provision at issue here involves regulable economic and
commercial activity as understood by current Commerce Clause juris-
prudence.4
B.
This regulation is also sustainable as "an essential part of a larger
regulation of economic activity, in which the regulatory scheme could
be undercut unless the intrastate activity were regulated." Lopez, 514
_________________________________________________________________
4 Intervenor-appellees Defenders of Wildlife argue that this regulation
can also be upheld under the treaty power. See U.S. Const. art. VI., cl.
2; U.S. Const. art. II, § 2, cl. 2. Because we hold that § 17.84(c) is valid
under the Commerce Clause, we need not address this alternative argu-
ment.
20
U.S. at 561. The Supreme Court in Hodel v. Indiana stated: "A com-
plex regulatory program . . . can survive a Commerce Clause chal-
lenge without a showing that every single facet of the program is
independently and directly related to a valid congressional goal. It is
enough that the challenged provisions are an integral part of the regu-
latory program and that the regulatory scheme when considered as a
whole satisfies this test." 452 U.S. 314, 329 n.17 (1981).
The FWS issued this regulation pursuant to the provisions of the
Endangered Species Act, a comprehensive and far-reaching piece of
legislation that aims to conserve the health of our national environ-
ment. Congress undoubtedly has the constitutional authority to pass
legislation for the conservation of endangered species. See Babbitt v.
Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687
(1995) (presupposing validity of Endangered Species Act in uphold-
ing broad definition of "harm" as including significant habitat modifi-
cation); see also TVA v. Hill, 437 U.S. at 194 (emphasizing that
Congress has struck a balance in "favor of affording endangered spe-
cies the highest of priorities" and upholding application of the ESA
because "[o]nce the meaning of an enactment is discerned and its con-
stitutionality determined, the judicial process comes to an end").
Appellants repeatedly argue that individual takings of red wolves
have only an insubstantial effect on interstate commerce and therefore
that the application of the regulation to private landowners is invalid.
But we emphasize that the effect on commerce must be viewed not
from the taking of one wolf, but from the potential commercial differ-
ential between an extinct and a recovered species. A single red wolf
taking may be insubstantial by some measures, but that does not
invalidate a regulation that is part of the ESA and that seeks conserva-
tion not only of any single animal, but also recovery of the species
as a whole. The Supreme Court in Lopez was emphatic on this point:
"`where a general regulatory statute bears a substantial relation to
commerce, the de minimis character of individual instances arising
under that statute is of no consequence.'" 514 U.S. at 558 (alteration
in original) (quoting Maryland v. Wirtz, 392 U.S. 183, 197 n.27
(1968)); see also Perez v. United States, 402 U.S. 146, 154 (1971)
("Where the class of activities is regulated and that class is within the
reach of federal power, the courts have no power to excise, as trivial,
individual instances of the class." (internal quotation marks omitted)).
21
Once a species has been designated as endangered, there are by
definition only a few remaining animals. Therefore, the effects on
interstate commerce should not be viewed from the arguably small
commercial effect of one local taking, but rather from the effect that
single takings multiplied would have on advancing the extinction of
a species. Each taking impacts the overall red wolf population, which
has an effect on many dimensions of commerce between the states.
As the Supreme Court has stated, "[i]f it is interstate commerce that
feels the pinch, it does not matter how local the operation which
applies the squeeze." Heart of Atlanta Motel , 379 U.S. at 258 (internal
quotation marks omitted). Section 17.84(c) must thus be evaluated
against the overall congressional goal of restoring red wolves and
endangered species generally. It would be perverse indeed if a species
nearing extinction were found to be beyond Congress's power to pro-
tect while abundant species were subject to full federal regulatory
power. Yet under appellants' theory, the more endangered the species,
the less authority Congress has to regulate the taking of it. According
to this view, endangered species would lie beyond congressional pro-
tection because there are too few animals left to make a commercial
difference. Such reasoning would eviscerate the comprehensive fed-
eral scheme for conserving endangered species and turn congressional
judgment on its head.
Appellants protest they do not ask us to overturn the ESA. They
simply want us to excise as unconstitutional a disfavored provision
that places a strain on their agricultural activities. But given that Con-
gress has the ability to enact a broad scheme for the conservation of
endangered species, it is not for the courts to invalidate individual
regulations. If appellants think this regulation unwise, they must make
their plea to Congress. The judiciary lacks the delegated powers of the
FWS or the Environmental Protection Agency. Separation of powers
principles mandate that we leave decisions such as these to Congress
and to agencies with congressionally sanctioned expertise and author-
ity. The Supreme Court itself has been mindful of the "degree of regu-
latory expertise necessary to [the ESA's] enforcement." Sweet Home,
515 U.S. at 703. Lacking such expertise, we must decide not whether
the regulation meets with judicial favor, but whether it passes consti-
tutional muster.
The specific needs of individual species, as well as the balance to
be struck with landowners in or near the species' habitats, present a
22
classic case for legislative balancing. Here § 17.84(c) was promul-
gated precisely so that private landowners could take red wolves
under certain circumstances. For instance, subject to certain reporting
requirements, landowners can "take" wolves in self-defense, see 50
C.F.R. § 17.84(c)(4)(i), or when the wolves are found in the act of
killing livestock or pets, see id. § 17.84(c)(4)(iii). Landowners can
also harass wolves found on private property, provided that harass-
ment is by methods that are not lethal or physically injurious to the
red wolf, see id. § 17.84(c)(4)(iv). These provisions may ease tensions
between the red wolves and private landowners. Without these special
regulations, all red wolves would be subject to the absolute taking
prohibition of section 9(a), placing a much greater burden on the
property owner. Congress and the Service have decided that these
experimental wolves can be taken under certain circumstances based
on an evaluation of competing interests. How these lines should be
drawn and this balance struck is grist for the legislative and adminis-
trative mill and beyond the scope of judicial competence.
IV.
Upholding this regulation is consistent with the"first principles" of
a Constitution that establishes a federal government of enumerated
powers. See Lopez, 514 U.S. at 552. Lopez and Morrison properly
emphasize that we must carefully evaluate legislation in light of our
federal system of government. "The Constitution requires a distinc-
tion between what is truly national and what is truly local." Morrison,
2000 WL 574361, at *11. We must particularly scrutinize regulated
activity that "falls within an area of the law where States historically
have been sovereign and countenance of the asserted federal power
would blur the boundaries between the spheres of federal and state
authority." Brzonkala, 169 F.3d at 837 (internal quotation marks
omitted).
A.
It is imperative to set forth at the outset the historic roles of federal
and state authority in this area. The regulated activity at issue here
does not involve an "area of traditional state concern," one to which
"States lay claim by right of history and expertise." Lopez, 514 U.S.
at 580, 583 (Kennedy, J., concurring).
23
Appellants argue that the regulation infringes on the traditional
state control over wildlife. We are cognizant that states play a most
important role in regulating wildlife -- many comprehensive state
hunting and fishing laws attest to it. State control over wildlife, how-
ever, is circumscribed by federal regulatory power. In Minnesota v.
Mille Lacs Band of Chippewa Indians, the Supreme Court recently
reiterated that "[a]lthough States have important interests in regulat-
ing wildlife and natural resources within their borders, this authority
is shared with the Federal Government when the Federal Government
exercises one of its enumerated constitutional powers." 526 U.S. 172,
204 (1999). In Mille Lacs, the Court upheld Chippewa Indian rights
under an 1837 treaty that allowed the Chippewa to hunt, fish, and
gather free of territorial, and later state, regulation. Id. These Indian
treaty rights were found to be "reconcilable with state sovereignty
over natural resources." Id. at 205.
It is true that in the nineteenth century courts followed the legal
precept that wildlife was the property of the state. See Geer v. Con-
necticut, 161 U.S. 519 (1896) (upholding a Connecticut statute that
prohibited the interstate transportation of game birds that had been
killed within the state). But the principles in Geer were modified early
in the twentieth century. See Hughes v. Oklahoma , 441 U.S. 322, 329
(1979) ("The erosion of Geer began only 15 years after it was
decided."). Geer was finally overruled in 1979 by Hughes v. Okla-
homa, which held that states do not own the wildlife within their bor-
ders and that state laws regulating wildlife are circumscribed by
Congress's commerce power. 441 U.S. at 326, 335. In light of Mille
Lacs and Hughes, the activity regulated by § 17.84(c) -- the taking
of red wolves on private property -- is not an area in which the states
may assert an exclusive and traditional prerogative in derogation of
an enumerated federal power.
Appellants next argue that the application of this regulation to pri-
vate land intrudes on the state's traditional police power to regulate
local land use. Of course, states and localities possess broad regula-
tory and zoning authority over land within their jurisdictions. See Vil-
lage of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). It is well
established, however, that Congress can regulate even private land
use for environmental and wildlife conservation. Courts have consis-
tently upheld Congress's authority to regulate private activities in
24
order to conserve species and protect the environment. For example,
in a post-Lopez challenge to CERCLA, the Eleventh Circuit held that
the private, on-site, intrastate disposal of hazardous waste was within
Congress's authority to regulate because such disposal "significantly
impacts interstate commerce." United States v. Olin Corp., 107 F.3d
1506, 1510 (11th Cir. 1997). In Sweet Home, the Supreme Court
upheld a FWS regulation defining "harm" in the Endangered Species
Act to include "significant habitat modification." 515 U.S. at 697. The
regulation applied equally to private and public land. See id. at 692
(challenge brought by small landowners and logging companies).
Here, the FWS similarly acted within its authority in determining that
conservation of the red wolf population requires prohibiting certain
takings on private land surrounding the refuges. See 51 Fed. Reg.
41,790, 41,792-93 (1986).
Given the history of federal regulation over wildlife and related
environmental concerns, it is hard to imagine how this anti-taking
regulation trespasses impermissibly upon traditional state functions
-- either control over wildlife or local land use. Lopez and Morrison
properly caution that States should receive judicial protection from
unconstitutional federal encroachments on state matters. Yet endan-
gered wildlife regulation has not been an exclusive or primary state
function. In this way the anti-taking regulation is distinctly unlike the
GFSZA, which forbade the possession of firearms in a school zone.
The Supreme Court explained that the regulation of school zones was
within the "general police power" retained by the states. See Lopez,
514 U.S. at 567. The regulation of red wolf taking is also unlike the
VAWA, which established a "right to be free from crimes of violence
motivated by gender," 42 U.S.C. § 13981(b) (1994). The Supreme
Court found that the VAWA impeded on family law and criminal
matters of traditional state concern. See Morrison, 2000 WL 574361,
at *11. The Court noted, "[W]e can think of no better example of the
police power, which the Founders denied the National Government
and reposed in the States, than the suppression of violent crime and
vindication of its victims." Id. at *11. Unlike the GFSZA and the
VAWA, § 17.84(c) does not invade traditional state concerns -- it is
simply one small part of an ongoing federal effort to preserve the
scarcest natural resources for future generations.
In contrast to gender-motivated violence or guns in school yards,
the conservation of scarce natural resources is an appropriate and
25
well-recognized area of federal regulation. The federal government
has been involved in a variety of conservation efforts since the begin-
ning of this century. In 1900, Congress passed the Lacey Act, which
provided penalties for the taking of wildlife in violation of state laws.
See Act of May 25, 1900, ch. 553, 31 Stat. 187 (codified as amended
16 U.S.C. § 701 (1994)). The Migratory Bird Treaty Act of 1918 for-
bade all takings of numerous bird species and explicitly preempted
state laws. See 16 U.S.C. §§ 703-12. Furthermore, Congress has regu-
lated wildlife on nonfederal property through numerous statutes,
including the Bald Eagle Protection Act of 1940, which prohibits,
inter alia, the taking, possession, selling, or exporting of bald eagles
or any of their parts. See 16 U.S.C. §§ 668-668d (1994). Similarly, the
Marine Mammal Protection Act of 1972 regulates the taking of
marine mammals and restricts the importing of marine mammals and
their products through an elaborate system of permits. See 16 U.S.C.
§§ 1361-1421h (1994 & Supp. III 1997). The Magnuson Fishery Con-
servation and Management Act of 1976 provides national standards
for fishery conservation and management along with an elaborate sys-
tem of enforcement. See 16 U.S.C. §§ 1801-83 (1994 & Supp. III
1997).
The Supreme Court has repeatedly upheld these statutes and the
conservation efforts of Congress with regard to a variety of animal
species. In Missouri v. Holland, the Court upheld the Migratory Bird
Treaty Act as a necessary and proper means of executing Congress's
treaty power. The conservation of endangered wildlife, Justice
Holmes stated, was a "matter[ ] of the sharpest exigency for national
well being." 252 U.S. 416, 432-33 (1920). In 1977, the Supreme
Court held that Congress had the power under the Commerce Clause
to grant federal fishing licenses for use in state waters, thereby pre-
empting conflicting state laws. See Douglas v. Seacoast Products,
Inc., 431 U.S. 265 (1977). Later in Andrus v. Allard, the Court
emphasized that the "assumption that the national commerce power
does not reach migratory wildlife is clearly flawed." 444 U.S. 51, 63
n.19 (1979).
Post-Lopez cases addressing wildlife conservation statutes do not
call these cases into question, but rather uphold the exercise of agency
power over private land use in order to conserve endangered species.
In Sweet Home, for example, the Court upheld the Service's broad
26
definition of "harm" in the ESA as including "significant habitat mod-
ification." 515 U.S. at 708. The lower courts have followed suit, both
before and after Lopez. For example, in United States v. Hartsell, this
court reaffirmed that Congress retains authority to regulate even non-
navigable waters under the Commerce Clause. 127 F.3d 343, 348 &
n.1 (4th Cir. 1997). The Ninth Circuit reaffirmed that the Bald Eagle
Protection Act is a valid exercise of the commerce power because
Congress had a rational basis for concluding that "extinction of the
eagle would have a substantial effect on interstate commerce." See
Bramble, 103 F.3d at 1482. In sum, it is clear from our laws and pre-
cedent that federal regulation of endangered wildlife does not trench
impermissibly upon state powers. Rather, the federal government pos-
sesses a historic interest in such regulation -- an interest that has
repeatedly been recognized by the federal courts.
B.
It is important not simply to point to the historic fact of federal
efforts in the area of resource conservation. Courts have respected the
justifications for these federal efforts as well.
The Supreme Court has recognized that protection of natural
resources may require action from Congress. This general point holds
true where endangered species are concerned. Species conservation
may unfortunately impose additional costs on private concerns. States
may decide to forego or limit conservation efforts in order to lower
these costs, and other states may be forced to follow suit in order to
compete. The Supreme Court has held that Congress may take cogni-
zance of this dynamic and arrest the "race to the bottom" in order to
prevent interstate competition whose overall effect would damage the
quality of the national environment. In Hodel v. Virginia Surface Min-
ing and Reclamation Ass'n, the Court upheld provisions of the Sur-
face Mining Control and Reclamation Act of 1977 that regulated
intrastate mining activities. 452 U.S. 264 (1981). The Court deferred
to a congressional finding that nationwide standards were "essential"
to insuring that competition in interstate commerce among sellers of
coal would not be used to undermine environmental standards. See id.
at 281-82. Congress expressed concern that such competition would
disable states from improving and maintaining "adequate standards on
coal mining operations within their borders." Id. (internal quotation
27
marks omitted). The Court emphasized, "The prevention of this sort
of destructive interstate competition is a traditional role for congres-
sional action under the Commerce Clause." Id. at 282. In Darby, the
Court upheld a prohibition of the interstate shipment of goods pro-
duced in violation of the Fair Labor Standards Act. 312 U.S. 100. The
Court reasoned that "interstate commerce should not be made the
instrument of competition in the distribution of goods produced under
substandard labor conditions." Id. at 115.
A desire for uniform standards also spurred enactment of the ESA:
"[P]rotection of endangered species is not a matter that can be han-
dled in the absence of coherent national and international policies: the
results of a series of unconnected and disorganized policies and pro-
grams by various states might well be confusion compounded." See
H.R. Rep. No. 93-415, at 5. If we struck down this regulation under
the commerce power, we would throw into question much federal
environmental legislation. This would be a portentous step, leaving
many environmental harms to be dealt with through state tort law.
Such a movement might well subject interstate companies to a welter
of conflicting obligations. If Congress is constitutionally forbidden
from even enacting uniform environmental rules, the confusion for
interstate commercial enterprises might increase exponentially.
In examining the justifications for federal action in this area it is
important to understand the ESA as a culmination of a long legislative
process of trial and error. This font of experience is something courts
lack. As we noted earlier, preliminary efforts at endangered species
regulation were widely viewed as inadequate precisely because they
did not control private activities. The Endangered Species Act of
1966 established a National Wildlife Refuge System and prohibited
disturbing animals or habitat within the System. See Pub. L. No. 89-
669, § 4, 80 Stat. 926. The Endangered Species Act of 1969 required
the Secretary of the Interior to develop a list of endangered species,
and prohibited the importation of these animals or any of their by-
products without a permit. See Pub. L. No. 91-135, § 3(a), § 2, 83
Stat. 275. These statutes also required federal agencies to conserve
species "insofar as is practicable," § 1(b), 80 Stat. at 926, and to the
"extent practicable," § 3(a), 83 Stat. at 275. In response to concerns
that these Acts had little impact, Congress amended the ESA in 1973
to abandon the practicability standards and to prohibit takings on pri-
28
vate land. See 16 U.S.C. § 1538. According to the General Account-
ing Office, in 1993 there were 781 species listed under the ESA --
over 90 percent of these species have some or all of their habitat on
nonfederal lands. Nearly three-fourths of the listed species had over
60 percent of their habitat on nonfederal lands. Courts cannot simply
ignore or negate congressional efforts to devise a more effective solu-
tion to a significant national problem.
C.
This regulation does not blur the boundaries between federal and
state responsibility for the conservation of species. Disturbing the bal-
ance of federal and state power was a primary concern in both Lopez
and Morrison. In Lopez, Justice Kennedy argued that one of the great
dangers of the federal government regulating areas of traditional state
concern is that "the boundaries between the spheres of federal and
state authority would blur and political responsibility would become
illusory." 514 U.S. at 577 (Kennedy, J., concurring). In Brzonkala this
court observed that because the VAWA supplemented and interfered
with state remedies, "the citizens of the States [would] not know
which sovereign to hold accountable for any failure to address ade-
quately gender-motivated crimes of violence." 169 F.3d at 842.
Section 17.84(c) is distinguishable from both the GFSZA and the
VAWA because the ultimate responsibility for the red wolf lies with
the federal government. The regulation outlines the responsibilities
and obligations of landowners with regard to any red wolves on their
property. See 50 C.F.R. § 17.84(c). The FWS has also distributed fact
sheets about the wolves and held meetings with local residents to
explain the regulation and the reintroduction. From the time of rein-
troduction until 1994, North Carolina had no law or regulation con-
cerning the red wolf. A recently passed North Carolina law bears a
title starkly at odds with the federal regulation: "An Act to Allow the
Trapping and Killing of Red Wolves by Owners of Private Land."
1994 N.C. Sess. Laws Ch. 635. Unlike the GFSZA and the VAWA,
§ 17.84(c) does not duplicate or supplement state and local regulation.
Quite to the contrary, it simply provides federal support for an endan-
gered species. The dangers of blurring are minimal where the federal
role in the protection of endangered species has traditionally been so
clear.
29
Congress, however, did not simply sweep away the role of the
states by enacting a national solution to the problem of red wolf con-
servation. The ESA and § 17.84(c) embody principles of cooperative
federalism and seek to involve the states in the conservation effort.
Such cooperative federalism does not blur state and federal roles.
First, a species is listed as endangered or threatened only after review-
ing "those efforts, if any, being made by any State . . . to protect such
species." 16 U.S.C. § 1533(b)(1)(A). Second, once the species has
recovered and is "delisted," management responsibility will return to
the states. See id. § 1532(3) (defining "conservation" as "the use of all
methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures pro-
vided pursuant to this chapter are no longer necessary"). States can
then regulate the species for hunting and resource management as it
sees fit. For instance, in Minnesota, citizens have expressed interest
in hunting the grey wolf, which is expected to be delisted soon and
its management returned to the state. See Feds Again Delay Wolf
Management Plan: Officials Had to Do Some Rework After Legisla-
ture Failed to Pass State Plan, Star-Tribune (Minneapolis), Nov. 29,
1999, at B7 (explaining that wolf numbers were strong enough to
drop federal protection, but that the Minnesota legislature failed to
pass a management plan for the wolves). Indeed, there is evidence
that the recovery of the red wolf could allow a renewed trade in wolf
pelts. For example, in the Northwestern Territories of Canada where
wolves are plentiful, a hunter can command about $300 per pelt. See
Fred Langan, Hunters on Snowmobiles Cut Down Wolf Count in
N.W.T., Calgary Herald, Mar. 3, 1998, at A7.
This regulation simply does not implicate any "immediate and con-
crete" federalism concerns by negating state contributions to species
protection. Brzonkala, 169 F.3d at 840. Quite to the contrary, invali-
dating this regulation would deal a damaging blow to the essential
place of the enumerated powers in preserving scarce resources of all
sorts for the common good.
D.
Unlike the statutes in Lopez and Brzonkala, § 17.84(c) can be
upheld while observing principled limitations on federal power. The
regulation applies only to a single limited area-- endangered species.
30
It does not in any way grant Congress "an unlimited police power
inconsistent with a Constitution of enumerated and limited federal
powers." Brzonkala, 169 F.3d at 852. Nor does the regulation "oblit-
erate the Constitution's distinction between national and local author-
ity." Morrison, 2000 WL 574361, at *10. In Lopez, the Court rejected
the "costs of crime" and "national productivity" justifications for the
GFSZA, because under these theories it was "difficult to perceive any
limitation on federal power, even in areas such as criminal law
enforcement or education where States historically have been sover-
eign." 514 U.S. at 564.
But these concerns are simply not implicated by § 17.84(c). Rather,
the ESA and this regulation in particular permit the exercise of federal
power only to conserve those species that are "endangered" or "threat-
ened." The Secretary must determine whether a species is endangered
or threatened "solely on the basis of the best scientific and commer-
cial data available to him after conducting a review of the status of
the species." 16 U.S.C. § 1533(b)(1)(A). Only after determining that
a species is endangered or threatened can Congress regulate it. The
rationale for upholding § 17.84(c), and the ESA generally, is
restricted to the special relationship between endangered species and
interstate commerce as drawn in Part III. It is not a connection that
can be drawn outside of the endangered species context to support
federal regulation of just any local or intrastate object with a medical,
scientific, or economic value.
The rationale for this regulation thus stops far short of conferring
upon Congress a broad police power. It is instead appellants' argu-
ments for invalidating this regulation that go too far. If the federal
government cannot regulate the taking of an endangered or threatened
species on private land, its conservation and preservation efforts
would be limited to only federal lands. A ruling to this effect would
place in peril the entire federal regulatory scheme for wildlife and nat-
ural resource conservation.
V.
Finally, we offer a brief response to the views of our dissenting
brother. According to the dissent, Lopez and Morrison require us to
hold that the regulation at issue exceeds Congress's commerce power.
31
We cannot accept this view. To invalidate this regulation would
require courts to move abruptly from preserving traditional state roles
to dismantling historic federal ones.
The dissenting opinion regrettably offers no legal basis for taking
such a leap. Instead, the dissent expresses a bevy of unsupported
opinions. It offers its conclusory belief that the taking of a red wolf
does not constitute an economic activity. Post at 37. It announces
with some confidence that trade in wolf pelts will never revive. Post
at 39. And it dismisses the available studies on the red wolf's ecologi-
cal and commercial value without offering the slightest bit of evi-
dence to contradict them. Post at 36-37. Where exactly the dissent
derives its view of the inconsequential status of this species is a mys-
tery to us. But it cannot be that the mere expression of judicial deri-
sion for the efforts of the democratic branches is enough to discard
them.
There should be no doubt about the implications of the dissenting
opinion. Our dissenting colleague would rework the relationship
between the judiciary and its coordinate branches. It is apparent that
the dissent regards § 17.84(c) as ill-advised. That is fair enough, but
a judge's view of the wisdom of enacted policies affords no warrant
for declaring them unconstitutional. See TVA v. Hill, 437 U.S. at 195
("[I]n our constitutional system the commitment to the separation of
powers is too fundamental for us to pre-empt congressional action by
judicially decreeing what accords with `common sense and the public
weal.' Our Constitution vests such responsibilities in the political
branches."). In recognition of the fact that the wisdom of legislation
is different from its constitutionality, courts have always started with
a presumption in favor of an enactment's constitutionality. Lopez and
Morrison have not shifted this presumption. In fact, they have care-
fully maintained it. See Morrison, 2000 WL 574361, at *6 ("Due
respect for the decisions of a coordinate branch of Government
demands that we invalidate a congressional enactment only upon a
plain showing that Congress has exceeded its constitutional
bounds."); Lopez, 514 U.S. at 568. Our dissenting brother proceeds on
the quite contrary premise that the burden now rests with those who
wish to uphold legislation. We know of no other way to interpret the
dissent's view that the empirical underpinnings of this regulation are
inadequate.
32
Reversing the presumption in favor of constitutionality plunges our
dissenting brother into the thick of political controversy. As the argu-
ments and briefs in this case attest, the matter in question involves a
rather traditional struggle between property owners on the one hand
and environmentalists on the other. Both sides in this political stand-
off have their legitimate points to make. Property owners understand-
ably seek more freedom to take wolves on their property. Those
opposing them seek to impress the fact that even private property has
historically been imbued with public responsibilities. Why the judicial
branch should place its thumb on either side of this old political scale
is simply beyond our comprehension. Both concern for property
rights and concern for the environment play important roles in shap-
ing political decisions. But neither can automatically be allowed to
grind the nation's commerce power to a constitutional halt. An indis-
criminate willingness to constitutionalize recurrent political contro-
versies will weaken democratic authority and spell no end of trouble
for the courts.
This danger is made more acute by the failure of the dissent to
adopt any limiting principle for its approach. The dissent dismisses
the regulation at issue as implicating nothing more than "a handful of
animals, if even that, in one small region of one state." Post at 39. It
declares that because there are only 41 wolves on private land, "the
killing of even all 41 of the estimated red wolves" cannot have a sub-
stantial effect on interstate commerce. Post at 37. Far from being a
limiting approach, the dissent's formulation is one of unprecedented
breadth. It holds in essence that an endangered species can have no
effect on interstate commerce on account of its endangered status and
that scarce resources are on account of their scarcity too trivial to jus-
tify protection. The dissent further ignores the fact that the scarcest
of natural resources, be they wildlife or mineral, will often be found
in one limited locality. For the federal courts to constitutionally dis-
able the federal government from acting in the face of scarcity is to
deal a severe blow to national strength.
Sapping the national ability to safeguard natural resources is not a
course supported by precedent. After Lopez, the Supreme Court
upheld a broad interpretation of the Endangered Species Act, see
Sweet Home, 515 U.S. 687. And in Morrison the Supreme Court cited
Wickard v. Filburn and Heart of Atlanta Motel for the proposition that
33
the authority of the national government to regulate intrastate eco-
nomic activity in proper circumstances had not been dismembered.
2000 WL 574361, at *7. Yet in the truncated legal universe of the dis-
sent, the national interest in the development of natural resources
counts for naught, and these cases and propositions have little, if any,
role to play.
Finally, the dissenting opinion works a rent in the fabric of Our
Federalism. Striking down this regulation will turn federalism on its
head. Lopez and Morrison rightly emphasized the fact that the federal
involvement with local school zones and the creation of civil causes
of action to prevent gender-motivated violence encroached on what
are traditional state functions. By contrast, the preservation of endan-
gered species is historically a federal function. Lopez and Morrison
recognized the importance of judicial review under the Commerce
Clause. But, unlike the dissent, those cases set boundaries to that
review and did not transform the reviewing function from a shield
protecting state activities into a sword dismembering a long recog-
nized federal one. It is as threatening to federalism for courts to erode
the historic national role over scarce resource conservation as it is for
Congress to usurp traditional state prerogatives in such areas as edu-
cation and domestic relations. Courts seeking to enforce the structural
constraints of federalism must respect the balance on both sides.5
Of course natural resource conservation is economic and commer-
cial. If we were to decide that this regulation lacked a substantial
effect on commerce and therefore was invalid, we would open the
door to standardless judicial rejection of democratic initiatives of all
sorts. Courts need not side with one party or the other on the wisdom
_________________________________________________________________
5 Emphasizing the political nature of this particular dispute does not
consign Commerce Clause adjudications to the political processes, but
rather takes account of the fact that judicial review is limited by the due
respect that we must have for the decisions of a coordinate branch. See
Morrison, 2000 WL 574361, at *6. It is therefore both amusing and
incorrect for the dissent to suggest that upholding this endangered spe-
cies regulation would somehow render Lopez or Morrison an "aberra-
tion," post at 38. The dissent ignores the significant differences between
those cases and the present one -- differences that we have chronicled
in detail and with which the dissent has made no effort to deal.
34
of this endangered species regulation. We hold only as a basic maxim
of judicial restraint that Congress may constitutionally address the
problem of protecting endangered species in the manner undertaken
herein. The political, not the judicial, process is the appropriate arena
for the resolution of this particular dispute. The judgment of the dis-
trict court is accordingly
AFFIRMED.
LUTTIG, Circuit Judge, dissenting:
I wrote extensively on the Supreme Court's decision in United
States v. Lopez, 514 U.S. 549 (1995), and on the Commerce Clause
in the wake of that decision, in Brzonkala v. Virginia Polytechnic
Institute, 169 F.3d 820 (4th Cir. 1999). And the Supreme Court has
now provided even further guidance for the lower courts through its
decision in Brzonkala, which is ultimately styled in that court as
United States v. Morrison, No. 99-5, 2000 WL 574361 (May 15,
2000). If one holds the views expressed by the Supreme Court major-
ity in Lopez and Morrison, and by our court in Brzonkala, a belabored
discussion of the implications of those decisions for the regulation at
issue before us today is not necessary.
Here, the Fish and Wildlife Service has promulgated a regulation
that prohibits private landowners from shooting, wounding, killing,
trapping, or otherwise harming the canis rufus , or the red wolf, even
when the wolves are on the private landowners' property and threat-
ening their crops and livestock. However, in what the majority char-
acterizes as an act of beneficence by the government to benefit the
landowners, the government does allow a property owner -- even on
his own property -- to kill a wolf if the wolf is about to kill the prop-
erty owner himself or his family. Ante at 6. The question presented
to us for decision is not "whether the national government can act to
conserve scarce natural resources of value to our entire country," ante
at 3, whether we should "hold as a basic maxim of judicial restraint
that Congress may constitutionally address the problem of protecting
endangered species," id. at 35, or whether our decision today will
"work[ ] a rent in the fabric of Our Federalism," id. at 34, "turn feder-
alism on its head," id., or "open the door to standardless judicial rejec-
tion of democratic initiatives of all sorts," id. at 34. Rather, the simple
35
(and frankly, considerably less incitant) question of law for us to
decide is whether, assuming its validity under statute, this one particu-
lar Fish and Wildlife regulation exceeds Congress' power under the
Commerce Clause.
As the majority recites, there are an estimated 41 red wolves resi-
dent on private property and 75 red wolves total, in eastern North
Carolina. The majority sustains the Fish and Wildlife's regulation
unhesitatingly on the ground that the taking of the 41 red wolves that
might occur as property owners attempt to protect themselves and
their families, their property, their crops, and their livestock from
these wolves, will have a "substantial effect" on interstate commerce.
This substantial effect on interstate commerce comprises, according
to the majority, four separate effects on such commerce, each of
which the majority views as "substantial."
First, the majority concludes, in exclusive reliance upon a Cornell
University professor's unpublished study entitled "Red Wolf Recov-
ery in Northeastern North Carolina and the Great Smoky Mountains
National Park," that "[m]any tourists travel to North Carolina from
throughout the country for `howling events' -- evenings of listening
to wolf howls accompanied by educational programs," id. at 14-15,
and thus that the taking of these wolves will have a substantial effect
on the interstate commercial industry of tourism.
Second, the majority concludes, largely in reliance, not upon their
substantive conclusions, but rather upon the fact of the generation of
two articles -- "The Red Wolf as a Model for Carnivore Re-
introductions," which was published in the Symposium of the Zoolog-
ical Society of London, and the 1994 unpublished study "Alligator
River National Wildlife Refuge Red Wolf (Canis Rufus) Scat Analy-
sis" -- that the taking of these red wolves will have a substantial
effect on the "interstate market" of "scientific research." Ante at 16.
Third, the majority concludes, largely on the strength of an article
that appears in the University of Pennsylvania Journal of International
Economic Law, that the taking of these wolves will have a substantial
effect on the majority-anticipated resurrection of an interstate trade in
fur pelts. Ante at 17. In reliance upon an article that appeared two
years ago in the Calgary Herald entitled "Hunters on Snowmobiles
36
Cut Down Wolf Count in N.W.T.," the majority observes that "[f]or
example, in the Northwestern Territories of Canada where wolves are
plentiful, a hunter can command about $300 per pelt." Ante at 30. The
majority frankly acknowledges that there has not been a trade in wolf
pelts since the 1800s, ante at 17, but, to the majority, "this temporal
difference is beside the point." Id.
Finally, in reliance upon yet another unpublished study by Robert
Esher and Theodore Simons entitled "Red Wolf Propagation on Horn
Island, Mississippi: Red Wolf Ecological Studies," and by analogy to
the finding therein of "increased shore bird nesting, likely due to the
reduction in raccoon predation," ante at 18, the majority concludes
that the red wolves which the farmers and landowners have heretofore
thought threatened their families, their crops, and their livestock, actu-
ally help the farmers, by killing the animals that destroy the farmers'
crops, and thereby substantially affect interstate commerce. Ante at
17-18.
That these conclusions are not even arguably sustainable under
Lopez, Morrison, and Brzonkala, much less for the reasons cobbled
together by the majority, is evident from the mere recitation of the
conclusions. The killing of even all 41 of the estimated red wolves
that live on private property in North Carolina would not constitute
an economic activity of the kind held by the Court in Lopez and in
Morrison to be of central concern to the Commerce Clause, if it could
be said to constitute an economic activity at all. Morrison, 2000 WL
574361, at *8 ("[A] fair reading of Lopez shows that the noneco-
nomic, criminal nature of the conduct at issue was central to our deci-
sion in that case."). It is for this reason that the majority's attempted
aggregation is impermissible: "While we need not adopt a categorical
rule against aggregating the effects of any noneconomic activity in
order to decide these cases, thus far in our Nation's history our cases
have upheld Commerce Clause regulation of intrastate activity only
where that activity is economic in nature." 2000 WL 574361, at *9
(citations omitted). But even assuming that such is an economic activ-
ity, it certainly is not an activity that has a substantial effect on inter-
state commerce. The number of inferences (not even to mention the
amount of speculation) necessary to discern in this activity a substan-
tial effect on interstate commerce is exponentially greater than the
number necessary in Lopez to show a substantial effect on interstate
37
commerce from the sale of guns near schools or in Morrison to show
a substantial effect on interstate commerce from domestic assault. The
number (and the speculation) is even greater than that necessary in
Wickard v. Filburn, 317 U.S. 111 (1942). And, it bears reminding, the
regulated activity in Lopez and Wickard at least was in some sense
economic in character.
In a word, the expansive view of the Commerce power expressed
by the majority today is closely akin to that separately expressed by
Justice Breyer in his dissent in Lopez and Justice Souter in his dissent
in Morrison, and certainly more closely akin to those dissenting Jus-
tices' views than it is to the view of the Lopez majority in Lopez and
Morrison. Indeed, all in all, it is a view far more expansive than that
expressed by any of the dissenting Justices in either Lopez or Morri-
son -- a fact confirmed by the dissents in Morrison, ironically the
case for which the majority herein unnecessarily held this case in
abeyance. See Order of April 21, 2000 (Luttig, J., dissenting from
abeyance order). It goes without saying that it is much more like that
of the dissent in Brzonkala than that of the majority in our court. See
Brzonkala v. Virginia Polytechnic Institute , 169 F.3d 820, 905 (Motz,
J., dissenting).
Indeed, if the Supreme Court were to render tomorrow the identical
opinion that the majority does today (not necessarily the decision, but
the opinion, worded capaciously as it is), both Lopez and Morrison
would be consigned to aberration. And, by deciding this case as it
does, and on the particular reasoning that it does, the majority would
have all but consigned to aberration our own decision in Brzonkala
were it not for the Supreme Court's recent affirmance of that decision.
I would invalidate this particular agency regulation under Lopez,
Morrison, and Brzonkala, and instead recognize as the aberration that
action of invalidation, rather than the opinions in Lopez, Morrison,
and Brzonkala, as does the majority. Compare Morrison, 2000 WL
574361, at *30 (Souter, J., dissenting) (similarly to majority, charac-
terizing Lopez and Morrison, and by implication Brzonkala, as aber-
rational vis-a-vis the sixty years of jurisprudence predating Lopez and
predicting that Lopez and Morrison will not be "enduring law"); see
also Morrison, 2000 WL 574361, at *35 (Breyer, J., dissenting)
("And even were I to accept Lopez as an accurate statement of the
38
law, which I do not . . . ."). I would do so without any fear whatsoever
that such "would place in peril the entire federal regulatory scheme
for wildlife and natural resource conservation," ante at 31, as the
majority over-rhetorically predicts would result from the invalidation
of this lone regulation. No more so than in Brzonkala will
"[m]aintaining the integrity of the enumerated powers" by invalidat-
ing this single regulation "mean that statutes will topple like falling
dominos." Brzonkala, 169 F.3d at 897 (Wilkinson, J., concurring).
While it could be lost in a reading of the majority opinion, we do
not address here Congress' power over either the channels or instru-
mentalities of interstate commerce. We do not address activity that is
interstate in character. We do not address in this case a statute or a
regulation with an express interstate commerce jurisdictional require-
ment, which would all but ensure constitutional validity. We do not
have before us an activity that has obvious economic character and
impact, such as is typically the case with non-wildlife natural
resources, and even with other wildlife resources. We are not even
presented with an activity as to which a plausible case of future eco-
nomic character and impact can be made.
To the contrary, we are confronted here with an administrative
agency regulation of an activity that implicates but a handful of ani-
mals, if even that, in one small region of one state. An activity that
not only has no current economic character, but one that concededly
has had no economic character for well over a century now. An activ-
ity that has no foreseeable economic character at all, except upon the
baldest (though admittedly most humorous) of speculation that the red
wolf pelt trade will once again emerge as a centerpiece of our
Nation's economy. And, importantly, an activity that Congress could
plainly regulate under its spending power and under its power over
federal lands, regardless.
Judge Wilkinson, for his part, has written that he regards Lopez,
Brzonkala, and presumably now Morrison, as examples in a "spate of
decisions" of "contemporary judicial activism," Brzonkala, 169 F.3d
820, 892-93 (Wilkinson, J., concurring), as he similarly regards the
Supreme Court's decisions in Printz v. United States, 521 U.S. 98
(1997); City of Boerne v. Flores, 521 U.S. 507 (1997); Seminole
Tribe v. Florida, 517 U.S. 44 (1996); and New York v. United States,
39
505 U.S. 144 (1992). See id. The dissenting Justices in both Lopez
and Morrison similarly regard these decisions. See, e.g., Morrison,
2000 WL 574361, at *17 (Souter, J., dissenting); see also Morrison,
2000 WL 574361, at *30 (Breyer, J., dissenting). But I do not regard
these decisions as such, and I certainly do not understand the majority
of the Supreme Court to so regard these decisions.
Nor, in the wake of Lopez and Morrison , can I accept my col-
leagues' view of the appropriate role of the judiciary in Commerce
Clause disputes. As Judge Wilkinson's view of Lopez mirrors that of
the dissenters in Lopez and Morrison, so also does my colleagues'
view of the judiciary's role in Commerce Clause conflicts mirror that
of the Lopez and Morrison dissenters. The majority herein, like the
dissents in both Lopez and Morrison, takes the view that the political
processes are the safeguard against federal encroachment upon the
states. Thus, the majority concludes its opinion: "The political, not the
judicial, process is the appropriate arena for the resolution of this par-
ticular dispute." See ante at 35. Accord Morrison, 2000 WL 574361
at *26 (Souter, J., dissenting) ("The defect, in essence, is the majori-
ty's rejection of the Founders' considered judgment that politics, not
judicial review, should mediate between state and national interests
. . . ."); id. at *27 ("As with `conflicts of economic interest,' so with
supposed conflicts of sovereign political interests implicated by the
Commerce Clause: the Constitution remits them to politics."); id.
(Breyer, J., dissenting) (citing Souter, J., dissenting, in Morrison; Ste-
vens, J., dissenting, in Kimel v. Florida Bd. of Regents, 528 U.S. ___
(2000); and Blackmun, J., for the court, in Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.S. 528 (1985)).
The majority of the Supreme Court in Lopez and Morrison has left
no doubt, however, that the interpretation of this clause of the Consti-
tution, no less so than any other, must ultimately rest not with the
political branches, but with the judiciary. See Lopez, 514 U.S. 549,
557 n.2 ("[W]hether particular operations affect interstate commerce
sufficiently to come under the constitutional power of Congress to
regulate them is ultimately a judicial rather than a legislative question,
and can be settled finally only by this Court.") (quoting Heart of
Atlanta Motel v. United States, 379 U.S. 241, 273 (1964) (Black, J.,
concurring)); Morrison, 2000 WL 574361, at *10 n.7 ("Departing
from their parliamentary past, the Framers adopted a written Constitu-
40
tion that further divided authority at the federal level so that the Con-
stitution's provisions would not be defined solely by the political
branches nor the scope of legislative power limited only by public
opinion and the legislature's self-restraint. See, e.g., Marbury v. Mad-
ison, 1 Cranch 137, 176 (1803) (Marshall, C.J.).").
Accordingly, I would faithfully apply in this case the Supreme
Court's landmark decisions in Lopez and Morrison, as I would in any
other case. The affirmative reach and the negative limits of the Com-
merce Clause do not wax and wane depending upon the subject mat-
ter of the particular legislation under challenge.
41