PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

PEOPLE FOR THE ETHICAL TREATMENT OF PROPERTY OWNERS, Plaintiff-Appellee,

v. UNITED STATES FISH AND WILDLIFE SERVICE; DANIEL M. ASHE, acting in his official capacity as Director of the United States Fish and Wildlife Service; NOREEN WALSH, acting in her official capacity as Regional Director of the United States Fish and Wildlife Service’s Mountain-Prairie Region; UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, * Defendants-Appellants, and FRIENDS OF ANIMALS,
In tervenor Defendant- Appellant.

________________ Nos. 14-4151 & 14-4165

* Pursuant to Fed. R. A pp. P. 43(c)(2), recently confirmed Se cretary of the Department of Interior, Ryan Zinke, is substituted fo r former Secretary of the Interior Sally Jewell. FILED United States Court of Appeals Tenth Circuit 

### March 29, 2017
Elisabeth A. Shumaker Clerk of Court2 DEFENDERS OF WILD LIFE; DAVID S. COHEN; ERIC M. FREEDMAN; STEPHEN GARDBA UM; STEPHEN GOTTLIEB; M. ISABEL MEDINA; STEVEN D. SCHWINN; ENVIRONMENTAL LAW PROFESSORS; WILLIAM C. BANKS; NATIONAL ASSOCIATION OF HOME BUILDERS; ANIMAL WELFARE INSTITUTE; WYOMING ASSOCIATION OFCONSERVATION DISTRICTS; CENTER FOR BIOLOGICAL DIVERSITY; WYOMING FARM BUREAU FEDERATION; HUMANE SOCIETY OF THE UNITED STATES; SIERRA CLUB; WYOMING STOCK GROWERS ASSOCIATION; WILDEARTH GUARDIANS; WYOMING WOOL GROWERS ASSOCIATION; UTAH FARM BUREAU FEDERATION; CATO INSTITUTE AND PROFESSORS OF CONSTITUTIONAL LAW; STATE OF UTAH; STATE OF ALASKA; STATE OF ARIZONA; STATE OF COLORADO; STATE OF IDAHO; STATE OF KANSAS; STATE OF MONTANA; STATE OF SOUTH DAKOTA; STATE OF WYOMING; STATE OF MICHIGAN; CHAMBER OF COMMERCE OF THE UNITED STATES AND THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS; MOUNTAIN STATES LEGAL FOUNDATION;3 UNITED STATES SENATORS MIKE LEE, JAMES INHOFE, MIKE ENZI, DAVID VITTER, TED CRUZ, AND ORRIN HATCH AND CONGRESSMEN JASON CHAFFETZ, CHRIS STEWART, MIA LOVE, AND ROB BISHOP; CENTER FOR CONSTITUTIONAL JURISPRUDENCE, Amici Curiae.

Appeals from the United States District Court for the District of Utah (D.C. No. 2:13-CV-00278-DB)

Anna T. Katselas, Attorney (John C. Cruden, Assistan t Attorney General, David C. Shilton, and Mary Hollingsworth, A ttorneys, of the U. S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., with her on the briefs), for Defendants-Appellants. Michael Ray Harris, of Frie nds of Animals, Wildlife Law Program, Centennial, Colorado, for Intervenor Defendant-Appellant. Jonathan Wood (M. Reed Hopper, with him on the brief), of Pacific Legal Foundation, Sacramento, Califo rnia, for Plaintiff-Appellee. Jason C. Rylander and Karimah Sc hoenhut of Defenders of Wildlife, Washington, D.C., filed an amici curiae brief for Defe nders of Wildlife, Animal Welfare Institute, Cent er for Biological Diversity, Hu mane Society of the United States, Sierra Club, and Wildearth Guardians, in support of DefendantsAppellants. David M. Driesen, U nversity Professor, of Syracuse University College of Law, Syracuse, New York, file d an amici curiae brie f for Constitutional Law Professors William C. Ba nks, David S. Cohen, Eric M. Freedman, Stephen Gardbaum, Stephen E. Gottli eb, M. Isabel Medina, and Steven D. Schwinn, in support of Defendant s-Appellants.4 Daniel H. Lutz and Hope M. Babcock of In stitute for Public Representation, Georgetown University Law Center, Wash ington, D.C., filed an amicus curiae brief for Environmen tal Law Professors in suppor t of Defendants-Appellants. Thomas J. Ward and Jeff rey B. Augello of Nationa l Association of Home Builders, Washington, D.C. , and Norman D. James, Fennemore Craig, P.C., Phoenix, Arizona, filed an amicus curiae brief in s upport of Plaintiff-Appellee. Karen Budd-Falen of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming, filed an amici curiae brief for Wyoming A ssociation of Conser vation Districts, Wyoming Farm Bureau Federation, W yoming Stock Growers Association, Wyoming Wool Growers Association, an d Utah Farm Bureau Federation, in support of Plaintiff-Appellee. Ilya Shapiro and Julio Colomba, of Cato Institute, Washingt on, D.C., filed an amici curiae brief for Cato Institute and Professors of Constitutional Law, in support of Plaintiff-Appellee. Damien M. Schiff of Alston & Bird LLP, Sacramento, California, filed an amici curiae brief for United States Senators Mike Lee, James Inhof e, Mike Enzi, David Vitter, Ted Cruz, and Orrin Hatch a nd Congressmen Jason Chaffetz, Chris Stewart, Mia Love, and Rob Bishop in support of Plaintiff-Appellee. Sean D. Reyes, Utah Attorney General, and Bridget K. Romano, Utah Solicitor General, Anthony L. Rampton and Kathy A.F. Davis, Assist ant Utah Attorneys General, Salt Lake City, Utah, Craig W. Richards, Attorney General, Juneau, Alaska, Mark Brnovich, Attorney Genera l, Phoenix, Arizona, Cynthia Coffman, Attorney General, Denver, Colorado, Lawrence G. Wa sden, Attorney General, Boise, Idaho, Derek Schmidt, Attorney General, Topeka, Kansas, Tim Fox, Attorney General, Helena, Montana, Marty Jackley, At torney General, Pierre, South Dakota, and Peter K. Michael, A ttorney General, Cheyenne, Wyoming, filed an amici curiae brie f for the States of Utah, Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, and Wyoming in s upport of PlaintiffAppellee. Steven J. Lechner of M outain States Lega l Foundation, Lakewood, Colorado, filed an amicus curiae brief for Mountai n States Legal Foun dation in support of Plaintiff-Appellee. John C. Eastment, Anthony T. Caso, and Cristen Wohlgemuth of Center for Constitutional Jurisprudence, Orange, Califo rnia, filed an amicus curiae brief for Center for Constitutional Jurisprude nce in support of Plaintiff-Appellee.5 William S. Consovoy and J. Michae l Connolly of Consovoy McCarthy PLLC, Arlington, Virginia; Patr ick Strawbridge of Cons ovoy McCarthy PLLC, Boston, Massachusetts; Kate Comerford Todd an d Sheldon Gilbert of U.S. Chamber Litigation Center, Inc., Washington, D.C. ; and Karen R. Harned and Luke A. Wake of NFIB Small Business Legal Ce nter, Washington, D.C., filed an amici curiae brief for the Chambe r of Commerce of the Unit ed States and the National Federation of Inde pendent Business in suppor t of Plaintiff-Appellee.

Before HOLMES , McHUGH , and MORITZ , Circuit Judges.

HOLMES , Circuit Judge.

People for the Ethical Treatmen t of Property Owners (“PETPO”) challenges a regulation prom ulgated by the United St ates Fish and Wildlife Service (“FWS” or “Service”) pursuant to the Endangered Spec ies Act (“ESA”). The challenged regulation prohi bits the “take” of the Utah prairie dog, a purely intrastate species, on nonfederal land. The ESA defi nes “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, tr ap, capture, or collect.” 16 U.S.C. § 1532(19). The district court granted summar y judgment for PETP O on the ground that neither the Commerce Clause nor the Necessary and Prope r Clause of the Constitution authorizes Congress to regul ate take of the Utah prairie dog on nonfederal land. FWS and intervenor-d efendant Friends of Animals (“FoA”) appeal from that grant of summary judgment, arguing that the challenged regulation is authorized by both the Co mmerce Clause and the Necessary and Proper Clause, and that PETPO lacks standi ng. We hold that the district court6 correctly concluded that PETPO has st anding, but erred in concluding that Congress lacked authority unde r the Commerce Clause to regulate (a nd authorize the Service to regulate) the ta ke of the Utah prairie dog.
I A The purpose of the ESA is to conser ve endangered and th reatened species and the ecosystems on which they depend. See 16 U.S.C. § 1531(b ). In order to effectuate this purpose, C ongress tasked two executive officers wi th jointly implementing the Act: the Secretary of the Interior and the Secretary of
Commerce. Id. § 1532(15). They, in turn, delegated their implementation responsibilities to, respecti vely, FWS and the National Ma rine Fisheries Service. The ESA expressly define s the objects of its pr otections, that is, both “endangered species” and “t hreatened species. ” An endangered species “is in danger of extinction throughout all or a significant porti on of its range,” except for insect species determined to be pests “present[ing] an overwhelming and overriding risk to man.” Id. § 1532(6). A thre atened species is one “which is likely to become an endange red species within the foreseeable future throughout all or a significant po rtion of its range.” Id. § 1532(20). To protect these categories of species , the ESA “authorizes the Secretary of the Interior to list domest ic or foreign spec ies as endangered or threatened.” Wyo. Farm Bureau Fed’n v. Babbitt , 199 F.3d 1224, 1231 (10t h Cir. 2000) (citing 16 U.S.C. § 1533(a)–(b)). At least five factors are to be considered in listing a7 species as endangered or thre atened: “(A) the present or threatened destruction, modification, or curtailment of its ha bitat or range; (B) overutilization for commercial, recreational, scientific or educationa l purposes; (C) disease or predation; (D) the inadequacy of exis ting regulatory mechan isms; or (E) other natural or manmade factors affecting its continued existe nce.” 16 U.S.C. § 1533(a)(1). “Once a species is so listed, it is afford ed certain protections, and federal agencies assu me special obligations to cons erve, recover a nd protect that species.” Wyo. Farm Bureau Fed’n , 199 F.3d at 1231. The “cornerstone” of the ESA’s protecti ons is a section pr ohibiting the take of any endangered specie s without a permit or other author ization. Gibbs v. Babbitt , 214 F.3d 483, 487 (4th Cir. 2000) (citing 16 U.S.C. § 1538(a)(1)(B)). Pursuant to 16 U.S.C. § 1533( d), the Secretary of the In terior is authorized to extend the statutory prohib itions on take of endangere d species to threatened species. See 16 U.S.C. § 1533(d) (“The Secret ary may by regulation prohibit with respect to any threat ened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife . . . .”). FWS extended that cornerstone take prohibition to protect all threatened species. See 50 C.F.R. § 17.31 (“General Rule 4(d)” or “Gen eral Rule”). More specifically, FWS’s General Rule 4(d) prohibits the take of all species listed as threaten ed by incorporating as to those species the prohibiti ons applicable to endange red species under 50 C.F.R. § 17.21, except when FWS issues a specifi c rule for a particular threatened species. See id. ; see also 50 C.F.R. § 17.21 (setting forth take and other8 prohibitions with respect to endangered species). In such cases, the specific rule, or “special rule,” regard ing the particular species takes prec edence over General Rule 4(d), such that the General Rule’s blanket prohibition on ta ke of threatened species no longer applies to that spec ies and the special ru le governs instead. See id. § 17.31(c). The Utah prairie dog is a threatened species whose take is regulated by a special rule. The Utah pr airie dog lives only in Utah and approximate ly seventy percent of the population is on nonfederal land. Originally listed as an endangered species under the ESA, Amendmen ts to Lists of E ndangered Fish and Wildlife, 38 Fed. Reg. 14678- 01, 14678 (June 4, 1973) (c odified as amended at 50 C.F.R. § 17.11), the specie s was reclassified as threatened in 1984; at that time, the FWS issued a special rule to regulate its ta ke, Final Rule to Reclassify the Utah Prairie Dog as Threatened, Wi th Special Rule To Allow Regulated Taking, 49 Fed. Reg. 22330-01, 22330 (May 29, 1984) (codified as amended at 50 C.F.R. § 17.40(g)). The sp ecial rule (“Special Rule 4(d)” or “Special Rule”) was amended in 1991, Final Rule to Am end Special Rule Allowing Regulated Taking of the Utah Prai rie Dog, 56 Fed. Reg. 27438-01, 27438 (June 14, 1991) (codified as amended at 50 C.F.R. § 17.40(g)), and ag ain in 2012, Revising the Special Rule for the Utah Prairie Dog, 77 Fed. Reg. 46158-01, 46158 (Aug. 2, 2012) (codified at 50 C. F.R. § 17.40(g)). Today, Special Rule 4(d) regulates th e take of Utah prairie dog by limiting: (1) the permissible locations of such take to agricultu ral lands, prope rties within9 0.5 miles of conserva tion lands, and “areas where Ut ah prairie dogs create serious human safety hazards or di sturb the sanctity of signi ficant human cultural or burial sites[;]” (2) the perm issible amount of such take ; and (3) the permissible methods of such take. 50 C.F.R. § 17. 40(g). In addition, the Special Rule authorizes incidental take th at occurs as part of sta ndard agricultural practices. See id. § 17.40(g)(5). PETPO, a nonprofit organization, wa s founded by Utah “residents who suffer as a result of the re gulation of Utah prairie dog ta ke.” J.A. at 160 (Decl. of Derek Morton, filed Nov. 18, 2013). PETPO is comp rised of more than 200 “private property owners and other persons and enti ties subject to overly burdensome regulations,” id. , who allege that they “hav e been prevented from building homes, starting small businesse s, and, in the case of the local government, from protecting r ecreational facilities, a m unicipal airpor t, and the local cemetery from the Utah prairie dog’s maleffec ts,” Aplee.’s Br. at 3 (citations omitted).
B PETPO filed the instan t action against FWS unde r the Administrative Procedure Act (“APA” ), 5 U.S.C. § 551 et seq. , alleging that neither the Commerce Clause nor the Necessary and Proper Clause authorizes Congress to regulate take of the Utah prairie dog on nonfederal land. PETPO requested both declaratory and injunctive re lief against the regulation of Utah prairie dog take on10 nonfederal land. FoA filed a motion to intervene, and the district court granted the motion. PETPO then moved for summary judgment. FWS cross-moved for summary judgment, defending the constitu tionality of the ch allenged regulation under both the Commerce Cl ause and the Necessary and Proper Clause and arguing that PETPO lacks stan ding. The district cour t granted summary judgment for PETPO and denied summary judgment for FWS and FoA, concluding that: (1) PETPO has standing; (2) the Commerce Clause does not authorize Congress to regulate the take of a purely intrastate spec ies (i.e., the Utah prairie dog) that has no substantial effect on interstate comm erce; and (3) the Necessary and Proper Clause does not authorize Congress to regulate take of th e Utah prairie dog because such regulation is not esse ntial to the ESA’s economic scheme. FWS and FoA timely appealed. Th ey raise two argu ments on appeal: (1) PETPO lacks standing; and (2) both th e Commerce Clause and the Necessary and Proper Clause authorize Congress to regulate take of the Utah prairie dog on nonfederal land. We hold th at the district court corre ctly concluded that PETPO has standing, but erred in concluding that the cha llenged regula tion is not authorized by the Commerce Clause. In light of our Commerce Clause holding, we have no need to opine re garding the merits of the district court’s Necessary and Proper Clause ru ling, and do not do so . We accordingly reverse and remand for entry of summary j udgment for FWS and FoA.
II11 First, we conclude that PETP O has standing to challenge the constitutionality of the regulation. We review issues of standing de novo . S. Utah Wilderness All. v. Palma , 707 F.3d 1143, 1152 ( 10th Cir. 2013). To demonstrate standing, a plaintiff must show that “(1) it has su ffered an ‘injury in fact’ that is (a) concrete and particularized and (b ) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3 ) it is likely, as opposed to merely speculative, that the injury will be redresse d by a favorable decision.” Bronson v. Swensen , 500 F.3d 1099, 1106 (10th Cir. 2007) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc. , 528 U.S. 167, 180–81 (2000)). In making this showing at the summary-judgment stage, a plaintiff is not entitled to depend on “mere allegations”—rather, he must “‘set forth’ by affidav it or other evidence ‘specific facts,’ which for purposes of the summar y judgment motion will be taken to be
true.” Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992) ( quoting Fed. R. Civ. P. 56(e)). The parties agree that the first two elements of standing are satisfied, 1 but FoA argues that the third elem ent, redressability, is not . Specifically, FoA argues that PETPO’s alleged injuries are not re dressable because if the district court were to grant the requeste d relief and strike down Speci al Rule 4(d), the absence

1 And we agree, too. PETPO member s presented affida vits that they suffered injuries in fact (the first element), and that their injuries are fairly traceable to FWS through its regulation of Utah prairie dog take (the second element).12 of a special rule regarding the Utah pr airie dog would trigger General Rule 4(d) to govern take of that specie s, and the General Rule prohi bits even more take than the Special Rule. Thus, FoA argues that “eve n if PETPO succeeds [at invalidating Special Rule 4(d)], stricter federal rules [i.e., General Rule 4(d)] would come into play that would bar all take of prairie dog on private land.” Aplt. FoA’s Opening Br. at 12. As a preliminary matter, FoA is correct that Gene ral Rule 4(d) prohibits more take than Special Rule 4(d) because under th e General Rule, take is prohibited completely unless the party first obtai ns a permit. See 50 C.F.R. § 17.31(a); see also id. § 17.21(a), (c). In contrast , under the Special Rule, take of the Utah prairie dog is not prohibited completely, but regulated with regard to location, amount, and method. Id. § 17.40(g). Thus, wh ile the General Rule prohibits all take of Utah prairie dog without a permit , the Special Rule carves out certain allowances fo r take without a permit. However, the fact that the General Rule prohibits more take than the Special Rule is irrelevant for our purposes because P ETPO’s suit, in substance, attacks not any particular regulation but Congress’ s ability to authorize any regulation of Utah prairie dog take. See Ala.-Tombigbee Rivers Coal. v. Kempthorne , 477 F.3d 1250, 1271 (11th Cir. 2007) (considering Commerce Clause challenge to final rule listing the Alabama sturgeon as endangered under the theory that “Congress has exceeded the power granted to it under the Commerce Clause by author izing protection of the Al abama Sturgeon”). To be13 sure, in its briefing and at oral argument, PETPO curious ly characterizes its claim as attacking the Special Rule and disc laims any attack on the ESA. But our standing inquiry must focus on the substance of PETP O’s lawsuit. See Buchwald v. Univ. of N.M. Sch. of Med. , 159 F.3d 487, 494 (10th Cir. 1998) (focusing on “the substance of [t he plaintiff’s] comp laint” and the fact that there was “no evidence in the reco rd” to support her claim of stan ding). And, as a matter of logic, PETPO’s wish to at tack the regulation of pr airie dog take on Commerce Clause and Necessary and Proper grounds impl icates 16 U.S.C. § 1533(d), which grants authority to the Secret aries of the Interior and of Commerce to issue regulations extending the take prohib itions of § 1538(a)(1) to threatened species. See 16 U.S.C. § 1533(d). If Congress lacks such author ity under the Commerce Clause or the Necessary and Proper Clause, then it stands to reason that § 1533(d) cannot authorize any regulation of prairie dog take, and FWS could not enforce either the general or specific rule. An examination of PETPO’s complaint, particularly the requested relief, clearly bears out this understanding of PETPO’ s claim. First, th e relief requested would apply to both rules (as they pertain to take of Utah prairie dogs on nonfederal land). PETPO’s re quested relief is not limited to a particular FWS regulation; instead, both th e declaratory and injunctiv e relief reque sted would expressly pertain to any federal prohibition on the take of Utah prairie dogs on nonfederal land. PETPO requests the following relief:14 (1) for a declaration that the prohibition of the take of the Utah prairie dog on non-federal la nd is invalid under the [APA], because it is inconsistent with c onstitutional right, power, privilege, or immunity and not in accordance with law; (2) for a declaration that the prohibition of the take of the Utah prairie dog is an invalid exercise of delegated legislative power under the United States Constitution, and that the Service is without authority to prohibit the take of the prairie dog on non-federal land; [and] (3) for a permanent injuncti on preventing the Service from enforcing the prohibition of the take of the Utah prairie dog on nonfederal land[.]
J.A. at 34. 2 By its terms, the requested relief wo uld apply equally to the prohibition of Utah prairie dog take in Genera l Rule 4(d) as to the prohib ition of Utah prairie dog take in Special Rule 4(d); that is, granting the re lief that PETPO seeks would necessarily make unenforceable both rules to the extent that they prohi bit take of the Utah prairie dog on nonfederal land. Moreover, this conclusion is also consis tent with how PETPO expressly framed its claim for relief under the APA. In its compla int, PETPO ended that claim by stating that 110. No enumerated power su pports the regulation of the take of the Utah prairie dog on non-federal land. 111. The regulation of the ta ke of the Utah prairie dog on non-federal land is neither necessary nor proper to the exercise of any power of the federal government. 112. Therefore, the regulation of the take of the Utah prairie dog on non-federal land is contrary to constitutional right, power, privilege, or immunity, 5 U.S.C. § 706(2)(B), as well as arbitrary, capricious, and contrary to law, 5 U.S.C. § 706(2)(A ). The Service

2 PETPO also requests costs of litiga tion and “other relief as the Court may deem just and proper.” J.A. at 35.15 has no authority to require PETPO’ s members to obtain a permit, or satisfy any other conditions, before taking the prairie dog on nonfederal land

. J.A. at 32 (emphasis added). This last sentence in pa rticular show s that although the vehicle for this suit is an APA claim, the gist of PETPO’ s claim is that the Service does not have delegated authority to regulate the take of Utah prairie dogs because, under the Constitution, Congres s has no such author ity to delegate. Were PETPO to win on that claim and FW S nonetheless attempted to enforce the General Rule insofar as it prohibits prairie dog take, FWS could expect its enforcement activities to be justifiably enjoined by a di strict court. Indeed, the district court here expressly understood this to be the question presented on the merits. See J.A. at 200 (“At the he art of the dispute . . . is whether one of the enumerated powers in the Constituti on authorizes Congr ess—and, through congressional delegation, [F WS]—to regulate take of the Utah prairie dog on non-federal land.”) (Mem . Decision & Order, filed Nov. 5, 2014). Further, it is unclear how a court could set as ide the Special Rule’s prohibition on take but not th e General Rule’s, because the Special Rule prohibits take only to the extent th at it incorporates by refe rence the take prohibitions found in the General Rule. See 50 C.F.R. § 17.40(g)(1) (“Ex cept as noted in . . . this [Special Rule], all prohi bitions of [General Rule 4( d)] . . . apply to the Utah prairie dog.”). In other word s—with the sole exception of its incorporation of the General Rule’s take prohibitio n—the Special Ru le actually permits take only in certain locations, amounts, a nd methods. Thus, we are satisfied that if PETPO16 prevails on its claim that Congress lacks authority to prohi bit take of the Utah prairie dog, neither FWS nor a private party bringing a citi zen’s suit could enforce any prohibition on Utah prairie dog take. 3 For these reasons, the district court correctly concluded that PETPO has standing—more specifically, that its alleged injuries are redressable by its requested relief.
III A We now turn to the mer its, where PETPO challenges FW S’s prohibition on take of the Utah prairie dog on nonfederal land by ar guing that Congress’s authorization of this regulation is unconstitutional because neither the Commerce Clause nor the Necessary and Proper Clause grants Congress power to so regulate. 4 In short, if Congress could not itself regulate take of the Utah prairie dog on nonfeder al land, neither could it authorize the Secretar y of the Interior to promulgate regulations so regulating the species.

3 And if we were to grant this reque sted relief, all s ources of PETPO’s alleged injuries w ould be eliminated. Cf. Vill. of Arlingt on Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 261–64 (1997) (f inding standing even though the requested relief removed only one barrier—zoning re quirements—from construction of a housing development because the re maining barriers—such as financing—were mere “uncer tainties” rather than “a bsolute barriers,” which permitted the court to infe r a “substantial pr obability” that th e housing would be built if the zoning requireme nts were invalidated).

4 PETPO concedes that Congress has the power under the Property Clause, U.S. C ONST . Art. IV, § 3, cl. 2, to regulate take of the Utah prairie dog on federal land.17 The APA permits an aggr ieved party to ch allenge and require s us to “hold unlawful and set aside” final agency action that is “contrary to constitutional right, power, privilege, or immunity.” 5 5 U.S.C. § 706(2)(b); Lincoln v. Vigil , 508 U.S. 182, 195 (1993) (“[T]he APA contem plates, in the ab sence of a clear expression of cont rary congressional intent , that judicial review will be available for colorable constitutiona l claims . . . .”). Although we generally grant considerable deference to agency action, “[w]e revi ew de novo claims alleging constitutional abuse by an agency.” Burke v. Bd. of Gover nors of Fed. Reserve Sys. , 940 F.2d 1360, 1367 (10th Cir. 1991); see also Copar Pumice Co. v. Tidwell , 603 F.3d 780, 802 (10th Cir. 2010) (“Because constitu tional questions arising in a challenge to agency action under the APA ‘fall expressly within the domain of the courts,’ we review de novo whether ag ency action violated a claimant’s constituti onal rights.” (quoting Darden v. Peters , 488 F.3d 277, 283– 84 (4th Cir. 2007))); cf. Solid Waste Agency of N. C ook Cty. v. U.S. Army Corps of Eng’rs , 531 U.S. 159, 172–73 ( 2001) (applying constitu tional avoidance in construing statute rather th an deferring to agency inte rpretation becau se a serious constitutional question was raised under the Commerce Clause by the agency’s interpretation of statute); Hernandez-Carrera v. Carlson , 547 F.3d 1237, 1249

5 We note that neither FWS nor Fo A challenges PETPO’s ability to use the APA to challenge th e prohibition on take of Utah prairie dogs by asserting that such a prohibition exceeds Congres s’s power under the Commerce Clause. Indeed, with the exception of FoA’s standing argument, the parties engage almost entirely on the meri ts of the Commerce Clause question.18 (10th Cir. 2008) (“It is well establis hed that the canon of c onstitutional avoidance does constrain an agency’s discretion to interpret statutory ambiguities, even when Chevron deference would otherwise be due.”); U.S. West, Inc. v. FCC , 182 F.3d 1224, 1231 (10th Cir. 1999) (“[D]eference to an ag ency interpretation is inappropriate not only when it is conclusively unconstitu tional, but also when it raises serious constituti onal questions.”). Accordi ngly, we review de novo whether Congress lacks power under the Commerce Clause to authorize the prohibition of Utah prairie dog take.
B We conclude that the district court erred in holding that the challenged regulation is not authori zed under the Commerce Cl ause, which gives Congress authority “[t]o regulate Co mmerce with foreign Nati ons, and among the several States, and with the I ndian Tribes.” U.S. C ONST . art. I, § 8, cl. 3.
1 The district court concluded that th e Commerce Clause does not authorize the regulation because the re gulated activity—i.e., take of the Utah prairie dog on nonfederal land—does not have a substantial effect on in terstate commerce. The court reasoned that: (1) ta ke of the Utah prairie dog on nonfederal land is not commercial or economic ac tivity, and the fact that the challenged regulation prohibits people “from enga ging in commercial activit ies . . . is irrelevant,” J.A. at 203–04; and (2) the value of the Ut ah prairie dog, wh ether biological,19 commercial, scientific , or through potential future effects, ha s too attenuated an effect on interstate comm erce, if any at all.
2 The Commerce Clause authorizes C ongress to regulate th ree categories of activity: (1) “use of the ch annels of interstate commer ce”; (2) “instr umentalities of interstate commerce, or persons or things in inte rstate commerce”; and (3) “activities that subs tantially affect inte rstate commerce.” United States v. Lopez , 514 U.S. 549, 558–59 (1995). “[T] he parties in the presen t dispute agree that the first two Lopez categories do not apply . . . .” J.A. at 202. Thus, we inquire only whether, under the third Lopez category, the activity regulated substantially affects intersta te commerce. See Lopez , 514 U.S. at 558–5 9 (holding that “Congress’ commerce authority includes th e power to regulate those activities having a substantial relation to interstate commerce, i.e. , those activities that substantially affect interstate commerce” (emphases added) (citati on omitted)). To determine whether a regulated activity substant ially affects interstate commerce, we ask “whether Congress had a rational basis to find that the regulated activity, taken in the aggregate, would substantially affect interstate
commerce.” United States v. Patton , 451 F.3d 615, 623 (10th Cir. 2006) (emphasis added). The Suprem e Court has “stress[ed] that the task before us is a modest one. We need not determine whether respondent s’ activities, taken in the aggregate, substantially af fect interstate commerce in fact, but only whether a20 ‘rational basis’ exists for so concluding.” Gonzales v. Raich , 545 U.S. 1, 22 (2005) (quoting Lopez , 514 U.S. at 557). Under the third Lopez category, Congress has the “power to regulate purely local activities that are part of an economic ‘cla ss of activities’ that have a substantial effect on in terstate commerce.” Raich , 545 U.S. at 17; accord Taylor v. United States , --- U.S. ----, 136 S. Ct. 2074, 2080 (2016). Consequently, “where a general regulatory stat ute bears a substantia l relation to commerce , the de minimis character of individual instances arising under th at statute is of no consequence.” Lopez , 514 U.S. at 558; see also Taylor , 136 S. Ct. at 2079 (“[A]ctivities . . . that ‘substantially affect’ commerce . . . ma y be regulated so long as they substantially affect interstate commerce in the aggregate , even if their individual impact on in terstate commerce is mi nimal.” (emphasis added)); Raich , 545 U.S. at 23 (distinguishing between regulation that “f[alls] outside Congress’ commerce power in its entirety ” and regulation that constitutes an “individual application[] of a con cededly valid statutory scheme”)

. As a result, the Supreme Court has made clear that “[t] he question . . . is whether Congress’ . . . policy judgment, i.e., its decision to incl ude [a] narrower ‘cla ss of activities’ within [a] larger regulator y scheme, was cons titutionally defici ent,” or whether “the subdivided class of ac tivities . . . was an esse ntial part of the larger regulatory scheme.” Raich , 545 U.S. at 26–27; see also id. at 28 (“The congressional judgment that an exemption for . . . a si gnificant segment of the21 total market would undermin e the orderly enforcement of the entire regulatory scheme is entitled to a strong presumptio n of validity.”). Moreover, the Court has underscored that the fact that a regulated activity is noncommercial or “trivial by itself” is “not a suffic ient reason for removing [it] from the scope of [otherwise valid] federa l regulation.” 6 Raich , 545 U.S. at 20; see id. at 17 (“[E]ven if appellee’ s activity be local and though it may not be regarded as commerce , it may still, what ever its nature, be reached by Congress if it exerts a substantia l economic effect on inters tate commerce. ” (emphasis added) (quoting Wickard v. Filburn , 317 U.S. 111, 125 (1942))); id. at 22 (“That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise indi vidual components of that larger scheme.”); see also Taylor , 136 S. Ct. at 2081 (“[I]t makes no difference under our cases that a ny actual or threaten ed effect on commerce in a particular

case is minimal.” (em phasis added)). In short, the Commerce Clause au thorizes regulation of noncommercial, purely intrastate activity that is an essential part of a broader regulatory scheme

6 In addition to arguing that the ch allenged regulation is constitutional under the Raich framework, FWS argues that the regulation substa ntially affects interstate commerce because the activity at which it is directed is commercial or economic in nature. See, e.g. , Patton , 451 F.3d at 623 (noting that this criterion “determines whether the regulated activ ity falls within the definition of ‘commerce.’ If so, . . . there is a heavy—perhaps in re ality irrebuttable— presumption that it affect s more states than one, and falls wi thin congressional power.”). However, we need not and do not reach this argument because, as we explain below, our holding under the Raich framework fully reso lves this appeal.22 that, as a whole, substantia lly affects interstate commer ce (i.e., has a substantial relation to interstate comm erce). Therefore, to uphol d the challenged regulation here, we need only conclude that Congress had a rationa l basis to believe that such a regulation constituted an essentia l part of a compre hensive regulatory scheme that, in the aggr egate, substantia lly affects inters tate commerce.

a We conclude that Congres s had a rational basis to be lieve that regulation of the take of the Utah prai rie dog on nonfederal land is an essential part of the ESA’s broader regulator y scheme which, in the aggr egate, substantially affects interstate commerce. We first examine the ESA’s st atus as a comprehensive regulatory scheme substantially affecti ng commerce and then turn to whether Congress had a rational basis to believe that regulation of take of the Utah prairie dog on nonfederal land is an esse ntial part of that scheme. As a preliminary matter, PETPO argue s that we must em ploy a substantial effects analysis with regard to regulati on of take of the Ut ah prairie dog alone, not with respect to all spec ies or the ESA generally. See Aplee.’s Br. at 27–31. Specifically, PETPO conte nds that its claim is like those presented in Lopez and
Morrison , because PETPO facially challenge s a provision rather than “an application to a particular subset of activity, as in Raich .” Id. at 28. In essence, PETPO argues that because it characterizes its claim as a facial challenge to a regulatory provision, the c oncerns implicated in Raich do not apply and so we must engage in a straightfo rward substantial effects anal ysis as to the regulation23 of take of the Utah pr airie dog alone. But this argument misconstrues the standard that Raich establishes and the substanc e of the claim that PETPO actually asserts. As established supra , the real crux of PETPO’s ch allenge is not a challenge to any particular FWS regulation but to Congress’s power to authorize regulation of the Utah prairie dog. Although PETP O is, in a sense, correct th at the prohibition on take of the Utah prairie d og is “a particular challenged provision,” Aplee.’s Br. at 29, this pr ohibition finds its place with in the broade r regulatory scheme of the ESA’s protec tions of endangered and th reatened species. More specifically, the prohibiti on at issue is an instan ce of Congress’s broad authorization to use regulat ions to extend the take pr otections that endangered species enjoy to those li sted as threatened. See 16 U.S.C. § 1533(d). PETPO points to no authority sugges ting that a challenge such as this should be considered under a narrow application of the substantial effects test rather than the Raich comprehensive regulatory sc heme framework. PETPO mischaracterizes FWS’s and FoA’s arguments as suggest ing that the substantial effects test must be applied “to an enactment as a whole, rather than a particular challenged provision.” Ap lee.’s Br. at 29. In doing so, PETPO cites Morrison , Lopez , and our own decision in Patton , arguing that in each case an individual provision was examined despite the fact th at it was part of a larger piece of legislation. See id. at 29–30. But the legislation at issue in those cases did not constitute comprehensive regulato ry schemes such as the CSA in Raich or the24 ESA in the present case. The CSA “repeale d most of the earlie r antidrug laws in favor of a comprehensive regi me to combat the international and in terstate traffic in illicit drugs.” Raich , 545 U.S. at 12. In contradistinction to the CSA, th e Court pointed to the Gun-Free School Zones Act of 1990 that Lopez struck down as being “a t the opposite end of the regulatory spectrum.” Id. at 24; see also Lopez , 514 U.S. at 561 (“Section 922(q) is not an essential part of a larger regulation of eco nomic activity, in which the regulatory scheme could be unde rcut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connect ed with a commercial transaction, which viewed in the aggregate, s ubstantially affects interstate commerce.”). Despite the fact that the Gun-Free Sc hool Zones Act of 1990 was pa rt of a single, large enactment—the Crime Control Act of 1 990, Pub. L. 101-647, 104 Stat. 4789—the Court had no difficulty r ecognizing that this broa der enactment was not a comprehensive regulatory sche me, dealing as it did with subjects as diverse as international money laundering, chil d abuse, and vict ims’ rights. See 104 Stat. at 4789, 4792 (for example, Title I of th e Crime Control Ac t of 1990 addresses international money laundering , while Title II is the Vi ctims of Child Abuse Act of 1990). Indeed, the Court in both Lopez and Raich looked past the larger enactment and characterize d the Gun-Free School Zone s Act as an independent

statute. Lopez , 514 U.S. at 561 (“Section 922(q) is a criminal stat ute . . . .”); Raich , 545 U.S. at 23 (describing the Gun-Fr ee School Zones Act as “a brief,25 single-subject statute”); see also Crime Control Act of 1990 § 1702, 104 Stat. at 4844 (containing the Gun-Free School Zones Act of 1990 in Title XVII of the enactment, bearing the heading, “General Provisions,” which contains provisions concerning railroad police officers and the use of private prisons for federal prisoners, as well as a di rective to the Sentencing Co mmission to produce a report on mandatory minimu m sentences). The prohibition against felon possess ion of body armor we dealt with in
Patton and the Violence Agains t Women Act of 1994 that Morrison addressed are equally distinguishable fro m comprehensive regulatory schemes such as the CSA
or ESA. See Violent Crime Control and Law En forcement Act of 1994, Pub. L. No. 103-322, § 2, 108 Stat. 1796, 1796–1807 (table of cont ents of the enactment containing the Violence Agains t Women Act as one of thir ty-three separate titles addressing a variet y of subjects); 21st Centur y Department of Justice Appropriations Authorizati on Act, Pub. L. No. 107- 273, § 1(b), 116 Stat. 1758, 1758–62 (2002) (table of contents of the enactment containing the James Guelff and Chris McCurley Body Ar mor Act of 2002 along with, inter alia , provisions addressing appropriations fo r the Department of Just ice, drug treatment and prevention, and the Boys a nd Girls Clubs of America). That all of these laws were passed as parts of larger congressional enactm ents is immaterial under Raich , which concerns comprehe nsive regulatory regimes. PETPO concedes that becau se “all classes of activ ities can be subdivided to find that they don’t substantia lly affect intersta te commerce, excising a particular26 party’s activity could poten tially subject th e Commerce Clause to death by a thousand cuts.” Ap lee.’s Br. at 28. Although the language of “excising a particular party’s activity ” is at least not linguist ically congruent with Raich , which speaks of “individual instances of [a] class,” 545 U.S. at 17, 23, we would do well to heed the danger that PETPO itself warns us about. Application of the rule that PETPO suggests would lead to just such a lingering death for the ESA— and likely for other regulat ory schemes—insofar as ev ery individual regulation passed within a larger regulatory scheme would be subject to a narrowly applied substantial effects test—a result that Raich directly foreclos es. It should not surprise then, that every circuit to have addressed the constitutionality of take prohibitions under the ESA has, in ef fect, rejected su ch an approach. More specifically, every federal appe llate court that ha s addressed whether the ESA is a comprehensiv e scheme substantially affecting commerce has aggregated its effect s on all threatened a nd endangered species. 7 See San Luis &

7 While it is true that ma ny of these cases concern the statutory protections granted to species listed as endangered rather than prohibitions established by agency rulemaking, that distinction is immaterial for the Raich analysis, insofar as species are also listed as endangere d by rulemaking. See 50 C.F.R. § 17.11 (listing endangered and thre atened wildlife). Indeed, one case, Alabama-Tombigbee Rivers Coalition , expressly dealt with a challenge to the decision to list a species as endangered, not the application of the statutory protections to that species. See 477 F.3d at 1271–72 (“The Coalition’s third contention is that the Fi nal Rule should be vaca ted because Congress has exceeded the power authori zed to it under th e Commerce Clause by authorizing protection of the Alabama sturgeon, which the Coali tion characterizes as an intrastate, noncommercial species .”). Indeed, PETPO itself concedes th at the fact that here “the activity is regulated under a regulation rather than a statutory provision” amounts to “a distinction without a difference.” Ap lee.’s Br. at 28.27 Delta-Mendota Water Auth. v. Salazar , 638 F.3d 1163, 1175–76 (9th Cir. 2011) (“Pursuant to Raich , when a statute is challenge d under the Commerce Clause, courts must evaluate the a ggregate effect of the statut e (rather than an isolated application) in determining whether the statute relates to ‘commerce or any sort of economic enterprise.’ . . . We and ot her courts have disc ussed at length why the protection of threatened or e ndangered species implicates economic concerns.”); Ala.-Tombigbee Rivers Coal. , 477 F.3d at 1273 (“If the process of listing endangered spec ies is ‘an essential part of a larger regulation of economic activity,’ then whether that process ‘ensnares so me purely intrastate activity is of no moment.’ . . . The [ESA] prohibits al l interstate and fo reign commerce in endangered species.” (quoting Raich , 545 U.S. at 24)); GDF Realty Invs., Ltd. v.
Norton , 326 F.3d 622, 639 (5th Cir. 2003) (d etermining whethe r “the larger regulation [is] directed at activity that is economic in nature” and noting that “ESA’s protection of endangered species dtw10 is economic in nature” and that “ESA’s drafters were concerned by the ‘incalculable’ value of the genetic heritage that might be lo st absent regulation,” as well as observing that the majority of takes of spec ies “result from ec onomic activity” (emphasis added)); Nat’l Ass’n of Home Builders v. Babbitt , 130 F.3d 1041, 1046 (D.C. Cir. 1997) (“[W]e may look not only to the effect of the exti nction of the individual endangered species at issue in this case, but also to the aggr egate effect of the extinction of all similarly si tuated endangere d species.”); cf. Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv. , 827 F.3d 452, 475–77 (5th Cir. 2016)28 (aggregating all ESA critical-hab itat designations and upholding FWS designation of private, purel y intrastate land for purely intrastate frog species under the Commer ce Clause). PETPO next argues that the ESA “is a comprehensive scheme to provide for environmental conservatio n, not [to] regulat e a market.” Ap lee.’s Br. at 38. 8

8 PETPO appears to proceed under the theory that Raich implicates not the Commerce Clause alone but also the Necessary and Proper Clause, insofar as this argument appears in the section of it s brief on the Nece ssary and Proper clause. See Aplee.’s Br. at 31–41. The district court appears to have operated under a similar assumption, hol ding as it did that the prohibition on take of the Utah prairie dog was “not necessary to the ESA’s economic sc heme.” J.A. at 207.
In Raich , the Court stated that a compre hensive regulatory scheme that substantially affe cts interstate commerce is “well within [Congr ess’s] authority to ‘make all Laws which shall be necess ary and proper’ to ‘regulate Commerce . . . among the several States.’” 545 U.S. at 22 (quoting U.S. C ONST . art. I, § 8). In upholding the constitutionality of the statute at issue in that case, however, the Court analyzed only Commer ce Clause jurisprudence to conclude that the regulatory scheme substantially affected interstate commerce; the Court did not conduct a separate inquiry un der the Necessary and Prope r Clause. Only Justice Scalia’s concurring opinion in Raich , joined by no other justice, squarely considered the case as implicating the Necess ary and Proper Clause. See 545 U.S. at 34 (Scalia, J., concurring in th e judgment) (opining th at the substantial effects analysis of intrasta te activities “derives fr om the Necessary and Proper Clause”). Further, we ha ve before recognized that Raich is concerned with the third prong of traditional Commerce Clau se analysis: “The Supreme Court’s decisions in Lopez , United States v. Morrison , and Raich all hinged on interpretation of the thir d category of [Commerc e Clause analysis].” Patton , 451 F.3d at 623 (citation omitted). But see United States v. Carel , 668 F.3d 1211, 1219 (10th Cir. 2011) (suggesting that Raich is a Necessary and Proper Clause case). Because PETPO seemingly understands Raich to be a Necessary and Proper Clause case, its argum ents relevant to Raich appear in that sect ion of its brief. While we perform our Raich analysis under the Commer ce Clause, we present and address PETPO’s argumen ts—irrespective of wher e they are found in its29 This argument rests on the premise that, under Raich , 9 Congress may only reach intrastate activity “which , if beyond [Congress’s] gr asp, would frustrate a comprehensive regulatory sc heme’s ability to function as a regulation of

commerce .” Id. at 32 (emphasis added) (citing, inter alia , Raich , 545 U.S. at 22). But this premise is flawed and im properly narrows the standard that Raich establishes. As an initial matter, the pa ssage that PETP O cites from Raich as support for this argument co ncerns whether a rational basi s exists for believing that regulation of intrastate activity was es sential to the CSA, not whether the comprehensive scheme of th e CSA itself involved the regulation of commerce. 545 U.S. at 22 (“[W]e have no difficulty concluding th at Congress had a rational basis for believing that failure to re gulate the intrastate manufacture and possession of marijuana would leave a ga ping hole in the CSA.”). Further, the Ninth Circuit has persuasively reje cted such a narrow reading of Raich

. Specifically, in San Luis & Delta-Mendota Water Authority , the court rejected the argument that the ESA does not have a “substantial effe ct” on interstate

briefing—insofar as they are relevant to that analysis. We would also note that were we to proceed instead under the assumption that Raich was decided under the Necessary and Proper Clause, our ul timate conclusion—that the prohibition on take of the Utah prairie dog is c onstitutional—would remain unchanged.

9 PETPO also cites National Federation of I ndependent Business v. Sebelius , 567 U.S. 519, 132 S. Ct . 2566, 2591–92 (2012) for th is proposition, but the cited portion of Chie f Justice Robert’s opini on was joined by no other member of the Court.30 commerce because, unlike the Cont rolled Substance Act upheld in Raich , it “is not a ‘comprehensive economic regulatory scheme.’” San Luis , 638 F.3d at 1177 (emphasis added). The Nint h Circuit explaine d that “[t]he Supreme Court has never required th at a statute be a ‘comprehensive economic regulatory scheme’ or a ‘comprehensive regulatory scheme for economic activity ’ in order to pass muster under the Commerce Cl ause. Indeed, it has ne ver used those terms.” Id. The court continued that “[ t]he only requirement—whic h was expressly detailed
in Raich— is that the ‘comprehensive regula tory scheme’ have a ‘substantial relation to commerce.’” Id. (quoting Raich , 545 U.S. at 17). We agree with the Ninth Circuit on this, and so consider whether the ESA has a substantial relation to interstate commerce, and conclude that it does. PETPO wisely does not even attempt to di spute this; the substantial relationship between the ESA and interstate commerce is patent. First, regulation of take of endangered and threatened species is dir ectly related to—indeed, arguably inversely correlated with—economic devel opment and commercial activity. See 16 U.S.C. § 1531(a)(1) (Congress’s finding and declaration of purpose that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and developmen t untempered by adequate concern and conservation”); H.R. Rep. No. 93-412 (1973), reprinted in A Legislative History of the Endangered Species Act of 1973, as Amended in 1976, 1977, 1978, 1979, and 1980 [hereinafter A Legislative History of the Endangered Species Act ], at 141 (1982) (“Th e threat to animals may arise from a variety of sources; principa lly pollution, destruction of habitat and the31 pressures of trade.”). In other words, th e necessity of putting into place the ESA’s protections was engendered in part by the exce sses of commerce, and the statute acts as a brake on economic activity, as confirmed by the harms that underlie PETPO’s standing. Second, Congress’s purposes in enacti ng the ESA were to conserve species by restricting commerce and to promote long-term commerce by conserving species. See H.R. Rep. No. 93-412, reprinted in A Legislative Histor y of the Endangered Species Act , at 144–45 (describing how the profit motive can incentivize the conservation of species and the potential for unknown commercial us es should engender appropriate caution, “[t]he institutionalization of that cau tion lies at the heart of [the ESA]”); cf. S. Rep. No. 91-526, at 3 (1969), as reprinted in 1969 U.S.C.C.A.N. 1413, 1415 (stating that the protections offered by a predecessor to the ESA could “permit the regeneration of [an exploited] species to a level where controlled exploitation ca n be resumed,” thus creating “profit from the trading and marketing of that species for an indefinite number of years, where otherwise it would have been complete ly eliminated from commercial channels”). Thus, while the ESA’s prohibitions may act as a short-term brake on economic activity, the statutory scheme was intended to prom ote commercial activity in the long run. And third, the ESA’s prohib itions help fuel an illegal wildlife trade that generates $5–8 billion annually—an illegal market secondin size only to the illegal narcotics market. Because “Congress’ power to regul ate commerce includes th e power to prohibit commerce,” whether the targeted market “is a lawful mark et that Congress sought to protect and stabilize” or “an unlawful market th at Congress sought to eradicate” “is of no32 constitutional import.” Raich , 545 U.S. at 19 n.29. Thes e are salient reasons why the ESA substantially affects interstate commerce. Next, we conclude that Congress had a ra tional basis to believe that providing for the regulation of take of purely intrastate species like the Ut ah prairie dog is essential to the ESA’s comprehensive regulatory scheme. Approximately sixty-eight percent of species that the ESA protect s exist purely intrastate; 10 thus, piecemea l excision of purely intrastate species would seve rely undercut the ESA’s conservation
purposes. 11 Put another way, ex cising purely intrastate species “would leave a gaping hole in the” ESA. Raich , 545 U.S. at 22; see also Ala.-Tombigbee Rivers Coal. , 477 F.3d at 1275 (“Because a species’ scientific or other commercial value is not dependent on whethe r its habitat stra ddles a state line, Congress had good

10 FWS generated this estimate and PETPO has not chal lenged it. We discern nothing in the record that calls in to doubt its accuracy.

11 PETPO argues that “there’s no reas onable basis to c onclude that” the government’s inability to regulate take of the Utah prairi e dog “would frustrate the government’s ability to re gulate the market for any commodity.” Aplee.’s Br. at 35. But this argument is ba sed on the same na rrow reading of Raich that we rejected supra . The relevant question is not whether the inabil ity to regulate take of the Utah prairie dog alone would under mine the ESA but whether the inability to regulate take of intrasta te species more generally would undermine the ESA. See, e.g. , GDF Realty Invs. , 326 F.3d at 640 (concluding that “Cave Species takes may be aggregated with al l other ESA takes” becaus e otherwise the ESA would be undermined given “the interdependence of spec ies [that] compels the conclusion that regulated takes under ESA do affect in terstate co mmerce”). Applying Raich narrowly to the FWS’s prohibition of take of th e Utah prairie dog, rather than more gene rally to the stat utory authorizatio n for such take regulations with respect to purely intrastate species, leads to a “death by a thousand cuts” of the ESA, to use PETPO’s colorful phrase. Aplee.’s Br. at 28.33 reason to include all species within the protection of the Act. It did not behave irrationally by taking th e broader approach.”). Every one of our sister ci rcuits that has addressed th is issue has agreed that regulation of purely intrastate species is an essential pa rt of the ESA’s regulatory scheme. See GDF Realty , 326 F.3d at 640 (concluding th at regulati on of purely intrastate Cave Spec ies takes “is an esse ntial part of” ESA’ s larger regulatory scheme); Gibbs , 214 F.3d at 487 (“This regula tion [prohibiting take of red wolves] is also sustainable as ‘an essential pa rt of a larger re gulation of economic activity, in which the regulat ory scheme could be undercut unless the intrastate activity were regulated.’” (quoting Lopez , 514 U.S. at 561)); see also Markle
Interests , 827 F.3d at 476–78 (upholding FWS cr itical-habitat designations—in that case, of purely intr astate land for a purely in trastate species—under the Commerce Clause because such regulation is an es sential part of ESA’s regulatory scheme); Ala.-Tombigbee , 477 F.3d at 1274 (“Just as it is apparent that the ‘comprehensive scheme’ of species protection contained in the Endangered Species Act has a substantial effect on in terstate commerce, it is clear that the listing process is ‘an essential part’ of that ‘larger re gulation of economic activity.’” (quoting Raich , 545 U.S. at 22, 24)). We agree with thes e courts that Congress had a rational basi s to conclude that provi ding for the protection of purely intrastate species is essential to the ESA’s comprehensive regulatory scheme.34 And, having reached such a determination, cour ts appear to be led ineluctably to conclude that Congress has authority under th e Commerce Clause to regulate purely intr astate species, in cluding regulating th e take thereof, under the ESA—either through a part icular application of the ESA itself or through an agency regulation as here. See Markle Interests , 827 F.3d at 476–78 (upholding designation of private, intras tate land as critic al habitat for a purely intrastate frog species under the Commerce Clause as an essential part of ESA’s comprehensive regulatory scheme); San Luis & Delta-Mendota Water Auth. , 638 F.3d at 1174–77 (upholding re gulation of take of purely intrastate, noncommercial delta smelt as essential part of ESA’ s comprehensive regulatory scheme); Ala.-Tombigbee Rivers Coal. , 477 F.3d at 1271 (uph olding regulation of purely intrastate, noncommerc ial Alabama sturgeon as essential part of ESA’s comprehensive regulatory scheme); GDF Realty Invs., Ltd. , 326 F.3d at 638–41 (upholding regulation of take of purely intr astate Cave Specie s as essential to ESA’s comprehensive regulatory scheme); Gibbs , 214 F.3d at 488, 492–98 (holding that take of fort y-one purely intrastate red wolves is economic activity that substantially affects in terstate commerce, and that regulation of that take is an essential part of ESA’s co mprehensive regul atory scheme); see also Nat’l Ass’n of Home Builders , 130 F.3d at 1052–57; see also id. at 1058 (Henderson, J., concurring) (stating that re gulation of take of a purel y intrastate fly species substantially affe cts interstate commerce by prev enting loss of biodiversity and regulating interstate commer cial development). Ind eed, the facts of many of35 these cases closely track th e present case, insofar as they concern challenges to regulation under the ESA of ac tivity on nonfederal land. See Markle Interests , 827 F.3d at 458–59; GDF Realty Invs., Ltd. , 326 F.3d at 624–26; Gibbs , 214 F.3d at 489; Nat’l Ass’n of Home Builders , 130 F.3d at 251. Finding the foregoing aut hority persuasive, we like wise conclude that the regulation on nonfederal land of take of a purely intrastate specie s, like the Utah Prairie dog, under the ESA is a constitutional exercise of congressional authority under the Commerce Cl ause. And if Congr ess could itself re gulate take of the Utah prairie dog on nonfederal land, it could also cons titutionally authorize the Secretary of the Interior to promulgate regulations to achieve this end. Because we uphold this regulatory ex ercise under an enumerat ed power, the Commerce Clause, we need not consider its consti tutionality under the Necessary and Proper Clause. “[I]f it is not necessary to decide more, it is necessary not to decide
more.” PDK Labs. Inc. v. DEA , 362 F.3d 786, 799 (D.C. Cir. 2004), quoted in Valley Forge Ins. Co. v. Hea lth Care Mgmt. Partners, Ltd. , 616 F.3d 1086, 1094 (10th Cir. 2010) (“Judicial restraint, after all, usua lly means answering only the questions we must, not those we can.”).
III In sum, we REVERSE and REMAND with instructions to enter judgment for FWS and FoA.