UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-51099

GDF REALTY INVESTMENTS, LTD.; PARKE PROPERTIES I, L.P.; PARKE

PROPERTIES II, L.P.,

Plaintiffs-Appellants,

versus

GALE A. NORTON, Secretary, U.S. Department of the Interior;

MARSHALL P. JONES, Director, U.S. Fish and Wildlife Service,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________ March 26, 2003

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The Endangered Species Act of 1973, 16 U.S.C. § 1531, et seq

.

(ESA), contains a “take” provision, 16 U.S.C. § 1538(a)(1)(B). For

this challenge to Congress' Commerce Clause power, U.S. C ONST

. art.

I, § 8, cl. 3 , at issue is whether ESA's take provision is

unconstitutional as applied to six species of subterranean

inverteb rates found only within two counties in Texas (Cave

Species). Central to this question is whether, to demonstrate the

requisite substantial effect on interstate commerce, Cave Species2

“takes” may be aggregated with those of all other endangered

species. They can be; the judgment is AFFIRMED

.

I.

In 1983, Dr. Fred Purcell and his brother purchased an

interest in 216 acres in Travis County, Texas, near the City of

Austin (the property). The property (lying within approximately

1,200 acres known as the Parke) consists of seven tracts in which

the Purcells, as the limited partners in Parke Properties I, L.P.,

and Parke Properties II, L.P., hold a 70 per cent interest. GDF

Realty Investments, Ltd., holds the remaining interest in the

property. It is located at the intersection of two major highways

in what is, commercially and residentially, a rapidly growing area.

The prope rty is part of the Jollyville Plateau and is

characteri z ed by karst topography, in which water percolating

through limestone rock creates caves, sinkholes, and canyons. The

property contains a number of caves, including Tooth, Kretschmarr,

Root, Gallifer, and Amber, as well as a collection of caves known

as the Cave Cluster.

Since acquiring the property, the Purcells and their partners

(Purcells) have attempted to develop it commercially, including the

installation of water and wastewater gravity lines, force mains,

lift stations, and other utilities. These improvements have been

dedicated to the City of Austin; a right-of-way, to Travis County.3

In 1988, the United States Fish and Wildlife Service (FWS), an

agency under the auspices of the Department of the Interior, issued

a Rule listing five subterranean invertebrate species as endangered

under § 4 of ESA, 16 U.S.C. § 1533(a)(1). 53 Fed. Reg. 36,029 (16

Sept. 1988). A sixth species was similarly listed in 1993. 58

Fed. Reg. 43,818 (18 Aug. 1993). These six species are found on

the property; they are the Bee Creek Cave Harvestman, the Bone

Creek Harvestman, the Tooth Cave Pseudoscorpion, the Tooth Cave

Spider, the Tooth Cave Ground Beetle and the Kretschmarr Cave Mold

Beetle. The Rules were issued in order to protect the Cave Species

from increasing dangers, primarily new development. 16 U.S.C. §

1531 (a)(1); 53 Fed. Reg. 36,029.

The Bee Creek Cave Harvestman, the Bone Creek Harvestman, and

the Tooth Cave Pseudoscorpion are subterranean, eyeless arachnids

(arthropods bearing four pairs of legs and no antennae); they range

in size from 1.4 to 4 mm. The Tooth Cave Spider, a subterranean

arachnid with eyes, measures 1.6 mm in le ngth. The Tooth Cave

Ground Beetle and the Kretschmarr Cave Mold Beetle are subterranean

insects, the latter being eyeless; they vary in siz e from 3 to 8

mm.

The Cave Species were listed as endangered for a number of

reasons. First, as noted, they were primarily being threatened

with “potential loss of habitat owing to ongoing development

activities”. 53 Fed. Reg. 36,031. Second, no state or federal laws4

were in place to protect them or their habitat. Id

. at 36,031-32.

Finally: “[T he Cave Species] require the maximum possible

protection provided by [ESA] beca use their extremely small,

vulnerable, and limited habitats are within an area that can be

expected to experience continued pressures from eco nomic and

population growth”. Id . at 36,032.

Pursuant to § 9(a)(1) of ESA, 16 U.S.C. § 1538(a)(1)(B), it is

unlawful to “take” a member of a species listed as endangered. ESA

defines “take” as to “harass, harm, pursue, hunt, shoo t, wound,

kill, trap, capture, or collect....” 16 U.S.C. § 1532(19).

Pursuant to authority given it by § 4(d) of ESA, 16 U.S.C. §

1533(d), FWS has defined “harm” to incl u de significant

modifications or degradations of a ha bitat which kill or injure

protected wildlife “by significantly impairing essential behavioral

patterns, including breeding, feeding or sheltering”. 50 C.F.R. §

17.3.

The Cave Species are found only in underground portions of

Travis and Williamson Counties, Texas. There is no commercial

market for the Cave Species. At least 14 scientific articles

concerning the Cave Species have been published in journals or

other publications by 15 scientists. Some of them have visited

Texas in order to st udy the Cave Species. For this research,

members of the Cave Species have been transported to and from5

museums in New York, California, Pennsy lvania, Illinois, and

Kentucky.

In 1989, FWS notified the Purcells that their develop ment

plans might constitute a Cave Species take. In 1990, in an effort

to alleviate FWS’ concerns, the Purcells deeded approximately six

acres of the property to Texas Syst ems of Natural Laboratories,

Inc., a non-profit environmental organization. The gifted ac res

included various caves and sinkholes in which the Cave Species were

known to live. The Purcells also constructed gates covering the

most eco logically sensitive caves. These acts conformed to

recommendations made by an expert on the Cave Species.

In 1991, the Purcells contracted to sell a portion of the

property. Because FWS refused to state, however, that future

development would not c onstitute a take, the agreement fell

through. After clearing brush from the property in 1993, Dr.

Purcell was advised by FWS that he was under federal criminal

investigation for possible endangered species takes.

Subsequent to these incidents, the Parke's owners (including

plaintiffs) filed in federal court for a declaratory judgment that

development of the Parke would not constitute an endangered species

take. F our Points Util. Joint Venture v. United States

, No. 93-CV655 (W.D. Tex. 1993). The district court ordered FWS to conduct an

environmental review of the Parke.6

I n a 1994 letter summarizing that review, FWS notified the

Park e's owners that the proposed development would likely

constitute a take of the Cave Species, as well as of two bird

species (golden-cheeked warbl er and black-capped vireo). FWS'

letter also noted that the Purcells’ property within the Parke

“could be developed wit hout causing a take if development, among

other things, [was] scaled back from the canyons, and surface and

subsurface drainage and nutrient exchange [was] provided for”.

The district court dismissed the action in September 1994. It

ruled that FWS had to first determine whether a take had occurred;

as FWS’ letter indicated, it had not made that determination.

In 1997, the Purcells attempted to obtain ESA § 10(a)

incidental take permits. See 16 U.S.C. § 1539(a). These permits

allow takes of endangered species under certain circumstances, as

listed in 16 U.S.C. § 1539 (a)(2)(B).

The Purcells first sought the per mit from the Balcones

Canyonlands Cons ervation Plan, a regional body from which

landowners obtain § 10(a) permits to develop protected land by

paying “mitigation fees”. It refused the application, however,

because the relevant land was entirely within a protected area.

The Purcells next applied to FWS for the permit. S ee 16

U.S.C. 1539(a)(1). Their applications stated they planned to

develop a shopping center (includi ng a Wal-Mart), a residential

subdivision, and office buildin gs (commercial development). FWS7

decided that the deeded preserves were inadequate to protect the

Cave Species. As a result, the Purcells were unable to contract

for the purchase and development of the property.

In July 1998, FWS advised the Purcells that the permits would

be denied, but did not issue the denials. This effectively

prevented the Purcells from challenging FWS’ action.

Therefore, the Purcells filed suit in federal court, seeking

a declaration that the permits had been de nied de facto

. G DF

Realty, Ltd. v. United States

, No. 98-CV-772 (W.D. Tex. 1998). FWS

then issued a formal statement, denying the permits based on its

conclusion that, inter alia

, Cave Species takes would occur if

development were allowed. The district court ruled the permits had

been denied. It also admonished FWS for delaying the denials when

it had never intended to grant the permits.

In 1999, plaintiffs filed two actions in federal court. In

the instant Commerce Clause action, they claim that, pursuant to

United States v. Lopez

, 514 U.S. 549 (1995), amplified post-filing

of this action by United States v. Morrison , 529 U.S. 598 (2000),

the ESA take provision, as applied to the Cave Species, is

unconstitutional. (The second action, in the Court of Claims, No.

99-CV-513 (Fed. Cl. 1999), claims an unconstitutional taking under

the Fifth Amendment. It has been stayed pending this action.) In

2000, Parke Properties I, L.P., and GDF Realty Investments, Ltd.,

filed for bankruptcy under Chapter 11. I n re Parke Properties I,8

L.P., No. 00-12587FM (Bankr. W.D. Tex. 2000); In re GDF Realty

Investments, Ltd. , No. 00-12588FM (Bankr. W.D. Tex. 2000).

For this action, the partie s agreed there are no factual

disputes. Therefore, they filed cross-motions for summary

judgment. In 2001, the district court granted summary judgment to

defendants (FWS), holding the take provision constitutional under

the Commerce Clause. GDF Realty Investments, Ltd. v. Norton , 169

F. Supp. 2d 648 (W.D. Tex. 2001). The district court analyzed the

application of the take provision in the light of plaintiffs’

proposed property development. Being “hard-pressed to find a more

direct link to interstate commerce than a Wal-Mart [(as noted, one

was to be located on the property)]”, id . at 662, the court held

the take provision’s incorporation of the Cave Species, as applied

t o plaintiffs, was substantially related to interstate commerce,

id . at 664.

II.

A summary judgment, reviewed de novo

, e.g

., Horton v. City of

Houston

, 179 F.3d 188, 191 (5th Cir.), cert. denied

, 528 U.S. 1021

(1999), is proper if “there is no genuine issue as to any material

fact and

... the [movant] is entitled to a judgment as a matter of

law”. F ED

. R. C IV

. P. 56(c). E .g., Celotex Corp. v. Catrett

, 477

U.S. 317 (1986). Because there are no material fact issues, the

only question is the c onstitutionality v el non of the take

provision as applied to the Cave Species and pursuant to the power9

granted Congress under the Commerce Clause. U.S. C O NST

. art. I, §

8, cl. 3.

“In reviewing an act of Congress passed under its Commerce

Clause authority, we apply the rational basis test as interpreted

by the Lopez court.” G roome Resources, Ltd. v. Parish of

Je fferson , 234 F.3d 192, 203 (5th Cir. 2000). In other words:

“Due respect for the decisions of a coordinate branch of Government

demands that we invalidate a congressional enactment only upon a

plain showing that Congress has exceeded its constitutional

bounds”. Morrison , 529 U.S. at 607 (emphasis added).

Recently, our court extensively discussed the history of the

Commerce Clause and the earlier noted landmark Lopez and Morrison

decisions relied upon by plaintiffs. U nited States v. Ho

, 311 F.3d

589 (5th Cir. 2002). We need only briefly revisit that discussion.

Ho concerned using less expensive procedures for removal and

disposal of asbestos than necessary to comply with, inter alia

, 42

U.S.C. §§ 7412(h) and 7414(a) of the Clean Air Act, 42 U.S.C. §

7401 et seq

., and implementing regulations, 40 C.F.R. § 61.145

. Ho

claimed these statutes and regulations, as applied to him

, violated

the Commerce Clause. Our court held the sections of the Clean Air

Act were consti tutional exercises of Congress’ power to regulate

interstate commerce. H o

, 311 F.3d at 603-04. In doing so, our

court described “first principles” of commerce clause

jurisprudence. I d

. at 596-601. No authority need be cited for the10

fundamental and well-known limitation on the power of our Federal

Government: t h e Constitution grants it limited and enumerated

powers; those powers not so granted the Federal Government are

retained by the States.

This division of powers was thought necessary “to ensure

protection of our fundamental liberties”. I d

. at 596 (quoting

Lopez , 514 U.S. at 552 (internal citation omitted)). Justice

Kennedy summarized this point in his Lopez concurrence:

Though on the surface the ide a may seem

counterintuitive, it was the insight of the

Framers that freedom was enhanced by the

creation of two governments, not one. “In the

compound republic of America, the power

surrendered by the people is first divided

between two distinct governments, and then the

portion allotted to each subdivided among

distinct and separate departments. Hence a

double se curity arises to the rights of the

people. The different governments will control

each other, at the same time that each will be

controlled by itself.”

514 U.S. at 576 (Kennedy, J., concurring) (quoting T HE F EDERALIST N O

.

51, at 323 (James Madison)(C. Rossiter ed., 1961)). In keeping

with the subject at hand, the strength of this governmental system

is aptly de scribed by Kipling: “For the strength of the pack is

the wolf and the strength of the wolf is the pack”. R U DYARD K IPLING

,

T HE S ECOND J UNGLE B OOK

, The Law of the Jungle 189 (Penguin Books 1987)

(1895).

As noted, one of the Federal Government’s enumerated powers is

“to regulate Commerce

... among the several States ...” (interstate11

commerce). U.S. C ONST

. art. I, § 8, cl. 3. Since NLRB v. Jones &

La ughlin Steel Corp. , 301 U.S. 1 (1937), “Congress has had

considerably greater latitude in regulating conduct and

transactions under the Commerce Clause” than it had previously been

afforded. M

orrison

, 529 U.S. at 608. On the other hand, our

constitutional structure mandates a disti nction between “what is

truly national and what is truly local”. I d

. at 617-18; Lopez

, 514

U.S. at 567-68.

The Court’s fairly recent decisions in Morrison and Lopez have

defined the outer limits of Commerce Clause power. L opez described

three categories of activity which Congress may regulate under it:

“the use of the c hannels of interstate commerce”; “the

instrumentalities of interstate commerce”; and “those activities

having a substantial relation to interstate commerce, i.e., those

activities that substantially affect interstate commerce”. 514

U.S. at 558-559. As the parties note, at issue is the third

category — “those activities that substantially affect interstate

commerce”.

The Cave Species exist only in Texas. Therefore, at issue are

ESA takes concerning intrastate

, not interstate, activity.

Pursuant to Lopez

, Morrison identified four considerations for use

in deciding whether intrastate activity substantially affects

interstate commerce. 529 U.S. at 609.12

The first consideration is the economic nature vel non of the

intrastate activity. I d

. at 610-11. Along this line, M orrison

cited Lopez ’s cautionary language:

Admittedly, a determination whether an

intrastate activity is commercial or

noncommercial may in some cases result in

legal uncertainty. But, so long as

Congress’ authority is limited to those

powers enumerated in the Constitution,

and so long as those enumerated powers

are interpreted as having judicially

enforceable outer limits, congressional

legislation under the Commerce Clause

will always engender “legal uncertainty”.

Id . at 610 (quoting Lopez , 514 U.S. at 566).

The second consideration is the pres ence v el non of a

jurisdictional element in the statute, which limits its application

to instances affecting interstate commerce. Id . at 611-12.

The third consideration is any Congressional findings in the

statute or its legislative history concerning the effect the

regulated activity has on interstate commerce. Id . at 612.

The final consideration is the attenuation of the link between

the intrastate activity and its effe ct vel non on interstate

commerce. Id

.

As described in Ho

, there are two ways in which intrastate

activity might substantially affect interstate commerce. 311 F.3d

at 598-99. FWS urges that Cave Species takes have this effect

under each method.13

First, the activity alone might have such an effect. S ee,

e.g., Jones v. Laughlin Steel Corp.

, 301 U.S. 1 (1937). Second, in

some circumstances, the activity's effects may be aggregated with

those of other similar activities, the sum of which might be

substantial in relation to interstate commerce. M orrison

, 529 U.S.

at 613 (striking down civil remedy prov ision of Violence Against

Women Act, 42 U.S.C. § 13981, while not adopting “a categorical

rule against aggregating the effects of any noneconomic activity”).

See also

, e.g

, Lopez

, 514 U.S. at 559-61; Hodel v. Virginia Surface

Mining & Reclamation Assn., Inc.

, 452 U.S. 264 (1981); Heart of

Atlanta Motel, Inc. v. United States

, 379 U.S. 241 (1964); Wickard

v. Filburn , 317 U.S. 111 (1942).

Whether and how Congress may apply the

aggregation principle are controversial

questi ons. The pitfalls are apparent. For

example, any imaginable activity of mankind

can affect the alertness, energy, and mood of

human beings, which in turn can affect their

productivity in the workplace, which when

aggregated together could reduce national

economic productivity. Such reasoning would

eliminate any judicially enforceable limit on

the Commerce Clause, thereby turning that

c lause into what it most certainly is not, a

general police power

.

Ho , 311 F.3d at 599 (emphasis added).

In other words, and as the Supreme Court has made quite clear,

the aggregation principle has limits. For example, Lopez held

that gun possession near schools could not be regulated under the

Commer ce Clause power. The statute at issue proscribed knowing14

possession of “a firearm at a place that [an individual] knows

...

is a school zone”. 18 U.S.C. § 922(q)(1)(A) (1988). The Court

held the statute had “nothing to do with ‘commerce’ or any sort of

economic enterprise”. 514 U.S. at 561.

It bears reminding that at issue is the power to regulate

interstate commerce

. In that sense, commerce is “[t]he exchange of

goods and services” o r “[t]rade and other business activities”.

B LACK ’ S L AW D ICTIONARY 263 (7th Ed. 1999). C ommerce is traffic, “but

it is something more: it is intercourse”. Lopez , 514 U.S. at 553

(quoting Gibbons v. Ogden

, 22 U.S. (9 Wheat.) 1, 189-90 (1824)).

In Wickard , for example, the intrastate activity (wheat produced

solely for producer's personal use) was held “commercial” because

it affected market conditions. 317 U.S. at 128. In this regard,

Groome noted the “broad reading [to be given] commercial and

economic activities under the Commerce Clause”. 234 F.3d at 208-

09.

As mentioned, Morrison noted, for aggregation purposes, the

importance of the economic nature of the regulated activity:

“While we need not adopt a categorical rule against aggregating the

effects of n oneconomic activity in order to decide these cases

,

thus far

... our cases have upheld Commerce Clause regulation of

intrastate activity only where that activity is economic in

nature ”. 529 U.S. at 613 (emphasis added).15

Lopez did, however, approve the standard provided in Maryland

v. Wirtz

, 392 U.S. 183 (1968) (holding constitutional the 1961 and

1966 extensions of the Fair Labor Standards Act, 29 U.S.C. §§ 203,

206, and 207). L opez stated: “[W]here a general regulatory scheme

bears a substantial relation to commerce

, the de minimis character

of individual instances arising under that statute is of no

consequence”. 514 U.S. at 558 (emphasis in original; internal

citation omitt ed). The d e minimis instance, however, must be “ an

essential part of a larger regulation of economic activity

, in

which the regulatory scheme could be undercut unless the intrastate

activity were regulated”. Id . at 561 (emphasis added). See also

Hodel v. Indiana , 452 U.S. 314, 329 n.17 (1981); United States v.

Ballinger

, 312 F.3d 1264, 1270 (11th Cir. 2002); F reier v.

Westinghouse Electric Corp.

, 303 F.3d 176, 201-03 (2nd Cir. 2002),

petition for cert. filed (U.S. 6 Jan. 2003) (No. 02-1036); United

States v. Cortes , 299 F.3d 1030, 1035 (9th Cir. 2002).

Ho held such a regulat ory scheme existed with regard to

asbestos removal:

First, the regulated intrastate activity,

asbestos removal, is very much a commercial

activity in today's economy. It is a booming

industry, given the hazardous nature of

asbestos and its seeming ubiquity in older

buildings. There is nothing inhe rently

criminal or disfavored about asbestos removal;

in fact, i t might be considered a public

service, and many reputable and certified16 businesses exist solely to remove asbestos

from contaminated buildings.

Both the state and federal governments license

businesses and individuals in the field. Most,

if not all, asbe stos removal projects have a

commercial purpose, because handling to xic

carcinogens is not something many people enjoy

for its own sake. Unless the owner of an

asbestos-containing building needs to renovate

t he building or demolish it for use of th e

land on which it sits, he is very likely to

let sleeping dogs lie and not incur the costs

or dangers of asbestos removal.

311 F.3d at 602. Moreover, by using methods less expensive than

those required to comply with the regulatory scheme, Ho was able to

gain a commercial advantage over his competitors, thereby

substantially affecting, or undercutting, the economic regulatory

scheme. I d

. at 603. In addition to the economic nature of the

activity, Ho examined the other three Morrison consider ations in

holding aggregation proper. 311 F.3d at 602-04.

In the light of Lopez and Morrison

, the key question for

purposes of aggregation is whether the nature of the regulated

activity is economic. As noted, M orrison and Lopez recognize this

question is likely to generate “legal uncertainty”. M orrison

, 529

U.S. at 610; Lopez

, 514 U.S. at 5 66. One way in which the

regulated activity might be economic is when, as discussed earlier,

the intrastate activity is part of an econom ic regulatory scheme

which could be undercut but for the particular intrastate

regulation. Lopez , 514 U.S. at 561.17

Post- Lopez

, our court has faced these questions. A preMorrison decision, United States v. Bird

, 124 F.3d 667, amended by

1997 U.S. App. LEXIS 33988 (5th Cir. 1997), cert. denied

, 523 U.S.

1006 (1998), affirmed a conviction under the Freedom of Access to

Clinic Entrances Act, 18 U.S.C. § 248. B ird held that

noncommercial, intrastate activity (threats and intimidation

directed at provider of abortion services) ma y be aggregated to

find a substantial effect on interstate commerce. Id . at 676-82.

For that holding, the determining factor was that “there is a

national commercial market in abortion-related services such that

the regulated conduct—considered in light of the size and scope of

the benchmark market—substantially affects interstate commerce”.

Id . at 677. See id . at 681-82.

Noting Bird was decided pre- Morrison

, H o seems to leave open

t he question whether aggregation can be extended to non-economic

activity. 311 F.3d at 600, n.10. Further, in U nited States v.

Hickman

, 179 F.3d 230 (5th Cir. 1999)(pre- Morrison ), cert. denied

,

530 U.S. 1203 (2000), and United States v. McFarland

, 311 F.3d 376

(5th Cir. 2002)(post- Morrison ), petition for cert. filed , (U.S. 7

Jan. 2003) (N o. 02-8338), our evenly divided en banc court

addressed aggregating individ ual, intrastate robberies to find a

substantial effect on interstate commerce under the Hobbs Act, 18

U.S.C. § 1951 (criminalizing efforts to “obstruct [], delay[], or18

affect[] commerce or the movement of any article or commodity in

commerce, by robbery or extortion ...”).

The dissent in Hickman

, adopted by half of our en banc court,

stated:

[I]ndividual acts cannot be aggregated if

their effects on commerce are causally

independent of one another. That is, if the

effect on interstate commerce directly

attributable to one instance of an activity

does not depend in substantial part on how

many other instances of the activity occur,

there is an insufficient connection—in other

words, an interactive effect—and the effect of

different instances cannot be added. If, on

the other hand, the occurrence of one instance

of the activity makes it substantially more or

less likely that other instances will occur,

t hen there is an interactive effect and the

effects of different instances can be added.

179 F.3d at 233 (Higginbotham, J., dissenting).

This “interactive effect” requirement flows from the

requirement in Lopez that failure to regulate the intrastate

activity could “undercut” the entire scheme. Along this line, Ho

held that the instance of intrastate asbestos removal had an effect

on the larger economic regulation of the asbestos industry. 311

F.3d at 602.

In addressing the Hobbs Act issue faced in Hickman , one

dissent in McFarland , again adopted by half of our en banc court,

stated:

Assuming, arguendo

, th at there is a class of

[ Lopez ] category three cases [substantial

effect] as to which there a re no restraints

whatever on aggregation, we conclude that such19 a class would exclude instances where “the

regulated activity” is not properly described

as “commercial” or “economic” in the same

general sense as “commercial.”

311 F.3d at 396 (Garwood, J., dissenting) (emphasis in original).

In the intervening light of Morrison

, that dissent agreed with the

Hickman dissent.

Where the Supreme Court has applied

aggregation to uphold federal regulation of

intrastate conduct against constitutional

challenge under the Commerce Clause, there has

always been a rational basis to find

sufficient interrelationship or commonality of

effect on interstate commerce among the

discrete intrastate instances regulated and

between them and a scheme of regulation

(protection, enhancement or restriction) of

some particular interstate market or activity

such that the regulation of those intrastate

activities can rationally be viewed as

necessary to the effectiveness of or a

meaningfully supporting part of the scheme of

regulation of that particula r interstate

activity or market.

Id . at 401 (emphasis added).

Plaintiffs maintain that C ave Species takes have no

relationship, let alone a substantial one, to interstate commerce.

They concede, however, that all takes of endangered species, if

aggregated, would have the requisite substantial effect; but, they

maintain, aggregation is not proper because Cave Species takes are

non-economic in nature and not an essential part of a regulatory

scheme.

ESA was enacted in 1973 in response to threats to fish,

wildlife, and plants (wildlife). 16 U.S.C. § 1531(a)(1). These20

threats arose principally from “pollution, destruction of habitat

and the pressures of trade ”. H.R. Rep. No. 93-412, at 2 (1973)

(emphasis added). Congress noted that “the pace of disappearance

of species is accelerating”. I d

. at 4. This acceleration was

troubling because, inter alia

, “it is in the best interest of

mankind to minimize the losses of genetic variations”. Id . at 5.

That interest, Congress said, was “simple: [the genetic variations]

are potential resources”. Id

.

The y are keys to puzzles which we cannot

solve, and may provide answers to questions

which we have not yet learned to ask.

To take a homely, b ut apt, example: one

of the critical chemicals in the regulation of

ovulation in humans was found in a common

plant. Once discovered and analyzed, humans

could duplicate it synthetically, but had it

never existe d — or had it been driven out of

existence before we knew its potentialities —

we would never have tried to synthesize it in

the first place.

Who knows, or can say, what potential

cures for cancer or other scourges, present or

future, may lie locked up in the structures of

plants which may yet be undiscovered, much

less analyzed? More to the point, who is

prepared to risk ... those potential cures by

eliminating those plants for all time? Sheer

self-interest impels us to be cautious.

Id

.

Tennessee Valley Authority v. Hill

, 437 U.S. 153 (1978) ( TVA ),

the famous snail darter decisi on, reviewed ESA's legislative

history in the process of upholding an injunction pursuant to the

Secretary of the Interior’s determination that the operation of a21

federal dam would eradicate an endangered species. At issue was 16

U.S.C. § 1536, which requires federal agencies to consult with the

Secretary regarding projects and to “utilize their authorities in

furtherance of the purposes of [ESA]....” The Court recognized

Congress' “newly declared national policy of preserving endangered

species”, id . at 176, and held: “The plain intent of Congress in

enacting [ESA] was to halt and reverse the trend toward species

extinction, whatever the cost ”, id . at 184 (emphasis added).

Of course, notwithstanding this “plain intent”, ESA's take

provision as applied in this case must have firm footing in the

Commerce Clause. In this regard, ESA’s take provision has no

jurisdictional requirement that might otherwise limit its

appli cation to species bearing some relationship to interstate

commerce. Nor does the take provision list the species to be

protected. Instead, ESA incorporates listings, promulgated from

time to time by FWS, that determine which species are covered by

the take provision. 16 U.S.C. § 1533(c).

A.

Aggregation or no, the first of the four M orrison

consideratio ns concerns the economic nature v el non of the

regulated activity

. On this key point, at issue is what

constitutes the “regulated activity”. Plaintiffs assert that, for

evaluating substantial effect, we should look only to the expressly

regulated activity

— Cave Species takes. FWS responds that, in22

addition, we should consider such regul ation in the light of

plaintiffs’ planned commercial development and, by extension, its

effect on interstate commerce.

The district court agreed with F WS and looked p rimarily to

plaintiffs’ planned development:

[T]he regulated activity in this case is

plaintiffs’ alleged take of the Cave Species

by their planned development of the Property.

This development includes plans to build “a

shopping center, a residential subdivision,

and office buildings” on the Property.... This

activity, standing alone, “would easily be

classified as substantially affecting

interstate commerce.”

169 F. Supp. 2d at 658 (internal citations omitted).

The district court characterized plaintiffs’ challenge as

b eing “as-applied”. Whether it is “as-applied” or “facial”, the

district court correctly concluded it should evaluate plaintiffs’

conduct in determ ining whether the take provision, as applied to

the Cave Species, was unconstitutional. S ee City of Chicago v.

Morales

, 527 U.S. 41, 78 n.1 (1999) (Scalia, J., dissenting) (aside

from First Amendment “overbreadth” cases, “a facial attack, since

it requires unconstitutionality in all circumstances, necessarily

presumes that the litigant presently before the court would be able

to sustain a n as-applied challenge”); s ee also United States v.

Salerno

, 481 U.S. 739 (1987). The above-quoted passage from the

district court opinion reflects, however, that the court extended

the scope of this relevant conduct beyond plaintiffs' Cave Species23

takes; it primarily considered plaintiffs’ commercial motivations

that would underlie the takes. As discussed below, and consistent

with the Supreme Court’s interpretation of the Commerce Clause, we

conclude that the scope of inquiry is primarily whether the

expressly regulated activity substantially affects interstate

commerce, i.e.

, whether takes, b e they of the Cave Species or of

all endangered species in the aggregate, have the substantial

effect.

In this regard, neither this court, nor the Supreme Court, has

explicitly determined the scope of the substantial effects

analysis. Nonetheless, the Supreme Court has expressed concerns

about this issue. In S olid Waste Agency of Northern Cook County v.

United States Army C orps of Eng'rs , 531 U.S. 159 (2001), under §

404 (a) of the Clean Water Act, 33 U.S.C. § 1344(a), the Corps of

Engineers claimed jurisdiction over abandoned sand and gravel pits

which had become season al ponds and, concomitantly, habitats for

migratory birds. As a result, the Corps prevented construction of

a landfill on a site. The landfill developers contended that,

through such regulation, the Corps overstepped its statutorilyprescribed jurisdictional bounds, and, alternatively, Congress

exceeded its Commerce Clause power.

Resolving the case by interpreting the Clean Water Act, the

Court avoided the constitutio nal issue. Nevertheless, it shed

light on the scope-issue at hand:24 [The Government]

... note[s] that the

protection of migratory birds is a national

interest of very nearly the first magnitude,

and that, as the C ourt of Appeals found,

millions of people spend over a billion

dollars annually on recreational pursuits

relating to migratory birds. These arguments

raise significant constitutional questions.

For example, we wou ld have to evaluate the

precise object or activity that, in the

aggregate, substantially affects interstate

commerce. This is not clear, for although the

Corps has claimed jurisdiction over

petitioner’s land because it contains water

areas used as habitat by migratory birds,

respondents now, post litem motam

, focus upon

the fact that the regulated activity is

petitioner’s municipal landfill, which is

plainly of co mmercial nature. But this is a

far cry, indeed, from the “navigable waters”

and “waters of the United States” to which the

statute by its terms extends.

Id . at 173 (emphasis added; internal citation and quotation

omitted).

Again, we must resolve the question of which activities are to

be primarily considered in order to determine substantial effect

vel non . Each of the three Lopez categories recognizes Congress’

power to regulate where the object of regulation relates to

interstate commerce: channels, instrumentalities, or activities.

N either the plain language of the Commerce Clause, nor judicial

decisions construing it, suggest that, concerning substantial

effect vel non

, Congress may regulate activity (here, Cave Species

takes) solely because non-regulated conduct (here, commercial

devel opment) by the actor engaged in the regulated activity will

have some connection to interstate commerce.25

In expanding its scope—inquiry to plaintiffs’ commercial

motivations, the district court relied on Groome , which evaluated

Congress’ Commerce Clause power to regulate under the Fair Housing

Act, 42 U.S.C. § 3604(f)(3)(B). Groome stated that, in Lopez and

Morrison

, “neither the ‘actors’ nor the ‘conduct’ of the regulation

had a commercial character”. 234 F.3d at 204 (emphasis added).

Groome recognized that, in analyzing the effect on interstate

commerce, courts look only to the expressly regulated activity. In

Groome , that was the sale and rental of housing. The actor’s

conduct was commercial in nature, but that characteristic was only

relevant insofar as it fell within the regulated activity. I d

. at

205-16.

U nlike G

roome

, the district court in this case looked

primarily beyond the regulated conduct

— Cave Species takes

— in

order to assess effect on interstate commerce. It looked to

plaintiffs’ planned commercial development of the property where

the takes would occur. True, the e ffect of regulation of ESA takes

may be to prohibit such development in some circumstances. But,

Congress, through ESA, is not directly regulating commercial

development.

To accept the di strict court’s analysis would allow

application of otherwise unconstitutional statutes to commercial

actors, but not to non-commercial actors. There would be no limit

to Congress’ authority to regulate intrastate activities, so long26

as those subjected to the regulation were entities which had an

otherwise substantial connection to interstate commerce.

Along this line, looking p rimarily beyond the regulated

activity in such a manner would “effectually obliterate” the

limiting purpose of the Commerce Clause. J ones & Laughlin Steel

Corp.

, 301 U.S. at 37. Concomitantly, the facial challenges in

Lopez and Morrison would have failed. For instance, regulation of

gun possession near schools, at issue in Lopez

, would arguably pass

constitutional muster as applied to a possessor who was a

significant gun salesman. Therefore, § 922(q)(1)(A) could not have

been facially unconstitutional. S ee Salerno

, 481 U.S. at 745.

Similarly, the Violence Against Women Act, at issue in M orrison

,

would arguably have been a constitutional exercise of Congressional

power if it were used to prosecute a person who committed violence

against women and then sold a substantial number of videotapes of

the encounter in interstate markets. It too would have withstood

a facial attack. Such results, of course, run contrary to L opez

and Morrison

.

Ho r uled that “the regulated intrastate activity, asbestos

removal, is very much a commercial activity in today’s economy....

Both the state and federal governments license businesses and

individuals in the field. Most, if not all, asbestos projects have

a commer cial purpose....” 311 F.3d at 602. Thus H o primarily

analyzed the expressly regulated activity. Only after doing so did27

Ho note: “Moreover, [plaintiff’s] activities were dr iven by

commercial considerations”. Id

.

Two circuits have published opinions upholding ESA's

constitutionality; they looked, at times, to the nature of the

actor’s general conduct. N ational Association of Home Builders v.

Babbitt

, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied

, 524 U.S. 937

(1998) ( NAHB ) (pre- Morrison ); Gibbs v. Babbitt , 214 F.3d 483 (4th

Cir. 2000), cert. denied

, Gibbs v. Norton

, 531 U.S. 1145 (2001).

(In addition, the Ninth Circuit, in upholding the constitutionality

of the Eagle Protection Act, 16 U.S.C. 668, approvingly cited a

district court decision, Palila v. Hawaii Dep’t of Land & Natural

Resources

, 471 F.Supp. 985 (D. Haw. 1979), aff’d

, 639 F.2d 495 (9th

Cir. 1981), concerning ESA’s effect on interstate commerce. U nited

States v. Bramble , 103 F.3d 1475, 1481 (9th Cir. 1997).)

In NAHB and Gibbs

, howe ver, the actor's general conduct was

not the sole basis for finding economic activity or a substantial

effect on interstate commerce. To this extent, N AHB and Gibbs are

consistent with the analysis in Ho

.

NAHB

, decided pre- Morrison

, considered whether Congress had

the power to regulate takes of the Delhi Sands Flower-Loving Fly,

a species found only in California. The takes were caused by a

planned hospital renovation. For a divided panel, two members held28

ESA constitutional, each on different grounds; one member opined it

was unconstitutional.

In the main opinion, Judge Wald upheld ESA on two bases: as

a valid regulation of the channels of interstate commerce; and

because the takes substantially affected interstate commerce. For

the substantial effect analys is, she did not look beyond the

expressly-regulated activity. She did so, however, for the

“channels of interstate commerce” analysis. 130 F.3d at 1048.

There is, of course, good reason to look beyond the regulated

activity to determine whether such channels are being used; whether

an actor deals in these channels is directly relevant.

In her NAHB concurrence, Judge Henderson concluded the takes

affected biodiversity, which in turn substantially affected

interstate commerce. She briefly noted, however, that the

regulation plainly affected interstate commerce because “[it]

relates to both the proposed redesigned traffic intersection and

the hospital it is intended to serve ....” NAHB , 130 F.3d at 1059

(Henderson, J., concurring).

Of course, the ESA regulation at issue in NAHB did not relate

to traffic intersections; it related to fly takes. Judge Henderson

relied, in part, on the following language from Heart of Atlanta

Motel to support her conclusion: “The fa cilities and

instrumentalities used to carry on this commerce such as railroads,

truck lines, ships, rivers, and even highways are also subject to29

congressional regulation, so far as is necessary to keep interstate

t raffic upon fair and equal terms.” 379 U.S. at 271 (emphasis

added). This statement provides an example of Congress’ power to

regulate the use of the channels of interstate commerce, rather

than those activities having a substantial effect on in terstate

commerce.

While the take provision may have prevented the hospital

renovations in NAHB or the commercial developments in the case at

hand, ESA does not directly regulate these activities. The N AHB

dissent noted:

An alternative reading of Judge Henderson’s

second justification with its stress on the

effect of the regulation upon the highway and

hospital is that she concludes that Congress

may regulate purely intrastate activities

–

e.g.

, the habitat modification of the fly –

where the regulation will then affect items

which are arguably in interstate commerce.

Again, I do not see the sto pping point.

Congress is not empowered either by the words

of the Commerce Clause or by its

interpretation in Lopez to regulate any noncommercial activity where the regulation will

substantially affect interstate commerce....

Nowhere is it suggested that Congress can

regulate activities not having a substantial

effect on commerce because the regulation

itself can be crafted in such a fashion as to

have such an effect

.

Id

. at 1067 (Sentelle, J., dissenting)(emphasis added). As noted,

however, Judge Henderson did not rely primarily on the commercial

development, but instead analyzed the expressly regulated activity

— the takes’ effect on biodiversity.30

Gibbs held Congress did not exceed its Commerce Clause power

by regulating red wolf takes. 214 F.3d at 487. The wolves had

been reintroduced on federal land, but had roamed onto private land

in North Carolina and Tennessee. In holding the wolves had a

substantial effect on interstate commerce, a di vided panel noted

that the take provision l imited the ability to protect livestock

and other agricultural products from the wolves: “The regulation

here targets takings that are economically motivated

– farmers take

wolves to protect valuable livestock and crops.” I d

. at 495

(emphasis added). As discussed i nfra

, Gibbs held primaril y

,

h owever, that the expressly regulated activity — red wolf takes,

regardless of farmers’ motivations — was economic in nature.

In the light of the successful facial challenges in Lopez and

Morrison and the emphasis our court and sister circuits have placed

on the economic nature vel non of the expressly regulated activity,

t he district court erred in looking primarily to plaintiffs'

commercial motivations.

B.

As discussed earlier, there are two ways in which intrastate

activity can substantially affect interstate comme rce: the

activity can be of a nature and scope that it, alone, has such an

effect; and, in certain circumstances, the activity can be

aggrega ted with similar activities, so that the sum of the

activities has the requisite substantial effect. As also31

discussed, FWS contends regulation of Cave Species takes is proper

under either method. For either, the goal remains the same:

distinguishing betw een “what is truly national and what is truly

local”. Morrison , 529 U.S. at 617-18; Lopez , 514 U.S. at 567-68;

Ho

, 311 F.3d at 601.

1.

In urging Cave S pecies takes, alone, have a “direct

relationship” with, and substantial effect on, interstate commerce,

FWS claims two significant effects: the “substantial” scientific

interest generated by the Cave Species; and their possible future

commercial benefits.

a.

Concerning the scientific interest effect, some scientists

have studied the Cave Species. In doing so, some of them have

traveled to Texas. In coordination with this research, some Cave

Species have been transported to and from museums in five States.

Finally, articles about th e Cave Species have been published in

scientific journals.

According to FWS, this demonstrates the Cave Species “play a

role in interstate commerce”. Obviously, even assuming this is

true, this does not necessarily constitute the substantial effect

mandated by Lope z and Morrison . To the extent FWS contends that

the loss of the Cave Species would affect the scientific travel or

publication industries, it offers no evidence that it would32

substantially do so. In fact, the minimal evidence presented by

FWS indicates such an effect would be negligible.

In upholding the red wolf take provision, Gibbs held the takes

“implicate[d] a variety of commercial activities and [was] closely

connected to several interstate markets”. 214 F.3d at 492. Chief

among them were red-wolf-related tourism, “scientific research”,

and th e “commercial trade” in pelts. I d

. at 493-95. G ibbs held

the “takings of red wolves in the aggregate have a sufficient

impact on interstate commerce”. Id . at 493. (As discussed, Gibbs

also observed that the takes were motivated by commercial

incentives.)

Obviously, the c o mmercial impact of red wolves is

significantly grea ter than that of the Cave Species. S ee id

. at

493-94 (“According to a study

... the recovery of the red wolf and

increased visitor activities could result in a significant regional

economic impact. [The study’s author] estimates that northeastern

North Carolina could see an increase of between $39.61 and $183.65

million per year in tourism-related activities” (internal citation

omitted).).

In the case of the Cave Species, any connection between takes

and impact on the scientific travel or publication industries is,

as noted, negligible. Under Morrison ’s fourth consideration, any

claim that the connection rises to a “substantial relationship” is

far too attenuated to pass muster.33 b.

Alternatively, FWS claims future commercial benefits derived

from the Cave Species will be significant enough to substantially

affect interstate commerce. Research concerning certain endangered

species has been used in the treatment of disease. S ee, e.g.,

Holly Doremus, P atching the Ark: Improving Legal Protection of

Biological Diversity

, 18 E COLOGY L.Q . 265, 270-71 (1991) (study of

endangered pupfish in relation to kidney disease); Keith Rizzardi,

Toothless? The Endangered Manatee and the Florida Manatee Sanctuary

Act

, 24 F LA

. S T

. U. L. Rev. 377, 380 (1997) (study of endangered

manatees in relation to hemophilia).

FWS posits here:

The value of the cave species ... may be even

more significant than those of the pupfish and

the manatee, given the unique features of cave

species. A lthough little is yet understood

about these particular species

, scientists

have long observed that cave species, because

of their peculiar habitats, often exhibit

incredibly low metabolic rates and possess

extremely long life-spans

... compared to

oth er invertebrates. Such characteristics

suggest that further study of these species

could lead to important developments in our

understanding of longevity....

(Emphasis add ed; internal citations and quotations omitted). In

short, this claim is not supported by evidence concerning Cave

Species. It is conjecture.

This contention, whatever its merits may ultimately be, runs

afoul of the attenuation consideration. The p ossibility of future34

substanti al effects of the Cave Species on interstate commerce,

through industries such as medicine, is simply too hypothetical and

attenuated from the regulation in question to pass constitutional

muster. See Morrison , 529 U.S. at 612.

2.

In the alternative, FWS contends that Cave Species takes may

be aggregated with those of all other endangered species. As

noted, plaintiffs concede this aggregation would have the requisite

substantial effect on interstate commerce. See NAHB , 130 F.3d at

1053-54 (“In the aggregate, however, we can be certain that the

extinction of the species and the attendant decline in biodiversity

will have a real and predictable effect on interstate commerce.”).

At issue is what circumstances must be present in order to

justify aggregation when, as in this case, intrastate activity has

a de minimis effect on interst ate commerce. As noted, L opez and

Morrison instruc t courts to consider, i nter alia

, the activity's

economic or commercial nature. And, as discussed s upra

, one key

way by which intrastate activity may be conside red “economic” or

“commercial” is through i ts importance to an economic regulatory

scheme.

As noted earlier, whether an activity is economic or

commercial is to be given a broad reading in this context. G roome

,

234 F.3d at 208-09. Nevertheless, in a sense, Cave Species takes

are neither economic nor commercial. There is no market for them;35

any future market is conjecture. If the speculative future

medicinal benefits from the Cave Species makes their regulation

commercial, then al most anything would be. Moreover, unlike the

red wolves (and their pelts) in Gibbs , there is no historic trade

in the Cave Species, nor do tourists come to Texas to view them.

FWS posits that, because, in the aggregate with other

endangered species, Cave Species takes will have a substantial

eff ect on interstate commerce, these takes can be classified as

commercial. To accept such a justification would render

meaningless any “economic nature” prerequisite to aggregation. An

activity cannot be aggregated based solely on the fact that, postaggregation, the sum of the activities will have a substantial

ef fect on commerce. This would vitiate L opez and Morrison ’s

seeming requireme nt t hat the intrastate instance of activity be

commercial. Noneconomic and noncommercial activity could be

aggregated so long as, if aggregated, it would have a substantial

effect. Lopez and Morrison stand against such a proposition.

On the other hand, the regulation of the Cave Species is part

of a larger regulation of activity. The take provision as applied

to the Cave Species is part of the take provision generally and ESA

as a whole. More is required, however. As discussed earlier, noncommercial, intrastate activities must be “essential” to an

economic regulatory scheme’s efficacy in order, under this

rationale, for aggregation to be appropriate.36

First, the larger regulation must be directed at activity that

is economic in nature. L opez

, 514 U.S. at 561. S ee also Morrison

,

529 U.S. at 610. ESA states that endangered species are of

“esthetic, ecological, educational, historical, recreational, and

scientific value....” 16 U.S.C. § 1531(a)(3). Along this line,

courts may also look to ESA’s legislative history. Morrison , 529

U.S. at 612. In this light, ESA’s protection of endangered species

is economic in nature. As noted, ESA's drafters were concerned by

the “incalcuable” value of the genetic heritage that might be lost

absent regulation. S ee H.R. Rep. No. 93-412, at 4. With regard to

a precursor to ESA, the Senate Report observed:

From a pragmatic point of view, the protection

of an endangered species of wildlife with some

commercial value may permit the regeneration

of that species to a level where controlled

exploitation of that species can be resumed.

In such a case businessmen may profit from the

trading and marketing of that species for an

indefinite number of years, where otherwise it

would have been completely eliminated from

commercial channels in a very brief span of

time. Potentially more important , however, is

the fact that with each species we eliminate,

we reduce the [genetic] pool

... available for

use by man in future years. Since each living

species and subspecies has developed in a

unique way to adapt i tself to the difficulty

of living in the world's environment, as a

species is lost, its distinctive gene

materi al, which may subsequently prove

invaluable to mankind in improving domestic

animals or increasing resistance to disease or

environmental contaminant, is also

irretrievably lost.

S. Rep. No. 91-526, at 1415 (1969) (emphasis added).37

Aside from the economic effects of species loss, it is obvious

that the majority of takes would result from economi c activity.

See, e.g.

, 16 U.S.C. § 1531(a)(1) (“various species of fish,

wil dlife, and plants in the United States have been rendered

extinct as a consequence of economic growth and development

untempered by adequate concern and conservation”); 16 U.S.C . §

1533(f) (recovery plans should give priority to species that are in

“conflict with construction or other development projects or other

forms of economic act ivity...”). Indeed, Congress’ findings are

reflected in the case at hand: the Cave Species takes would occur

as a result of plaintiffs’ planned commercial development.

Moreover, ESA is “truly national” in scope. S ee Morrison

, 529

U.S. at 617-18; Lopez

, 514 U.S. at 567-68. This is the case,

despite the concerns raised by amicus State of Texas. It is true

that land use and wildlife preservation are traditional areas of

state concern. Nevertheless, “this authority is shared with the

Federal Government when [it] exercises one of its enumerated

constitutional powers”. Minnesota v. Mille Lacs Band of Chippewa

Indians , 526 U.S. 172, 204 (1999).

Se cond, in order to aggregate, the regulated intrastate

activity m ust also be an “essential” part of the economic

regulatory scheme. Judge Wald’s opinion in N AHB held ESA’s take

provision constitutional as applied to an intrastate species of

insect. Key to this conclusion, and challenged by the other two38

panel members, was the determination that individual takes of the

s pecies could be aggregated. The opinion assumed aggregation,

holding that, because “biodiversity has a

... substantial

...

effect on

... i nterstate commerce, ‘the d e minimis character of

individual instances arising under [ESA] is o f no consequence’”.

130 F.3d at 1053, n. 14 (quoting Lopez , 514 U.S. at 558).

The opinion did not discuss, however, Lopez ’ earlier

requirement that de minimis instances of activity subsumed within

a regulatory scheme must be essential to that scheme, so that it

could be undercut without the particular regulation. 514 U.S. at

561. Along this line, the N AHB dissent noted: “There is no

showing, but only the rankest of speculation, that a reduction or

even complete destruction of the viability of the [species] will in

fact affect land and obje cts that are involved in interstate

commerce”. 130 F.3d at 1065 (Sentelle, J., dissenting) (internal

citations and quotations omitted).

In TVA

, however, the Court recognized that “Congress was

concerned [not only] about the unknown uses that endangered species

might have[, but also] about the unforeseeable place such creatures

may have in the chain of life on this planet”. 437 U.S. at 178-79

(emphasis in original). Citing that portion of T VA

, Gibbs

r eaffirmed Congress’ power to “manage the interdependence of

endangered animals and plants in large ecosystems”. 214 F.3d at

496. S ee also NAHB

, 130 F.3d at 1052 n.11; id

. at 1058 (Henderson,39

J., concurring) (“The effect of a species’ continued existence on

the health of other species within the ecosystem seems to be

generally recognized among scientists.”).

FWS contends: “Allowing a particular take to escape

regulation because, viewed alone, it does not substantially affect

interstate commerce, would undercut the ESA scheme and lead to

piece-meal extinctions”. Along this line, it maintains that takes

of any species threaten the “interdep endent web” of all species.

Congress described this “critical nature of the interrelationships

of plants and animals between themselves and with their

environment”. H.R. Rep. No. 93-412, at 6. In fact, according to

Congress, the “essential purpose” of ESA is “to protect the

ecosystems upon which we and other species depend”. Id . at 10.

ESA's take provisio n is economic in nature and supported by

Congressional findings to that effect. Although, as noted, there

is no express jurisdictional element in ESA, our analysis of the

interdependence of species compels the conclusion that regulated

takes under ESA do affect interstate commerce. In this sense,

ESA's take provision is limited to instances which “have an

explicit con nection with or effect on interstate commerce”.

Morrison , 529 U.S. at 611-12 (internal quotations omitted).

Finally, the link between species loss and a substantial

commercial effect is not attenuated. This holding will not allow

Congress to regulate general land use or wildlife preservation.* FWS also contends that the “take” provision enables the

United States to meet it s treaty obligations and was enacted

because o f a concern about Congress’ Commerce Clause power,

pursuant to Article I, § 8, cl. 3, “[t]o re gulate Commerce with

foreign Nations”. We need not reach this issue.

40 See id

. at 612-13 (“We rejected these

... arguments because they

would permit Congress to ‘regulate not only all violent crime, but

all activities that might lead to violent crime....’” (quoting

Lopez , 514 U.S. at 564)).

ESA is an economic regulatory sche me; the regulation of

intrastate takes of the Cave Spec ies is an essential part of it.

Therefore, Cave Species takes may be aggregated with all other ESA

takes. As noted, plaintiffs concede such aggregation substantially

affects interstate commerce. In sum, application of ESA's take

provision to the Cave Species is a constitutional exercise of the

Commerce Clause power. *

III.

For the foregoing reasons, the judgment is

AFFIRMED

.41

DENNIS, Circuit Judge, concurring:

I join in the Court’s opinion and write separately only to set

forth additional analysis in support of the Court’s conclusion.

The plaintiff s contend that Congress lacks the authority to

regulate, under the ESA, activity that endangers or threatens

intrastate, non-c ommercial species. The Court correctly upholds

the challenged ESA provision as applied to such species.

One express purpose of the ESA is to provide a comprehensive

program for the conservation of endangered and threatened species

and the ecosystems upon which they depend. The extinction or harm

of endangered or threatened species has a substantial impact upon

interstate commerce because in many cases those species or products

derived from them are articles of commerce. Further, their

extinction or harm could have a significant deleterious effect upon

interstate commerce between the states by adversely affecting the

commercial intercourse of non-endangered species or their

derivatives. Finally, the conservation of the ecosystems upon

which these commercial species depend may require the regulation of

activities harmful to non-commercial species concentrated within a

single state or region. Consequently, Congress has the authority

to make a rational determination to conserve such non-commercial,

intrastate species as a n essential or integral part of the

comprehensive ESA program that regulates activities having a

substantial impact on interstate commerce.1 312 U.S. 100 (1941).

2 Id. at 118.

3 17 U.S. 316, 411-12 (1819) (quoting U.S. Const. art. I, § 8,

cl. 18); see Robert L. Stern, The Commerce Clause and the National

Economy, 1933-1946 , 59 Harv. L. Rev. 883, 890 (1946).

4 McCulloch , 17 U.S. at 421.

42 At least as early as United States v. Darby

, the Supreme Court

recognized that Congress has the power to regulate intrastate

activities that it rationally finds necessary to regulate in order

to effectuate its regulation of interstate commerce. 1 In D ar by

,

emphasis was placed on whether the regulation was an “appropriate

means to the atta inment of a legitimate end, the exercise of the

granted power of Congress to regulate interstate commerce.” 2 T his

approach harks back to McCulloch v. Maryland

, which noted that the

Constitution authorizes Congress to make “all laws which shall be

necessary and proper for carrying into exec ution the foregoing

powers.” 3 Chief Justice Marshall found that the Necessary and

Proper clause accords to Congress

that discretion, with respect to the means by which the

powers it confers are to be carried into execution, which

will enable that body to perform the high duties assigned

to it, in the manner most beneficial to the people. Let

the end be legitimate, let it be within the scope of the

constitution, and all means which are appropriate, which

are plainly adapted to that end, which are not

prohibited, but consist with the letter and spirit of the

constitution, are constitutional. 4

Darby also pointed out that the Court had often sustained

legislation enacted under powers other than the Commerce Clause,5 Darby

, 312 U.S. at 121 (citing Jacob Ruppert, Inc. v.

Caffey

, 251 U.S. 264 (1920); James Everard’s Breweries v. Day

, 265

U.S. 545, 560 (1924); Westfall v. United States

, 274 U.S. 256, 259

(1927)).

6 Stern, The Commerce Clause

, 59 Harv. L. Rev. at 891 (citing

Houston, E.& W. Tex. Ry. Co. v. United States

, 234 U.S. 342 (1914)

( Shreveport Rate Cases); R ailroad Comm’n of Wis. v. Chicago

Burlington & Quincy Ry. Co.

, 257 U.S. 563 (1922); Southern Ry. Co.

v. United States , 222 U.S. 20 (1911); Baltimore & Ohio Ry. Co. v.

ICC , 221 U.S. 612 (1911)).

7 See, e.g., United States v. Lopez

, 514 U.S. 549, 561 (1995)

(finding that the regulation of gun possession near schools under

the Gun-Free School Zones Act was “ not an essential part of a

larger regulation of economic activity, in which the regulatory

scheme cou ld be undercut unless the intrastate activity were

regulated”); Hodel v. Indiana

, 452 U.S. 314, 329 n.17 (1981) (“A

43 “when the means chosen, although not themselves within the granted

power, were nevertheless deeme d appropriate aids to the

accomplishment of some purpose within an admitted power of the

national government.” 5 A similar approach had been used in cases

applying the Commerce Clause to intrastate activities “ when the

intrastate transactions were so commingled with or related to

interstate commerce as to demand that all be regulated if the

interstate commerce were to be effectively controlled.” 6

Indeed, the Supreme Court’s cases, from Darby to the present,

confirm that Congr ess has the authority under the Constitution,

through the intersection of the Commerce Clause and the Necessary

and Proper Clause, to regulate an intrastate activity that it could

not reach standing alone, if the regulation is essential or

integral to the maintenance of a larger regulatory scheme properly

governing interstate co mmerce. 7 This rule has recently beencomplex regulatory program

. . . can survive a Commerce Clause

challenge without showing that every single facet of the program is

independently and directly related to a valid congressional goal.

It is enough that the challenged provisions are an integral part of

the regulatory program and that the re gulatory scheme when

considered as a whole satisfies [the substantial effect] test.”);

Maryland v. Wirtz

, 392 U.S. 183, 192-93 (1968) (refusing to

“excise, as trivial, individual instances ” of regulation because

the effect of such excision would be to undermine the effectiveness

of the regulatory program); United States v. Wrightwood Dairy Co.

, 315 U.S. 110, 121 (1942) (stating that Congress has the power to

enact such regulations of intrastate activity as are “necessary and

appropriate” to make the regulation of interstate commerce

effective); Darby

, 312 U.S. at 118 (“[Congress’s power] extends to

those activities intrastate which so affect interstate commerce or

the exercise of the power of Congress over it as to make regulation

of them appropriate means to the attainment of a legitimate end,

the exercise of the granted power of Congress to regulate

interstate commerce.”); NLRB v. Jones & Laughlin Steel Corporation

, 301 U.S. 1, 36 (1937) (“The congressional authority to protect

interstate commerce from burdens and obstructions is not limited to

transac tions which can be deemed to be an essential part of a

'flow' of interstate or foreign commerce.”).

8 See Adrian Verme ule, D oes Commerce Clause Review Have

Perverse Effects? 46 Vill. L. Re v. 1325 (2001); Adrian Vermeule,

Centralization and the Commerce Clause , 31 Envtl. L. Rep. 11334

(2001).

9 See Groome Resources Ltd. v. Parish of Jeff erson , 234 F.3d

192, 205 (5th Cir. 2000) (“[A] close reading of Lopez

. . .

pro vides two recognized and historically rooted means of

congressional regulation under the commerce power: (1) whether the

activity is ‘any sort of economic enterprise, however broadly one

might define those terms’; or (2) whether the activity exists as

‘an essential part of a larger regulation of economic activity, in

44 designated by one scholar as the “comprehensive scheme” principle. 8

This Court and its judges have, in effect, recognized the principle

by concluding that both commercial and noncommercial activity may

be regulated by Congress if the regulation is an essential or

integral part of a larger comprehensive scheme properly regulating

activity substantially affecting interstate commerce. 9which the regulatory scheme could be undercut unless the intrastate

activity were regulated.’” (quoting Lopez

, 514 U.S. at 561));

United States v. Bird

, 124 F.3d 667, 675 (5th Cir. 1997) (“As a

federal criminal statute regulating intrastate noncommercial

conduct, [the challenged section of the Freedom of Access to Clinic

Entrances Act] must be justified, if at all, as ‘an essential part

of a larg er regulation of economic activity, in which the

regulatory scheme could be undercut unless the intrastate activity

were regulated.’” (q uoting L opez

, 514 U.S. at 561)); see also

United States v. Hickman , 179 F.3d 230, 231 (5th Cir. 1999) (en

banc) (Higginbotham, J., dissenting) (“Congress may protect,

e nhance, or restrict some particular interstate economic market,

such as those in wheat, credit, minority travel, abortion service,

illegal drugs, and the like, and Congress may regulate intrastate

activity as part of a broader scheme.”); United States v. Kirk

, 105

F.3d 997, 1014 (5th Cir. 1997) (en banc) (Jones, J., dissenting)

(stating t hat the most critical consideration in determining the

constitutionality of a statute prohibiting certain possessions of

machine guns is whether it “fulfills the mission of regulating

interstate commerce as (1) a regulation of economic activity which,

although itself local, h as substantial effect on interstate

commerce, or (2) a regulation of activity which is essential to

maintaining a larger, interstate regime of economic activity.”).

10 United States v. Morrison , 529 U.S. 598 (2000).

45 The free-standing statutes at issue in Lopez and United States

v. Morrison 10 addressed intras tate offenses of the kind that have

been tradit ionally dealt with by state legislation. Neither

statute was an integral or ancillary part of a comprehensive scheme

reasonably designed to reg u late activity having a substantial

effect on interst ate commerce. In L opez the Court held that the

Gun-Free School Zones Act, which made it a federal offense to

knowingly possess a firearm in a known or reasonably recognizable

school zone, exceeded Congress’ commerce clause authority because

the criminalized conduct wa s not an economic activity that

substantially affected interstate c ommerce. The Court expressly11 Lopez , 514 U.S. at 561.

12 Morrison , 529 U.S. at 613.

46 noted that the statue was not an essential part o f a larger

regulation of economic activity, in which the regula tory scheme

would be undercut unless the intrastate activity were regulated. 11

Similarly, in Morrison the Court held that the Commerce Clause does

not authorize Congress to enact a federal civil remedy for the

victims of gender-motivated v iolence. The Court stated that

gender-motivated crimes of violence are not economic ac t ivity

substantially affecting interstate commerce. 12

In this case, by contrast, the prohibition of the Cave Species

takes is integral to achieving Congress’s rational purpose in

enacting the ESA. In particular, the ESA regulates interstate

commerce by attempting to prevent the extinction of both commercial

and non-commercial species. Regulations under the ESA therefore

significantly affect the nation’s eco nomy and welfare. Noncommercial species are in many instances vital to the survival of

ecosystem s upon which commercial species are dependent. The

interrelationship of commercial and non-commercial species is so

complicated, intertwin ed, and not yet fully understood that

Congress acted rationally in seeking to protect all endangered or

threatened species from extinction or harm. The ESA is a necessary

and proper means not only to conserve the nation’s valuable

biological resources, but also to promote interstate commer c e13 Charles Tiefer, After Morrison, Can Congress Prese rve

Environmental Laws from Commerce Clause Cha llenge? 30 Envt’l L.

Rep. 10888 (2000).

47 involving those resources. While some states, including Texas,

have taken steps to protect species against extinction, the threat

of extincti on of species and loss of their habitat is both a

worldwide and a national problem that require s at least a

comprehen sive national solution. Furthermore, as the Congress

recognized, some of the presently covered non-commercial species

will prove to be of “incalculable” future value to the nation and

its economy because they are sources of genetic, scientific, and

biomedical research and development that will likely facilitate the

production of commercial goods, services, and techniques.

Thus, as the opinion states, the constitutiona lity of the

FWS’s regulation of the Cave Species takes does not depend on

aggregating the effects of all takes of endangered species in order

t o arrive at a sum effect on interstate commerce that is, postaggregation, substantial. Put another way, the constitutionality

of any particular application of the ESA take provision does not

depend on adding up “a large number of small but definite

[ economic] impacts from each insect or plant of an endangered

species” to reach a substantial effect on interstat e commerce. 1 3

Rather, the FWS can prohibit the Cave Species takes because such

regulation is essential to the efficacy of—that is, the regulation

is necessary and proper to—the ESA’s comprehe nsive scheme to48

preserve the nation’s genetic heritage and the “incalculable” value

inherent to that scarce natural resource, and bec ause that

regulatory scheme has a very substantial impact on interstate

commerce.