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, Intervenor Defendant-Appellant.
Nos. 14-4151 & 14-4165
United States Court of Appeals, Tenth Circuit.
FILED March 29, 2017
852 F.3d 990
* Pursuant to Fed. R. App. P. 43(c)(2), recently confirmed Secretary of the Department of Interior, Ryan Zinke, is substituted for former Secretary of the Interior Sally Jewell.
III
In assessing defendants’ claims of qualified immunity, we are mindful of the Supreme Court‘s admonition to “define the clearly established right at issue on the basis of the specific context of the case.” Tolan, 134 S.Ct. at 1866 (quotations omitted). Pompeo claims a right to use language in a course assignment that her professors found to be inflammatory without being criticized or pressured to make revisions. Because we conclude that such a right is not clearly established, the district court‘s grant of summary judgment in favor of defendants is AFFIRMED.
Michael Ray Harris, of Friends 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, California, for Plaintiff-Appellee.
Jason C. Rylander and Karimah Schoenhut of Defenders of Wildlife, Washington, D.C., filed an amici curiae brief for Defenders of Wildlife, Animal Welfare Institute, Center for Biological Diversity, Humane Society of the United States, Sierra Club, and Wildearth Guardians, in support of Defendants-Appellants.
David M. Driesen, University Professor, of Syracuse University College of Law, Syracuse, New York, filed an amici curiae brief for Constitutional Law Professors William C. Banks, David S. Cohen, Eric M. Freedman, Stephen Gardbaum, Stephen E. Gottlieb, M. Isabel Medina, and Steven D. Schwinn, in support of Defendants-Appellants.
Daniel H. Lutz and Hope M. Babcock of Institute for Public Representation, Georgetown University Law Center, Washington, D.C., filed an amicus curiae brief for Environmental Law Professors in support of Defendants-Appellants.
Thomas J. Ward and Jeffrey B. Augello of National Association of Home Builders, Washington, D.C., and Norman D. James, Fennemore Craig, P.C., Phoenix, Arizona, filed an amicus curiae brief in support of Plaintiff-Appellee.
Karen Budd-Falen of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming, filed an amici curiae brief for Wyoming Association of Conservation Districts, Wyoming Farm Bureau Federation, Wyoming Stock Growers Association, Wyoming Wool Growers Association, and Utah Farm Bureau Federation, in support of Plaintiff-Appellee.
Ilya Shapiro and Julio Colomba, of Cato Institute, Washington, 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 Inhofe, Mike Enzi, David Vitter, Ted Cruz, and Orrin Hatch and 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, Assistant Utah Attorneys General, Salt Lake City, Utah, Craig W. Richards, Attorney General, Juneau, Alaska, Mark Brnovich, Attorney General, Phoenix, Arizona, Cynthia Coffman, Attorney General, Denver, Colorado, Lawrence G. Wasden, Attorney General, Boise, Idaho, Derek Schmidt, Attorney General, Topeka,
Steven J. Lechner of Mountain States Legal Foundation, Lakewood, Colorado, filed an amicus curiae brief for Mountain States Legal Foundation in support of Plaintiff-Appellee.
John C. Eastment, Anthony T. Caso, and Cristen Wohlgemuth of Center for Constitutional Jurisprudence, Orange, California, filed an amicus curiae brief for Center for Constitutional Jurisprudence in support of Plaintiff-Appellee.
William S. Consovoy and J. Michael Connolly of Consovoy McCarthy PLLC, Arlington, Virginia; Patrick Strawbridge of Consovoy McCarthy PLLC, Boston, Massachusetts; Kate Comerford Todd and 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 Center, Washington, D.C., filed an amici curiae brief for the Chamber of Commerce of the United States and the National Federation of Independent Business in support of Plaintiff-Appellee.
Before HOLMES, McHUGH, and MORITZ, Circuit Judges.
HOLMES, Circuit Judge.
People for the Ethical Treatment of Property Owners (“PETPO“) challenges a regulation promulgated by the United States Fish and Wildlife Service (“FWS” or “Service“) pursuant to the Endangered Species Act (“ESA“). The challenged regulation prohibits the “take” of the Utah prairie dog, a purely intrastate species, on nonfederal land. The ESA defines “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.”
The district court granted summary judgment for PETPO on the ground that neither the Commerce Clause nor the Necessary and Proper Clause of the Constitution authorizes Congress to regulate take of the Utah prairie dog on nonfederal land. FWS and intervenor-defendant Friends of Animals (“FoA“) appeal from that grant of summary judgment, arguing that the challenged regulation is authorized by both the Commerce Clause and the Necessary and Proper Clause, and that PETPO lacks standing. We hold that the district court correctly concluded that PETPO has standing, but erred in concluding that Congress lacked authority under the Commerce Clause to regulate (and authorize the Service to regulate) the take of the Utah prairie dog.
I
A
The purpose of the ESA is to conserve endangered and threatened species and the ecosystems on which they depend. See
The ESA expressly defines the objects of its protections, that is, both “endangered species” and “threatened species.” An endangered species “is in danger of extinction throughout all or a significant portion of its range,” except for insect species determined to be pests “pres-
To protect these categories of species, the ESA “authorizes the Secretary of the Interior to list domestic or foreign species as endangered or threatened.” Wyo. Farm Bureau Fed‘n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000) (citing
The “cornerstone” of the ESA‘s protections is a section prohibiting the take of any endangered species without a permit or other authorization. Gibbs v. Babbitt, 214 F.3d 483, 487 (4th Cir. 2000) (citing
The Utah prairie dog is a threatened species whose take is regulated by a special rule. The Utah prairie dog lives only in Utah and approximately seventy percent of the population is on nonfederal land. Originally listed as an endangered species under the ESA, Amendments to Lists of Endangered Fish and Wildlife, 38 Fed. Reg. 14678-01, 14678 (June 4, 1973) (codified as amended at
PETPO, a nonprofit organization, was founded by Utah “residents who suffer as a result of the regulation of Utah prairie dog take.” J.A. at 160 (Decl. of Derek Morton, filed Nov. 18, 2013). PETPO is comprised of more than 200 “private property owners and other persons and entities subject to overly burdensome regulations,” id., who allege that they “have been prevented from building homes, starting small businesses, and, in the case of the local government, from protecting recreational facilities, a municipal airport, and the local cemetery from the Utah prairie dog‘s maleffects,” Aplee.‘s Br. at 3 (citations omitted).
B
PETPO filed the instant action against FWS under the Administrative Procedure Act (“APA“),
PETPO then moved for summary judgment. FWS cross-moved for summary judgment, defending the constitutionality of the challenged regulation under both the Commerce Clause and the Necessary and Proper Clause and arguing that PETPO lacks standing. The district court 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 species (i.e., the Utah prairie dog) that has no substantial effect on interstate commerce; and (3) the Necessary and Proper Clause does not authorize Congress to regulate take of the Utah prairie dog because such regulation is not essential to the ESA‘s economic scheme.
FWS and FoA timely appealed. They raise two arguments on appeal: (1) PETPO lacks standing; and (2) both the Commerce Clause and the Necessary and Proper Clause authorize Congress to regulate take of the Utah prairie dog on nonfederal land. We hold that the district court correctly concluded that PETPO has standing, but erred in concluding that the challenged regulation is not authorized by the Commerce Clause. In light of our Commerce Clause holding, we have no need to opine regarding the merits of the district court‘s Necessary and Proper Clause ruling, and do not do so. We accordingly reverse and remand for entry of summary judgment for FWS and FoA.
II
First, we conclude that PETPO 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 suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent,
The parties agree that the first two elements of standing are satisfied,1 but FoA argues that the third element, redressability, is not. Specifically, FoA argues that PETPO‘s alleged injuries are not redressable because if the district court were to grant the requested relief and strike down Special Rule 4(d), the absence of a special rule regarding the Utah prairie dog would trigger General Rule 4(d) to govern take of that species, and the General Rule prohibits even more take than the Special Rule. Thus, FoA argues that “even 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 General Rule 4(d) prohibits more take than Special Rule 4(d) because under the General Rule, take is prohibited completely unless the party first obtains a permit. See
However, the fact that the General Rule prohibits more take than the Special Rule is irrelevant for our purposes because PETPO‘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 authorizing protection of the Alabama Sturgeon“). To be sure, in its briefing and at oral argument, PETPO curiously characterizes its claim as attacking the Special Rule and disclaims any attack on the ESA. But our standing inquiry must focus on the substance of PETPO‘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 [the plaintiff‘s] complaint” and the fact that there was “no evidence in the record” to support her claim of standing). And, as a matter of logic, PETPO‘s wish to attack the regulation of prairie dog take on Commerce Clause and Necessary and Proper grounds implicates
An examination of PETPO‘s complaint, particularly the requested relief, clearly bears out this understanding of PETPO‘s claim. First, the relief requested would apply to both rules (as they pertain to take of Utah prairie dogs on nonfederal land). PETPO‘s requested relief is not limited to a particular FWS regulation; instead, both the declaratory and injunctive relief requested would expressly pertain to any federal prohibition on the take of Utah prairie dogs on nonfederal land. PETPO requests the following relief:
(1) for a declaration that the prohibition of the take of the Utah prairie dog on non-federal land is invalid under the [APA], because it is inconsistent with constitutional 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 injunction 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 would apply equally to the prohibition of Utah prairie dog take in General Rule 4(d) as to the prohibition of Utah prairie dog take in Special Rule 4(d); that is, granting the relief that PETPO seeks would necessarily make unenforceable both rules to the extent that they prohibit take of the Utah prairie dog on nonfederal land.
Moreover, this conclusion is also consistent with how PETPO expressly framed its claim for relief under the APA. In its complaint, PETPO ended that claim by stating that
110. No enumerated power supports the regulation of the take of the Utah prairie dog on non-federal land.
111. The regulation of the take 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 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 particular shows 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, Congress has no such authority to delegate. Were PETPO to win on that claim and FWS nonetheless attempted to enforce the General Rule insofar as it prohibits prairie dog take, FWS could expect its enforcement activities to
Further, it is unclear how a court could set aside the Special Rule‘s prohibition on take but not the General Rule‘s, because the Special Rule prohibits take only to the extent that it incorporates by reference the take prohibitions found in the General Rule. See
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 merits, where PETPO challenges FWS‘s prohibition on take of the Utah prairie dog on nonfederal land by arguing 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 nonfederal land, neither could it authorize the Secretary of the Interior to promulgate regulations so regulating the species.
The APA permits an aggrieved party to challenge and requires us to “hold unlawful and set aside” final agency action that is “contrary to constitutional right, power, privilege, or immunity.”5
B
We conclude that the district court erred in holding that the challenged regulation is not authorized under the Commerce Clause, which gives Congress authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
1
The district court concluded that the Commerce Clause does not authorize the regulation because the regulated activity—i.e., take of the Utah prairie dog on nonfederal land—does not have a substantial effect on interstate commerce. The court reasoned that: (1) take of the Utah prairie dog on nonfederal land is not commercial or economic activity, and the fact that the challenged regulation prohibits people “from engaging in commercial activities ... is irrelevant,” J.A. at 203-04; and (2) the value of the Utah prairie dog, whether biological, commercial, scientific, or through potential future effects, has too attenuated an effect on interstate commerce, if any at all.
2
The Commerce Clause authorizes Congress to regulate three categories of activity: (1) “use of the channels of interstate commerce“; (2) “instrumentalities of interstate commerce, or persons or things in interstate commerce“; and (3) “activities that substantially affect interstate commerce.” United States v. Lopez, 514 U.S. 549, 558-59 (1995). “[T]he parties in the present 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 interstate commerce. See Lopez, 514 U.S. at 558-59 (holding that “Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce” (emphases added) (citation omitted)).
To determine whether a regulated activity substantially affects interstate
Under the third Lopez category, Congress has the “power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate 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 statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that 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 ... may be regulated so long as they substantially affect interstate commerce in the aggregate, even if their individual impact on interstate commerce is minimal.” (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 concededly 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 include [a] narrower ‘class of activities’ within [a] larger regulatory scheme, was constitutionally deficient,” or whether “the subdivided class of activities ... was an essential 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 significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity.“).
Moreover, the Court has underscored that the fact that a regulated activity is noncommercial or “trivial by itself” is “not a sufficient reason for removing [it] from the scope of [otherwise valid] federal 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, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate 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 individual components of that larger scheme.“); see also Taylor, 136 S.Ct. at 2081 (“[I]t makes no
In short, the Commerce Clause authorizes regulation of noncommercial, purely intrastate activity that is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce (i.e., has a substantial relation to interstate commerce). Therefore, to uphold the challenged regulation here, we need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.
a
We conclude that Congress had a rational basis to believe that regulation of the take of the Utah prairie dog on nonfederal land is an essential part of the ESA‘s broader regulatory scheme which, in the aggregate, substantially affects interstate commerce. We first examine the ESA‘s status as a comprehensive regulatory scheme substantially affecting 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 essential part of that scheme.
As a preliminary matter, PETPO argues that we must employ a substantial effects analysis with regard to regulation of take of the Utah prairie dog alone, not with respect to all species or the ESA generally. See Aplee.‘s Br. at 27-31. Specifically, PETPO contends that its claim is like those presented in Lopez and Morrison, because PETPO facially challenges 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 concerns implicated in Raich do not apply and so we must engage in a straightforward substantial effects analysis as to the regulation of take of the Utah prairie dog alone. But this argument misconstrues the standard that Raich establishes and the substance of the claim that PETPO actually asserts.
As established supra, the real crux of PETPO‘s challenge is not a challenge to any particular FWS regulation but to Congress‘s power to authorize regulation of the Utah prairie dog. Although PETPO is, in a sense, correct that the prohibition on take of the Utah prairie dog is “a particular challenged provision,” Aplee.‘s Br. at 29, this prohibition finds its place within the broader regulatory scheme of the ESA‘s protections of endangered and threatened species. More specifically, the prohibition at issue is an instance of Congress‘s broad authorization to use regulations to extend the take protections that endangered species enjoy to those listed as threatened. See
PETPO points to no authority suggesting that a challenge such as this should be considered under a narrow application of the substantial effects test rather than the Raich comprehensive regulatory scheme framework. PETPO mischaracterizes FWS‘s and FoA‘s arguments as suggesting that the substantial effects test must be applied “to an enactment as a whole, rather than a particular challenged provision.” Aplee.‘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 that 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 regulatory schemes such as the CSA in Raich or the ESA in the present case. The CSA “re-
In contradistinction to the CSA, the Court pointed to the Gun-Free School Zones Act of 1990 that Lopez struck down as being “at 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 economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.“). Despite the fact that the Gun-Free School Zones Act of 1990 was part of a single, large enactment—the Crime Control Act of 1990, Pub. L. No. 101-647, 104 Stat. 4789—the Court had no difficulty recognizing that this broader enactment was not a comprehensive regulatory scheme, dealing as it did with subjects as diverse as international money laundering, child abuse, and victims’ rights. See 104 Stat. at 4789, 4792 (for example, Title I of the Crime Control Act of 1990 addresses international money laundering, while Title II is the Victims of Child Abuse Act of 1990). Indeed, the Court in both Lopez and Raich looked past the larger enactment and characterized the Gun-Free School Zones Act as an independent statute. Lopez, 514 U.S. at 561 (“Section 922(q) is a criminal statute.... “); Raich, 545 U.S. at 23 (describing the Gun-Free School Zones Act as “a brief, 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 directive to the Sentencing Commission to produce a report on mandatory minimum sentences).
The prohibition against felon possession of body armor we dealt with in Patton and the Violence Against Women Act of 1994 that Morrison addressed are equally distinguishable from comprehensive regulatory schemes such as the CSA or ESA. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 2, 108 Stat. 1796, 1796-1807 (table of contents of the enactment containing the Violence Against Women Act as one of thirty-three separate titles addressing a variety of subjects); 21st Century Department of Justice Appropriations Authorization 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 Armor Act of 2002 along with, inter alia, provisions addressing appropriations for the Department of Justice, drug treatment and prevention, and the Boys and Girls Clubs of America). That all of these laws were passed as parts of larger congressional enactments is immaterial under Raich, which concerns comprehensive regulatory regimes.
PETPO concedes that because “all classes of activities can be subdivided to find that they don‘t substantially affect interstate commerce, excising a particular party‘s activity could potentially subject the Commerce Clause to death by a thousand cuts.” Aplee.‘s Br. at 28. Although the language of “excising a particular party‘s activity” is at least not linguistically congruent with Raich, which speaks of “individual instances of [a] class,” Raich, 545 U.S. at 17, 23, we would do well to
More specifically, every federal appellate court that has addressed whether the ESA is a comprehensive scheme substantially affecting commerce has aggregated its effects on all threatened and endangered species.7 See San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1175-76 (9th Cir. 2011) (“Pursuant to Raich, when a statute is challenged under the Commerce Clause, courts must evaluate the aggregate effect of the statute (rather than an isolated application) in determining whether the statute relates to ‘commerce or any sort of economic enterprise.’ ... We and other courts have discussed at length why the protection of threatened or endangered species implicates economic concerns.“); Ala.-Tombigbee Rivers Coal., 477 F.3d at 1273 (“If the process of listing endangered species is ‘an essential part of a larger regulation of economic activity,’ then whether that process ‘ensnares some purely intrastate activity is of no moment.’ ... The [ESA] prohibits all interstate and foreign 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) (determining whether “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 lost absent regulation,” as well as observing that the majority of takes of species “result from economic 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 extinction of the individual endangered species at issue in this case, but also to the aggregate effect of the extinction of all similarly situated endangered species.“); cf. Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452, 475-77 (5th Cir. 2016) (aggregating all ESA critical habitat designations and upholding FWS designation of private, purely intrastate land for purely intrastate frog species under the Commerce Clause).
PETPO next argues that the ESA “is a comprehensive scheme to provide for environmental conservation, not [to] regulate a
As an initial matter, the passage that PETPO cites from Raich as support for this argument concerns whether a rational basis exists for believing that regulation of intrastate activity was essential to the CSA, not whether the comprehensive scheme of the CSA itself involved the regulation of commerce. Raich, 545 U.S. at 22 (“[W]e have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.“). Further, the Ninth Circuit has persuasively rejected 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 effect’ on interstate commerce because, unlike the Controlled Substance Act upheld in Raich, it ‘is not a “comprehensive economic regulatory scheme.“‘” San Luis, 638 F.3d at 1177 (emphasis added). The Ninth Circuit explained that “[t]he Supreme Court has never required that a statute be a ‘compre-
PETPO wisely does not even attempt to dispute this; the substantial relationship between the ESA and interstate commerce is patent. First, regulation of take of endangered and threatened species is directly related to—indeed, arguably inversely correlated with—economic development and commercial activity. See
Second, Congress‘s purposes in enacting 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 History 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 uses should engender appropriate caution, “[t]he institutionalization of that caution 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 can 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 completely 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 promote commercial activity in the long run.
And third, the ESA‘s prohibitions help fuel an illegal wildlife trade that generates $5-8 billion annually—an illegal market second in size only to the illegal narcotics market. Because “Congress’ power to regulate commerce includes the power to prohibit commerce,” whether the targeted market “is a lawful market that Congress sought to protect and stabilize” or “an unlawful market that Congress sought to eradicate” “is of no constitutional import.” Raich, 545 U.S. at 19 n.29. These are salient reasons why the ESA substantially affects interstate commerce.
Next, we conclude that Congress had a rational basis to believe that providing for the regulation of take of purely intrastate species like the Utah prairie dog
Every one of our sister circuits that has addressed this issue has agreed that regulation of purely intrastate species is an essential part of the ESA‘s regulatory scheme. See GDF Realty, 326 F.3d at 640 (concluding that regulation of purely intrastate Cave Species takes “is an essential part of” ESA‘s larger regulatory scheme); Gibbs, 214 F.3d at 487 (“This regulation [prohibiting take of red wolves] is also sustainable as ‘an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.‘” (quoting Lopez, 514 U.S. at 561)); see also Markle Interests, 827 F.3d at 476-78 (upholding FWS critical-habitat designations—in that case, of purely intrastate land for a purely intrastate species—under the Commerce Clause because such regulation is an essential 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 interstate commerce, it is clear that the listing process is ‘an essential part’ of that ‘larger regulation of economic activity.‘” (quoting Raich, 545 U.S. at 22, 24)). We agree with these courts that Congress had a rational basis to conclude that providing for the protection of purely intrastate species is essential to the ESA‘s comprehensive regulatory scheme.
And, having reached such a determination, courts appear to be led ineluctably to conclude that Congress has authority under the Commerce Clause to regulate purely intrastate species, including regulating the take thereof, under the ESA—either through a particular 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, intrastate land as critical habitat
Finding the foregoing authority persuasive, we likewise conclude that the regulation on nonfederal land of take of a purely intrastate species, like the Utah Prairie dog, under the ESA is a constitutional exercise of congressional authority under the Commerce Clause. And if Congress could itself regulate take of the Utah prairie dog on nonfederal land, it could also constitutionally authorize the Secretary of the Interior to promulgate regulations to achieve this end. Because we uphold this regulatory exercise under an enumerated power, the Commerce Clause, we need not consider its constitutionality 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. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1094 (10th Cir. 2010) (“Judicial restraint, after all, usually means answering only the questions we must, not those we can.“).
IV
In sum, we REVERSE and REMAND with instructions to enter judgment for FWS and FoA.