National Association Of Home Builders v. Babbitt

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

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Nature of the Case

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Facts

Section 9(a)(1) of the ESA makes it unlawful for any person to 'take'--i.e., 'to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct,' --any endangered species. The Fish and Wildlife Service (FWS) placed the Delhi Sands Flower-Loving Fly, an insect that is native to the San Bernardino area of California, on the endangered species list. The listing of the Fly, the habitat of which is located entirely within an eight-mile radius in San Bernardino County and Riverside County, California, forced San Bernardino County to alter plans to construct a new hospital on a recently purchased site that the FWS had determined contained Fly habitat. The FWS and San Bernardino County agreed on a plan that would allow the County to build the hospital and a power plant in the area designated as Fly habitat in return for modification of the construction plans and purchase and set aside of nearby land as Fly habitat. During the same month, the County notified the FWS that it planned to redesign a nearby intersection to improve emergency vehicle access to the hospital. The FWS informed the County that expansion of the intersection as planned would likely lead to a 'taking' of the Fly in violation of ESA section 9(a). The County (P) filed suit in district court challenging the application of section 9(a)(1) to the Fly. Ps argue that the federal government does not have the authority to regulate the use of non-federal lands in order to protect the Fly, which is found only within a single state. 'The Constitution of the United States does not grant the federal government the authority to regulate wildlife, nor does it authorize federal regulation of nonfederal lands.' Ps sought a declaration that the application of section 9 exceeds Congress' Commerce Clause power. The court concluded that the federal government's 'limited and enumerated' powers include the power to regulate wildlife and non-federal lands that serve as the habitat for endangered species. The court also concluded that the ESA provides for a regulatory scheme that is within the bounds of Congress' power under the Commerce Clause. The court entered summary judgment for Ds. Ps appealed.