The commerce clause meets the Delhi sands flower-loving fly

Michigan Law Review

Volumn 97, Issue 1, 1998, Pages 174-215

  Nagle, John Copeland ^a  

^a NONE

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EID: 0010094986     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290155     Document Type: Article

References (189)

1. OGDEN NASH, The Fly, in GOOD INTENTIONS 173 (1942).
2. See Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Delhi Sands Flower-loving Fly, 58 Fed. Reg. 49,881 (1993) (to be codified at 30 C.F.R. pt. 17:11 (n)) [hereinafter FWS Fly Listing Decision]. To see a nice color picture of the Fly, see Delhi Sands Flower-Loving Fly (Diptera Apioceridae) 〈http://shanana.berkeley.edu/essig/endins/raphiomi.htm〉. For more detail about the life of the Fly, see FWS Fly Listing Decision, supra, at 49,881-82; U.S. FISH & WILDLIFE SERVICE, TECHNICAL/AGENCY DRAFT RECOVERY PLAN FOR THE DELHI SANDS FLOWER-LOVING FLY (Rhaphiomidas terminatus abdonimalis) 1-2 (1996) [hereinafter FLY DRAFT RECOVERY PLAN]; Kenneth J. Kingsley, Behavior of the Delhi Sands Flower-Loving Fly (Diptera: Mydidae), A Little-Known Endangered Species, 89 ANNALS ENTOMOL. SOCY. AM. 883, 883- 91 (1996).
3. See Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Delhi Sands Flower-loving Fly, 58 Fed. Reg. 49,881 (1993) (to be codified at 30 C.F.R. pt. 17:11 (n)) [hereinafter FWS Fly Listing Decision]. To see a nice color picture of the Fly, see Delhi Sands Flower-Loving Fly (Diptera Apioceridae) 〈http://shanana.berkeley.edu/essig/endins/raphiomi.htm〉. For more detail about the life of the Fly, see FWS Fly Listing Decision, supra, at 49,881-82; U.S. FISH & WILDLIFE SERVICE, TECHNICAL/AGENCY DRAFT RECOVERY PLAN FOR THE DELHI SANDS FLOWER-LOVING FLY (Rhaphiomidas terminatus abdonimalis) 1-2 (1996) [hereinafter FLY DRAFT RECOVERY PLAN]; Kenneth J. Kingsley, Behavior of the Delhi Sands Flower-Loving Fly (Diptera: Mydidae), A Little-Known Endangered Species, 89 ANNALS ENTOMOL. SOCY. AM. 883, 883- 91 (1996).
4. See Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Delhi Sands Flower-loving Fly, 58 Fed. Reg. 49,881 (1993) (to be codified at 30 C.F.R. pt. 17:11 (n)) [hereinafter FWS Fly Listing Decision]. To see a nice color picture of the Fly, see Delhi Sands Flower-Loving Fly (Diptera Apioceridae) 〈http://shanana.berkeley.edu/essig/endins/raphiomi.htm〉. For more detail about the life of the Fly, see FWS Fly Listing Decision, supra, at 49,881-82; U.S. FISH & WILDLIFE SERVICE, TECHNICAL/AGENCY DRAFT RECOVERY PLAN FOR THE DELHI SANDS FLOWER-LOVING FLY (Rhaphiomidas terminatus abdonimalis) 1-2 (1996) [hereinafter FLY DRAFT RECOVERY PLAN]; Kenneth J. Kingsley, Behavior of the Delhi Sands Flower-Loving Fly (Diptera: Mydidae), A Little-Known Endangered Species, 89 ANNALS ENTOMOL. SOCY. AM. 883, 883- 91 (1996).
5. See Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Delhi Sands Flower-loving Fly, 58 Fed. Reg. 49,881 (1993) (to be codified at 30 C.F.R. pt. 17:11 (n)) [hereinafter FWS Fly Listing Decision]. To see a nice color picture of the Fly, see Delhi Sands Flower-Loving Fly (Diptera Apioceridae) 〈http://shanana.berkeley.edu/essig/endins/raphiomi.htm〉. For more detail about the life of the Fly, see FWS Fly Listing Decision, supra, at 49,881-82; U.S. FISH & WILDLIFE SERVICE, TECHNICAL/AGENCY DRAFT RECOVERY PLAN FOR THE DELHI SANDS FLOWER-LOVING FLY (Rhaphiomidas terminatus abdonimalis) 1-2 (1996) [hereinafter FLY DRAFT RECOVERY PLAN]; Kenneth J. Kingsley, Behavior of the Delhi Sands Flower-Loving Fly (Diptera: Mydidae), A Little-Known Endangered Species, 89 ANNALS ENTOMOL. SOCY. AM. 883, 883- 91 (1996).
6. See Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Delhi Sands Flower-loving Fly, 58 Fed. Reg. 49,881 (1993) (to be codified at 30 C.F.R. pt. 17:11 (n)) [hereinafter FWS Fly Listing Decision]. To see a nice color picture of the Fly, see Delhi Sands Flower-Loving Fly (Diptera Apioceridae) 〈http://shanana.berkeley.edu/essig/endins/raphiomi.htm〉. For more detail about the life of the Fly, see FWS Fly Listing Decision, supra, at 49,881-82; U.S. FISH & WILDLIFE SERVICE, TECHNICAL/AGENCY DRAFT RECOVERY PLAN FOR THE DELHI SANDS FLOWER-LOVING FLY (Rhaphiomidas terminatus abdonimalis) 1-2 (1996) [hereinafter FLY DRAFT RECOVERY PLAN]; Kenneth J. Kingsley, Behavior of the Delhi Sands Flower-Loving Fly (Diptera: Mydidae), A Little-Known Endangered Species, 89 ANNALS ENTOMOL. SOCY. AM. 883, 883- 91 (1996).
7. See Endangered and Threatened Wildlife and Plants; Determination of Endangered Status for the Delhi Sands Flower-loving Fly, 58 Fed. Reg. 49,881 (1993) (to be codified at 30 C.F.R. pt. 17:11 (n)) [hereinafter FWS Fly Listing Decision]. To see a nice color picture of the Fly, see Delhi Sands Flower-Loving Fly (Diptera Apioceridae) 〈http://shanana.berkeley.edu/essig/endins/raphiomi.htm〉. For more detail about the life of the Fly, see FWS Fly Listing Decision, supra, at 49,881-82; U.S. FISH & WILDLIFE SERVICE, TECHNICAL/AGENCY DRAFT RECOVERY PLAN FOR THE DELHI SANDS FLOWER-LOVING FLY (Rhaphiomidas terminatus abdonimalis) 1-2 (1996) [hereinafter FLY DRAFT RECOVERY PLAN]; Kenneth J. Kingsley, Behavior of the Delhi Sands Flower-Loving Fly (Diptera: Mydidae), A Little-Known Endangered Species, 89 ANNALS ENTOMOL. SOCY. AM. 883, 883-91 (1996).
8. See National Assn. of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), cert. denied, 118 S. Ct. 2340 (1998).
9. See William Booth, Developers Wish Rare Fly Would Buzz Off: Flower-Loving Insect Becomes Symbol for Opponents of Endangered Species Act, WASH. POST. Apr. 4, 1997, at A1 (noting that "the fly today shares its shrinking home with a cement quarry, a petroleum tank farm, a sewage plant and a Superfund site known ominously as the Stringfellow Acid Pits," and quoting a local official who characterized the site as "a bunch of dirt and weeds").
10. See FWS Fly Listing Decision, supra note 2; see also National Assn. of Home Builders, 130 F.3d at 1060 (Sentelle, J., dissenting) (noting that the FWS listed the Fly on the day before construction of the hospital was scheduled to begin).
11. See FWS Fly Listing Decision, supra note 2; see also National Assn. of Home Builders, 130 F.3d at 1060 (Sentelle, J., dissenting) (noting that the FWS listed the Fly on the day before construction of the hospital was scheduled to begin).
12. See 16 U.S.C. § 1538(a) (1994).
13. 50 C.F.R. § 17.3 (1997); see also Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995) (upholding the Fish & Wildlife Service regulation defining "take" to include certain habitat destruction).
14. For the saga of the Fly and its competitors, see National Assn. of Home Builders, 130 F.3d at 1043-45; 130 F.3d at 1060 (Sentelle, J., dissenting); Endangered Species Act Reauthorization: Hearings Before the Subcomm. on Drinking Water, Fisheries, and Wildlife of the Senate Comm. on Envt. and Public Works, 104th Cong. 804-06 (1995) (statement of Randy Scott, Planning Manager, San Bernardino County); Booth, supra note 4, at A1; David G. Savage, Buzz Over a Fly Presents Challenge to Species Act, L.A. TIMES, June 15, 1998, at A1.
15. For the saga of the Fly and its competitors, see National Assn. of Home Builders, 130 F.3d at 1043-45; 130 F.3d at 1060 (Sentelle, J., dissenting); Endangered Species Act Reauthorization: Hearings Before the Subcomm. on Drinking Water, Fisheries, and Wildlife of the Senate Comm. on Envt. and Public Works, 104th Cong. 804-06 (1995) (statement of Randy Scott, Planning Manager, San Bernardino County); Booth, supra note 4, at A1; David G. Savage, Buzz Over a Fly Presents Challenge to Species Act, L.A. TIMES, June 15, 1998, at A1.
16. For the saga of the Fly and its competitors, see National Assn. of Home Builders, 130 F.3d at 1043-45; 130 F.3d at 1060 (Sentelle, J., dissenting); Endangered Species Act Reauthorization: Hearings Before the Subcomm. on Drinking Water, Fisheries, and Wildlife of the Senate Comm. on Envt. and Public Works, 104th Cong. 804-06 (1995) (statement of Randy Scott, Planning Manager, San Bernardino County); Booth, supra note 4, at A1; David G. Savage, Buzz Over a Fly Presents Challenge to Species Act, L.A. TIMES, June 15, 1998, at A1.
17. 514 U.S. 549 (1995).
18. 18 U.S.C. § 922(q) (1990).
19. See Lopez, 514 U.S. at 558-59.
20. See 514 U.S. at 584-602 (Thomas, J., concurring).
21. See 514 U.S. at 618-25 (Breyer, J., dissenting).
22. See 514 U.S. at 564 (protesting that Justice Breyer's dissent was "unable to identify any activity that the States may regulate but Congress may not"); 514 U.S. at 567 (stating that the Court was unwilling to conclude that "the Constitution's enumeration of powers does not presuppose something not enumerated").
23. See, e.g., United States v. Robertson, 514 U.S. 669 (1995) (upholding the application of RICO to a defendant who invested illegal drug proceeds in a gold mine); Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265 (1995) (sustaining the application of the Federal Arbitration Act to a termite protection contract signed by an Alabama homeowner); see generally Deborah Jones Merritt, Commerce!, 94 MICH. L. REV. 674, 731-38 (1995) (describing these cases and other recent Commerce Clause cases in which the Court denied certiorari).
24. See, e.g., Brzonkala v. Virginia Polytechnic Inst. & State Univ., 132 F.3d 949 (4th Cir. 1997) (2-1 decision upholding the Violence Against Women Act); United States v. Bailey, 115 F.3d 1222 (5th Cir. 1997) (2-1 decision upholding the Child Support Recovery Act), cert. denied, 118 S. Ct. 866 (1997); United States v. Wilson, 73 F.3d 675 (7th Cir. 1995) (2-1 decision upholding the Freedom of Access to Clinic Entrances Act); United States v. Bishop, 66 F.3d 569 (3d Cir. 1995) (2-1 decision upholding the federal carjacking statute). Such decisions caused the opponents of the ESA's application to the Fly to declare that "[t]he judges of the lower federal courts . . . haven't the foggiest idea what [the Supreme] Court meant when it decided Lopez." Petition for Writ of Certiorari at 5, National Assn. of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997).
25. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) (invalidating a regulation extending the jurisdiction of the Clean Water Act to waters whose degradation "could" affect interstate commerce); United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996) (Hand, J.) (holding that CERCLA cannot be applied to an inactive hazardous waste site with no ongoing connection to interstate commerce), revd., 107 F.3d 1506 (11th Cir. 1997); see also Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 262 (7th Cir. 1993) (Manion, J., concurring in the judgment) (concluding that the Commerce Clause prohibits the Clean Water Act from reaching isolated wetlands). Additionally, several commentators have expressed doubts about the consistency of the ESA and other environmental statutes with the Commerce Clause post-Lopez. See J. Blanding Holman IV, After United States v. Lopez: Can the Clean Water Act and the Endangered Species Act Survive Commerce Clause Attack?, 15 VA. ENVTL. L.J. 139, 141 (1995) (concluding that the ESA's takings provision "is at risk" until Congress acts to clarify the economic value of biodiversity); Stephen M. Johnson, United States v. Lopez: A Misstep, but Hardly Epochal for Federal Environmental Regulation, 5 N.Y.U. ENVTL. L.J. 33, 78-79 (1996) (observing that "[f]ederal regulation of endangered species that are not articles of commerce may be the most difficult environmental regulation to justify after Lopez"); David A. Linehan, Note, Endangered Regulation: Why the Commerce Clause May No Longer Be Suitable Habitat for Endangered Species and Wetlands Regulation, 2 TEX. REV. L. & POL. 365, 367 (1998) (concluding that the ESA's takings prohibition is "no longer defensible as [a] proper exercise[] of congressional power under the Commerce Clause"); see also Suzanna Sherry, The Barking Dog, 46 CASE W. RES. L. REV. 877, 881 (1996) (describing the destruction of endangered species habitat by private landowners as "an activity only speculatively related to interstate commerce").
26. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) (invalidating a regulation extending the jurisdiction of the Clean Water Act to waters whose degradation "could" affect interstate commerce); United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996) (Hand, J.) (holding that CERCLA cannot be applied to an inactive hazardous waste site with no ongoing connection to interstate commerce), revd., 107 F.3d 1506 (11th Cir. 1997); see also Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 262 (7th Cir. 1993) (Manion, J., concurring in the judgment) (concluding that the Commerce Clause prohibits the Clean Water Act from reaching isolated wetlands). Additionally, several commentators have expressed doubts about the consistency of the ESA and other environmental statutes with the Commerce Clause post- Lopez. See J. Blanding Holman IV, After United States v. Lopez: Can the Clean Water Act and the Endangered Species Act Survive Commerce Clause Attack?, 15 VA. ENVTL. L.J. 139, 141 (1995) (concluding that the ESA's takings provision "is at risk" until Congress acts to clarify the economic value of biodiversity); Stephen M. Johnson, United States v. Lopez: A Misstep, but Hardly Epochal for Federal Environmental Regulation, 5 N.Y.U. ENVTL. L.J. 33, 78-79 (1996) (observing that "[f]ederal regulation of endangered species that are not articles of commerce may be the most difficult environmental regulation to justify after Lopez"); David A. Linehan, Note, Endangered Regulation: Why the Commerce Clause May No Longer Be Suitable Habitat for Endangered Species and Wetlands Regulation, 2 TEX. REV. L. & POL. 365, 367 (1998) (concluding that the ESA's takings prohibition is "no longer defensible as [a] proper exercise[] of congressional power under the Commerce Clause"); see also Suzanna Sherry, The Barking Dog, 46 CASE W. RES. L. REV. 877, 881 (1996) (describing the destruction of endangered species habitat by private landowners as "an activity only speculatively related to interstate commerce").
27. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) (invalidating a regulation extending the jurisdiction of the Clean Water Act to waters whose degradation "could" affect interstate commerce); United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996) (Hand, J.) (holding that CERCLA cannot be applied to an inactive hazardous waste site with no ongoing connection to interstate commerce), revd., 107 F.3d 1506 (11th Cir. 1997); see also Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 262 (7th Cir. 1993) (Manion, J., concurring in the judgment) (concluding that the Commerce Clause prohibits the Clean Water Act from reaching isolated wetlands). Additionally, several commentators have expressed doubts about the consistency of the ESA and other environmental statutes with the Commerce Clause post- Lopez. See J. Blanding Holman IV, After United States v. Lopez: Can the Clean Water Act and the Endangered Species Act Survive Commerce Clause Attack?, 15 VA. ENVTL. L.J. 139, 141 (1995) (concluding that the ESA's takings provision "is at risk" until Congress acts to clarify the economic value of biodiversity); Stephen M. Johnson, United States v. Lopez: A Misstep, but Hardly Epochal for Federal Environmental Regulation, 5 N.Y.U. ENVTL. L.J. 33, 78-79 (1996) (observing that "[f]ederal regulation of endangered species that are not articles of commerce may be the most difficult environmental regulation to justify after Lopez"); David A. Linehan, Note, Endangered Regulation: Why the Commerce Clause May No Longer Be Suitable Habitat for Endangered Species and Wetlands Regulation, 2 TEX. REV. L. & POL. 365, 367 (1998) (concluding that the ESA's takings prohibition is "no longer defensible as [a] proper exercise[] of congressional power under the Commerce Clause"); see also Suzanna Sherry, The Barking Dog, 46 CASE W. RES. L. REV. 877, 881 (1996) (describing the destruction of endangered species habitat by private landowners as "an activity only speculatively related to interstate commerce").
28. See United States v. Wilson, 133 F.3d 251 (4th Cir. 1997) (invalidating a regulation extending the jurisdiction of the Clean Water Act to waters whose degradation "could" affect interstate commerce); United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996) (Hand, J.) (holding that CERCLA cannot be applied to an inactive hazardous waste site with no ongoing connection to interstate commerce), revd., 107 F.3d 1506 (11th Cir. 1997); see also Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 262 (7th Cir. 1993) (Manion, J., concurring in the judgment) (concluding that the Commerce Clause prohibits the Clean Water Act from reaching isolated wetlands). Additionally, several commentators have expressed doubts about the consistency of the ESA and other environmental statutes with the Commerce Clause post- Lopez. See J. Blanding Holman IV, After United States v. Lopez: Can the Clean Water Act and the Endangered Species Act Survive Commerce Clause Attack?, 15 VA. ENVTL. L.J. 139, 141 (1995) (concluding that the ESA's takings provision "is at risk" until Congress acts to clarify the economic value of biodiversity); Stephen M. Johnson, United States v. Lopez: A Misstep, but Hardly Epochal for Federal Environmental Regulation, 5 N.Y.U. ENVTL. L.J. 33, 78-79 (1996) (observing that "[f]ederal regulation of endangered species that are not articles of commerce may be the most difficult environmental regulation to justify after Lopez"); David A. Linehan, Note, Endangered Regulation: Why the Commerce Clause May No Longer Be Suitable Habitat for Endangered Species and Wetlands Regulation, 2 TEX. REV. L. & POL. 365, 367 (1998) (concluding that the ESA's takings prohibition is "no longer defensible as [a] proper exercise[] of congressional power under the Commerce Clause"); see also Suzanna Sherry, The Barking Dog, 46 CASE W. RES. L. REV. 877, 881 (1996) (describing the destruction of endangered species habitat by private landowners as "an activity only speculatively related to interstate commerce").
29. See National Assn. of Home Builders v. Babbitt, 949 F. Supp. 1, 8 (D.D.C. 1996), affd., 130 F.3d 1041 (D.C. Cir. 1997).
30. See National Assn. of Home Builders, 130 F.3d at 1046-49 (Wald, J.).
31. See 130 F.3d at 1049-57 (Wald, J.).
32. See 130 F.3d at 1057-60 (Henderson, J., concurring).
33. See 130 F.3d at 1060-67 (Sentelle, J., dissenting).
34. This is somewhat of an exaggeration insofar as Judge Wald did note the impact of the hospital on interstate commerce, see 130 F.3d at 1048, while Judge Henderson relied upon the narrower view of the impact of endangered species on interstate commerce as an alternative basis for her concurrence see 130 F.3d at 1058-59. I describe their focus as being on endangered species or the hospital, respectively, because Judge Wald spent much more time discussing endangered species than the hospital, whereas Judge Henderson's opinion gave the two topics about equal weight despite the nearly exclusive focus on endangered species adopted by the other courts and commentators to consider the question. See, e.g., Building Indus. Assn. v. Babbitt, 979 F. Supp. 893, 906-08 (D.D.C. 1997) (explaining the relationship between endangered species and interstate commerce); Johnson, supra note 17, at 77-82 (focusing on the relationship between endangered species and interstate commerce).
35. See Tennessee Valley Auth. v. Hill, 437 U.S. 153, 174, 184 (1978) (observing that Congress wanted to afford endangered species "the highest of priorities" and to "reverse the trend toward extinction, whatever the cost").
36. 317 U.S. 111 (1942).
37. See GEOFFREY R. STONE ET AL., CONSTITUTIONAL LAW 226 (3d ed. 1996) (suggesting that neither Wickard nor Lopez say how one determines what activities are sufficiently similar to be aggregated).
38. Of course all flies suffer from this last indignity, not just the Delhi Sands Flower-Loving Fly. See FLY DRAFT RECOVERY PLAN, supra note 2, at 35 (proposing a public relations campaign "aimed at dispelling the public's automatic association with, and disdain for, house flies"). For some of the rare instances in which flies have gained some popular attention, see THE FLY (Twentieth Century Fox Film Corp. 1986) (starring Geena Davis and Jeff Goldblum); THE FLY (Twentieth Century Fox Film Corp. 1958) (starring Vincent Price); and my personal favorite, MIKE MCCLINTOCK, A FLY WENT BY (1958).
39. Of course all flies suffer from this last indignity, not just the Delhi Sands Flower- Loving Fly. See FLY DRAFT RECOVERY PLAN, supra note 2, at 35 (proposing a public relations campaign "aimed at dispelling the public's automatic association with, and disdain for, house flies"). For some of the rare instances in which flies have gained some popular attention, see THE FLY (Twentieth Century Fox Film Corp. 1986) (starring Geena Davis and Jeff Goldblum); THE FLY (Twentieth Century Fox Film Corp. 1958) (starring Vincent Price); and my personal favorite, MIKE MCCLINTOCK, A FLY WENT BY (1958).
40. Of course all flies suffer from this last indignity, not just the Delhi Sands Flower- Loving Fly. See FLY DRAFT RECOVERY PLAN, supra note 2, at 35 (proposing a public relations campaign "aimed at dispelling the public's automatic association with, and disdain for, house flies"). For some of the rare instances in which flies have gained some popular attention, see THE FLY (Twentieth Century Fox Film Corp. 1986) (starring Geena Davis and Jeff Goldblum); THE FLY (Twentieth Century Fox Film Corp. 1958) (starring Vincent Price); and my personal favorite, MIKE MCCLINTOCK, A FLY WENT BY (1958).
41. Of course all flies suffer from this last indignity, not just the Delhi Sands Flower- Loving Fly. See FLY DRAFT RECOVERY PLAN, supra note 2, at 35 (proposing a public relations campaign "aimed at dispelling the public's automatic association with, and disdain for, house flies"). For some of the rare instances in which flies have gained some popular attention, see THE FLY (Twentieth Century Fox Film Corp. 1986) (starring Geena Davis and Jeff Goldblum); THE FLY (Twentieth Century Fox Film Corp. 1958) (starring Vincent Price); and my personal favorite, MIKE MCCLINTOCK, A FLY WENT BY (1958).
42. See National Assn. of Home Builders v. Babbitt, 949 F. Supp. 1, 8 (D.D.C. 1996), affd., 130 F.3d 1041 (D.C. Cir. 1997); Brief for the Appellees at 32-33, National Assn. of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (No.96-5354) [hereinafter U.S. Brief]; accord FWS Fly Listing Decision, supra note 2, at 49,885 (noting that "[a]lthough flies in general are not especially popular with collectors, Rhaphiomidas flies [which includes the Delhi Sands Flower-Loving Fly] are prized because of their unusual size, coloration, and rarity"); Booth, supra note 4, at A1 (quoting the scientist who petitioned for the listing of the Fly under the ESA as saying, "If you see a live one flying around you don't soon forget it. It's spectacular."); Endangered! Delhi Sands Fly 〈http://www.amnh.org/Exhibition/Expedition/Endangered/fly/fly.html〉 (feature on the Fly published at the American Museum of Natural History's web site).
43. See National Assn. of Home Builders v. Babbitt, 949 F. Supp. 1, 8 (D.D.C. 1996), affd., 130 F.3d 1041 (D.C. Cir. 1997); Brief for the Appellees at 32-33, National Assn. of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (No.96-5354) [hereinafter U.S. Brief]; accord FWS Fly Listing Decision, supra note 2, at 49,885 (noting that "[a]lthough flies in general are not especially popular with collectors, Rhaphiomidas flies [which includes the Delhi Sands Flower-Loving Fly] are prized because of their unusual size, coloration, and rarity"); Booth, supra note 4, at A1 (quoting the scientist who petitioned for the listing of the Fly under the ESA as saying, "If you see a live one flying around you don't soon forget it. It's spectacular."); Endangered! Delhi Sands Fly 〈http://www.amnh.org/Exhibition/Expedition/Endangered/fly/fly.html〉 (feature on the Fly published at the American Museum of Natural History's web site).
44. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992); 504 U.S. at 579 (Kennedy, J., concurring).
45. See Endangered and Threatened Wildlife and Plants; Final Rule to List Three Aquatic Invertebrates in Comal and Hays Counties, TX, as Endangered, 62 Fed. Reg. 66,295, 66,296 (1997) (to be codified at 50 C.F.R. pt. 17).
46. See Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for the Cowhead Lake Tui Chub, 63 Fed. Reg. 15,152, 15,152-53 (1998) (to be codified at 50 C.F.R. pt. 17). Note that the proposal to list the species has not yet become final.
47. See Endangered and Threatened Wildlife and Plants; Proposed Threatened Status for the Plant Astragalus Desereticus (Deseret milk-vetch), 63 Fed. Reg. 4,207 (1998) (to be codified at 50 C.F.R. pt. 17) [hereinafter FWS Deseret Milk-Vetch Listing]. Note that the plant appears to be tasty to cattle, see id. at 4,209, and that plants do not receive the protection of the ESA's takings prohibition, although plants on federal land cannot be removed, maliciously damaged, or destroyed, see 16 U.S.C. § 1538(a)(2)(B) (1994).
48. See Endangered and Threatened Wildlife and Plants; Final Rule to List the Illinois Cave Amphipod as Endangered, 63 Fed. Reg. 46,900, 46,902 (1998) (to be codified at 50 C.F.R. pt. 17)
49. See National Assn. of Home Builders v. Babbitt, 130 F.3d 1041, 1053 (D.C. Cir. 1997).
50. See FWS Fly Listing Decision, supra note 2, at 49,881.
51. See National Assn. of Home Builders, 130 F.3d at 1052-53 (Wald, J.).
52. National Assn. of Home Builders, 130 F.3d at 1053 (Wald, J.) ("A species whose worth is still unmeasured has what economists call an 'option value' - the value of the possibility that a future discovery will make useful a species that is currently thought of as useless.") (citing Bryan Norton, Commodity, Amenity, and Morality: The Limits of Quantification in Valuing Biodiversity, in BIODIVERSITY 200, 202 (Edward O. Wilson ed., 1988)).
53. National Assn. of Home Builders, 130 F.3d at 1053 (Wald, J.) ("A species whose worth is still unmeasured has what economists call an 'option value' - the value of the possibility that a future discovery will make useful a species that is currently thought of as useless.") (citing Bryan Norton, Commodity, Amenity, and Morality: The Limits of Quantification in Valuing Biodiversity, in BIODIVERSITY 200, 202 (Edward O. Wilson ed., 1988)).
54. See National Assn. of Home Builders, 130 F.3d at 1061 (Sentelle, J., dissenting).
55. National Assn. of Home Builders, 130 F.3d at 1058 (Henderson, J., concurring).
56. See National Assn. of Home Builders, 130 F.3d at 1053 (Wald, J.); CHARLES C. MANN & MARK L. PLUMMER, NOAH'S CHOICE: THE FUTURE OF ENDANGERED SPECIES 121-22 (1995) (observing that "biologists frequently liken the world's biodiversity to a library in which the vast majority of books have never been read. . . . Reading the books in the species library once will not be enough . . . . Each generation will profit from reading them over and over again.").
57. See National Assn. of Home Builders, 130 F.3d at 1053 (Wald, J.); CHARLES C. MANN & MARK L. PLUMMER, NOAH'S CHOICE: THE FUTURE OF ENDANGERED SPECIES 121-22 (1995) (observing that "biologists frequently liken the world's biodiversity to a library in which the vast majority of books have never been read. . . . Reading the books in the species library once will not be enough . . . . Each generation will profit from reading them over and over again.").
58. 16 U.S.C. § 1531(a)(3) (1994).
59. See JAMES D. CAUDILL, 1991 ECONOMIC IMPACTS OF NONCONSUMPTIVE WILDLIFE-RELATED RECREATION 6-7 (1997) (Fish & Wildlife Service report finding that the 76 million Americans who watched, photographed, and fed birds and other wildlife in 1991 spent $18.1 billion on those activities); U.S. Brief, supra note 28, at 19, 23 & n.12, 26-27 (providing examples of the commercial and tourism value of endangered species); see also John Copeland Nagle, Playing Noah, 82 MINN. L. REV. 1171, 1209-11 (1998) (citing additional sources).
60. See JAMES D. CAUDILL, 1991 ECONOMIC IMPACTS OF NONCONSUMPTIVE WILDLIFE- RELATED RECREATION 6-7 (1997) (Fish & Wildlife Service report finding that the 76 million Americans who watched, photographed, and fed birds and other wildlife in 1991 spent $18.1 billion on those activities); U.S. Brief, supra note 28, at 19, 23 & n.12, 26-27 (providing examples of the commercial and tourism value of endangered species); see also John Copeland Nagle, Playing Noah, 82 MINN. L. REV. 1171, 1209-11 (1998) (citing additional sources).
61. See Endangered Species Act - Bakersfield, California: Hearing Before the Task Force on Endangered Species of the House Resources Comm., 104th Cong., 1st Sess. 27 (1995) (testimony of Arthur D. Unger, Kern-Kaweah Chapter of the Sierra Club) (noting that wasps can be used to control certain breeds of flies); MANN & PLUMMER, supra note 40, at 123; NATURE'S SERVICES (Gretchen C. Daily ed., 1997) (collecting essays written by different specialists on the value of services provided by marine ecosystems, freshwater ecosystems, forests, and grasslands with respect to soil, pollination, and pest control); Nagle, supra note 42, at 1211-16 (citing additional sources).
62. See Endangered Species Act - Bakersfield, California: Hearing Before the Task Force on Endangered Species of the House Resources Comm., 104th Cong., 1st Sess. 27 (1995) (testimony of Arthur D. Unger, Kern-Kaweah Chapter of the Sierra Club) (noting that wasps can be used to control certain breeds of flies); MANN & PLUMMER, supra note 40, at 123; NATURE'S SERVICES (Gretchen C. Daily ed., 1997) (collecting essays written by different specialists on the value of services provided by marine ecosystems, freshwater ecosystems, forests, and grasslands with respect to soil, pollination, and pest control); Nagle, supra note 42, at 1211-16 (citing additional sources).
63. Cf., e.g., Nagle, supra note 42, at 1196 (describing the ESA listing of the California Red-Legged Frog memorialized by Mark Twain as the Celebrated Jumping Frog of Calaveras County).
64. See Medicinal Uses of Plants; Protection for Plants Under the Endangered Species Act: Hearing Before the Subcomm. on Envt. and Natural Resources of the House Comm. on Merchant Marine and Fisheries, 103d Cong. (1993) (discussing the efforts to obtain medicine from plants); H.R. REP. NO. 93-412, at 4-5 (1973); S. REP. NO. 91-526, at 3 (1969), reprinted in 1969 U.S.C.C.A.N. 1413, 1415; MANN & PLUMMER, supra note 40, at 120-21 ("Bark from the white willow gave us salicin, an ancient version of aspirin; the Grecian foxglove provided digoxin, a cardiac medication; bear bile is the origin of ursodiol, a gallstone dissolver; deadly nightshade led to atropine, an eye dilator and anti-inflammatory; the velvet bean produced L-dopa, a treatment for Parkinson's disease; and everyone knows the story of penicillin, the bacteria slayer discovered accidentally in a mold."); EDWARD O. WILSON, THE DIVERSITY OF LIFE 285-86 (1992); Thomas E. Lovejoy, Biodiversity: What Is It?, in BIODIVERSITY II: UNDERSTANDING AND PROTECTING OUR BIOLOGICAL RESOURCES 7, 9 (Marjorie L. Reaka- Kudla et al. eds., 1997).
65. See Medicinal Uses of Plants; Protection for Plants Under the Endangered Species Act: Hearing Before the Subcomm. on Envt. and Natural Resources of the House Comm. on Merchant Marine and Fisheries, 103d Cong. (1993) (discussing the efforts to obtain medicine from plants); H.R. REP. NO. 93-412, at 4-5 (1973); S. REP. NO. 91-526, at 3 (1969), reprinted in 1969 U.S.C.C.A.N. 1413, 1415; MANN & PLUMMER, supra note 40, at 120-21 ("Bark from the white willow gave us salicin, an ancient version of aspirin; the Grecian foxglove provided digoxin, a cardiac medication; bear bile is the origin of ursodiol, a gallstone dissolver; deadly nightshade led to atropine, an eye dilator and anti-inflammatory; the velvet bean produced L-dopa, a treatment for Parkinson's disease; and everyone knows the story of penicillin, the bacteria slayer discovered accidentally in a mold."); EDWARD O. WILSON, THE DIVERSITY OF LIFE 285-86 (1992); Thomas E. Lovejoy, Biodiversity: What Is It?, in BIODIVERSITY II: UNDERSTANDING AND PROTECTING OUR BIOLOGICAL RESOURCES 7, 9 (Marjorie L. Reaka- Kudla et al. eds., 1997).
66. See Medicinal Uses of Plants; Protection for Plants Under the Endangered Species Act: Hearing Before the Subcomm. on Envt. and Natural Resources of the House Comm. on Merchant Marine and Fisheries, 103d Cong. (1993) (discussing the efforts to obtain medicine from plants); H.R. REP. NO. 93-412, at 4-5 (1973); S. REP. NO. 91-526, at 3 (1969), reprinted in 1969 U.S.C.C.A.N. 1413, 1415; MANN & PLUMMER, supra note 40, at 120-21 ("Bark from the white willow gave us salicin, an ancient version of aspirin; the Grecian foxglove provided digoxin, a cardiac medication; bear bile is the origin of ursodiol, a gallstone dissolver; deadly nightshade led to atropine, an eye dilator and anti-inflammatory; the velvet bean produced L-dopa, a treatment for Parkinson's disease; and everyone knows the story of penicillin, the bacteria slayer discovered accidentally in a mold."); EDWARD O. WILSON, THE DIVERSITY OF LIFE 285-86 (1992); Thomas E. Lovejoy, Biodiversity: What Is It?, in BIODIVERSITY II: UNDERSTANDING AND PROTECTING OUR BIOLOGICAL RESOURCES 7, 9 (Marjorie L. Reaka- Kudla et al. eds., 1997).
67. See Medicinal Uses of Plants; Protection for Plants Under the Endangered Species Act: Hearing Before the Subcomm. on Envt. and Natural Resources of the House Comm. on Merchant Marine and Fisheries, 103d Cong. (1993) (discussing the efforts to obtain medicine from plants); H.R. REP. NO. 93-412, at 4-5 (1973); S. REP. NO. 91-526, at 3 (1969), reprinted in 1969 U.S.C.C.A.N. 1413, 1415; MANN & PLUMMER, supra note 40, at 120-21 ("Bark from the white willow gave us salicin, an ancient version of aspirin; the Grecian foxglove provided digoxin, a cardiac medication; bear bile is the origin of ursodiol, a gallstone dissolver; deadly nightshade led to atropine, an eye dilator and anti-inflammatory; the velvet bean produced L-dopa, a treatment for Parkinson's disease; and everyone knows the story of penicillin, the bacteria slayer discovered accidentally in a mold."); EDWARD O. WILSON, THE DIVERSITY OF LIFE 285-86 (1992); Thomas E. Lovejoy, Biodiversity: What Is It?, in BIODIVERSITY II: UNDERSTANDING AND PROTECTING OUR BIOLOGICAL RESOURCES 7, 9 (Marjorie L. Reaka- Kudla et al. eds., 1997).
68. See Medicinal Uses of Plants; Protection for Plants Under the Endangered Species Act: Hearing Before the Subcomm. on Envt. and Natural Resources of the House Comm. on Merchant Marine and Fisheries, 103d Cong. (1993) (discussing the efforts to obtain medicine from plants); H.R. REP. NO. 93-412, at 4-5 (1973); S. REP. NO. 91-526, at 3 (1969), reprinted in 1969 U.S.C.C.A.N. 1413, 1415; MANN & PLUMMER, supra note 40, at 120-21 ("Bark from the white willow gave us salicin, an ancient version of aspirin; the Grecian foxglove provided digoxin, a cardiac medication; bear bile is the origin of ursodiol, a gallstone dissolver; deadly nightshade led to atropine, an eye dilator and anti-inflammatory; the velvet bean produced L-dopa, a treatment for Parkinson's disease; and everyone knows the story of penicillin, the bacteria slayer discovered accidentally in a mold."); EDWARD O. WILSON, THE DIVERSITY OF LIFE 285-86 (1992); Thomas E. Lovejoy, Biodiversity: What Is It?, in BIODIVERSITY II: UNDERSTANDING AND PROTECTING OUR BIOLOGICAL RESOURCES 7, 9 (Marjorie L. Reaka-Kudla et al. eds., 1997).
69. See Nagle, supra note 42, at 1208 n.140 (citing sources).
70. See Endangered Species Act: Washington DC - Part II: Hearing Before the Task Force on the Endangered Species Act of the House Comm. on Resources, 104th Cong. 190 (1995) (quoting the statement of the National Wildlife Federation); see also Norman Myers, Biodiversity's Genetic Library, in NATURE'S SERVICES, supra note 43, at 256-59 (describing how wild corn, wild rice, and other rare species can provide food to humans).
71. See Endangered Species Act: Washington DC - Part II: Hearing Before the Task Force on the Endangered Species Act of the House Comm. on Resources, 104th Cong. 190 (1995) (quoting the statement of the National Wildlife Federation); see also Norman Myers, Biodiversity's Genetic Library, in NATURE'S SERVICES, supra note 43, at 256-59 (describing how wild corn, wild rice, and other rare species can provide food to humans).
72. See generally Nagle, supra note 42, at 1216-47 (recounting the moral, ethical, and religious arguments for protecting endangered species).
73. Both sides in the Fly case contended that the case had ramifications for all endangered species that live in only one state, though they never explained why species that live in more than one state are so plainly within the scope of congressional jurisdiction. A similar rule exists with respect to federal regulation of wetlands under the Clean Water Act: if a migratory bird crosses state lines to a particular body of water, that trip places the water within the scope of congressional power. See Elaine Bueschen, Comment, Do Isolated Wetlands Substantially Affect Interstate Commerce?, 46 AM. U. L. REV. 931, 941-43 (1997). Why the fact that a bird or animal crosses state lines of its own volition and without being itself an object of interstate commerce is sufficient for Commerce Clause purposes remains unexplained. See Cargill, Inc. v. United States, 516 U.S. 955, 958 (1995) (Thomas, J., dissenting from denial of cert.) (opining that the assumption that "the self-propelled flight of birds across state lines creates a sufficient interstate nexus to justify the Corps' assertion of jurisdiction over any standing water that could serve as a habitat for migratory birds . . . likely stretches Congress' Commerce Clause powers beyond the breaking point").
74. MANN & PLUMMER, supra note 40, at 133; accord RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 75 (1993) (arguing that none of the utilitarian arguments for protecting endangered species "rings true"); HOLMES ROLSTON III, ENVIRONMENTAL ETHICS: DUTIES TO AND VALUES IN THE NATURAL WORLD 130 (1988) (admitting that "[a] substantial number of endangered species have no resource value"); Oliver A. Houck, Why Do We Protect Endangered Species, and What Does That Say About Whether Restrictions on Private Property to Protect Them Constitute "Takings"?, 80 IOWA L. REV. 297, 298 (1995) (acknowledging that "endangered species are, for the most part, no more aesthetically attractive than other species, provide little historical insight, and are on the margins of recreational demand and scientific discovery"); Nagle, supra note 42, at 1211-16 (describing the lack of utilitarian value of most species in greater detail); Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act - A Noah Presumption and Caution Against Putting Gasmasks on the Canaries in the Coalmine, 27 ENVTL. L. 845, 851, 853 (1997) (describing the utilitarian reasons as "make- weights," and suggesting that the utilitarian arguments are "valid, but seem to be somewhat leveraged, grasping at straws. The vast majority of endangered species probably will not cure cancer.").
75. MANN & PLUMMER, supra note 40, at 133; accord RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 75 (1993) (arguing that none of the utilitarian arguments for protecting endangered species "rings true"); HOLMES ROLSTON III, ENVIRONMENTAL ETHICS: DUTIES TO AND VALUES IN THE NATURAL WORLD 130 (1988) (admitting that "[a] substantial number of endangered species have no resource value"); Oliver A. Houck, Why Do We Protect Endangered Species, and What Does That Say About Whether Restrictions on Private Property to Protect Them Constitute "Takings"?, 80 IOWA L. REV. 297, 298 (1995) (acknowledging that "endangered species are, for the most part, no more aesthetically attractive than other species, provide little historical insight, and are on the margins of recreational demand and scientific discovery"); Nagle, supra note 42, at 1211-16 (describing the lack of utilitarian value of most species in greater detail); Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act - A Noah Presumption and Caution Against Putting Gasmasks on the Canaries in the Coalmine, 27 ENVTL. L. 845, 851, 853 (1997) (describing the utilitarian reasons as "make- weights," and suggesting that the utilitarian arguments are "valid, but seem to be somewhat leveraged, grasping at straws. The vast majority of endangered species probably will not cure cancer.").
76. MANN & PLUMMER, supra note 40, at 133; accord RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 75 (1993) (arguing that none of the utilitarian arguments for protecting endangered species "rings true"); HOLMES ROLSTON III, ENVIRONMENTAL ETHICS: DUTIES TO AND VALUES IN THE NATURAL WORLD 130 (1988) (admitting that "[a] substantial number of endangered species have no resource value"); Oliver A. Houck, Why Do We Protect Endangered Species, and What Does That Say About Whether Restrictions on Private Property to Protect Them Constitute "Takings"?, 80 IOWA L. REV. 297, 298 (1995) (acknowledging that "endangered species are, for the most part, no more aesthetically attractive than other species, provide little historical insight, and are on the margins of recreational demand and scientific discovery"); Nagle, supra note 42, at 1211-16 (describing the lack of utilitarian value of most species in greater detail); Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act - A Noah Presumption and Caution Against Putting Gasmasks on the Canaries in the Coalmine, 27 ENVTL. L. 845, 851, 853 (1997) (describing the utilitarian reasons as "make- weights," and suggesting that the utilitarian arguments are "valid, but seem to be somewhat leveraged, grasping at straws. The vast majority of endangered species probably will not cure cancer.").
77. MANN & PLUMMER, supra note 40, at 133; accord RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 75 (1993) (arguing that none of the utilitarian arguments for protecting endangered species "rings true"); HOLMES ROLSTON III, ENVIRONMENTAL ETHICS: DUTIES TO AND VALUES IN THE NATURAL WORLD 130 (1988) (admitting that "[a] substantial number of endangered species have no resource value"); Oliver A. Houck, Why Do We Protect Endangered Species, and What Does That Say About Whether Restrictions on Private Property to Protect Them Constitute "Takings"?, 80 IOWA L. REV. 297, 298 (1995) (acknowledging that "endangered species are, for the most part, no more aesthetically attractive than other species, provide little historical insight, and are on the margins of recreational demand and scientific discovery"); Nagle, supra note 42, at 1211-16 (describing the lack of utilitarian value of most species in greater detail); Zygmunt J.B. Plater, The Embattled Social Utilities of the Endangered Species Act - A Noah Presumption and Caution Against Putting Gasmasks on the Canaries in the Coalmine, 27 ENVTL. L. 845, 851, 853 (1997) (describing the utilitarian reasons as "make-weights," and suggesting that the utilitarian arguments are "valid, but seem to be somewhat leveraged, grasping at straws. The vast majority of endangered species probably will not cure cancer.").
78. See National Assn. of Home Builders v. Babbitt, 130 F.3d 1041, 1052 n.11 (D.C. Cir. 1997) (Wald, J.) (explaining that "every species has a place in the ecosystem"); National Assn. of Home Builders, 130 F.3d at 1059 (Henderson, J., concurring) (agreeing that "[g]iven the interconnectedness of species and ecosystems, it is reasonable to conclude that the extinction of one species affects others and their ecosystems and that the protection of a purely intrastate species (like the Delhi Sands Flower-loving Fly) will therefore substantially affect land and objects that are involved in interstate commerce").
79. See FWS Fly Listing Decision, supra note 2, at 49,881 (describing the apparent extinction of the El Segundo Flower-Loving Fly from its historic home in southwestern Los Angeles County); Brief for Amici Curiae Center for Marine Conservation, Defenders of Wildlife, Environmental Defense Fund, National Audubon Society, and World Wildlife Fund at 3, National Assn. of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (No. 96-5354) [hereinafter Envtl. Brief], available at 〈http://www.poplarpub.com/flybrf.txt〉 (explaining that the El Segundo Flower-Loving Fly was wiped out in the 1960's by urban development).
80. See FWS Deseret Milk-Vetch Listing, supra note 32, at 4,207 (describing a plant that had been considered extinct for 72 years); Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Erigeron decumbens var. decumbens (Willamette Daisy) and Fender's Blue Butterfly (Icaricia icarioides fenderi) and Proposed Threatened Status for Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), 63 Fed. Reg. 3,863, 3,865 (1998) (noting that Fender's blue butterfly was not seen from 1937 to 1989); Endangered and Threatened Wildlife and Plants; Proposed Threatened Status for the Plant Thelypodium howellii ssp. spectabilis (Howell's spectacular thelypody), 63 Fed. Reg. 1,948 (1998) (indicating that a flower had been thought extinct until rediscovered in 1980).
81. See FWS Deseret Milk-Vetch Listing, supra note 32, at 4,207 (describing a plant that had been considered extinct for 72 years); Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Erigeron decumbens var. decumbens (Willamette Daisy) and Fender's Blue Butterfly (Icaricia icarioides fenderi) and Proposed Threatened Status for Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), 63 Fed. Reg. 3,863, 3,865 (1998) (noting that Fender's blue butterfly was not seen from 1937 to 1989); Endangered and Threatened Wildlife and Plants; Proposed Threatened Status for the Plant Thelypodium howellii ssp. spectabilis (Howell's spectacular thelypody), 63 Fed. Reg. 1,948 (1998) (indicating that a flower had been thought extinct until rediscovered in 1980).
82. See FWS Deseret Milk-Vetch Listing, supra note 32, at 4,207 (describing a plant that had been considered extinct for 72 years); Endangered and Threatened Wildlife and Plants; Proposed Endangered Status for Erigeron decumbens var. decumbens (Willamette Daisy) and Fender's Blue Butterfly (Icaricia icarioides fenderi) and Proposed Threatened Status for Lupinus sulphureus ssp. kincaidii (Kincaid's lupine), 63 Fed. Reg. 3,863, 3,865 (1998) (noting that Fender's blue butterfly was not seen from 1937 to 1989); Endangered and Threatened Wildlife and Plants; Proposed Threatened Status for the Plant Thelypodium howellii ssp. spectabilis (Howell's spectacular thelypody), 63 Fed. Reg. 1,948 (1998) (indicating that a flower had been thought extinct until rediscovered in 1980).
83. See Johnson, supra note 17, at 81 (arguing that the role of a species in its ecosystem supports federal regulation "to the extent that endangered species live in ecosystems that produce articles of commerce, or that are used for commercial purposes").
84. See Mark Sagoff, Muddle or Muddle Through? Takings Jurisprudence Meets the Endangered Species Act, 38 WM. & MARY L. REV. 825, 931-32 (1997) (describing ecosystems as "unstructured, transitory, and accidental in nature"); see also id. at 893-902 (noting the difficulties inherent in defining an ecosystem).
85. See Envtl. Brief, supra note 52, at 4, 14.
86. The "canary-in-the-mine" function of endangered species refers to the way in which the loss of one species may serve as an early warning that the rest of the ecosystem is in danger. See Nagle, supra note 42, at 1210-11. It is one of the most common justifications for the protection of all endangered species. See id. at 1213 (citing sources).
87. See National Assn. of Home Builders v. Babbitt, 130 F.3d 1041, 1050 (D.C. Cir. 1997) (Wald, J.) (concluding that "one of the primary reasons that Congress sought to protect endangered species from 'takings' was the importance of the continuing availability of a wide variety of species to interstate commerce"); 130 F.3d at 1052 (Wald, J.) (noting that "current and future interstate commerce . . . relies on the availability of a diverse array of species"); 130 F.3d at 1053 n.14 (Wald, J.) (asserting that "biodiversity has a real, substantial, and predictable effect on . . . interstate commerce"); 130 F.3d at 1058 (Henderson, J., concurring) (agreeing that "the loss of biodiversity itself has a substantial effect on our ecosystem and likewise on interstate commerce").
88. See Envtl. Brief, supra note 52, at 4 (crediting the Fly with pollinating buckwheat, and perhaps croton and telegraph weed as well); id. at 14 (noting that "cashews, squash, mangos, cardamon, cacao, cranberries, and highbush blueberries are pollinated primarily by wild insects").
89. See id. at 14.
90. See National Assn. of Home Builders, 130 F.3d at 1048 (Wald, J.); see also 130 F.3d at 1059 (Henderson, J., concurring) (agreeing that the intersection and the hospital each have "an obvious connection with interstate commerce").
91. See Brief for Appellants at 9-11, National Assn. of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) (No. 96-5354) [hereinafter NAHB Brief], available at 〈http://www.poplarpub.com/fly.txt〉.
92. See National Assn. of Home Builders, 130 F.3d at 1056 (Wald, J.); 130 F.3d at 1059 (Henderson, J., concurring).
93. See NAHB Brief, supra note 62, at 13.
94. See Anne M. Peterson, Federal Permit Required Before Tract Construction: Environ" mentalists Say the Fontana Site is Home of Endangered Delhi Sands Flower-Loving Fly, THE PRESS-ENTERPRISE, Aug. 20, 1998, at B1 (reporting that the FWS has notified a developer that it must get a permit before building 202 homes on the habitat of the Fly).
95. See Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 243, 258 (1964).
96. See Katzenbach v. McClung, 379 U.S. 294, 296, 300-01 (1964).
97. See supra text accompanying note 14; see also National Assn. of Home Builders, 130 F.3d at 1064 (Sentelle, J., dissenting) (reading Lopez to require that "the rationale offered to support the constitutionality of the statute . . . has a logical stopping point so that the rationale is not so broad as to regulate on a similar basis all human endeavors, especially those traditionally regulated by the states") (citing United States v. Wall, 92 F.3d 1444, 1455-56 (6th Cir. 1996) (Boggs, J., dissenting in part)).
98. See Merritt, supra note 15, at 686 (observing that the rejection of the idea that Congress possesses unlimited power under the Commerce Clause "may have been the primary point of the decision"); id. at 712 (suggesting that the same point "may have been the most influential one of all in Lopez").
99. See Robert F. Nagel, The Future of Federalism, 46 CASE W. RES. L. REV. 643, 649-55 (1996).
100. For two quite different alternative theories, compare United States v. Lopez, 514 U.S. 549, 587-89 (1995) (Thomas, J., concurring) (rejecting the extension of the Commerce Clause to activities that substantially affect interstate commerce but are not part of interstate com" merce themselves) with Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554 (1995) (proposing that the Commerce Clause should be interpreted to justify federal regulation when there is some reason to believe that the states cannot handle the matter themselves), and National Assn. of Home Builders, 130 F.3d at 1054-55 (Wald, J.) (concluding that the ESA's takings provision is within the scope of the Commerce Clause because the taking of endangered species results from destructive interstate competition).
101. For two quite different alternative theories, compare United States v. Lopez, 514 U.S. 549, 587-89 (1995) (Thomas, J., concurring) (rejecting the extension of the Commerce Clause to activities that substantially affect interstate commerce but are not part of interstate com" merce themselves) with Donald H. Regan, How to Think About the Federal Commerce Power and Incidentally Rewrite United States v. Lopez, 94 MICH. L. REV. 554 (1995) (proposing that the Commerce Clause should be interpreted to justify federal regulation when there is some reason to believe that the states cannot handle the matter themselves), and National Assn. of Home Builders, 130 F.3d at 1054-55 (Wald, J.) (concluding that the ESA's takings provision is within the scope of the Commerce Clause because the taking of endangered species results from destructive interstate competition).
102. See Jesse H. Choper, Did Last Term Reveal "A Revolutionary States' Rights Movement Within the Supreme Court"?, 46 CASE W. RES. L. REV. 663, 669 & n.45 (1996).
103. See 33 C.F.R. § 328.3(a) (Army Corps of Engineers, definition); 40 C.F.R. § 230.3(s). This regulation has been read broadly to cover isolated wetlands and other bodies of water with tenuous connections to interstate commerce. See, e.g., United States v. Pozsgai, 999 F.2d 719, 732-33 (3d Cir. 1993); Leslie Salt Co. v. United States, 896 F.2d 354, 359-60 (9th Cir. 1990); Solid Waste Agency of N. Cook County v. United States Army Corps of Engineers, 998 F. Supp. 946 (N.D. Ill. 1998); United States v. Sargent County Water Resource Dist., 876 F. Supp. 1081, 1087 (D.N.D. 1992). But see United States v. Wilson, 133 F.3d 251, 255-57 (4th Cir. 1997); Hoffman Homes, Inc. v. EPA, 999 F.2d 256, 260-62 (7th Cir. 1993).
104. See 16 U.S.C. § 1531(a)(3) (1985).
105. See 16 U.S.C. § 1531(a)(1) (finding that species "have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation"); H.R. 37, 93d Cong., § 2(a) (1973) (proposing congressional finding that "one of the unfortunate consequences of growth and development in the United States and elsewhere has been the extermination of some species or subspecies of fish and wildlife").
106. See H.R. REP. No. 93-412, at 5 (1973) (describing species as "potential resources" that "may provide answers to questions which we have not yet learned to ask" and speculating about possible
107. See H.R. REP. No. 93-412, at 5 (1973) (describing species as "potential resources" that "may provide answers to questions which we have not yet learned to ask" and speculating about possible medical benefits); S. REP. No. 93-307, at 2 (1973) (indicating that "many of these animals perform vital biological services to maintain a 'balance of nature' within their environments" and that biological diversity is needed for scientific purposes).
108. 317 U.S. 111 (1942). For a detailed retelling of the events underlying Wickard, see Jim Chen, Foreword: Filburn's Forgotten Footnote - Of Farm Team Federalism and Its Fate, 82 MINN. L. REV. 249, 276-305 (1997).
109. See United States v. Lopez, 514 U.S. 549, 560 (1995) (describing Wickard as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity").
110. See Robert L. Stern, The Commerce Clause and the National Economy, 1933-1946, Part Two, 59 HARV. L. REV. 883, 901 (1946).
111. See Wickard, 317 U.S. at 124-29.
112. See Wickard, 317 U.S. at 127.
113. See Wickard, 317 U.S. at 114 (noting that Filburn "for many years past has owned and operated a small farm in Montgomery County, Ohio, maintaining a herd of dairy cattle, selling milk, raising poultry and selling poultry and eggs").
114. See National Assn. of Home Builders v. Babbitt, 130 F.3d 1041, 1046 (D.C. Cir. 1997) (Wald, J.) (describing the class to be aggregated as "all similarly situated endangered species"); U.S. Brief, supra note 28, at 27 (asserting that "[t]he appropriate analytical framework aggregates the effects of all conduct within the class of activities regulated by the challenged statutory provision"). It is conceivable that Judge Wald meant to refer to a narrower class limited to "similarly situated" endangered species, but she offered no indication of what qualified a species as "similarly situated" to the Fly.
115. See National Assn. of Home Builders, 130 F.3d at 1049 n.7 (Wald, J.).
116. See National Assn. of ome Builders, 130 F.3d at 1052 n.10 (Wald, J.) (writing that "[a]ctivities that threaten a species' existence threaten to reduce biodiversity and thereby have a substantial negative effect on interstate commerce. Thus, the biodiversity rationale offered here provides support for the Endangered Species Act only insofar as the Act prevents activities that are likely to cause the elimination of species."). Note that according to the government, the opponents of the Fly "appear to concede that if the restrictions of the [ESA] are lifted, the Fly will become extinct." U.S. Brief, supra note 28, at 35 n.17.
117. See National Assn. of ome Builders, 130 F.3d at 1052 n.10 (Wald, J.) (writing that "[a]ctivities that threaten a species' existence threaten to reduce biodiversity and thereby have a substantial negative effect on interstate commerce. Thus, the biodiversity rationale offered here provides support for the Endangered Species Act only insofar as the Act prevents activities that are likely to cause the elimination of species."). Note that according to the government, the opponents of the Fly "appear to concede that if the restrictions of the [ESA] are lifted, the Fly will become extinct." U.S. Brief, supra note 28, at 35 n.17.
118. The final paragraph of the Court's decision in Lopez explains that a decision upholding the challenged statute would require the Court to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action. . . . The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further. United States v. Lopez, 514 U.S. 549, 567 (1995) (citations omitted). Wickard was one of the "prior cases" referred to by the Court, see Lopez, 514 U.S. at 556; indeed, the Court described Wickard as "perhaps the most far reaching example of Commerce Clause authority over intrastate activity." Lopez, 514 U.S. at 560.
119. See 16 U.S.C. § 1532(16) (1994) (defining "species" to include "any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature"); see also, e.g., Endangered and Threatened Wildlife and Plants; Threatened Status for the Alaska Breeding Population of the Steller's Eider, 62 Fed. Reg. 31,748 (1997) (listing the population of a sea duck that breeds in Alaska, but declining to list the balance of the species that lives in Russia).
120. See Bald Eagle Protection Act, ch. 278, § 1, 54 Stat. 250 (1940) (current version at 16 U.S.C. § 668 (1985)).
121. See 16 U.S.C. § 668; see generally MICHAEL J. BEAN, THE EVOLUTION OF NATIONAL WILDLIFE LAW 89-98 (rev. ed. 1983) (describing the history and application of the two eagle statutes).
122. See 16 U.S.C. §§ 1361-1407 (1994).
123. Much to the chagrin of constitutional law scholars. See, e.g., GERALD GUNTHER & KATHLEEN M. SULLIVAN, CONSTITUTIONAL LAW 191 (13th ed. 1997) (wondering about the permissible scope of the aggregation theory employed in Wickard); STONE ET AL., supra note 26, at 226 (asking what kinds of aggregation are allowed by Wickard).
124. See supra text accompanying note 14; see also United States v. Lopez, 514 U.S. 549, 600 (1995) (Thomas, J., concurring) (insisting that "[t]he aggregation principle is clever, but has no stopping point"); PAUL BREST & SANFORD LEVINSON, PROCESSES OF CONSTITUTIONAL DECISIONMAKING: CASES AND MATERIALS 385 (3d ed. 1992) (asking if Wickard's aggregation principle "leave[s] anything to the requirement that an activity have a substantial effect on interstate commerce"); Merritt, supra note 15, at 749 (contending that "[b]lindly transferring the aggregation principle from Wickard to other contexts distorts the meaning of Wickard and suggests that the decision is much broader than it was intended").
125. See, e.g., Printz v. United States, 117 S. Ct. 2365, 2377-78 n.11 (1997) (describing federalism as "unique contribution of the Framers to political science and political theory") (quoting Lopez, 514 U.S. at 575 (1995) (Kennedy, J., concurring)). The Court, however, has yet to rely on the teachings of federalism to guide its Commerce Clause aggregation decisions. See STONE ET AL., supra note 26, at 226 (observing that the Court's leading Commerce Clause decisions "do not discuss the values of federalism as the basis for the choices they make" about the appropriate level of aggregation).
126. See United States v. Bird, 124 F.3d 667, 676 (5th Cir. 1997) (rejecting the government's claim that "Congress need only identify a broad 'class of activities' and determine that, viewed in the aggregate, the class 'substantially affects' interstate commerce," and insisting instead that something relevant must connect the separate incidents and their effects on interstate commerce), cert. denied, 118 S. Ct. 1189 (1998); United States v. Lopez, 2 F.3d 1342, 1367 (5th Cir. 1993) (contending that a "limiting principle must apply to the 'class of activities' rule, else the reach of the Commerce Clause would be unlimited, for virtually all legislation is 'class based' in some sense of the term"), affd., 514 U.S. 549 (1995)).
127. The other possibility is that Congress could focus on the interstate connections of the lawnmower instead of the lawn. See infra text accompanying notes 139-44.
128. See supra text accompanying notes 58-60.
129. See, e.g., United States v. Hicks, 106 F.3d 187, 190 (7th Cir. 1997) (Posner, J.) (rejecting a narrow aggregation under the federal arson statute because "[c]ategorize finely enough and the interstate effects evaporate and the statute is nullified"), cert. denied, 117 S. Ct. 2425 (1997); Proyect v. United States, 101 F.3d 11, 14 (2d Cir. 1996) (refusing to characterize the appropriate category as the cultivation of marijuana without the intent to distribute because "[a]ny class of economic activities could be denned so narrowly as to cover only those activities that do not have a substantial impact on interstate commerce"); United States v. Pozsgai, 999 F.2d 719, 734 (3d Cir. 1993) (contending that Wickard does not require "a showing of local or regional aggregation," and thus evaluating the cumulative effects of filling wetlands across the country).
130. The case would succeed if the biodiversity argument was available, but there are difficulties confronting that argument. See supra text accompanying note 96.
131. National Assn. of Home Builders v. Babbitt, 130 F.3d 1041, 1046, 1053 n.14 (D.C. Cir. 1997) (Wald, J.) (quoting United States v. Lopez, 514 U.S. 549, 558 (1995)).
132. 402 U.S. 146 (1971).
133. Perez, 402 U.S. at 154 (emphasis omitted).
134. See supra text accompanying notes 58-60.
135. 392 U.S. 183 (1968).
136. 312 U.S. 100 (1941).
137. Wirtz, 392 U.S. at 205 (Douglas, J., dissenting).
138. Wirtz, 392 U.S. at 196 n.27.
139. See Envtl. Brief, supra note 52, at 1 (contending that the case "is about all of the more than 500 species taht occur in only a single state, for the if the Constitution prevents the federal government from extending meaningful protection to the Delhi Sands flower-loving fly, then it almost certainly prevents that same government from extending such protection to the others"); U.S. Brief, supra note 28, at 1 (describing the issue presented in the case as "[w]hether Congress has power under the Commerce Clause to prevent the extinction of species by prohibiting takings of species listed as endangered, even where a particular species lives entirely within one State"); NAHB Brief, supra note 62, at 17 (indicating that the municipalities and developers "challenge[d] the authority of the federal government to regulate the use of non-federal lands in order to protect a species of Fly that is found only in California").
140. See Envtl. Brief, supra note 52, at 1 (contending that the case "is about all of the more than 500 species taht occur in only a single state, for the if the Constitution prevents the federal government from extending meaningful protection to the Delhi Sands flower-loving fly, then it almost certainly prevents that same government from extending such protection to the others"); U.S. Brief, supra note 28, at 1 (describing the issue presented in the case as "[w]hether Congress has power under the Commerce Clause to prevent the extinction of species by prohibiting takings of species listed as endangered, even where a particular species lives entirely within one State"); NAHB Brief, supra note 62, at 17 (indicating that the municipalities and developers "challenge[d] the authority of the federal government to regulate the use of non-federal lands in order to protect a species of Fly that is found only in California").
141. See Envtl. Brief, supra note 52, at 1 (contending that the case "is about all of the more than 500 species taht occur in only a single state, for the if the Constitution prevents the federal government from extending meaningful protection to the Delhi Sands flower-loving fly, then it almost certainly prevents that same government from extending such protection to the others"); U.S. Brief, supra note 28, at 1 (describing the issue presented in the case as "[w]hether Congress has power under the Commerce Clause to prevent the extinction of species by prohibiting takings of species listed as endangered, even where a particular species lives entirely within one State"); NAHB Brief, supra note 62, at 17 (indicating that the municipalities and developers "challenge[d] the authority of the federal government to regulate the use of non-federal lands in order to protect a species of Fly that is found only in California").
142. See National Assn. of Home Builders v. Babbitt, 130 F.3d 1040, 1043 (D.C. Cir. 1997) (Wald, J.) (indicating that the appellants challenged an application of the ESA's takings provision); see also United States v. Latouf, 132 F.3d 320, 325 (6th Cir. 1997) (explaining how to decide as-applied challenges to a statute possessing a jurisdictional element); Building Indus. Assn. v. Babbitt, 979 F. Supp. 893, 908 (D.D.C. 1997) (describing an as-applied challenge to the ESA's takings provision).
143. Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 271 (1964) (Black, J., concurring).
144. United States v. Bolton, 68 F.3d 396, 399 (10th Cir. 1995).
145. Bolton, 68 F.3d at 399.
146. See, e.g., Nova Chem. Inc. v. GAF Corp., 945 F. Supp. 1098, 1106 (E.D. Tenn. 1996); United States v. NL Indus., Inc., 936 F. Supp. 545, 562 (S.D. Ill. 1996); United States v. Alcan Aluminum Corp., No. 87-CV-920, 1996 U.S. Dist. LEXIS 16358, at *19-*20 (N.D.N.Y. Oct. 25, 1996); Cooper Indus., Inc. v. Agway, Inc., No. 92-CV-0748, 1996 U.S. Dist. LEXIS 14196, at *30-*33 (N.D.N.Y. Sept. 23, 1996).
147. See, e.g., Nova Chem. Inc. v. GAF Corp., 945 F. Supp. 1098, 1106 (E.D. Tenn. 1996); United States v. NL Indus., Inc., 936 F. Supp. 545, 562 (S.D. Ill. 1996); United States v. Alcan Aluminum Corp., No. 87-CV-920, 1996 U.S. Dist. LEXIS 16358, at *19-*20 (N.D.N.Y. Oct. 25, 1996); Cooper Indus., Inc. v. Agway, Inc., No. 92-CV-0748, 1996 U.S. Dist. LEXIS 14196, at *30-*33 (N.D.N.Y. Sept. 23, 1996).
148. See United States v. Olin Corp., 107 F.3d 1506, 1510 & n.8 (11th Cir. 1997).
149. It is also possible that the Fly is already related to interstate commerce, but our limited understanding of natural processes prevents us from realizing that fact. That is the essence of Judge Wald's ecosystem argument: every species, including the Fly, has an actual effect on interstate commerce because every species is crucial to its ecosystem. That argument differs from the one discussed in this section because here I consider potential effects of the Fly that do not yet exist.
150. Tennessee Valley Auth. v. Hill, 437 U.S. 153, 178-79 (1978); see also National Assn. of Home Builders v. Babbitt, 130 F.3d 1040, 1050-52 (D.C. Cir. 1997) (Wald, J.) (citing congressional committee reports reciting the potential effects of endangered species).
151. See United States v. Bramble, 103 F.3d 1475, 1481 (9th Cir. 1996) (upholding the Eagle Protection Act because "[e]xtinction of the eagle would substantially affect interstate commerce by foreclosing any possibility of several types of commercial activity"); Cooper Indus., 1996 U.S. Dist. LEXIS 14196, at *30 (holding the Commerce Clause empowers Congress to regulate the disposal of hazardous wastes where there is a threat of water pollution); United States v. Sargent County Water Resource Dist., 876 F. Supp. 1081, 1087 (D.N.D. 1992) (finding that the Clean Water Act applies to isolated wetlands in part because of their "[p]otential rather than actual use by interstate travelers for recreational purposes . . . ."); Palila v. Hawaii Dept. of Land & Natural Resources, 471 F. Supp. 985, 995 (D. Haw. 1979) (upholding the ESA because it "preserves the possibilities of interstate commerce in these species and of interstate movement of persons" who would visit them), affd., 639 F.2d 495 (9th Cir. 1981).
152. See United States v. Wilson, 133 F.3d 251, 257 (4th Cir. 1997); see also United States v. McHenry, 97 F.3d 125, 132-33 (6th Cir. 1996) (Batchelder, J., dissenting) (concluding that the fact that "many things, and for that matter, most people, 'retain the inherent potential to affect commerce' . . . . cannot suffice to give Congress the power to regulate or protect them").
153. See National Assn. of Home Builders, 130 F.3d at 1061 (Sentelle, J., dissenting) (insisting that "the chances of validly regulating something which is neither commerce nor interstate under the heading of the interstate commerce power must . . . be an empty recitation").
154. See Envtl. Brief, supra note 52, at 2.
155. See U.S. Fish & Wildlife Service, Listed Species By State/Territory as of June 30, 1998, available at 〈http://www.fws.gov.r9endspp/listmap.html〉 (indicating that 298 diflerent species listed as endangered or threatened under the ESA live in Hawaii).
156. Cf. Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting). I am not the first to make this observation. See Building Indus. Assn. v. Babbitt, 979 F. Supp. 893, 908 (D.D.C. 1997).
157. 494 U.S. 1 (1990).
158. Preseault, 494 U.S. at 18; see also 494 U.S. at 18 (describing the congressional intent "'to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use'" as "valid congressional objectives") (quoting H.R. REP. NO. 98-28, at 8 (1983) and S. REP. NO. 98-1, at 9 (1983)).
159. Preseault, 494 U.S. at 18; see also 494 U.S. at 18 (describing the congressional intent "'to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use'" as "valid congressional objectives") (quoting H.R. REP. NO. 98-28, at 8 (1983) and S. REP. NO. 98-1, at 9 (1983)).
160. Preseault, 494 U.S. at 18; see also 494 U.S. at 18 (describing the congressional intent "'to preserve established railroad rights-of-way for future reactivation of rail service, to protect rail transportation corridors, and to encourage energy efficient transportation use'" as "valid congressional objectives") (quoting H.R. REP. NO. 98-28, at 8 (1983) and S. REP. NO. 98-1, at 9 (1983)).
161. Preseault, 494 U.S. at 19.
162. See Envtl. Brief, supra note 52, at 11; U.S. Brief, supra note 28, at 19-20. The government also cited Hodel v. Indiana, 452 U.S. 314, 325-26 (1981), as an example of the Court upholding congressional authority to protect prime farm land. See U.S. Brief, supra note 28, at 20.
163. See Envtl. Brief, supra note 52, at 11; U.S. Brief, supra note 28, at 19-20. The government also cited Hodel v. Indiana, 452 U.S. 314, 325-26 (1981), as an example of the Court upholding congressional authority to protect prime farm land. See U.S. Brief, supra note 28, at 20.
164. See Envtl. Brief, supra note 52, at 11; U.S. Brief, supra note 28, at 19-20. The government also cited Hodel v. Indiana, 452 U.S. 314, 325-26 (1981), as an example of the Court upholding congressional authority to protect prime farm land. See U.S. Brief, supra note 28, at 20.
165. See United States v. Bramble, 103 F.3d 1475, 1481 (9th Cir. 1996) (upholding the Eagle Protection Act because "[e]xtinction of the eagle would substantially affect interstate commerce by foreclosing any possibility of several types of commercial activity"); United States v. Lundquist, 932 F. Supp. 1237, 1244 (D. Cir. 1996) (sustaining federal protection of eagles because eagle parts have been involved in interstate commerce).
166. See U.S. Brief, supra note 28, at 20 n.9.
167. See, e.g., Gooch v. United States, 297 U.S. 124 (1936) (applying a federal kidnapping statute); Hoke v. United States, 227 U.S. 308 (1913) (upholding the White Slave Traffic Act's prohibition on taking a woman across state lines for immoral purposes); Champion v. Ames (The Lottery Case), 188 U.S. 321 (1903) (upholding a federal anti-lottery statute); see also GUNTHER & SULLIVAN, supra note 91, at 195 (noting that "the 'end' which is invoked in [Darby] to justify the local 'means' is the relationship of the local sanction to the ban on interstate shipments (not the relationship between the regulated local activity and a national commercial problem)").
168. 16 U.S.C. § 1532(19) (1994).
169. 18 U.S.C. § 248 (1994).
170. See, e.g., United States v. Weslin, No. 97-1348, 1998 U.S. App. LEXIS 20753, at *6 (2d Cir. Aug. 25, 1998); Hoffman v. Hunt, 126 F.3d 575, 587 (4th Cir. 1997), cert. denied 118 S. Ct. 1838 (1998); United States v. Bird, 124 F.3d 667, 677-82 (5th Cir. 1997); Terry v. Reno, 101 F.3d 1412, 1415-18 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997); United States v. Dinwiddie, 76 F.3d 913, 919-20 (8th Cir. 1996), cert. denied, 117 S. Ct. 613 (1996); United States v. Wilson, 73 F.3d 675, 680-83 (7th Cir. 1995), cert. denied, 117 S. Ct. 47 (1996); Cheffer v. Reno, 55 F.3d 1517, 1520 (11th Cir. 1995); see also Bird, 124 F.3d at 674-75 (noting the interstate commerce).
171. See Wilson, 73 F.3d at 692 (Coffey, J., dissenting) (arguing that "the regulation applies to the activity of the demonstrators, not to the activity of the clinic itself"); United States v. Wilson, 880 F. Supp. 621, 630 n.16 (E.D. Wis. 1995) (asserting that "FACE does not regulate abortion clinics, it regulates abortion protests"), revd., 73 F.3d 675 (7th Cir. 1995); see also Terry, 101 F.3d at 1417 (declining to address whether FACE regulates protests instead of abortion clinics). Judge Wald characterized the activity at issue in the FACE cases a "intrastate, noncommercial protest activity." National Assn. of Home Builders v. Babbitt, 130 F.3d 1041, 1049 (D.C. Cir. 1997).
172. The point is relative: some abortion protesters have a substantial relationship to interstate commerce themselves, but many more abortion clinics have a much stronger relationship.
173. See United States v. Lopez, 514 U.S. 549, 558-59 (1995) (stating that "Congress' commerce authority includes the power to regulate those activities having a substantial relationship to interstate commerce, i.e., those activities that substantially affect interstate commerce" (citations omitted)).
174. See National Assn. of Home Builders, 130 F.3d at 1048 (Wald, J.) (finding the takings provision within congressional authority in cases "where the pressures of interstate commerce place the existence of the species in peril"); 130 F.3d at 1059 (Henderson, J., concurring) (noting that the takings provision "here acts to regulate commercial development of the land inhabited by the endangered species"); 130 F.3d at 1060 n.6 (Henderson, J., concurring) (explaining that "[t]he rationale on which I rely permits regulation only of activities (including land use) taht adversely affect species that affect, or are involved in, interstate commerce"). Note that while the latter statement in Judge Henderson's opinion is ambiguous, the context shows that she must mean that the activities, not the species, "affect, or are involved in, interstate commerce."
175. See FWS Fly Listing Decision, supra note 2, at 49,884; FLY DRAFT RECOVERY PLAN, supra note 2, at 13-14 (detailing these threats to the Fly); see also FWS Fly Listing Decision, supra note 2, at 49,881 (advising that all of the five remaining populations of the Fly "are threatened by urban development activities").
176. See FWS Fly Listing Decision, supra note 2, at 49,884; FLY DRAFT RECOVERY PLAN, supra note 2, at 13-14 (detailing these threats to the Fly); see also FWS Fly Listing Decision, supra note 2, at 49,881 (advising that all of the five remaining populations of the Fly "are threatened by urban development activities").
177. See FWS Fly Listing Decision, supra note 2, at 49,884; FLY DRAFT RECOVERY PLAN, supra note 2, at 13-14 (detailing these threats to the Fly); see also FWS Fly Listing Decision, supra note 2, at 49,881 (advising that all of the five remaining populations of the Fly "are threatened by urban development activities").
178. See Lopez, 514 U.S. at 563-66 (rejecting the government's argument that possession of a firearm in a local school zone substantially affects interstate commerce).
179. See FLY DRAFT RECOVERY PLAN, supra note 2, at 13 (noting that non-native plants such as mustard, Russian thistle, horehound, cheeseweed and many species of introduced grasses severely degrade the Fly's habitat because they affect the soil and available moisture).
180. Cf. Deborah Jones Merritt, The Fuzzy Logic of Federalism, 46 CASE W. RES. L. REV. 685, 686 (1996) (speculating about whether the Commerce Clause allows Congress to regulate someone wearing moccasins in their own home).
181. BREST & LEVINSON, supra note 92, at 399 (quoting a June 5, 1963 letter from Gerald Gunther to the Department of Justice regarding the proposed Civil Rights Act which stated that "the substantive content of the commerce clause would have to be drained beyond any point yet reached to justify the simplistic argument that all interstate activity may be subjected to any kind of national regulation merely because some formal crossing of an interstate boundary once took place, without regard to the relationship between the aim of the regulation and interstate trade"). The inadequacy of these kinds of relationships is further illustrated by the cases where the connection to interstate commerce did not even satisfy the minimal requirements of a statute containing a jurisdictional statement. See, e.g., United States v. Denalli, 73 F.3d 328, 330-31 (11th Cir. 1996) (holding that delivering memos printed on a home computer to colleagues at work did not provide a sufficient nexus to interstate commerce); United States v. Pappadopoulos, 64 F.3d 522, 526-27 (9th Cir. 1995) (holding that scope of the Commerce Clause).
182. See Merritt, supra note 139, at 691-92; Merritt, supra note 15, at 678-82; see also United States v. Hicks, 106 F.3d 187, 189 (7th Cir. 1997) (Posner, J.) (commenting that the Commerce Clause argument rejected in United States v. Lopez would require "a pretty elongated and speculative chain of causation, which if accepted might allow Congress to regulate any activity at all").
183. Merritt, supra note 15, at 679; see also id. at 681 (indicating that "some measure of the directness of the effect on interstate commerce" is part of this test and that a host of factors are relevant in determining whether the requisite proximity exists). A proximate cause test would thus avoid comparisons of Commerce Clause jurisprudence to the six degrees of Kevin Bacon game. See Linehan, supra note 17, at 382 & n.107.
184. See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 711-14 (1995) (O'Connor, J., concurring). But see 515 U.S. at 733-36 (Scalia, J., dissenting) (questioning the use of causation principles when interpreting the ESA's takings provision).
185. See National Assn. of Home Builders v. Babbitt, 130 F.3d 1041, 1063 (D.C. Cir. 1997) (Sentelle, J., dissenting) (contending that the focus on things that affect the Fly's habitat "improperly inverts the third prong of Lopez and extends it without limit").
186. See Missouri v. Holland, 252 U.S. 416 (1920) (upholding the Migratory Bird Treaty Act as an exercise of the treaty power); Palila v. Hawaii Dept. of Land & Natural Resources, 471 F. Supp. 985, 995 n.40 (D. Haw. 1979) (speculating that the property clause may support the constitutionality of the ESA's takings provision).
187. See 16 U.S.C. § 1538(a), (d)-(f) (1994); see also National Assn. of Home Builders, 130 F.3d at 1063 n.1 (Sentelle, J., dissenting) noting that "Congress may have the authority to prevent interstate transportation of flies," and "prohibiting the local possession and exchange of flies might arguably be necessary to preventing interstate transportation of exchange of flies").
188. See 16 U.S.C. § 1534. See generally Bradley C. Karkkainen, Biodiversity and Land, 83 CORNELL L. REV. 1, 82 (1997) (arguing that "federal ownership, not regulation of private land uses, should be the centerpiece of our national biodiversity conservation strategy").
189. See FLY DRAFT RECOVERY PLAN, supra note 2, at 35 (proposing a public outreach effort to teach people about "the unique and vanishing ecosystem that the Delhi sands flower-loving fly represents").