                        United States Court of Appeals


                     FOR THE DISTRICT OF COLUMBIA CIRCUIT


          Argued October 3, 1997          Decided December 5, 1997 


                                 No. 96-5354


               National Association of Home Builders, et al., 

                                  Appellants


                                      v.


                          Bruce Babbitt, Secretary, 

                  United States Department of Interior and 

                          Mollie Beattie, Director, 

                  United States Fish and Wildlife Service, 

                                  Appellees


                Appeal from the United States District Court 

                        for the District of Columbia 

                               (No. 95cv01973)


     Thomas C. Jackson argued the cause for appellants, with 
whom Patrick J. Hurd, Arthur S. Garrett III, Martha E. 
Marrapese, Glen F. Koontz and Alec I. Ugol were on the 
briefs.  Alan K. Marks entered an appearance.



     David C. Shilton, Attorney, United States Department of 
Justice, argued the cause for appellees, with whom Lois J. 
Schiffer, Assistant Attorney General, and J. Carol Williams, 
Attorney, were on the brief.  John A. Bryson, Attorney, 
entered an appearance.

     William R. Irvin, Kathleen Rogers, Josh Eagle and Mi-
chael J. Bean were on the brief for amici curiae Center for 
Marine Conservation, et al.

     Robin L. Rivett and Anne M. Hawkins were on the brief 
for amicus curiae Pacific Legal Foundation.

     Daniel J. Popeo and Paul D. Kamenar were on the brief 
for amicus curiae Washington Legal Foundation.

     Paul M. Terrill, III was on the brief for amicus curiae 
American Land Foundation.

     Before:  Wald, Sentelle and Henderson, Circuit Judges.

     Opinion filed by Circuit Judge Wald.

             Concurring opinion filed by Circuit Judge Henderson.

     Dissenting opinion filed by Circuit Judge Sentelle.

     Wald, Circuit Judge:  The National Association of Home 
Builders of the United States, the Building Industry Legal 
Defense Fund, the County of San Bernardino, and the City of 
Colton, California brought this action in the United States 
District Court for the District of Columbia to challenge an 
application of section 9(a)(1) of the Endangered Species Act 
("ESA"), 16 U.S.C. s 1538(a)(1), which 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," 16 U.S.C. s 1532(19)--any 
endangered species.  The plaintiffs sought a declaration that 
the application of section 9 of the ESA to the Delhi Sands 
Flower-Loving Fly ("the Fly"), which is located only in 
California, exceeds Congress' Commerce Clause power and 
an injunction against application of the section to the plain-
tiff's construction activities in areas containing Fly habitat.



     This dispute arose when the Fish and Wildlife Service 
("FWS") placed the 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 southwestern San Bernardino 
County and northwestern 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 Ber-
nardino 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.  In November 1995, FWS issued a permit to allow 
construction of the power plant.  During the same month, 
however, 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).  After 
brief unsuccessful negotiations between the County and FWS, 
the County filed suit in district court challenging the applica-
tion of section 9(a)(1) to the Fly.

     The district court held that application of section 9(a)(1) of 
the Endangered Species Act to the Fly is a valid exercise of 
Congress' power pursuant to the Commerce Clause.  Accord-
ingly, the court entered summary judgment on behalf of the 
government.   See National Association of Home Builders v. 
Babbit, 949 F. Supp. 1, 2 (D.D.C. 1996).  Because we also find 
that the application of section 9(a)(1) of the Endangered 
Species Act to the Fly does not exceed Congress' Commerce 
Clause power, we affirm the district court's decision to grant 
the government's motion for summary judgment.1

__________
     1 Summary judgment is appropriate when all of the submissions 
"show that there is no genuine issue as to any material fact and that 
the moving party is entitled to a judgment as a matter of law."  
Fed. R. Civ. P. 56.



                    I.  Factual and Procedural Background


     The Delhi Sands Flower-Loving Fly, which lives only in 
the "Delhi series" soils found in southwestern San Bernardino 
County and northwestern Riverside County, California, is the 
only remaining subspecies of its species.  The other subspe-
cies, the El Segundo Flower-Loving Fly, is believed to be 
extinct due to destruction of its habitat through urban devel-
opment.  See Brief of Amici Curiae Center for Marine 
Conservation, Defenders of Wildlife, Environmental Defense 
Fund, National Audubon Society, and World Wildlife Fund 
("Brief of Amici Curiae for Appellees") at 4.  The Fly is also 
one of only a few North American species in the "mydas flies" 
family and one of only a few species in that family that visit 
flowers in search of nectar, thereby pollinating native plant 
species.  See id. at 1.

     Over 97 percent of the historic habitat of the Fly has been 
eliminated, and, prior to its listing as endangered, its remain-
ing habitat was threatened by urban development, unautho-
rized trash dumping, and off-road vehicle use.  See Endan-
gered and Threatened Wildlife and Plants;  Determination of 
Endangered Status for the Delhi Sands Flower-loving Fly, 58 
Fed. Reg. 49,881, 49,885 (1993) (codified at 50 C.F.R. pt. 17).  
There are currently 11 known populations of the Fly, all of 
which occur within an eight mile radius of one another.  See 
Declaration of Christopher D. Nagano (Apr. 30, 1996) at p 14 
("Nagano Declaration").  The size of the entire population of 
Flies was recently estimated in the low hundreds.  See U.S. 
Fish and Wildlife Service, Technical/Agency Draft Recovery 
Plan for the Delhi Sands Flower-Loving Fly 12 (1996).

     In 1990, after receiving two petitions asking that the Fly be 
placed on the endangered species list, the FWS began an 
investigation into whether listing of the Fly as endangered 
was warranted.  Soon thereafter, the FWS found that sub-
stantial information had been presented to indicate that the 
Fly was an endangered species.  Two years later, the FWS 
published its final determination that the Fly is "in imminent 
danger of extinction due to extensive habitat loss and degra-
dation that has reduced its range by 97 percent."  58 Fed. 



Reg. at 49,881.  The listing of the Fly as endangered trig-
gered the automatic statutory prohibitions of section 9(a)(1) of 
the ESA, 16 U.S.C. s 1538(a)(1).  As a result, commercial 
trade in the species could no longer occur lawfully and no 
person could "take" individuals of the species without a 
permit or an exemption.

     For several years prior to the listing of the Fly as endan-
gered, the County of San Bernardino had been planning to 
build a $470 million earthquake-proof "state of the art" 
hospital to serve as the central emergency medical center for 
the San Bernardino County area in the event of an earth-
quake and to serve as a primary burn care center and 
teaching facility.  In July 1992, two years after the FWS had 
published its notice that sufficient information had been pre-
sented to justify listing the Fly as endangered but before the 
Fly was actually so listed, the Board of the new San Bernar-
dino County hospital acquired the final site parcels for the 
hospital.  The 76-acre site that the board acquired contained 
habitat of the Fly.

     In November 1992, the FWS notified the County that the 
Fly was likely to be listed as endangered, and in May 1993--
after the Fly was listed--the FWS advised the County that 
the hospital site was occupied by the Fly and that construc-
tion of the facility as then proposed would likely "take" 
members of the species in violation of the ESA.  The County 
decided to modify the layout and design of the hospital to 
eliminate direct and indirect impacts to the Fly and to 
eliminate the need for a section 10 "incidental take permit." 2  

__________
     2 Under section 10 of the ESA, the Secretary of the FWS may 
permit a taking of an endangered species otherwise prohibited by 
section 9(a)(1) if the taking is incidental to carrying out an other-
wise lawful activity.  No permit may be issued until after the 
applicant submits a conservation plan, the Secretary offers opportu-
nity for public comment on the plan, and the Secretary finds, among 
other things, that the taking will be incidental, the impacts of the 
taking will be minimized to the extent practicable, adequate funding 
for the plan is available, and the taking will not appreciably reduce 
the likelihood of the survival and recovery of the species.  See 16 
U.S.C. s 1539(a).



One of the modifications to the original design for the hospital 
included in the plan was to move the hospital 250 feet north 
to "avoid[ ] direct impact to the entire area identified as 
occupied or suitable Delhi Fly habitat."  Habitat Preserva-
tion, Habitat Enchangement [sic] and Impact Avoidance Plan 
for the Delhi Sands Flower-Loving Fly at the San Bernardi-
no County Hospital Replacement Site 8 (Dec. 1, 1993).  This 
resulted in an 8.35 acre Delhi Fly habitat preserve.  Id.  The 
plan also created a 100-foot wide corridor to link two Fly 
habitat areas and permit interbreeding between Fly colonies.

     In October 1994, the County approached FWS with a 
proposal to construct a substation to power the hospital on 
"the best remaining habitat" for the Fly.  See Declaration of 
Jeffery M. Newman 8 (Apr. 29, 1996) ("Newman Declara-
tion").  The County submitted an application for incidental 
"take" of the Fly, which would permit it to build on about 4 
acres of Fly habitat.  To offset this reduction in Fly habitat, 
the County proposed to acquire and manage a nearby 7.5 acre 
site as Fly habitat.  In November 1995, the FWS issued the 
section 10 permit for the substation and construction began 
shortly thereafter.  See id. at 9.

     In November 1995, the County informed FWS of its plans 
to redesign an intersection near the hospital that the County 
argues is critical to emergency vehicle access to the new 
hospital.  The FWS determined that the plan, which called 
for a reduction of the 100 foot wide corridor to an 18 foot wide 
corridor, a reduction of 70 to 80 percent, would "greatly 
reduce, if not effectively eliminate, the entire corridor area 
set aside as a critical part of the County's efforts to avoid a 
take" of the Fly.  Newman Declaration at 7.  The FWS 
advised the County that the redesign of the intersection 
would probably cause a "take" of the Fly in violation of 
section 9 of the ESA.

     On October 20, 1995, the National Association of Home 
Builders of the United States, the Building Industry Legal 
Defense Fund, the County of San Bernardino, and the City of 
Colton, California filed a complaint seeking a declaration that 
the taking prohibition of section 9 of the ESA was unconstitu-



tional as applied to "takes" of the Fly and asking for an 
injunction barring application of the provision.  An amended 
complaint later added the California Building Industry Asso-
ciation and the City of Fontana as plaintiffs.  On December 6, 
1996, the district court granted the government's motion for 
summary judgment.   See National Association of Home 
Builders, 949 F. Supp. 1.  This appeal ensued.

                              II.  Discussion


     Appellants challenge the application of section 9(a)(1) of the 
ESA, which makes it unlawful for any person to "take any 
[endangered or threatened] species within the United States 
or the territorial sea of the United States," 16 U.S.C. 
s 1538(a)(1), to the Delhi Sands Flower- Loving Fly.  See also 
Babbitt v. Sweet Home Chapter of Communities for a Greater 
Oregon, 515 U.S. 687 (1995) (upholding agency's interpreta-
tion of the term "take" to include significant habitat degrada-
tion).  Appellants 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.  Indeed, they claim that "the Constitution of the Unit-
ed States does not grant the federal government the authori-
ty to regulate wildlife, nor does it authorize federal regulation 
of nonfederal lands."  Brief for Appellants at 17.

     The district court held that the application of section 9(a)(1) 
of the ESA to the Fly is constitutional.  It concluded that the 
federal government's "limited and enumerated" powers in-
clude 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 district court thus granted the gov-
ernment's motion for summary judgment.  We affirm the 
district court's decision.

     Appellants' Commerce Clause challenge to the application 
of section 9(a)(1) of the ESA to the Fly rests on the Supreme 
Court's decision in United States v. Lopez, 514 U.S. 549 



(1995).  In Lopez, the Court held that the Gun-Free School 
Zones Act of 1990, 18 U.S.C. s 922(q), which made possession 
of a gun within a school zone a federal offense, exceeded 
Congress' Commerce Clause authority.  Drawing on its earli-
er Commerce Clause jurisprudence, see especially Perez v. 
United States, 402 U.S. 146, 150 (1971), the Lopez Court 
explained that Congress could regulate three broad catego-
ries of activity:  (1) "the use of the channels of interstate 
commerce," (2) "the instrumentalities of interstate commerce, 
or persons or things in interstate commerce, even though the 
threat may come only from intrastate activities," and (3) 
"those activities having a substantial relation to interstate 
commerce ... i.e., those activities that substantially affect 
interstate commerce."  Lopez, 514 U.S. at 558-59 (citations 
omitted).  Possession of a gun within 1000 feet of a school, 
the Court explained, clearly did not fit the first two catego-
ries.  In addition, it could not be regulated under the third 
category as an activity that "substantially affects" interstate 
commerce because it was not commercial in nature and was 
not an essential part of a larger regulation of economic 
activity.  Moreover, the Court explained, Congress had made 
no findings about the effect of gun possession in school zones 
on interstate commerce.  Thus, concluding that Congress had 
no rational basis for finding that gun possession within school 
zones had a substantial effect on interstate commerce, the 
Court declared the statute unconstitutional.  See id. at 567-
68.

     It is clear that, in this instance, section 9(a)(1) of the ESA 
is not a regulation of the instrumentalities of interstate 
commerce or of persons or things in interstate commerce.  As 
a result, only the first and the third categories of activity 
discussed in Lopez will be examined.  In evaluating whether 
ESA section 9(a)(1) is a regulation of the use of the channels 
of interstate commerce or of activity that substantially affects 
interstate commerce, we 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.  As the Lopez Court 
explained, " 'where a general regulatory statute bears a sub-



stantial relation to commerce, the de minimis character of 
individual instances arising under the statute is of no conse-
quence.' "  Lopez, 514 U.S. at 558 (quoting Maryland v. 
Wirtz, 392 U.S. 183, 197 n.27 (1968), overruled on other 
grounds, National League of Cities v. Usery, 426 U.S. 833 
(1976), overruled by Garcia v. San Antonio Metro. Transit 
Auth., 469 U.S. 528 (1985) (first emphasis added)).  If a 
statute regulates "a class of activities ... within reach of the 
federal power," Perez, 402 U.S. at 154, the courts have "no 
power 'to excise, as trivial, individual instances' of the class," 
id.  Because section 9(a)(1) of the ESA regulates a class of 
activities--takings of endangered species--that is within Con-
gress' Commerce Clause power under both the first and third 
Lopez categories, application of section 9(a)(1) to the Fly is 
constitutional.3

A.  Channels of Interstate Commerce

     Application of section 9(a)(1) of the ESA to the Fly can be 
viewed as a proper exercise of Congress' Commerce Clause 
power over the first category of activity that the Lopez Court 
identified:  the use of the "channels of interstate commerce."  
Lopez, 514 U.S. at 558.  Although this category is commonly 
used to uphold regulations of interstate transport of persons 
or goods, it need not be so limited.  Indeed, the power of 
Congress to regulate the channels of interstate commerce 
provides a justification for section 9(a)(1) of the ESA for two 
reasons.  First, the prohibition against takings of an endan-

__________
     3 Judge Henderson's concurring opinion expresses the view that 
the first Lopez category does not apply;  as to the third Lopez 
category, however, I find our reasoning to be substantially similar.  
We agree that "the loss of biodiversity itself has a substantial effect 
on our ecosystem and likewise on interstate commerce," Concurring 
opinion ("Conc. op.") at 2 (footnote omitted);  cf. infra subsection 
II.B.1, and that "at the time it passed ESA the Congress contem-
plated protecting endangered species through regulation of land 
and its development, which is precisely what the Department has 
attempted to do here.  Such regulation, apart from the characteris-
tics or range of the specific endangered species involved, has a plain 
and substantial effect on interstate commerce," Conc. op. at 4;  cf. 
infra subsection II.B.2.



gered species is necessary to enable the government to 
control the transport of the endangered species in interstate 
commerce.  Second, the prohibition on takings of endangered 
animals falls under Congress' authority " 'to keep the chan-
nels of interstate commerce free from immoral and injurious 
uses.' "  Id. (quoting Heart of Atlanta Motel Inc. v. United 
States, 379 U.S. 241, 256 (1964)).4

     The ESA's prohibition on takings of endangered species 
can be justified as a necessary aid to the prohibitions in the 
ESA on transporting and selling endangered species in inter-
state commerce.  In this sense, the prohibition against tak-
ings of endangered species is analogous to the prohibition 
against transfer and possession of machine guns (including 
purely intrastate possession) of 18 U.S.C. s 922(o), which has 
been upheld by the Fifth, Sixth, Ninth, and Eleventh Circuits 

__________
     4 Judge Sentelle unsuccessfully attempts to draw a parallel be-
tween the statute at issue in Lopez, which the Supreme Court 
determined was not a regulation of the use of the channels of 
interstate commerce, and the statute at issue in this case.  In fact, 
the two statutes are different in material respects.  First, s 922(q)'s 
prohibition against possession of a firearm in a school zone clearly 
was not necessary to enable the government to control the trans-
portation of firearms in interstate commerce.  Yet, as noted above 
and discussed in greater depth below, the ESA's prohibition against 
taking endangered species is necessary to enable the government to 
control the transport of endangered species in interstate commerce.  
Thus, in this respect, ESA section 9(a)(1) is much more similar to 
the prohibition against transfer and possession of machine guns of 
18 U.S.C. s 922(o), which has been repeatedly found constitutional, 
than it is to s 922(q).  See infra text accompanying notes 5 & 6. 
Second, s 922(q)'s prohibition against possession of a firearm in a 
school zone clearly did not fall under Congress' authority " 'to keep 
the channels of interstate commerce free from immoral and injuri-
ous uses,' " Heart of Atlanta, 379 U.S. at 256, because it regulated 
possession of firearms within only a very limited area.  However, as 
is again discussed in greater depth below, the ESA's prohibition on 
taking endangered animals clearly does fall under Congress' author-
ity to keep the channels of interstate commerce free from immoral 
and injurious uses in cases where the pressures of interstate 
commerce place the existence of species in peril.



as a regulation of the channels of interstate commerce.  In 
United States v. Rambo, 74 F.3d 948, 951 (9th Cir.), cert. 
denied, 117 S. Ct. 72 (1996), for instance, the Ninth Circuit 
upheld section 922(o) against a Lopez-inspired Commerce 
Clause challenge.  The court held that the statute was a 
" 'regulation of the use of the channels of interstate com-
merce' " because "[b]y regulating the market in machineguns, 
including regulating intrastate machinegun possession, Con-
gress has effectively regulated the interstate trafficking in 
machineguns."   Id. at 952 (quoting Lopez, 514 U.S. at 559).5  
Thus, section 922(o) is properly classified as a first category 
regulation because " 'federal regulation of intrastate incidents 
of transfer and possession is essential to effective control of 

__________
     5 The other circuits that held that section 922(o) is a proper 
exercise of Congress' power to regulate the "channels of interstate 
commerce" employed similar reasoning.  See United States v. 
Wright, 117 F.3d 1265, 1270 (11th Cir. 1997) (upholding section 
922(o) on the ground that Congress had a rational basis to deter-
mine that a total ban on possession of machineguns would have a 
substantial effect on interstate commerce because "the connection 
between the elimination of the lawful demand for machineguns and 
the manufacture, importation, and interstate transfer of these prod-
ucts is obvious and direct");  United States v. Beuckelaere, 91 F.3d 
781, 784 (6th Cir. 1996) (upholding 19 U.S.C. s 922(o) as a first 
category regulation because "s 922(o) regulates the 'extensive, in-
tricate, and definitely national market for machineguns' by prohibit-
ing the transfer and possession of machineguns acquired after May 
19, 1986") (citations omitted);  United States v. Kirk, 70 F.3d 791, 
796-97 (5th Cir. 1995), aff'd, 105 F.3d 997 (5th Cir. 1996) (en banc), 
cert. denied, 118 S. Ct. 47 (1997) (holding that "section 922(o) is a 
regulation which attempts 'to prohibit the interstate transportation 
of a commodity through the channels of commerce," because the 
ban on possession of machineguns controls "the interstate market 
for machineguns by creating criminal liability for those who would 
constitute the demand side of the market") (citations omitted).  The 
en banc court in United States v. Kirk, 105 F.3d 997, was equally 
divided, with eight judges voting to affirm and eight judges voting 
to reverse the district court judgment.  In addition, there were two 



the interstate incidents of such traffic.' "  Id. (quoting United 
States v. Kirk, 70 F.3d 791, 797 (5th Cir. 1995), aff'd, 105 F.3d 
997 (5th Cir. 1996) (en banc), cert. denied, 118 S. Ct. 47 
(1997).  In other words, it is necessary to regulate possession 
of machineguns in order to effectively regulate the interstate 
traffic in machineguns because it is impossible to sell ma-
chineguns in interstate commerce without first possessing 
them.  Similarly, the prohibition on "taking" endangered 
species is properly classified as a first category regulation 
because one of the most effective ways to prevent traffic in 
endangered species is to secure the habitat of the species 
from predatory invasion and destruction.  Therefore, like 
section 922(o), section 9(a)(1) of the ESA can be properly 
upheld as a regulation of the use of the channels of interstate 
commerce.6

     The prohibition on takings of endangered animals also falls 
under Congress' authority to prevent the channels of inter-
state commerce from being used for immoral or injurious 
purposes.  This authority was perhaps best described by the 
Supreme Court in Heart of Atlanta, 379 U.S. 241, which the 
Lopez Court cited and quoted in its reference to Congress' 
power to regulate the use of the "channels of interstate 
commerce."  In Heart of Atlanta, the Supreme Court upheld 
a prohibition on racial discrimination in places of public 
accommodation serving interstate travelers against a Com-
merce Clause challenge.  The Court explained that " 'the 
authority of Congress to keep the channels of interstate 

__________
separate opinions affirming the judgment of the district court.  
Neither of the affirming opinions directly addresses the issue of 
whether section 922(o) is a regulation of the "channels of interstate 
commerce."  Therefore, I cite the Fifth Circuit's panel decision not 
for its precedential value but because I find its reasoning instruc-
tive.

     6 The District Court of Massachusetts used similar reasoning in 
upholding against a Commerce Clause challenge the conviction of a 
defendant who purchased a guide and hunted Alaskan wildlife with 
a false residential hunting license in violation of the Lacey Act.  See 
United States v. Romano, 929 F. Supp. 502 (D. Mass. 1996).  The 
court explained that "Congress may employ reasonable means to 
rid the channels of interstate commerce of illegally taken wildlife."  
See id. at 509 (citations omitted).



commerce free from immoral and injurious uses has been 
frequently sustained, and is no longer open to question.' "  Id. 
at 256 (citation omitted) (quoted in Lopez, 514 U.S. at 558).  
It does not matter if the activities that are regulated are of a 
"purely local character," the Court elaborated, " '[i]f it is 
interstate commerce that feels the pinch, it does not matter 
how local the operation which applies the squeeze.' "  Id. at 
258 (citation omitted).  Thus, the power of Congress over 
interstate commerce "also includes the power to regulate the 
local incidents thereof, including local activities in both the 
States of origin and destination, which might have a substan-
tial and harmful effect upon that commerce."  Id.  This same 
principle was elaborated in the seminal case of United States 
v. Darby, 312 U.S. 100 (1940), which was the only other case 
cited by the Lopez Court in its description of the first 
category of activity that Congress can regulate under its 
commerce power.  In Darby, the Court upheld federal wage 
and hour regulations against a Commerce Clause challenge, 
noting that such regulations were necessary to prevent states 
with higher regulatory standards from being disadvantaged 
vis--vis states with lower regulatory standards.  In uphold-
ing the regulation, the Court explained that "Congress, fol-
lowing its own conception of public policy concerning the 
restrictions which may appropriately be imposed on interstate 
commerce," is free to exclude from commerce goods that will 
have injurious effects in the state in which they are produced 
or to which they are destined.  Id. at 114.  This is true even 
though the activity prohibited by the regulation at issue in 
Darby--failure to meet minimum wage and maximum hour 
requirements--might have had little or no direct effect out-
side the state in which the goods were produced.

     This same reasoning that the Supreme Court applied in 
Darby and Heart of Atlanta is applicable to the case at hand.  
In those cases as well as here, Congress used its authority to 
rid the channels of interstate commerce of injurious uses to 
regulate the conditions under which goods are produced for 
interstate commerce.  In Darby, Congress used this authori-
ty to prevent labor exploitation of employees producing lum-
ber for interstate commerce.  In Heart of Atlanta, Congress 
used this authority to prevent racial discrimination by a hotel 



serving an interstate clientele.  Similarly, in this case, Con-
gress used this authority to prevent the eradication of an 
endangered species by a hospital that is presumably being 
constructed using materials and people from outside the state 
and which will attract employees, patients, and students from 
both inside and outside the state.  Thus, like regulations 
preventing racial discrimination or labor exploitation, regula-
tions preventing the taking of endangered species prohibit 
interstate actors from using the channels of interstate com-
merce to "promot[e] or spread[ ] evil, whether of a physical, 
moral or economic nature."  North American Co. v. S.E.C., 
327 U.S. 686, 705 (1946).  Congress is therefore empowered 
by its authority to regulate the channels of interstate com-
merce to prevent the taking of endangered species in cases 
like this where the pressures of interstate commerce place 
the existence of species in peril.

     In his dissent, Judge Sentelle claims that this analysis of 
Darby and Heart of Atlanta is "far off the mark."  Dissenting 
opinion ("Diss. op.") at 7.  It is his analysis, however, that is 
inconsistent with the reasoning and results in these cases.  In 
Judge Sentelle's view, the only regulations that would qualify 
as a proper regulation of the channels of interstate commerce 
are direct regulations of persons or things that move across 
state lines.  This view is simply not consistent with the 
Court's decisions in Darby and Heart of Atlanta, which I 
again note are the only two cases the Lopez Court cited to 
illustrate its first category of authorized regulation.  Neither 
Darby nor Heart of Atlanta involved a direct regulation of 
persons or things that moved across state lines.  The statute 
challenged in Darby set wage and hour requirements for 
lumber factory employees, while the statute in Heart of 
Atlanta prohibited racial discrimination against hotel custom-
ers.  Judge Sentelle's argument thus proves too much:  If 
only direct regulation of goods that travel in interstate com-
merce can be upheld as valid under the channels of interstate 
commerce prong of Lopez, both of these statutes must fail as 
well, a result patently inconsistent with the Court's express 
affirmance of them in Lopez.  Therefore, contrary to Judge 
Sentelle's assertion, see Diss. op. at 7-8, the argument that 
access to the channels of interstate commerce may be regu-



lated in order to prevent injurious local practices that in turn 
have a substantial harmful effect on interstate commerce 
either by discouraging such commerce or by inciting a race to 
the bottom is neither novel nor unduly extensive;  indeed, it is 
the core reasoning of Darby and Heart of Atlanta.

B.  Substantially Affects Interstate Commerce

     The takings clause in the ESA can also be viewed as a 
regulation of the third category of activity that Congress may 
regulate under its commerce power.  According to Lopez, the 
test of whether section 9(a)(1) of the ESA is within this 
category of activity "requires an analysis of whether the 
regulated activity 'substantially affects' interstate commerce."  
514 U.S. at 559.  A class of activities can substantially affect 
interstate commerce regardless of whether the activity at 
issue--in this case the taking of endangered species--is com-
mercial or noncommercial.  As the Lopez Court, quoting 
Wickard v. Filburn, 317 U.S. 111 (1942), noted:

     "[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, and this irre-
     spective of whether such effect is what might at some 
     earlier time have been defined as 'direct' or 'indirect.' "

Lopez, 514 U.S. at 556 (quoting Wickard, 317 U.S. at 125).7

     This interpretation of the Lopez decision is consistent with 
this court's recent decision in Terry v. Reno, 101 F.3d 1412 
(D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997).  In 
Terry, we upheld the Freedom of Access to Clinic Entrances 
Act against a Commerce Clause challenge, concluding that 
the Lopez decision did not restrict Congress' Commerce 
Clause power to activity that is "commercial."  We rejected 

__________
     7 Indeed, the case at hand is in many ways directly analogous to 
Wickard.  In both cases, the appellee's activity, growing wheat for 
personal consumption and taking endangered species, is local and is 
not "regarded as commerce."  Wickard, 317 U.S. at 125.  However, 
in both cases, the activity exerts a substantial economic effect on 
interstate commerce--by affecting the quantity of wheat in one 
case, and by affecting the quantity of species in the other.



the argument that Congress could not regulate protest in 
front of abortion clinics because protest is an intrastate, 
noncommercial activity, explaining that "Congress has au-
thority to regulate 'activities that substantially affect inter-
state commerce.' "  Id. at 1417 (quoting Lopez, 514 U.S. at 
559 (emphasis added)).  We further explained that in order to 
be subject to Congress' Commerce Clause power, "[t]he 
regulated activity--in this case, interfering with abortion 
clinics--need not be commercial, so long as its effect on 
interstate commerce is substantial."  Id.8

     Other circuits have also held that a statute need not 
regulate economic activity directly in order to fall under 
Congress' Commerce Clause power.  For instance, the Fifth 
Circuit upheld the Freedom of Access to Clinic Entrances Act 
against a challenge alleging that the Act constitutes an uncon-
stitutional exercise of Congress' Commerce Clause power 
because it proscribes intrastate, noncommercial activity.  
United States v. Bird, 124 F.3d 667, 669-70 (5th Cir. 1997).  
Acknowledging that the statute regulates intrastate, noncom-
mercial protest activity, the court held that the statute was a 
proper exercise of Congress' Commerce Clause power be-
cause it had a substantial effect on interstate commerce.  The 
court explained, "[a]fter Wickard--and its reaffirmance in 
Lopez--there can be no question that Congress is able to 
regulate noncommercial, intrastate activity that substantially 
affects interstate commerce...."  Id. at 676.  Similarly, the 

__________
     8 Interestingly, Judge Sentelle, who concurred in the Court's 
opinion in Terry v. Reno, 101 F.3d 1412, fails to cite the case in his 
dissenting opinion.  Indeed, he appears to assert propositions that 
are directly at odds with the Court's reasoning in that case.  For 
instance, he claims that ESA section 9(a)(1)(B) is not a permissible 
exercise of Congress' commerce power because "like the statute 
challenged in Lopez, [it] does not regulate commerce."  Diss. op. at 
4.  Yet in Terry v. Reno, this Court clearly indicated that Congress' 
Commerce Clause power is not limited to regulating commercial 
activity.  Rather, it is limited to regulating activity that has a 
substantial effect on interstate commerce.  See Terry, 101 F.3d at 
1417.  Were we to apply Judge Sentelle's reasoning in his dissent-
ing opinion here to Terry, it would dictate a result contrary to the 
Court's holding in that case.



Eleventh Circuit recently upheld the Comprehensive Envi-
ronmental Response, Compensation and Liability Act 
("CERCLA") against a Commerce Clause challenge by the 
operator of a chemical manufacturing facility that was re-
quired to pay for the cleanup of entirely localized environ-
mental contamination caused by the facility.  See U.S.A. v. 
Olin Corp., 107 F.3d 1506, 1510 (11th Cir. 1997).  The court 
explained that a statute need not "regulate economic activity 
directly to satisfy the Commerce Clause" because "Lopez 
reiterates that a statute will pass constitutional muster if it 
regulates an activity, whatever its nature, 'that arise[s] out of 
or [is] connected with a commercial transaction, which viewed 
in the aggregate, substantially affects interstate commerce.' "  
Id.  (quoting Lopez, 514 U.S. at 561).

     A recent Supreme Court decision confirms our holding in 
Terry, 101 F.3d 1412, that activity need not be commercial in 
character in order to be regulated by Congress under the 
Commerce Clause.  In Camps Newfound/Owatonna, Inc. v. 
Town of Harrison, Maine, 117 S. Ct. 1590, 1602 (1997), which 
involved a Commerce Clause challenge to an otherwise gener-
ally applicable state property tax exemption for charitable 
institutions that excluded organizations operated principally 
for the benefit of nonresidents, the Supreme Court held that 
the Commerce Clause applies to activity regardless of wheth-
er it was undertaken with the intention of earning a profit.  
Citing its earlier opinion in Edwards v. California, 314 U.S. 
160 (1941), in which the Court had held that interstate 
transportation of indigent persons was "commerce" regard-
less of whether it was "commercial in character," id. at 172 
n. 1, the Court explained that it had "already held that the 
dormant Commerce Clause is applicable to activities under-
taken without the intention of earning a profit."  117 S. Ct. at 
1602.  This decision confirms that the proper test of whether 
an activity can be regulated under the Commerce Clause is 
not whether the activity is itself commercial or economic but 
rather whether the activity has a substantial effect on inter-
state commerce.

     In evaluating the effect of the regulated activity on inter-
state commerce, I begin, as we did in Terry, 101 F.3d 1412, 
with the legislative history of the Act under challenge.  As we 
explained in Terry, "we consider 'even congressional commit-



tee findings' regarding the effect on interstate commerce of 
the regulated activity."  101 F.3d at 1415 (quoting Lopez, 514 
U.S. at 562).

     The Committee Reports on the ESA reveal 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 com-
merce.  As the House Report explained:

          ... As we homogenize the habitats in which these 
     plants and animals evolved, and as we increase the 
     pressure for products that they are in a position to 
     supply (usually unwillingly) we threaten their--and our 
     own--genetic heritage.

          The value of this genetic heritage is, quite literally, 
     incalculable....

          ...

          From the most narrow possible point of view, it is in 
     the best interests of mankind to minimize the losses of 
     genetic variations.  The reason is simple:  they are po-
     tential resources.  They are keys to puzzles which we 
     cannot solve, and may provide answers to questions 
     which we have not yet learned to ask.

          ...

          Who knows, or can say, what potential cures for cancer 
     or other scourges, present or future, may lie locked up in 
     the structures of plants which may yet be undiscovered, 
     much less analyzed?  More to the point, who is prepared 
     to risk being [sic] those potential cures by eliminating 
     those plants for all time?  Sheer self interest impels us 
     to be cautious.

H.R. Rep. No. 93-412, at 4-5 (1973).  Similarly, the Senate 
Report on the precursor to the ESA, noted:

          ... From a pragmatic point of view, the protection of 
     an endangered species of wildlife with some commercial 
     value may permit the regeneration of that species to a 
     level where controlled exploitation of that species can be 
     resumed.  In such a case businessmen may profit from 
     the trading and marketing of that species for an indefi-
     nite number of years, where otherwise it would have 




     been completely eliminated from commercial channels in 
     a very brief span of time.  Potentially more important, 
     however, is the fact that with each species we eliminate, 
     we reduce the [genetic] pool ... available for use by man 
     in future years.  Since each living species and subspecies 
     has developed in a unique way to adapt itself to the 
     difficulty of living in the world's environment, as a spe-
     cies is lost, its distinctive gene material, which may 
     subsequently prove invaluable to mankind in improving 
     domestic animals or increasing resistance to disease or 
     environmental contaminant, is also irretrievably lost.

S. Rep. No. 91-526, at 3 (1969).

     This legislative history distinguishes the ESA from the 
statute at issue in Lopez.  In Lopez, the Court noted that "as 
part of our independent evaluation of constitutionality under 
the Commerce Clause we of course consider legislative find-
ings, and indeed even congressional committee findings re-
garding effect on interstate commerce."  514 U.S. at 562 
(citations omitted).  The Lopez Court found, however, that 
there were no "congressional findings [that] would enable [it] 
to evaluate the legislative judgment that the activity in ques-
tion substantially affected interstate commerce."  Id. at 563.  
In this case, in contrast, the committee reports on the ESA 
discuss the value of preserving genetic diversity and the 
potential for future commerce related to that diversity.  See 
also Tennessee Valley Auth. v. Hill, 437 U.S. 153, 178-79 
(1978) (recognizing that one of the primary concerns underly-
ing the Endangered Species Act was concern "about the 
unknown uses that endangered species might have and about 
the unforeseeable place such creatures may have in the chain 
of life on this planet").9

__________
     9 Despite the Supreme Court's directive in Lopez that a court 
reviewing the constitutionality of a statute consider congressional 
findings, see Lopez, 514 U.S. at 557, 562, and the extensive case law 
indicating that the role of a reviewing court is to determine whether 
there is "any rational basis" for a congressional finding that a 
regulated activity substantially affects interstate commerce, see, 
e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, Inc., 
452 U.S. 276 (1981); United States v. Wright, 117 F.3d 1265, 1269 
(11th Cir. 1997), Judge Sentelle totally ignores the extensive legisla-
tive history of the ESA.



     These congressional findings, while highly informative, are 
of course not sufficient by themselves to make the statute 
constitutional.  The courts evaluating Commerce Clause chal-
lenges to federal statutes must determine that there was a 
rational basis for Congress' conclusion that a regulated activi-
ty substantially affects interstate commerce.  As the Elev-
enth Circuit recently explained, "Lopez did not alter our 
approach to determining whether a particular statute falls 
within the scope of Congress's Commerce Clause authori-
ty....  When ruling on a Commerce Clause challenge, we 
must determine, as always, 'whether a rational basis existed 
for concluding that a regulated activity sufficiently affected 
interstate commerce.' "  United States v. Wright, 117 F.3d 
1265, 1269 (11th Cir. 1997) (quoting Lopez, 514 U.S. at 557);  
see also Hodel v. Virginia Surface Mining & Reclamation 
Ass'n, Inc., 452 U.S. 264, 276 (1981) ("The task of a court that 
is asked to determine whether a particular exercise of con-
gressional power is valid under the Commerce Clause is 
relatively narrow.  The court must defer to a congressional 
finding that a regulated activity affects interstate commerce, 
if there is any rational basis for such a finding.") (citations 
omitted) (quoted in Terry, 101 F.3d at 1416).

     Congress could rationally conclude that the intrastate activ-
ity regulated by section 9 of the ESA substantially affects 
interstate commerce for two primary reasons.  First, the 
provision prevents the destruction of biodiversity and thereby 
protects the current and future interstate commerce that 
relies upon it.  Second, the provision controls adverse effects 
of interstate competition.10

__________
     10 Judge Sentelle asserts that these rationales have "no stopping 
point."  See Diss. op. at 11, 13.  In fact, however, they have very 
clear and obvious limits.  In the case of the first rationale, the 
argument stops at endangered species.  Activities 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 Endan-
gered Species Act only insofar as the Act prevents activities that 
are likely to cause the elimination of species.  In the case of the 
second rationale, the argument stops at activities are the product of 
destructive interstate competition.  Under this rationale, interstate 
competition that is likely to produce destructive results, such as 



     1.  Biodiversity

     Approximately 521 of the 1082 species in the United States 
currently designated as threatened or endangered are found 
in only one state.  See Brief of Amici Curiae for Appellees at 
20-21.  The elimination of all or even some of these endan-
gered species would have a staggering effect on biodiversi-
ty--defined as the presence of a large number of species of 
animals and plants--in the United States and, thereby, on the 
current and future interstate commerce that relies on the 
availability of a diverse array of species.

     The variety of plants and animals in this country are, in a 
sense, a natural resource that commercial actors can use to 
produce marketable products.  In the most narrow view of 
economic value, endangered plants and animals are valuable 
as sources of medicine and genes.11  Fifty percent of the most 

__________
elimination of endangered species' habitat, environmental degrada-
tion, or exploitation of labor, can be regulated by Congress.  Thus, 
the destructive interstate competition rationale provides support for 
the Endangered Species Act only insofar as the Act prevents a 
bidding down of regulatory standards that is likely to result in the 
elimination of endangered species' habitat.

     11 This is a necessarily constrained view of the "value" of biodiver-
sity.  Endangered species of course have value beyond the profit 
they can produce as sources of medicine and genes.  For example, 
tourists travel to see them, scientists study and learn from them, 
and people get aesthetic pleasure from them.  In addition, every 
species offers some clues to the path of the evolutionary chain that 
produced it and to the role of certain genes also found in humans.  
For instance, researchers have recently concluded that basic re-
search into the genes of the common fruit fly " 'can yield crucial 
clues to human development.' "  Jennifer Ackerman, Journey to the 
Center of the Egg, N.Y. Times, Oct. 12, 1997, s 6, at 45 (quoting 
biologist Christiane Nsslein-Volhard).  Moreover, every species 
has a place in the ecosystem.  Extinction of a species can therefore 
have an important effect on the larger system of which it is a part.  
As biologist Edward O. Wilson explained:

          ... The traditional econometric approach, weighing market 
     price and tourist dollars, will always underestimate the true 
     value of wild species.  None has been totally assayed for all of 



frequently prescribed medicines are derived from wild plant 
and animal species.12  Such medicines were estimated in 1983 
to be worth over $15 billion a year.  See id. at 11.  In 
addition, the genetic material of wild species of plants and 
animals is inbred into domestic crops and animals to improve 
their commercial value and productivity.  As Amici Curiae 
explained:  "Fortifying the genetic diversity of U.S. crops 
played a large part in the explosive growth in farm produc-
tion since the 1930s, accounting for at least one-half of the 
doubling in yields of rice, soybeans, wheat, and sugarcane, 
and a three-fold increase in corn and potatoes.  Genetic 
diversity provided by wild plants also protects domestic crops 
from disease and pest damage."  Id. at 12.  Similar genetic 
engineering can be used with animals.  For instance, it is not 
beyond the realm of possibility that the genes of a wild 
pollinator species like the Fly might be inbred with the 

__________
     the commercial profit, scientific knowledge, and aesthetic plea-
     sure it can yield.  Furthermore, none exists in the wild all by 
     itself.  Every species is part of an ecosystem, an expert 
     specialist of its kind, tested relentlessly as it spreads its 
     influence through the food web.  To remove it is to entrain 
     changes in other species, raising the populations of some, 
     reducing or even extinguishing others, risking a downward 
     spiral of the larger assemblage.

Edward O. Wilson, The Diversity of Life 308 (1992).

     12 For example, the venom of a species of South American pit 
viper led to the discovery of the angiotensin system that regulates 
blood pressure in human beings.  This helped scientists devise a 
molecule that alters blood pressure and is the preferred prescrip-
tion drug for hypertension, bringing the pharmaceutical company 
that manufactures it $1.3 billion a year in sales.  Biodiveristy II:  
Understanding and Protecting Our Biological Resources 9 (Mar-
joie L. Reaka-Kudla et al. eds. 1997).  Similarly, the saliva of the 
leech led to the development of the anticoagulant hirudin, which is 
used to treat hemorrhoids, rheumatism, thrombosis, and contusions 
and to dissolve blood clots that threaten skin transplants, and the 
saliva of the vampire bat of Central and South America is used to 
open clogged arteries and thereby prevent heart attacks.  See 
Wilson, supra note 11, at 285-86.



honeybee, which currently pollinates most major U.S. crops, 
to produce a pollinator that is more disease resistant.

     Each time a species becomes extinct, the pool of wild 
species diminishes.  This, in turn, has a substantial effect on 
interstate commerce by diminishing a natural resource that 
could otherwise be used for present and future commercial 
purposes.  Unlike most other natural resources, however, the 
full value of the variety of plant and animal life that currently 
exists is uncertain.  Plants and animals that are lost through 
extinction undoubtedly have economic uses that are, in some 
cases, as yet unknown but which could prove vitally important 
in the future.13  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.  See Bryan Nolan, 
Commodity, Amenity, and Morality:  The Limits of Quanti-
fication in Valuing Biodiveristy, in Biodiversity 200, 202 
(Edward O. Wilson ed., 1988).  To allow even a single species 
whose value is not currently apparent to become extinct 
therefore deprives the economy of the option value of that 
species.  Because our current knowledge of each species and 
its possible uses is limited, it is impossible to calculate the 
exact impact that the loss of the option value of a single 
species might have on interstate commerce.14  See Alan 

__________
     13 Some of the most important medical products derive from 
organisms that were once considered worthless or nearly so.  For 
example, Penicillium mold, which "sparked the concept of antibiot-
ics," was at one time valued only for the flavor it added to blue 
cheeses.  See Biodiversity II, supra note 12, at 9.

     14 Both Judge Sentelle and Judge Henderson appear to misunder-
stand this argument.  See Conc. op. at 2;  Diss. op. at 9.  Although 
both quote the statement it is "impossible to calculate the exact 
impact" of the extinction of a single species, both ignore the second 
half of the argument:  that in the aggregate we can be certain that a 
decline in biodiversity will have a "real and predictable " effect on 
interstate commerce.  As a result of this omission, both misportray 
the argument as claiming that the extinction of a single endangered 
species, by itself, has a substantial effect on interstate commerce.  
Indeed, Judge Sentelle goes so far as to describe the argument as 



Randall, What Mainstream Economists Have to Say about 
the Value of Biodiversity, in Biodiversity, supra, at 217.  In 
the aggregate, however, we can be certain that the extinction 
of species and the attendant decline in biodiversity will have a 
real and predictable effect on interstate commerce.

     The few federal courts that have considered post-Lopez 
Commerce Clause challenges to federal wildlife protection 
have found that the extinction of animals substantially affects 
interstate commerce.15  In United States v. Bramble, 103 

__________
follows:  "because of some undetermined and indeed undeterminable 
possibility that the fly might produce something at some undefined 
and undetermined future time which might have some undefined 
and undeterminable medical value, which in turn might affect 
interstate commerce at that imagined future point, Congress can 
today regulate anything which might advance the pace at which the 
endangered species becomes extinct."  Diss. op. at 9.  This is 
inaccurate.  To the contrary, the argument is that because biodiver-
sity has a real, substantial, and predictable effect on both the 
current and future interstate commerce, "the de minimis character 
of individual instances arising under [the ESA] is of no conse-
quence."  Lopez, 514 U.S. at 558.  In other words, because we know 
that in the aggregate the extinction of endangered species will have 
a substantial effect on interstate commerce, it does not matter that 
it is "impossible to calculate the exact impact" of the extinction of a 
single species such as the Fly.

     15 Prior to Lopez, the federal courts repeatedly concluded that 
congressional efforts at protecting endangered and migratory spe-
cies are constitutional under the Commerce Clause.  See Andrus v. 
Allard, 444 U.S. 51, 63 n.19 (1979) (discussing Migratory Bird 
Treaty Act and noting that the "assumption that the national 
commerce power does not reach migratory wildlife is clearly 
flawed");  Leslie Salt Co. v. United States, 896 F.2d 354, 360 (9th 
Cir. 1990) ("Leslie I"), cert. denied, 498 U.S. 1126 (1991) ("The 
commerce clause power ... is broad enough to extend [federal] 
jurisdiction to local waters which may provide habitat to migratory 
birds and endangered species."), cert. denied, 498 U.S. 1126 (1991);  
id. at 361 n.1 (Rymer, J., concurring) ("Congress does have power 
under the Commerce Clause to regulate wildlife and endangered 
species.");  Leslie Salt Co. v. United States, 55 F.3d 1388, 1396 (9th 
Cir.) (declining to reconsider Leslie I), cert. denied, 116 S. Ct. 407 



F.3d 1475 (9th Cir. 1996), the Ninth Circuit held that the 
Eagle Protection Act was a valid exercise of Congress' Com-
merce Clause power because "[e]xtinction of the eagle would 
substantially affect interstate commerce by foreclosing any 
possibility of several types of commercial activity."  Id. at 
1481;  see also United States v. Lundquist, 932 F. Supp. 1237, 
1245 (D. Or. 1996) (holding that "the possession of eagle parts 
is an activity which affects a broad regulatory scheme relat-
ing to commercial transactions and which, when viewed in the 
aggregate with similar activities nationwide, substantially af-
fects interstate commerce") (citing Lopez, 514 U.S. at 561).  
Similarly, in United States v. Romano, 929 F. Supp. 502, 507-
09 (D. Mass. 1996), the District Court of Massachusetts 
upheld the Lacey Act, 16 U.S.C. ss 3371-78, which prohibits 
any person from importing, exporting, transporting, selling, 
receiving, acquiring, or purchasing in interstate or foreign 
commerce any fish or wildlife taken, possessed, transported, 
or sold in violation of state or foreign law.  Citing Congress' 
findings that the protection of endangered species protects 
future commercial activity, the court held that the Act was 
within Congress' Commerce Clause power.  See Romano, 929 
F. Supp. at 508.16

__________
(1995);  see also Hughes v. Oklahoma, 441 U.S. 322, 329-36 (1979) 
(holding that state regulations of intrastate wildlife are within 
dormant Commerce Clause).

     16 The District Court of Hawaii relied on a similar reasoning in an 
earlier case involving a Commerce Clause challenge to the ESA, 
Palila v. Hawaii Dept. of Land and Natural Resources, 471 
F. Supp. 985 (D. Haw. 1979), aff'd, 639 F.2d 495 (9th Cir. 1981).  In 
that case, the court pointed to the interstate commerce effects of 
protecting endangered species to support its decision to uphold the 
Endangered Species Act.  The court explained:  "In this context, a 
national program to protect and improve the natural habitats of 
endangered species preserves the possibilities of interstate com-
merce in these species and of interstate movement of persons, such 
as amateur students of nature or professional scientists who come 
to a state to observe and study these species, that would otherwise 
be lost by state inaction."  Id. at 995.  The court thus concluded 
that the state's program of preserving herds of "wild" sheep and 



     I join these courts in concluding that the extinction of 
animals substantially affects interstate commerce.  More spe-
cifically, I find that the scientific evidence that is currently 
available provides sufficient support for Congress' conclusion 
that regulation of the "taking" of endangered animals is 
within its Commerce Clause power because such takings, if 
permitted, would have a substantial effect on interstate com-
merce by depriving commercial actors of access to an impor-
tant natural resource--biodiversity.

     2.  Destructive Interstate Competition

     The taking of the Fly and other endangered animals can 
also be regulated by Congress as an activity that substantially 
affects interstate commerce because it is the product of 
destructive interstate competition.  It is a principle deeply 
rooted in Commerce Clause jurisprudence that Congress is 
empowered to act to prevent destructive interstate competi-
tion.  As the Supreme Court explained in Hodel v. Virginia 
Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981) 
("Hodel v. Virginia"), a case that the Lopez Court cited 
repeatedly, "prevention of ... destructive interstate competi-
tion is a traditional role for congressional action under the 
Commerce Clause."  Id. at 282.

     The case at hand bears a substantial similarity to the three 
cases in which the Supreme Court best articulated the princi-
ple that Congress may act to prevent interstate competition 
that has a destructive effect:  Hodel v. Virginia, 452 U.S. 264, 
Hodel v. Indiana, 452 U.S. 314 (1981) ("Hodel v. Indiana"), 
and United States v. Darby, 312 U.S. 100 (1941).  In Hodel v. 
Virginia, the Supreme Court considered a challenge to the 
constitutionality of the Surface Mining Control and Reclama-
tion Act of 1977.  The Surface Mining Act required mine 
operators to restore the land after mining to its prior condi-
tion, including its approximate original contour, topsoil, hy-
drologic balance, and vegetation in order to "protect society 
and the environment from the adverse effects of surface coal 
mining operations."  452 U.S. at 268.  An association of coal 

__________
goats which destroyed the habitat of an endangered bird constituted 
an unlawful "taking" of the bird by the state.  Id.



producers in Virginia challenged the Act, which it claimed 
"regulat[ed] the use of private lands within the borders of the 
States," as beyond Congress' Commerce Clause power.  Id. 
at 275.  The Court held that the Act was a valid exercise of 
Congress' power under the Commerce Clause because "Con-
gress rationally determined that regulation of surface coal 
mining is necessary to protect interstate commerce from 
adverse effects that may result from that activity."  Id. at 
281.  Moreover, the Court concluded that "the power con-
ferred by the Commerce Clause [is] broad enough to permit 
congressional regulation of activities causing air or water 
pollution, or other environmental hazards that may have 
effects in more than one State."  Id. at 282.

     The parallels between Hodel v. Virginia and the case at 
hand are obvious.  The ESA and the Surface Mining Act both 
regulate activities--destruction of endangered species and 
destruction of the natural landscape--that are carried out 
entirely within a State and which are not themselves commer-
cial in character.  The activities, however, may be regulated 
because they have destructive effects, on environmental quali-
ty in one case and on the availability of a variety of species in 
the other, that are likely to affect more than one State.17  In 
each case, moreover, interstate competition provides incen-
tives to states to adopt lower standards to gain an advantage 
vis--vis other states:  In Hodel v. Virginia, 452 U.S. 264, the 
states were motivated to adopt lower environmental stan-
dards to improve the competitiveness of their coal production 
facilities, and in this case, the states are motivated to adopt 
lower standards of endangered species protection in order to 
attract development.18

__________
     17 See supra subsection II.B.1 for a discussion of how biodiversity 
affects interstate commerce.

     18 In his dissent, Judge Sentelle attempts to distinguish Hodel v. 
Virginia, 452 U.S. 264, Hodel v. Indiana, 452 U.S. 314, and United 
States v. Darby, 312 U.S. 100, from the case at hand by asserting 
that "[i]n the present case neither Congress nor the litigants, nor 
for that matter Judge Wald, has pointed to any commercial activity 
being regulated, any commercial competition being unfairly chal-



     The Supreme Court adopted similar reasoning in Hodel v. 
Indiana, 452 U.S. 314, which was decided on the same day as 
Hodel v. Virginia, and involved a challenge to different 
provisions of the same Act.  Hodel v. Indiana, 452 U.S. 314, 
involved a constitutional challenge to the "prime farmland" 
provisions of the Surface Mining Act, which established spe-
cial requirements for surface coal mining operations conduct-
ed on land that qualified as prime farmland and that had 
historically been used as cropland.  The Court held that the 
provisions did not violate the Commerce Clause.  The Act 
was adopted, the Court explained, "to ensure that production 
of coal for interstate commerce would not be at the expense 
of agriculture, the environment, or public health and safety, 
injury to any of which interests would have deleterious effects 
on interstate commerce."  Id. at 329.  Moreover, the Court 
noted, the Act reflected a congressional desire to "protect[ ] 
mine operators in States adhering to high ... standards from 
disadvantageous competition with operators in States with 
less rigorous regulatory programs."  Id.

     The parallels between Hodel v. Indiana, 452 U.S. 314, and 
the case at hand are again striking.  In both cases, the 
statutes under challenge regulated intrastate activity that is 
not itself commercial and that can be carried out entirely 
within a State:  the destruction of farmland and the destruc-
tion of endangered species.  Just as the prime farmland 
provisions of the Surface Mining Act were adopted to protect 
agriculture, the environment, and health and safety, injury to 
which would have deleterious effects on interstate commerce, 

__________
lenged, or any other sort of commerce being destroyed by the 
taking of the fly."  Diss. op. at 13.  Again, this is inaccurate.  In 
addition to arguing that a decline in biodiversity would have a 
substantial and predictable destructive effect on interstate com-
merce, see supra subsection II.B.1, this section of the opinion refers 
repeatedly to the fact that the ESA regulates the conditions under 
which development takes place, and thereby prevents states from 
adopting lower standards of endangered species protection in order 
to attract development (e.g., construction of a hospital, power plant, 
and intersection)--activity that even Judge Sentelle presumably 
would admit is commercial in nature.



section 9(a)(1) of the ESA was adopted to ensure that 
"growth and development," H.R. 37  ("Endangered and 
Threatened Species Conservation Act of 1973") (Findings, 
Purpose, and Policy), reprinted at 119 Cong. Rec. 25,694, 
25,694 (1973), would not be at the expense of the conservation 
and protection of a variety of species, injury to which would 
have equally deleterious consequences for interstate com-
merce.19  Thus, in both cases, the activity at issue may be 
regulated because it is likely to have destructive effects on 
interstate commerce.

     Finally, the Supreme Court's decision in United States v. 
Darby, 312 U.S. 100 (1941), also concluded that activity could 
be regulated under the Commerce Clause if it involved de-
structive interstate competition.  In Darby, the Court upheld 
wage and hour regulations for employees engaged in the 
production of lumber for interstate commerce.  Although the 
statute "undertakes to regulate wages and hours within the 
state contrary to the policy of the state which has elected to 
leave them unregulated," 312 U.S. at 114, the Court held that 
the statute was within the Commerce Clause power because it 
was necessary to control destructive interstate competition.  
The Court explained that "Congress, following its own con-
ception of public policy concerning the restrictions which may 
be appropriately imposed on interstate commerce, is free to 
exclude from the commerce articles whose use in the states 
for which they are destined it may conceive to be injurious to 
the public health, morals or welfare, even though the state 
has not sought to regulate their use."  Id. (citations omitted).  
The Court further explained that "interstate commerce 
should not be made the instrument of competition in the 
distribution of goods produced under substandard labor con-
ditions, which competition is injurious to the commerce and to 
the states from and to which the commerce flows."  Id. at 
115.

     Like Darby, 312 U.S. 100, the case at hand involves a 
regulation of the conditions under which commercial activity 
takes place.  The statute in Darby regulated the wages and 

__________
     19 See id.



hours of workers in Georgia who were engaged in producing 
lumber for interstate commerce.  Similarly, the statute in this 
case regulates the taking of endangered species in the pro-
cess of constructing a hospital, power plant, and intersection 
that will likely serve an interstate population.  In both cases, 
Congress passed the statute in part to prevent states from 
gaining a competitive advantage by enacting lower regulatory 
standards than other states.  Congress was aware that no 
state could be expected to require significantly more rigorous 
labor standards or endangered species protection than other 
states, because for each individual state, the cost of providing 
better working conditions or preserving a species outweighs 
the benefits even though in aggregate, the benefits of better 
labor standards and biodiversity outweigh the costs.20

__________
     20 Indeed, both the House and Senate recognized this as a reason 
for passing the Endangered Species Act.  In its Declaration of 
Policy, the Senate stated as follows:

     ... The Congress finds and declares that--

          (1) various species of fish, wildlife, and plants in the United 
     States have been rendered extinct as a consequence of econom-
     ic growth and development untempered by adequate concern 
     and conservation;

     ....

          (5) encouraging the States, through Federal financial assis-
     tance and a system of incentives, to develop and maintain 
     conservation, protection, restoration, and propagation pro-
     grams which meet national and international standards is a key 
     to meeting the Nation's international commitments and to 
     better safeguarding, for the benefit of all citizens, the Nation's 
     heritage in fish and wildlife.

S. 1983 ("Endangered Species Act of 1973") (Declaration of Policy), 
reprinted at 119 Cong. Rec. 30,157, 30,157 (1973).  Similarly, in its 
declaration of findings, purpose, and policy, the House stated:

          ... The Congress finds and declares that one of the unfortu-
     nate consequences of growth and development in the United 
     States and elsewhere has been the extermination of some 
     species or subspecies of fish, wildlife, and plants;  that serious 
     losses in species of wild animals with educational, historical, 
     recreational, and scientific value have occurred and are occur-
     ring ...;  that a key to more effective protection and manage-



     As the cases discussed above illustrate, the Court has long 
held that Congress has the power under the Commerce 
Clause to prevent destructive interstate commerce similar to 
that at issue in this case.  I therefore find that Congress has 
the power to prevent interstate competition that will result in 
the destruction of endangered species just as it has the power 
to prevent interstate competition that will result in harm to 
the environment, Hodel v. Virginia, 452 U.S. 264, the de-
struction of "prime farm land," Hodel v. Indiana, 452 U.S. at 
324, or the employment of people under substandard labor 
conditions, Darby, 312 U.S. 100.

                               III. Conclusion


     We hold that the section 9(a)(1) of the Endangered Species 
Act is within Congress' Commerce Clause power and that the 
Fish and Wildlife Service's application of the provision to the 
Delhi Sands Flower-Loving Fly was therefore constitution-
al.21  The district court's decision granting the Government's 
motion for summary judgment is therefore

__________
     ment of native fish and wildlife that are endangered or threat-
     ened is to encourage and assist the States in developing 
     programs for such fish and wildlife;  and that the conservation, 
     protection, restoration, or propagation of such species will inure 
     to the benefit of all citizens.

H.R. 37 ("Endangered and Threatened Species Conservation Act of 
1973") (Findings, Purpose, and Policy), reprinted at 119 Cong. Rec. 
25,694, 25,694 (1973).

     21  In the conclusion to his dissent, Judge Sentelle quotes a 
portion of Justice Story's Commentaries on the Constitution.  See 
Diss. op. at 15.  Justice Story was undoubtedly an eloquent and 
brilliant scholar.  As Justice Thomas recently noted, however, 
Justice Story's views "represent only his own understanding" of the 
Constitution.  U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 
856 (1995) (Thomas, J., dissenting).  Today few would agree with 
Justice Story's claim that the "power to regulate manufactures" 
falls outside Congress' Commerce Clause power.  Indeed, the Lo-
pez Court clearly established the principle that where activity, 
including manufacturing activity, "substantially affects interstate 




Affirmed.

__________
commerce, legislation regulating that activity will be sustained."  
Lopez, 514 U.S. at 559.




Karen LeCraft Henderson, Circuit Judge, concurring:

     I agree with Judge Wald's conclusion that the "taking" 
prohibition in section 9(a)(1) of the Endangered Species Act 
(ESA) constitutes a valid exercise of the Congress's authority 
to regulate interstate commerce under the Commerce 
Clause.1  I cannot, however, agree entirely with either of her 
grounds for reaching the result and instead arrive by a 
different route.

     Judge Wald first asserts that section 9(a)(1) is a proper 
regulation of the "channels of commerce."  In support she 
cites decisions upholding regulation of commercially market-
able goods, such as machine guns and lumber,2 and public 
accommodations.3  In each case, the object of regulation was 
necessarily connected to movement of persons or things 
interstate and could therefore be characterized as regulation 
of the channels of commerce.  Not so with an endangered 
species, as the facts here graphically demonstrate.  The Delhi 
Sands Flower-loving Flies the Department of the Interior 
seeks to protect are (along with many other species no doubt) 
entirely intrastate creatures.  They do not move among 

__________
     1 It is beyond question that the development San Bernardino 
County proposes is not only a "discomfit[ure]"of the Delhi Sands 
Flower-loving Fly, see Dissent at 1, but also a "taking" within the 
meaning of ESA, see Babbitt v. Sweet Home Chapter of Communi-
ties for a Greater Oregon, 515 U.S. 687, 691 (1995) (upholding 
Department of Interior's interpretation in 50 C.F.R. s 17.3 of 
statutory definition of "take" to include "an act which actually kills 
or injures wildlife," which "may include significant habitat modifica-
tion or degradation where it actually kills or injures wildlife by 
significantly impairing essential behavioral patterns, including 
breeding, feeding, or sheltering").  Further, the extent of inconve-
nience the County experiences if the unlawful taking is prevented, 
see Dissent at 1-2, is irrelevant so long as the prevention is 
authorized under the Commerce Clause.

     2 United States v. Rambo, 74 F.3d 948 (9th Cir. 1995);  United 
States v. Darby, 312 U.S. 100 (1941).

     3 Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 
(1964).



states either on their own or through human agency.  As a 
result, like the Gun-Free School Zones Act in Lopez, the 
statutory protection of the flies "is not a regulation of the use 
of the channels of interstate commerce."  115 S. Ct. at 1630.

     Judge Wald also justifies the protection of endangered 
species on the ground that the loss of biodiversity "substan-
tially affects" interstate commerce because of the resulting 
loss of potential medical or economic benefit.  Yet her opinion 
acknowledges that it is "impossible to calculate the exact 
impact" of the economic loss of an endangered species.  Wald 
Op. at 23.  As far as I can tell, it is equally impossible to 
ascertain that there will be any such impact at all.  It may 
well be that no species endangered now or in the future will 
have any of the economic value proposed.  Given that possi-
bility, I do not see how we can say that the protection of an 
endangered species has any effect on interstate commerce 
(much less a substantial one) by virtue of an uncertain 
potential medical or economic value.  Nevertheless, I believe 
that the loss of biodiversity itself has a substantial effect on 
our ecosystem 4 and likewise on interstate commerce.  In 
addition, I would uphold section 9(a)(1) as applied here be-
cause the Department's protection of the flies regulates and 
substantially affects commercial development activity which is 
plainly interstate.

     First, I agree with Judge Wald that biodiversity is impor-
tant to our understanding of ESA and its relation to inter-
state commerce.  As Judge Wald's opinion notes:

     Every species is part of an ecosystem, an expert special-
     ist of its kind, tested relentlessly as it spreads its influ-
     ence through the food web.  To remove it is to entrain 
     changes in other species, raising the populations of some, 
     reducing or even extinguishing others, risking a down-
     ward spiral of a larger assemblage.

__________
     4 An ecosystem consists of "[t]he organisms in a community plus 
the associated abiotic factors with which they interact."  Helena 
Curtis & N. Sue Barnes, Biology glossary at G-7 (5th ed. 1989).



Wald Op. at 21 n.11 (quoting Edward O. Wilson, The Diversi-
ty of Life 308 (1992)).  The effect of a species' continued 
existence on the health of other species within the ecosystem 
seems to be generally recognized among scientists.  See 
Stephen M. Johnson, United States V. Lopez:  A Misstep, but 
Hardly Epochal for Federal Environmental Regulation, 5 
N.Y.U. Envtl. L.J. 33, 79 (1996) ("It is a fundamental princi-
ple of ecology that ecosystems are composed of interdepen-
dent parts that play vital roles in preserving the ecosystem.  
As an ecosystem becomes less diverse, it becomes less adapt-
able to stresses that are placed on it.") (footnotes omitted);  
Myrl L. Duncan, Property as a Public Conversation, Not a 
Lockean Soliloquy:  A Role for Intellectual and Legal Histo-
ry in Takings Analysis, 26 Envtl. L. 1095, 1129 (1996) 
("[S]cientists have rediscovered that the world cannot mean-
ingfully be broken down into isolated parts, that every part is 
connected to every other part.  Perhaps the strongest state-
ments about interconnectedness come from scientists, schol-
ars, and regulators working in the field of conservation 
biology who are critical of the species-by-species, reaction-to-
crisis approach taken by the Endangered Species Act.  They 
understand that species protection issues cannot be separated 
from those of ecosystem health.") (footnotes omitted).  Some 
studies show, for example, that the mere presence of diverse 
species within an ecosystem (biodiversity) by itself contrib-
utes to the ecosystem's fecundity.  See Yvonne Baskin, Ecolo-
gists Dare to Ask:  How Much Does Diversity Matter?  264 
Science 202 (1994).  The Congress recognized the intercon-
nection of the various species and the ecosystems when it 
declared that the "essential purpose" of ESA, which protects 
endangered species, is in fact "to protect the ecosystem upon 
which we and other species depend."  H.R. Rep. No. 93-412, 
at 10 (1973);  see also 16 U.S.C. s 1531 (finding that endan-
gered species "are of aesthetic, ecological, educational, histor-
ical, recreational, and scientific value") (emphasis added);  cf. 
16 U.S.C. s 1361(5)(b) (congressional finding in support of 
Marine Mammal Protection Act of 1972 that "marine mam-
mals ... affect the balance of marine ecosystems in a manner 
which is important to other animals and other animal prod-



ucts which move in interstate commerce, and that the protec-
tion and conservation of marine mammals and their habitats 
is therefore necessary to insure the continuing availability of 
those products which move in interstate commerce").  Given 
the interconnectedness of species and ecosystems, it is rea-
sonable 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.  There is, therefore, "a 
rational basis" for concluding that the "taking" of endangered 
species "substantially affects" interstate commerce so that 
section 9(a)(1) is within the Congress's Commerce Clause 
authority.  See Lopez, 115 S. Ct. at 1629.

     The interstate effect of a taking is particularly obvious here 
given the nature of the taking the County proposes.  In 
enacting ESA, the Congress expressed an intent to protect 
not only endangered species but also the habitats that they, 
and we, occupy.  See H.R. Rep. No. 93-412, at 10 (1973) 
(identifying ESA's "essential purpose" as "to protect the 
ecosystem upon which we and other species depend");  S. 
Rep. No. 93-307 at 4 ("Often, protection of habitat is the only 
means of protecting endangered animals which occur on non-
public lands.");  Babbitt v. Sweet Home Chapter of Communi-
ties for a Great Oregon, 115 S. Ct. 2407, 2416-18 (1995) 
(statutory definition of "take" as "harm" encompasses habitat 
modification).  At the same time, the Congress expressly 
found that "economic growth and development untempered 
by adequate concern and conservation" was the cause for 
"various species of fish, wildlife, and plants in the United 
States hav[ing] been rendered extinct."  16 U.S.C. 
s 1531(a)(1).  It is plain, then, that at the time it passed ESA 
the Congress contemplated protecting endangered species 
through regulation of land and its development, which is 
precisely what the Department has attempted to do here.  
Such regulation, apart from the characteristics or range of 
the specific endangered species involved, has a plain and 
substantial effect on interstate commerce.  In this case the 



regulation relates to both the proposed redesigned traffic 
intersection and the hospital it is intended to serve, each of 
which has an obvious connection with interstate commerce.  
See Terry v. Reno, 101 F.3d 1412, 1416-17 (D.C. Cir. 1996) 
(concluding abortion clinic activities substantially affect inter-
state commerce);  Heart of Atlanta Motel, Inc. v. United 
States, 379 U.S. 241, 271 (1964) (concluding that "facilities and 
instrumentalities used to carry on [interstate] commerce, such 
as railroads, truck lines, ships, rivers, and even highways are 
also subject to congressional regulation, so far as is necessary 
to keep interstate traffic upon fair and equal terms") (empha-
sis added).5  Insofar as application of section 9(a)(1) of ESA 
here acts to regulate commercial development of the land 
inhabited by the endangered species, "it may ... be reached 
by Congress" because "it asserts a substantial economic effect 
on interstate commerce."  Wickard v. Filburn, 317 U.S. 111, 
125 (1942), quoted in United States v. Lopez, 514 U.S. 549, 
556 (1995).6

     For the preceding reasons I believe that the Department of 
the Interior's regulation of the County's proposed "taking" of 
the endangered Delhi Sands Flower-loving Fly, pursuant to 
section 9(a)(1) of ESA, is a lawful exercise of governmental 
authority under the Commerce Clause.7

__________
     5 In light of these authorities I cannot agree with my dissenting 
colleague that "[t]he activity regulated in the present case involves" 
only "local land use."  Dissent at 10.

     6 The dissent suggests this justification has no "stopping point" as 
required by Lopez.  See Dissent at 10-11;  Lopez, 514 U.S. at 564.  
In Lopez the Court was concerned that the "theories" offered by 
the government would authorize regulation of "all activities that 
might lead to violent crime, regardless of how tenuously they relate 
to interstate commerce" and "any activity that it found was related 
to the economic productivity of individual citizens."  Id.  The 
rationale on which I rely permits regulation only of activities 
(including land use) that adversely affect species that affect, or are 
involved in, interstate commerce.

     7 In so concluding, I note that neither the Supreme Court nor any 
circuit court has used Lopez to strike down an attempted regulation 



 

 

 

 

 

 

 

 

  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  

__________
outside the criminal arena.  For cases rejecting post-Lopez chal-
lenges to noncriminal statutes, see Wald Op. at 16-17.




     Sentelle, Circuit Judge, dissenting:  This case concerns 
the efforts of San Bernardino County, California ("the Coun-
ty"), to construct a hospital and supporting infrastructure for 
its citizens and other humans.  Unfortunately, those efforts 
discomfit an insect--the Delhi Sands Flower-Loving Fly.  
According to the parties in this case, there are fewer than 300 
breeding individuals of this species, all located within forty 
square miles in southern California.  These flies live as larvae 
for nearly two years under Delhi Sands, a particular type of 
grit, apparently found only in those forty square miles of 
southern California, after which they emerge to feed and 
breed for two weeks before dying.

     In 1982, the County began considering construction of a 
$470 million "state-of-the-art," "earthquake-proof" hospital 
complex.  The day before ground breaking was scheduled to 
occur in 1993, the U.S. Fish and Wildlife Service ("Service") 
of the Department of the Interior ("Interior") added the fly to 
the endangered species list and notified the County that 
construction of the hospital, on County land using County 
funds, would harm a colony of six to eight flies and would 
therefore violate federal law.  To prevent being prosecuted 
by the Service, County officials were forced to move the 
hospital complex 250 feet northward and to set aside 8 acres 
of land for the fly, delaying construction for a year and 
costing County taxpayers around $3.5 million.  The Service 
also imposed a variety of other stringent requirements, in-
cluding preservation of a flight corridor for the insect which 
today prevents improvements to a traffic intersection neces-
sary to allow emergency access and avoid "virtual gridlock" 
when the hospital opens.  At one point, the Service threat-
ened to require shutting down the eight-lane San Bernardino 
Freeway (US 10, one of the most heavily traveled in southern 
California) for two months every year (I am not making this 
up).  It did later drop this demand.  The Service has also 
impeded several localities from complying with County-
mandated weed-control programs which are an integral part 
of preventing brush fires in the area.  Construction planning 
and projects, including an electrical substation and housing 



developments, have also been threatened, impeded, or prohib-
ited because of the fly.  Local land-use planning, including 
the authority to balance environmental concerns with devel-
opment in a way to best serve citizens' interests, has been 
disrupted;  the financial health of the local governments has 
been impacted;  a local enterprise zone has been threatened;  
and private land development has been impeded.

                           Statutory Justification


     What business, one might ask, does the federal government 
have disrupting these activities of the unit of local govern-
ment, which range from the purely local to the generally local 
in nature?  The government's answer begins with a statutory 
justification.  It acts under the authority conferred upon it by 
the Endangered Species Act ("ESA"), specifically, section 
9(a)(1) of that Act, which makes it unlawful, inter alia, to "(B) 
take any such species within the United States or the territo-
rial seas of the United States."  16 U.S.C. s 1538(a)(1)(B).  
Next, one might ask, what does that statute have to do with 
the regulation of the County's activities in building a hospital 
and the supporting infrastructure?  It is not apparent that 
the hospital plans to "take" any insects, or any other species.  
It proposes to construct structures for human use, and the 
humans using those structures propose to drive automobiles, 
each of which might disturb the fly, but would not entail 
anything that most users of the English language would 
recognize as "taking" the fly.  Unfortunately for the County 
and its citizens, however, the Secretary of the Interior has 
determined that the word "take" includes within its definition 
"harm" and, therefore, activities which alter the habitat of an 
endangered species are covered by the statute prohibiting the 
taking of that species since the habitat modification might 
harm it.  Even more unfortunately for the County and the 
citizens, the Supreme Court has agreed with that expansive 
definition of "take."  Babbitt v. Sweet Home Chapter of 
Communities for a Great Oregon, 515 U.S. 687 (1995).  
Therefore, we may take it as a given that the statute forbid-
ding the taking of endangered species can be used, provided 
it passes constitutional muster, to prevent counties and their 



citizens from building hospitals or from driving to those 
hospitals by routes in which the bugs smashed upon their 
windshields might turn out to include the Delhi Sands Flow-
er-Loving Fly or some other species of rare insect.  That 
leaves the question for today as:  by what constitutional 
justification does the federal government purport to regulate 
local activities that might disturb a local fly?

                      The Constitutional Justifications


     The Department of Interior asserts that section 9(a)(1)(B) 
of the ESA, and specifically its use of that section to prohibit 
activities in southern California which might disturb a fly 
existing only in southern California, are constitutional under 
the Commerce Clause.  U.S. Const.  Art. I, s 8, cl. 3.  That 
clause empowers Congress to "regulate commerce with for-
eign nations, and among the several states, and with the 
Indian tribes."  This brings the next question:  Can Congress 
under the Interstate Commerce Clause regulate the killing of 
flies, which is not commerce, in southern California, which is 
not interstate?  Because I think the answer is "no," I can not 
join my colleagues' decision to affirm the district court's 
conclusion that it can.

                                   Analysis


     The proposition that the federal government can, under the 
Interstate Commerce Clause, regulate an activity which is 
neither interstate nor commerce, reminds me of the old 
chestnut:  If we had some ham, we could fix some ham and 
eggs, if we had some eggs.  With neither ham nor eggs, the 
chances of fixing a recognizable meal requiring both amount 
to nil.  Similarly, the chances of validly regulating something 
which is neither commerce nor interstate under the heading 
of the interstate commerce power must likewise be an empty 
recitation.  I recognize that for some decades of jurispruden-
tial development, the Commerce Clause has been used as the 
justification for the regulation of a plethora of activities not 
apparently within its text.  See, e.g., Wickard v. Filburn, 317 
U.S. 111 (1942) (regulating the consumption of home-grown 



wheat).  So wide-ranging has been the application of the 
Clause as to prompt one writer to "wonder why anyone would 
make the mistake of calling it the Commerce Clause instead 
of the 'hey-you-can-do-whatever-you-feel-like clause.' "  
Judge Alex Kozinski, Introduction to Volume 19, 19 Harv. J. 
L. Pub. Pol. 1, 5 (1995).  However, in 1995, the Supreme 
Court brought an end to the galactic growth of the Clause's 
application and reminded Congress that the words of that 
Clause, like the rest of the Constitution, have content, in 
United States v. Lopez, 514 U.S. 549 (1995).  While I would 
have found the present application of the ESA to be outside 
the enumerated powers of Congress under the Commerce 
Clause even in the world before Lopez, after that controlling 
decision, I think there can be no doubt.

     In Lopez, the Supreme Court considered the constitutional-
ity of the Gun-Free School Zones Act of 1990, in which 
Congress made it a federal offense "for any individual know-
ingly to possess a firearm at a place that the individual 
knows, or has reasonable cause to believe, is a school zone."  
18 U.S.C. s 922(q)(1)(A) (Supp. V 1988).  The Court conclud-
ed that because "[t]he Act neither regulates a commercial 
activity nor contains a requirement that the possession be 
connected in any way to interstate commerce," the statute 
"exceeds the authority of Congress" to regulate commerce 
under the Interstate Commerce Clause.  514 U.S. at 551.  
For the same reasons, I would hold that the challenged 
subsection of the ESA likewise exceeds that authority.

     First, ESA section 9(a)(1)(B), like the statute challenged in 
Lopez, does not regulate commerce.  In Lopez, the Supreme 
Court repaired to first principles.  It reminded us that the 
Commerce Clause, unsurprisingly, regulates "commerce," and 
that "commerce ... is traffic ... it is intercourse ... com-
mercial intercourse between nations, and parts of nations," as 
relevant here, between states.  Id. at 553 (quoting Gibbons v. 
Ogden, 9 Wheat. 1, 189-190 (1824)).  The Lopez Court then 
went on to analyze the developments of Commerce Clause 
jurisprudence through the next 171 years after Gibbons v. 
Ogden.  Specifically, the Court noted such significant devel-
opments as the enactment of the Interstate Commerce Act, 



24 Stat. 379 (1887), and the Sherman Antitrust Act, 26 Stat. 
209 (1890), as amended, 15 U.S.C. s 1 et seq., and the era of 
federal regulation which they ushered into our jurisprudence.  
Coupling this with the development of the negative Com-
merce Clause, see authorities collected in Lopez, 514 U.S. at 
554, the Lopez Court traced Commerce Clause jurisprudence 
to NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), 
and the growing extension of congressional authority to the 
regulation of essentially intrastate activities that " 'have such 
a close and substantial relation to interstate commerce that 
their control is essential or appropriate to protect that com-
merce from burdens and obstructions' [which] are within 
Congress' power to regulate."  Lopez, 514 U.S. at 555 (quot-
ing Jones & Laughlin Steel, 301 U.S. at 37).  Following that 
through Wickard v. Filburn, supra, the Lopez Court finally 
analyzed the present state of our commerce jurisprudence.

     The Court identified "three broad categories of activity that 
Congress may regulate under its commerce power."  Id. at 
558-59.  Under the Lopez analysis, these three categories 
are:  (1) "Congress may regulate the use of the channels of 
interstate commerce";  (2) "Congress is empowered to regu-
late and protect the instrumentalities of interstate commerce, 
or persons or things in interstate commerce, even though the 
threat may come only from intrastate activities";  (3) "Con-
gress' commerce authority includes the power to regulate 
those activities having a substantial relation to interstate 
commerce."  Id. (citations omitted).  My colleagues and I 
agree that Lopez recognizes the limitation of the power of 
Congress to act under the Commerce Clause to these three 
categories.  Opinion of Judge Wald ("Wald Op.") at 8;  Opin-
ion of Judge Henderson ("Henderson Op.") at 1.  They 
further agree with each other that the federal government's 
actions in this case come within its Commerce Clause authori-
ty as defined in Lopez.  They cannot, however, agree as to 
how it fits within the Lopez analysis.

     I find this inability to agree unsurprising, as this effort to 
regulate does not fit any of those categories.  First, category 
(2) of constitutional commerce regulation is definitely unavail-



able.  Judge Wald expressly agrees that "section 9(a)(1) of 
the ESA is not a regulation of the instrumentalities of inter-
state commerce or of persons or things in interstate com-
merce." Wald Op. at 8.  Apparently Judge Henderson agrees 
sub silentia, as she never asserts the second category of 
Lopez analysis as a foundation for upholding this application 
of the Act.  That said, we are left with potential justification 
of the Act only as regulation of the use of channels of 
interstate commerce or as an exercise of Congress' power to 
regulate those activities having a substantial relationship to 
interstate commerce.  My colleagues accept differing argu-
ments as to why one or both of those rationales underpins the 
exercise of federal authority over purely local actions disturb-
ing a purely local fly.

     Judge Wald first asserts that the action taken by the 
Service under section 9(a)(1)(B) is a constitutional regulation 
of "the use of the 'channels of interstate commerce.' "  Wald 
Op. at 9 (quoting Lopez, 514 U.S. at 558).  The short disposi-
tion of this argument is to say it does not command a 
majority even without me.  Judge Henderson rejects it out of 
hand, noting, correctly, that all authority offered by Judge 
Wald in support of the channels-of-commerce rationale upheld 
regulation "necessarily connected to movement of persons or 
things interstate...."  Henderson Op. at 1 (citing United 
States v. Rambo, 74 F.3d 948 (9th Cir. 1995);  United States v. 
Darby, 312 U.S. 100 (1941);  and Heart of Atlanta Motel, Inc. 
v. United States, 379 U.S. 241 (1964)).  As Judge Henderson 
goes on to note, neither the whole of the endangered species, 
nor any of the individuals comprising it, travel interstate.  
The Delhi Sands Flower-Loving Fly is an inveterate stay-at-
home, a purely intrastate creature.  The Gun-Free School 
Zones Act, stricken as unconstitutional by the Supreme Court 
in Lopez, involved purely local possession of firearms, objects 
which do move in interstate commerce, presumably through 
its channels.  The Supreme Court without difficulty deter-
mined that that section was "not a regulation of the use of the 
channels of interstate commerce."  Neither is this.  It does 



not purport to be.1

     Not only do I join Judge Henderson in rejecting any claim 
that section 9(a)(1)(B) is constitutional as a proper regulation 
of the channels of commerce, but I would go further than she 
and note that Judge Wald's supporting analysis of Darby and 
Heart of Atlanta is far off the mark.

     As Judge Wald notes, both Darby and Heart of Atlanta 
concerned congressional efforts to "rid the channels of inter-
state commerce of injurious uses."  Wald Op. at 13.  But, for 
reasons I have already described, supra n.1, preventing habi-
tat destruction contributes nothing to the goal of eliminating 
the fly, or any other endangered species, from the channels of 
commerce.  The fact that activities like the construction of a 
hospital might involve articles that have traveled across state 
lines cannot justify federal regulation of the incidental local 
effects of every local activity in which those articles are 
employed.  Judge Wald seems to be trying to extend Con-
gress' power over the channels of commerce to allow direct 
federal regulation of any local effects caused by any activity 
using those channels of commerce.  She focuses not on the fly 
in the channels of commerce, but everything else moving in 
the channels of commerce that may affect the fly.  But this 
improperly inverts the third prong of Lopez and extends it 
without limit.  Under Judge Wald's theory, instead of being 

__________
     1 Judge Wald unsuccessfully attempts to distinguish Lopez by 
claiming that a prohibition against habitat destruction is "necessary 
to enable the government to control the transport of endangered 
species in interstate commerce."  Wald Op. at 10.  The fly is not an 
article of interstate commerce, and does not travel the channels of 
commerce.  The issue before us is not possession or sale of flies, 
but, essentially, destruction of flies.  Congress may have the au-
thority to prevent interstate transportation of flies, and that aspect 
of the ESA is not challenged here.  But preventing destruction of 
local flies cannot reasonably be held to be either "necessary" or 
"proper" to keeping the channels of commerce free from their 
interstate transportation.  While prohibiting the local possession 
and exchange of flies might arguably be necessary to preventing 
interstate transportation or exchange of flies, prohibiting destruc-
tion of fly habitat is not.



limited to activities that substantially affect commerce, Con-
gress may also regulate anything that is affected by com-
merce.

     While Judge Henderson agrees with me that category (1) 
of Lopez regulation does not support the Department's posi-
tion, she agrees with Judge Wald that the statutory protec-
tion of the flies can be justified under category (3):  that is, 
that it is the regulation of "activities that substantially affect 
interstate commerce."  Lopez, 514 U.S. at 558-59.  Once 
again, however, my colleagues cannot agree as to a rationale.  
Before responding to their differing opinions on why the 
regulation of intrastate fly killing falls within Congress' "pow-
er to regulate those activities having a substantial relation to 
interstate commerce," I pause to further elaborate the Su-
preme Court's analysis of that category of legitimate regula-
tory power from Lopez.  Because category (3) was the only 
category which even arguably could have permitted Congress 
to regulate the purely intrastate possession of firearms con-
sidered in Lopez, the Supreme Court afforded it a more 
thorough analysis than the other two categories and, in so 
doing, established three areas of inquiry necessitated by a 
claim of interstate commerce authority under the "substantial 
effects" category.  Thus, in considering whether or not to 
uphold regulation under that rationale, we must examine 
whether:

     -- the regulation controls a commercial activity, or an 
     activity necessary to the regulation of some commercial 
     activity;

     -- the statute includes a jurisdictional nexus require-
     ment to ensure that each regulated instance of the 
     activity affects interstate commerce; and

     -- the rationale offered to support the constitutionality 
     of the statute (i.e., statutory findings, legislative history, 
     arguments of counsel, or a reviewing court's own attribu-
     tion of purposes to the statute being challenged) 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.2

     None of the rationales offered by my colleagues pass this 
examination.  Judge Wald offers two possible explanations as 
to why the challenged regulatory activity falls within category 
(3).  First, she puts forth the "biodiversity" rationale.  Under 
this rationale, she argues that the extinction of a species, and 
the concomitant diminution of the pool of wild species, "has a 
substantial effect on interstate commerce by diminishing a 
natural resource that could otherwise be used for present and 
future commercial purposes."  Wald Op. at 23.  As I under-
stand her argument, because of some undetermined and 
indeed undeterminable possibility that the fly might produce 
something at some undefined and undetermined future time 
which might have some undefined and undeterminable medi-
cal value, which in turn might affect interstate commerce at 
that imagined future point, Congress can today regulate 
anything which might advance the pace at which the endan-
gered species becomes extinct.  Judge Henderson rejects this 
rationale, noting cogently that our colleague admits "that it is 
'impossible to calculate the exact impact' of the economic loss 
of an endangered species," Henderson Op. at 2 (quoting Wald 
Op. at 23).  Judge Henderson further notes that "it is equally 
impossible to ascertain that there will be any such impact at 
all."  Id.  She then reasons, and I agree, that we cannot then 
"say that the protection of an endangered species has any 
effect on interstate commerce (much less a substantial one) 
by virtue of an uncertain potential medical or economic 
value."  Id.  I would further note that Judge Wald's first 
rationale fails under each of the subsidiary inquiries of cate-
gory (3) discussed above.

     First, the regulation does not control a commercial activity, 
or an activity necessary to the regulation of some commercial 

__________
     2 This specific formulation of the inquiries necessary under cate-
gory (3) is drawn from United States v. Wall, 92 F.3d 1444, 1455-56 
(6th Cir. 1996) (Boggs, J., dissenting in part).  However, each of the 
points summarized in Judge Boggs's formulation is taken directly 
from Lopez, 514 U.S. at 559-65.



activity.  Neither killing flies nor controlling weeds nor dig-
ging holes is either inherently or fundamentally commercial 
in any sense.  Like the criminal statute struck down in Lopez, 
the challenged section of the ESA "by its terms has nothing 
to do with 'commerce' or any sort of economic enterprise, 
however broadly one might define those terms."  Lopez, 514 
U.S. at 561.  In applying that test in Lopez, the Supreme 
Court noted that "[s]ection 922(q) is a criminal statute" and 
that "under our federal system, the States possess primary 
authority for defining and enforcing the criminal law."  Id. at 
561 & n.3 (citations and internal quotations omitted).  The 
activity regulated in the present case involves local land use, a 
similar traditional stronghold of state authority.

     As to the second subsidiary inquiry, the Supreme Court 
noted in Lopez that the statute before it contained "no 
jurisdictional element which would ensure, through case-by-
case inquiry, that the firearms possession in question affects 
interstate commerce."  Id. at 562.  Just so with the ESA. 
Nothing in section 9(a)(1)(B) of the Act or any other govern-
ing section requires that the regulated activity affect inter-
state commerce or provides any jurisdictional nexus support-
ing such a test.  Like the statute in Lopez, it falls outside the 
authority granted by the Commerce Clause.3

     Third, the rationale offered by Judge Wald to support this 
intrastate application of a statute unlimited by either of the 
other two subsidiary inquiries has no logical stopping point.  
As Judge Henderson suggests, the rationale dependent upon 
the purely speculative future impact of an action with no 

__________
     3 Judge Wald chides me for not discussing Terry v. Reno, 101 
F.3d 1412 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 2431 (1997).  See 
Wald Op. at 16 n.8.  In Terry, the effect on commercial activity was 
obvious--persons blocking access to clinics directly affected the 
business of abortion doctors serving interstate customers.  The 
taking of a purely local fly, a harm without even a remote effect on 
commerce, cannot be reasonably likened to local activities undertak-
en with the purpose and effect of directly impeding interstate 
commerce.



demonstrable impact at all cannot be said to "ha[ve] any 
effect on interstate commerce (much less a substantial 
one)...."  Henderson Op. at 2.  If it could, then I do not see 
how Congress could be prohibited from regulating any action 
that might conceivably affect the number or continued exis-
tence of any item whatsoever.  A creative and imaginative 
court can certainly speculate on the possibility that any object 
cited in any locality no matter how intrastate or isolated 
might some day have a medical, scientific, or economic value 
which could then propel it into interstate commerce.  There is 
no stopping point.  If we uphold this statute under Judge 
Wald's first rationale, we have indeed not only ignored 
Lopez but made the Commerce Clause into what Judge Ko- 
zinski suggested:  the "hey-you-can-do-whatever-you-feel-like 
clause."  Kozinski, supra.

     Though Judge Henderson rejects Judge Wald's "biodiversi-
ty" rationale, she relies on a related justification of her own, 
which is to me indistinguishable in any meaningful way from 
that of Judge Wald.  As I understand her rationale, it 
depends on "the interconnectedness of species and ecosys-
tems," which she deems sufficient for us "to conclude that the 
extinction of one species affects others and their ecosystems 
and that the protection of a purely intrastate species [con-
cededly including the Delhi Sands Flower-Loving Fly] will 
therefore substantially affect land and objects that are in-
volved in interstate commerce."  Henderson Op. at 4.  I see 
this as no less of a stretch than Judge Wald's rationale.  
First, the Commerce Clause empowers Congress "to regulate 
commerce" not "ecosystems."  The Framers of the Constitu-
tion extended that power to Congress, concededly without 
knowing the word "ecosystems," but certainly knowing as 
much about the dependence of humans on other species and 
each of them on the land as any ecologist today.  An ecosys-
tem is an ecosystem, and commerce is commerce.

     Granted, years of jurisprudence have extended that regula-
tory authority to encompass "activities having a substantial 
effect on interstate commerce," the third category of Lopez 
legitimacy, but Judge Henderson's rationale fails the analysis 
of this third category as completely as does Judge Wald's.  I 



will not rehash the first two subsidiary requirements, because 
the failure is for precisely the same reasons set forth above.  
As to the third subsidiary test, it fails for substantially the 
same reasons as Judge Wald's--it has no stopping point.  
There is no showing, but only the rankest of speculation, that 
a reduction or even complete destruction of the viability of 
the Delhi Sands Flower-Loving Fly will in fact "affect land 
and objects that are involved in interstate commerce," 
Henderson Op. at 4, let alone do so substantially.4  Nothing 
in the statute certainly necessitates such a nexus, nor has my 
colleague supplied a reason why this basis of regulation would 
apply to the preservation of a species any more than any 
other act potentially affecting the continued and stable exis-
tence of any other item of a purely intrastate nature upon 
which one might rest a speculation that its loss or change 
could somehow affect some other object, land, or otherwise, 
that might be involved in interstate commerce.

     In addition to their biodiversity/ecosystem justifications, 
each of my colleagues offers a second rationale for justifying 
Interior's actions under the third category of Lopez regula-
tion.  Judge Wald asserts that "[t]he taking of the Fly and 
other endangered animals can also be regulated by Congress 
as an activity that substantially affects interstate commerce 
because it is the product of destructive interstate competi-
tion."  Wald Op. at 26.  I am not at all certain what that 
means in relation to the application of the ESA to the 
building of a hospital and supporting infrastructure in a single 
intrastate location.  She relies on Hodel v. Virginia, 452 U.S. 
264 (1981), Hodel v. Indiana, 452 U.S. 314 (1981), and United 
States v. Darby, 312 U.S. 100 (1940).  Although she asserts 
"striking parallels" between those cases and the present one, 
I see no parallel at all.  In each of those cases, Congress 
regulated arguably intrastate commercial activities, specifi-
cally mining and lumber production for interstate commerce.  

__________
     4 Indeed, there is nothing in either Judge Henderson's opinion or 
the record to support speculation that the extinction of the Delhi 
Sands Flower-Loving Fly would have any effect on any other 
species.



In each of those cases, the Supreme Court upheld the rele-
vant statutes, noting that the regulated actors would either 
destroy other commercial activities or be able to unfairly 
compete with interstate competitors subject to higher regula-
tory standards protective of other elements of commerce.  In 
the present case neither Congress nor the litigants, nor for 
that matter Judge Wald, has pointed to any commercial 
activity being regulated, any commercial competition being 
unfairly challenged, or any other sort of commerce being 
destroyed by the taking of the fly.  With reference to her 
other rationale, I saw no stopping point;  here, I am not even 
sure what the beginning point is, let alone the terminus.  I do 
not think a decision upholding the challenged section of the 
ESA on this rationale can exist in the same jurisprudence as 
Lopez.

     Finally, Judge Henderson would justify the challenged 
section on the basis that "in enacting the ESA, the Congress 
expressed an intent to protect not only endangered species, 
but also the habitats that they, and we, occupy."  Henderson 
Op. at 4.  I see no legally significant distinction between this 
justification and her "ecosystems" justification.  The Com-
merce Clause empowers Congress to regulate "commerce," 
not habitat.  People and animals lived in habitats at the time 
of the adoption of the Constitution, and we live in habitats 
now.  Because the power to regulate habitats was "not dele-
gated to the United States by the Constitution, nor prohibited 
by it to the states," that power is "reserved to the states 
respectively, or to the people."  U.S. Const. Amend. X.  For 
the reasons outlined with reference to the ecosystem justifica-
tion, the habitat justification fails as well.

     Judge Henderson would support her view that Commerce 
Clause authority extends to the regulation of "land inhabited 
by the endangered species," with the language of Wickard v. 
Filburn, 317 U.S. 111, 125 (1942), that a subject matter "may 
... be reached by Congress" because "it asserts a substantial 
economic effect on interstate commerce."  I do not see the 
applicability of the Wickard language to our present contro-
versy.  The statute in Wickard involved the regulation of the 
interstate wheat market.  The issue in Wickard involved the 
production and consumption of homegrown wheat.  Where 



Congress has acted to regulate interstate commerce in a 
commodity, the intrastate production and consumption of that 
commodity in fact has an obvious effect on the impact of the 
regulatory scheme.  While the effect of one farmer's produc-
tion and consumption may not by itself be substantial, "his 
contribution, taken together with that of many other similarly 
situated, is far from trivial."  Wickard 317 U.S. at 127-28, 
quoted in Lopez 514 U.S. at 556.  In discussing Wickard, the 
Lopez Court rejected the notion that the Wickard precedent 
establishes that "all activities affecting commerce, even in the 
minutest degree, may be regulated and controlled by Con-
gress."  Lopez 514 U.S. at 558 (citation and internal punctua-
tion omitted).  It went on to note that the Court in Maryland 
v. Wirtz, 392 U.S. 183 (1968), had rejected that expansive 
reading of Wickard and held that "neither here nor in Wick-
ard has the Court declared that Congress may use a relative-
ly trivial impact on commerce as an excuse for broad general 
regulation of state or private activities."  Id. at 197 n.27, 
quoted in Lopez 514 U.S. at 558.  Here, there is no general 
regulatory scheme of interstate commerce in a commodity 
such that the cumulative effect of purely local state and 
private activities could substantially affect it.  There is no 
commerce in the Delhi Sands Flower-Loving Fly.

     An alternate reading of Judge Henderson's second justifi-
cation with its stress on the effect of the regulation upon the 
highway and hospital is that she concludes that Congress may 
regulate purely intrastate activities--e.g., the habitat modifi-
cation of the fly--where the regulation will then affect items 
which are arguably in interstate commerce.  Again, I do not 
see the stopping point.  Congress is not empowered either by 
the words of the Commerce Clause or by its interpretation in 
Lopez to regulate any non-commercial activity where the 
regulation will substantially affect interstate commerce.  The 
most expansive view of Lopez is that Congress can regulate 
"those activities having a substantial relation to interstate 
commerce."  Nowhere is it suggested that Congress can 
regulate activities not having a substantial effect on com-
merce because the regulation itself can be crafted in such a 
fashion as to have such an effect.



     In the end, attempts to regulate the killing of a fly under 
the Commerce Clause fail because there is certainly no 
interstate commerce in the Delhi Sands Flower-Loving Fly. 
The whole effort to employ a clause that empowers Congress 
to regulate commerce in order to serve a perhaps worthy but 
wholly non-commercial goal of preserving an endangered fly 
calls to mind the thoughts of the first great commentator on 
the Constitution, Justice Joseph Story.  Story considered the 
then-current question of whether the constitutional authority 
to regulate commerce could be applied to the perhaps worthy 
"purpose of encouraging and protecting domestic manufac-
tures."  He declared,

     If this were admitted, the enumeration of the powers of 
     congress would be wholly unnecessary and nugatory.  
     Agriculture, colonies, capital, machinery, the wages of 
     labour, the profits of stock, the rents of land, the punctu-
     al performance of contracts, and the diffusion of knowl-
     edge would all be within the scope of the power;  for all 
     of them bear an intimate relation to commerce.  The 
     result would be, that the powers of congress would 
     embrace the widest extent of legislative functions, to the 
     utter demolition of all constitutional boundaries between 
     the state and national governments....  The power to 
     regulate manufactures is no more confided to congress, 
     than the power to interfere with the systems of edu-
     cation, the poor laws, or the road laws of the states.

Joseph Story, 2 Commentaries on the Constitution s 1075 
(1833).

                                  Conclusion


     I dissent from the decision of this court to uphold that 
regulation.

                                          
