Rancho Viejo, LLC v. Gale A. Norton, Secretary of the Interior

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2002 Decided April 1, 2003
No. 01-5373
RANCHO VIEJO, LLC,
APPELLANT
v.
GALE A. N ORTON, SECRETARY OF THE INTERIOR, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 00cv02798)
John C. Eastman argued the cause for appellant. With
him on the briefs were Hugh Hewitt, Steven B. Imhoof, John
W. Wilmer, Jr., and Gregory D. Russell.
M. Reed Hopper and Anne M. Hayes were on the brief for
amicus curiae Pacific Legal Foundation in support of rever-
sal.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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2
Katherine J. Barton, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Ellen J. Durkee and Seth M. Barsky, Attorneys. David C.
Shilton, Attorney, entered an appearance.
Before: G INSBURG, Chief Judge, and EDWARDS and GARLAND ,
Circuit Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
Concurring opinion filed by Chief Judge GINSBURG.
GARLAND , Circuit Judge: Rancho Viejo is a real estate
development company that wishes to construct a 202-acre
housing development in San Diego County, California. The
United States Fish and Wildlife Service determined that
Rancho Viejo’s construction plan was likely to jeopardize the
continued existence of the arroyo southwestern toad, which
the Secretary of the Interior has listed as an endangered
species since 1994. Rather than accept an alternative plan
proposed by the Service, Rancho Viejo filed suit challenging
the application of the Endangered Species Act, 16 U.S.C.
§§ 1531 et seq., to its project as an unconstitutional exercise
of federal authority under the Commerce Clause. The dis-
trict court dismissed the suit. We conclude that this case is
governed by our prior decision in National Association of
Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), and
therefore affirm.
I
The Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et
seq., is ‘‘the most comprehensive legislation for the preserva-
tion of endangered species ever enacted by any nation.’’
Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978).
Finding that ‘‘various species of fish, wildlife, and plants in
the United States have been rendered extinct as a conse-
quence of economic growth and development untempered by
adequate concern and conservation,’’ 16 U.S.C. § 1531(a)(1),
Congress passed the ESA ‘‘to provide a means whereby the
ecosystems upon which endangered species and threatened
species depend may be conserved,’’ id. § 1531(b).

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The ESA directs the Secretary of the Interior to list fish,
wildlife, or plant species that she determines are endangered
or threatened. 16 U.S.C. § 1533(a). Section 9 of the Act
makes it unlawful to ‘‘take’’ any such listed species without a
permit. Id. § 1538(a)(1)(B). ‘‘The term ‘take’ means to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct.’’ Id.
§ 1532(19). The Secretary has promulgated, and the Su-
preme Court has upheld, a regulation that defines ‘‘harm’’ as
including ‘‘significant habitat modification or degradation
where it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breeding.’’
50 C.F.R. § 17.3; see Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 515 U.S. 687, 708 (1995)
(sustaining 50 C.F.R. § 17.3 as a reasonable interpretation of
16 U.S.C. § 1532(19)).
Section 7 of the ESA requires all federal agencies to ensure
that none of their activities, including the granting of licenses
and permits, will ‘‘jeopardize the continued existence of any
endangered species TTT or result in the destruction or ad-
verse modification of habitat of such species which is deter-
mined by the Secretary TTT to be critical.’’ Id. § 1536(a)(2).
When an agency concludes that its activities may adversely
affect a listed species, it must engage in a formal consultation
with the Interior Department’s Fish and Wildlife Service
(FWS). 50 C.F.R. § 402.14; see 16 U.S.C. § 1536(a)(2).
Where applicable, such consultations result in the issuance of
a Biological Opinion that includes a ‘‘jeopardy’’ or ‘‘no jeopar-
dy’’ determination. 50 C.F.R. § 402.14(h)(3); see 16 U.S.C.
§ 1536(b)(4). If the FWS decides that the proposed action is
likely to ‘‘jeopardize the continued existence of a listed spe-
cies or result in the destruction or adverse modification of
critical habitat,’’ the opinion must set forth ‘‘reasonable and
prudent alternatives,’’ if any, that will avoid such conse-
quences. 50 C.F.R. § 402.14(h)(3); see 16 U.S.C.
§ 1536(b)(3)(A).
The Secretary listed the arroyo toad as an endangered
species on December 16, 1994. See Endangered and Threat-
ened Wildlife and Plants; Determination of Endangered Sta-

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tus for the Arroyo Southwestern Toad, 59 Fed. Reg. 64,859
(codified at 50 C.F.R. pt. 17). The toads live in scattered
populations from California’s Monterey County in the north
to Mexico’s Baja California in the south. Id.; Endangered
and Threatened Wildlife and Plants; Final Designation of
Critical Habitat for the Arroyo Toad, 66 Fed. Reg. 9414 (Feb.
7, 2001) (codified at 50 C.F.R. pt. 17). They breed in shallow,
sandy, or gravelly pools along streams, and spend most of
their adult lives in upland habitats. 66 Fed. Reg. at 9415.
The toads range no farther than 1.2 miles from the streams
where they breed, and none in the area at issue in this case
travel outside the state of California. Id. Habitat destruc-
tion has driven the toad from approximately 76% of its former
California range. Id. at 9414.
Plaintiff Rancho Viejo plans to build a 280-home residential
development on a 202-acre site in San Diego County. The
property is bordered on the south by Keys Creek, a major
tributary of the San Luis Rey River, and is just east of
Interstate 15. FWS, Biological/Conference Opinion on the
Rancho Viejo Residential Development at 8, 26 (Aug. 24,
2000). The company’s construction plan is to build homes in
an upland area of approximately 52 acres, and to use an
additional 77 acres of its upland property and portions of the
Keys Creek streambed as a ‘‘borrow area’’ to provide fill for
the project. Rancho Viejo wants to remove six feet or more
of soil from the surface of the borrow area, amounting to
approximately 750,000 cubic yards of material, and to trans-
port that soil to the 52-acre housing site to the north. Joint
Stip. ¶ 2. Surveys of Keys Creek have confirmed the pres-
ence of arroyo toads on and adjacent to the project site. Id.
¶ 7.
Because Rancho Viejo’s plan would involve the discharge of
‘‘fill into waters of the United States, including wetlands,’’
Biological/Conference Opinion at 8, the company was required
by section 404 of the Clean Water Act, 33 U.S.C. § 1344, to
obtain a permit from the U.S. Army Corps of Engineers (the
‘‘Corps’’). See id. § 1344(a). The Corps determined that the
project ‘‘may affect’’ the arroyo toad population in the area,

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and sought a formal consultation with the FWS pursuant to
ESA § 7.
In May 2000, Rancho Viejo excavated a trench and erected
a fence, each running parallel to the bank of Keys Creek.
Arroyo toads were observed on the upland side of the fence.
Joint Stip. ¶ 8. In the FWS’s view, the fence has prevented
and may continue to impede movement of the toads between
their upland habitat and their breeding habitat in the creek.
Id. ¶ 9. On May 22, the FWS informed Rancho Viejo that
construction of the fence ‘‘has resulted in the illegal take and
will result in the future illegal take of federally endangered’’
arroyo toads ‘‘in violation of the Endangered Species Act.’’
May 22, 2000 Letter at 1; Joint Stip. ¶ 10.
In August 2000, the FWS issued a Biological Opinion that
determined that excavation of the 77-acre borrow area would
result in the taking of arroyo toads and was ‘‘likely to
jeopardize the continued existence’’ of the species. Biologi-
cal/Conference Opinion at 35; see Joint Stip. ¶ 14. Pursuant
to ESA § 7(b)(3)(A) and 50 C.F.R. § 402.02, the FWS pro-
posed an alternative that would, without jeopardizing the
continued existence of the toad, allow Rancho Viejo to com-
plete its development by obtaining fill dirt from off-site
sources instead of from the proposed borrow area. Joint
Stip. ¶ 14; Biological/Conference Opinion at 37.
Rancho Viejo neither removed the fence nor adopted the
FWS’s proposed alternative. Instead, it filed a complaint in
the United States District Court for the District of Columbia
against the Secretary of the Interior and other federal defen-
dants, alleging that the listing of the arroyo toad as an
endangered species under the ESA, and the application of the
ESA to Rancho Viejo’s construction plans, exceeded the
federal government’s power under the Commerce Clause.
See U.S. CONST. art. I, § 8, cl. 3 (‘‘The Congress shall have
Power TTT [t]o regulate Commerce TTT among the several
StatesTTTT’’).
The parties filed cross motions for summary judgment. In
ruling on those motions, the district court noted that this
circuit had only recently sustained, against a Commerce

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Clause challenge, a determination by the FWS that hospital
construction in San Bernardino County, California would
likely lead to the take of the Delhi Sands Flower-Loving Fly
in violation of the ESA. See National Ass’n of Home Build-
ers v. Babbitt (‘‘NAHB’’), 130 F.3d 1041 (D.C. Cir. 1997).
Holding that Rancho Viejo’s case was indistinguishable from
NAHB, and finding nothing in subsequent Supreme Court
opinions to cast doubt on that decision, the court granted the
government’s motion.1
II
We review the district court’s grant of summary judgment
de novo, United Seniors Ass’n v. Shalala, 182 F.3d 965, 969
(D.C. Cir. 1999), and in so doing accord the ESA a ‘‘presump-
tion of constitutionality,’’ United States v. Morrison, 529 U.S.
598, 607 (2000). In this Part, we first discuss the NAHB
decision, focusing particularly on the Supreme Court opinion
that provided that case’s analytic framework, United States v.
Lopez, 514 U.S. 549 (1995). We then consider the application
of NAHB and Lopez to the complaint filed by Rancho Viejo.
In Part III, we examine Rancho Viejo’s argument that Su-
preme Court opinions issued after this court decided NAHB
have deprived that decision of its precedential force.
A
In Lopez, the Supreme Court considered whether a provi-
sion of the Gun-Free School Zones Act, 18 U.S.C.
§ 922(q)(1)(A) (1988 ed., Supp. V), which made it a federal
offense to possess a firearm near a school, exceeded Con-
1 In the district court, the government contended that the case
was not ripe for review. The court rejected that contention, and we
agree that plaintiff has satisfied the requirements of ripeness. See
Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
On appeal, the government does not reassert its ripeness conten-
tion, but does argue that the suit should be dismissed because there
has been no final agency action. It is clear, however, that the
FWS’s Biological Opinion relating to plaintiff’s proposed develop-
ment project constitutes final agency action. See Bennett v. Spear,
520 U.S. 154, 177–78 (1997).

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gress’ authority under the Commerce Clause. 514 U.S. at
551. The Court held that the clause authorizes Congress to
regulate ‘‘three broad categories of activity’’:
First, Congress may regulate the use of the channels of
interstate commerce. Second, Congress is empowered to
regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate
activities. Finally, Congress’ commerce authority in-
cludes the power to regulate those activities having a
substantial relation to interstate commerce, i.e., those
activities that substantially affect interstate commerce.
Id. at 558–59 (citations omitted). With respect to the third
category, the Court discussed four factors that led it to
conclude that the activities regulated by the Gun-Free School
Zones Act did not substantially affect interstate commerce.
First, the Court said, ‘‘the possession of a gun in a school
zone TTT has nothing to do with ‘commerce’ or any sort of
economic enterprise, however broadly one might define those
terms.’’ Lopez, 514 U.S. at 560–61. Second, the Court
observed that the Act ‘‘has no express jurisdictional element
which might limit its reach to a discrete set of firearm
possessions that additionally have an explicit connection with
or effect on interstate commerce.’’ Id. at 562. Third, Lopez
noted that, ‘‘[a]lthough as part of our independent evaluation
of constitutionality under the Commerce Clause we of course
consider legislative findings, and indeed even congressional
committee findings, TTT neither the statute nor its legislative
history contains express congressional findings regarding the
effects upon interstate commerce of gun possession in a
school zone.’’ Id. (internal citations, quotations, and altera-
tions omitted). Finally, the Court determined that the rela-
tionship between gun possession and interstate commerce
was simply too ‘‘tenuous[ ]’’ to be regarded as substantial, and
that if the government’s arguments were accepted, the Court
would be ‘‘hard pressed to posit any activity by an individual
that Congress is without power to regulate.’’ Id. at 564.

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In NAHB, this circuit applied Lopez in a case challenging
the application of the ESA to a construction project in an
area that contained the habitat of the Delhi Sands Flower-
Loving Fly. 130 F.3d at 1043 (Wald, J.). The fly, an
endangered species, is found in only two counties, both in
California. Id. One of those counties reported to the FWS
that it planned to construct a hospital and power plant on a
site occupied by the fly, and to expand a highway intersection
in connection with that work. Id. at 1044–45. The FWS
informed the county that the expansion of the intersection
would likely lead to a take of the fly in violation of section 9 of
the ESA. Id. at 1045. Thereafter, the county filed suit
against the Secretary of the Interior, contending that applica-
tion of the ESA in those circumstances exceeded the authori-
ty of the federal government under the Commerce Clause.
A majority of the NAHB court held that the take provision
of ESA § 9, and its application to the facts of that case,
constituted a valid exercise of Congress’ commerce power.
130 F.3d at 1042, 1057 (Wald, J.); id. at 1057 (Henderson, J.,
concurring). The court found that application of the ESA fell
within the third Lopez category, concluding that the regulated
activity ‘‘substantially affects’’ interstate commerce. In so
holding, the majority agreed upon two rationales: (1) ‘‘the
loss of biodiversity itself has a substantial effect on our
ecosystem and likewise on interstate commerce’’; and (2) ‘‘the
Department’s protection of the flies regulates and substantial-
ly affects commercial development activity which is plainly
interstate.’’ Id. at 1058 (Henderson, J., concurring); see id.
at 1046 n.3, 1056 (Wald, J.). Examining those two rationales
within the context of Lopez’s four factors, the NAHB court
concluded that application of the ESA to the county’s pro-
posed construction project was constitutional. Id. at 1042,
1057 (Wald, J.); id. at 1057 (Henderson, J., concurring).
Because the second NAHB rationale readily resolves this
case, it is the focus of the balance of our discussion.2
2 In focusing on the second NAHB rationale, we do not mean to
discredit the first. Nor do we mean to discredit rationales that
other circuits have relied upon in upholding endangered species

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B
Secretary Norton argues, and the district court concluded,
that application of the four Lopez factors leads to the same
result here as it did in NAHB. We agree.
The first Lopez factor is whether the regulated activity has
anything ‘‘to do with ‘commerce’ or any sort of economic
enterprise, however broadly one might define those terms.’’
Lopez, 514 U.S. at 561; accord Morrison, 529 U.S. at 610.
The regulated activity at issue in NAHB — the construction
of a hospital, power plant, and supporting infrastructure —
was plainly an economic enterprise. As Judge Henderson
observed, ‘‘the Department’s protection of the flies regulates
and substantially affects commercial development activity.’’
NAHB, 130 F.3d at 1058; see id. at 1056 (Wald, J.) (‘‘[T]he
case at hand involves a regulation of the conditions under
which commercial activity takes place.’’). The same is true
here, where the regulated activity is the construction of a 202-
acre commercial housing development.
Second, the court must consider whether the statute in
question contains an ‘‘express jurisdictional element.’’ Lopez,
514 U.S. at 561–62; accord Morrison, 529 U.S. at 611–12.
Section 9 of the ESA has no express jurisdictional hook that
limits its application, for example, to takes ‘‘in or affecting
commerce.’’ Lopez did not indicate that such a hook is
required, however, and its absence did not dissuade the
legislation. We simply have no need to consider those other
rationales to dispose of the case before us. See, e.g., Gibbs v.
Babbitt, 214 F.3d 483, 497 (4th Cir. 2000) (‘‘The protection of the
red wolf on both federal and private land substantially affects
interstate commerce through tourism, trade, scientific research, and
other potential economic activities.’’); United States v. Bramble, 103
F.3d 1475, 1477, 1481 (9th Cir. 1996) (upholding the Bald and
Golden Eagle Protection Act’s prohibition on the possession of eagle
feathers, see 16 U.S.C. § 668(a), because ‘‘[e]xtinction of the eagle
would substantially affect interstate commerce by foreclosing any
possibility of several types of commercial activity,’’ including ‘‘future
commerce in eagles,’’ ‘‘future interstate travel for the purpose of
TTT studying eagles,’’ ‘‘or future commerce in beneficial products
derived TTT from analysis of their genetic material’’).

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NAHB court from finding application of the ESA constitu-
tional.3 Nor did it dissuade the Fourth Circuit from finding a
similar application of the ESA constitutional in Gibbs v.
Babbitt, 214 F.3d 483, 487 (4th Cir. 2000). Indeed, all of the
circuits that have addressed the question since Lopez (as well
as those that have considered the matter since Morrison)
have concluded that the absence of an express jurisdictional
element is not fatal to a statute’s constitutionality under the
Commerce Clause.4 Rather, in a case like this, ‘‘[t]he absence
of such a jurisdictional element simply means that courts
must determine independently whether the statute regulates
activities that arise out of or are connected with a commercial
transaction, which viewed in the aggregate, substantially af-
fect[ ] interstate commerce.’’ United States v. Moghadam,
175 F.3d 1269, 1276 (11th Cir. 1999) (internal quotation marks
omitted).
The third Lopez factor looks to whether there are ‘‘express
congressional findings’’ or legislative history ‘‘regarding the
effects upon interstate commerce’’ of the regulated activity.
Lopez, 514 U.S. at 561–62. There are no such findings or
history with respect to the specific rationale that we rely upon
here, the effect of commercial housing construction on inter-
state commerce.5 But neither findings nor legislative history
3 Nor did Morrison, discussed below, make an express jurisdic-
tional element necessary. See 529 U.S. at 612 (stating only that
such an element ‘‘may establish that the enactment is in pursuance
of Congress’ regulation of interstate commerce’’).
4 See, e.g., Norton v. Ashcroft, 298 F.3d 547, 557 (6th Cir. 2002);
Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192, 211 (5th Cir.
2000); United States v. Moghadam, 175 F.3d 1269, 1275–76 (11th
Cir. 1999); United States v. Bird, 124 F.3d 667, 675 (5th Cir. 1997);
see also Appellant’s Reply Br. at 8 (acknowledging that ‘‘the lack of
a jurisdictional element may not be dispositive’’).
5 There is ESA legislative history that supports the other primary
rationale relied upon in NAHB — the effect of the loss of biodiver-
sity on interstate commerce. See NAHB, 130 F.3d at 1050 (Wald,
J.). There are also express findings and legislative history indicat-
ing that Congress enacted the ESA out of concern that land
development and habitat modification were leading to species ex-

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is necessary.6 As Lopez acknowledged, ‘‘Congress normally
is not required to make formal findings as to the substantial
burdens that an activity has on interstate commerce.’’ Id. at
562; accord Morrison, 529 U.S. at 612. Rather, such evi-
dence merely ‘‘enable[s] [the court] to evaluate the legislative
judgment that the activity in question substantially affected
interstate commerce, even though no such substantial effect
was visible to the naked eye.’’ Lopez, 514 U.S. at 563; accord
Morrison, 529 U.S. at 612. As we discuss in the remainder of
this section, the naked eye requires no assistance here.
The fourth Lopez factor is whether the relationship be-
tween the regulated activity and interstate commerce is too
attenuated to be regarded as substantial. See Lopez, 514
U.S. at 563–67; accord Morrison, 529 U.S. at 612. Although
Rancho Viejo avers that the effect on interstate commerce of
preserving endangered species is too tenuous to satisfy this
test, it does not argue that the effect of commercial construc-
tion projects is similarly attenuated. Because the rationale
upon which we rely focuses on the activity that the federal
government seeks to regulate in this case (the construction of
Rancho Viejo’s housing development), and because we are
required to accord congressional legislation a ‘‘presumption of
constitutionality,’’ Morrison, 529 U.S. at 607, plaintiff’s failure
to demonstrate (or even to argue) that its project and those
like it are without substantial interstate effect is fatal to its
cause.
This conclusion is not diminished by the fact that the
arroyo toad, like the Flower-Loving Fly, does not travel
outside of California, or that Rancho Viejo’s development, like
the San Bernardino hospital, is located wholly within the
state. See NAHB, 130 F.3d at 1043–44 (Wald, J.) (noting
that the fly has an eight-mile radius, limited to California
alone). As Judge Henderson said in NAHB, the regulation of
commercial land development, quite ‘‘apart from the charac-
tinction and had to be controlled by federal legislation. See infra
Part III.B.
6 See, e.g., Gibbs, 214 F.3d at 493 n.3; Moghadam, 175 F.3d at
1275.

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teristics or range of the specific endangered species involved,
has a plain and substantial effect on interstate commerce.’’
Id. at 1059. There, ‘‘the regulation relate[d] to both the
proposed redesigned traffic intersection and the hospital it
[was] intended to serve, each of which ha[d] an obvious
connection with interstate commerce.’’ Id. (Henderson, J.,
concurring); accord id. at 1048, 1056 (Wald, J.). Here,
Rancho Viejo’s 202-acre project, located near a major inter-
state highway, is likewise one that ‘‘is presumably being
constructed using materials and people from outside the state
and which will attract’’ construction workers and purchasers
‘‘from both inside and outside the state.’’ Id. at 1048 (Wald,
J.).7
This analysis is perfectly consistent with Lopez. In that
case, the Court noted that it had ‘‘upheld a wide variety of
congressional Acts regulating intrastate economic activity
where we have concluded that the activity substantially af-
fected interstate commerce.’’ 514 U.S. at 559. Such conclu-
sions were often based upon viewing ‘‘regulations of activities
that arise out of or are connected with a commercial transac-
tion TTT in the aggregate.’’ Id. at 561.8 To survive Com-
merce Clause review, all the government must establish is
7 Application of the ESA to habitat degradation has a further
impact on interstate commerce by removing the incentives for
states ‘‘to adopt lower standards of endangered species protection
in order to attract development,’’ thereby preventing a destructive
‘‘race to the bottom.’’ NAHB, 130 F.3d at 1054–56 (Wald, J.); see
infra Part III.D.
8 The cases cited by the Court include: Hodel v. Virginia Surface
Mining & Reclamation Ass’n, 452 U.S. 264 (1981), which Lopez
described as involving ‘‘the regulation of intrastate coal mining’’;
Perez v. United States, 402 U.S. 146 (1971), which addressed
congressional regulation of ‘‘intrastate extortionate credit transac-
tions’’; Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241
(1964), which reviewed the application of Title II of the Civil Rights
Act of 1964 to ‘‘inns and hotels catering to interstate guests’’; and
Katzenbach v. McClung, 379 U.S. 294 (1964), a case involving
application of the same statute to ‘‘the regulation of TTT restaurants
utilizing substantial interstate supplies.’’ Lopez, 514 U.S. at 559–60.

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that ‘‘a rational basis exist[s] for concluding that a regulated
activity sufficiently affect[s] interstate commerce.’’ Id. at
557. And there can be no doubt that such a relationship
exists for costly commercial developments like Rancho Vie-
jo’s.9 As Judge Henderson made clear in NAHB, ‘‘[i]nsofar
as application of section 9(a)(1) of [the] ESA TTT acts to
regulate commercial development of the land inhabited by the
endangered species, ‘it may TTT be reached by Congress’
because ‘it asserts a substantial economic effect on interstate
commerce.’ ’’ 130 F.3d at 1059–60 (quoting Lopez, 514 U.S. at
556 (quoting Wickard v. Filburn, 317 U.S. 111, 125 (1942))).
III
Rancho Viejo does not seriously dispute that NAHB is
indistinguishable from this case. Rather, plaintiff argues
that, as a result of subsequent Supreme Court decisions in
United States v. Morrison, 529 U.S. 598 (2000), and Solid
Waste Agency of Northern Cook County v. U.S. Army Corps
of Engineers (‘‘SWANCC’’), 531 U.S. 159 (2001), NAHB is no
longer ‘‘good law.’’ Appellant’s Br. at 9. Before considering
plaintiff’s argument in detail, we explain why the nature of
9 For example, in McClung, cited with approval in Lopez, 514 U.S.
at 559, the Court upheld application of Title II of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000a et seq., to a local restaurant. 379
U.S. at 303–05. The Court found the application of the statute to
be within Congress’ commerce power because the restaurant
bought 46% of its food, costing approximately $70,000, from a local
supplier who obtained it from outside of the state. Id. at 296, 298.
In part, the McClung Court relied on the fact that the amount of
food the restaurant procured from out of state, ‘‘ ‘taken together
with that of many others similarly situated,’ ’’ was ‘‘ ‘far from
trivial.’ ’’ Id. at 301 (quoting Wickard v. Filburn, 317 U.S. 111,
127–28 (1942)). Cf. Hospital Bldg. Co. v. Trustees of Rex Hosp., 425
U.S. 738, 744 (1976) (holding that a conspiracy against a North
Carolina hospital had ‘‘a substantial effect on interstate commerce,’’
and hence was covered by the Sherman Act, because it could, inter
alia, reduce the hospital’s purchases of out-of-state medicines and
supplies).

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the Supreme Court’s analysis in those decisions makes it
highly unlikely that they undermine our circuit precedent.
In Morrison, the Court considered a challenge to a section
of the Violence Against Women Act, 42 U.S.C. § 13981, which
provided a federal civil remedy for victims of gender-
motivated violence. Concluding that the case was ‘‘controlled
by our decision[ ] in United States v. Lopez,’’ the Court held
that Congress lacked authority to enact the provision under
the Commerce Clause. Morrison, 529 U.S. at 602. Lopez, of
course, is the case that controlled this court’s decision in
NAHB. Accordingly, because NAHB was based upon Lopez,
and because Morrison made clear that ‘‘Lopez TTT provides
the proper framework for conducting the required analysis,’’
id. at 609, it would be quite surprising if Morrison under-
mined our decision in NAHB. See Norton v. Ashcroft, 298
F.3d 547, 556 (6th Cir. 2002) (‘‘Rather than breaking new
Commerce Clause ground, Morrison derived its four-factor
framework directly from Lopez.’’).
Rancho Viejo’s reliance on SWANCC is even further from
the mark. In that case, the Supreme Court held, as a matter
of statutory construction, that an abandoned gravel pit that
provided habitat for migratory birds did not constitute ‘‘navi-
gable waters’’ within the meaning of the Clean Water Act, 33
U.S.C. § 1344(a), and hence was beyond the regulatory au-
thority of the Army Corps of Engineers. 531 U.S. at 167,
171–72. Although the petitioner in SWANCC also asked the
Court to decide whether Congress could exercise such au-
thority under the Commerce Clause if it chose to do so, the
Court expressly declined to reach that question. Id. at 162.
As Rancho Viejo notes, the Court did indicate that if it were
to consider the constitutionality of such an exercise, it ‘‘would
have to evaluate the precise object or activity that, in the
aggregate, substantially affects interstate commerce.’’ Id. at
173 (quoted in Appellant’s Br. at 17). But as we discuss
below, identifying the ‘‘precise activity’’ at issue in Rancho
Viejo’s case only strengthens the conclusion that the take
provision of the ESA can constitutionally be applied to plain-
tiff’s construction project.

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15
A
Plaintiff’s principal argument is that, although Lopez made
clear that the first of its four factors was whether the object
of regulation was ‘‘economic activity,’’ 514 U.S. at 559, Morri-
son ‘‘reaffirmed and elaborated upon’’ that factor in a way
that undercuts this circuit’s opinion in NAHB. Appellant’s
Br. at 14. We agree that Morrison reaffirmed and elaborat-
ed upon the first factor, but we see nothing in Morrison’s
discussion to suggest any dissatisfaction with the way the
Court treated the factor in Lopez, and hence nothing to
undercut our prior reliance on that case. To the contrary,
Morrison largely proceeded by quoting and paraphrasing
Lopez’s analysis. See, e.g., 529 U.S. at 610 (noting that in
Lopez, the Court ‘‘observed that § 922(q) was ‘a criminal
statute that by its terms has nothing to do with ‘‘commerce’’
or any sort of economic enterprise, however broadly one
might define those terms’ ’’ (quoting Lopez, 514 U.S. at 561)).
Rancho Viejo contends that Morrison stands for the propo-
sition that whether the regulated activity is economic is not
simply a factor in the analysis, but instead is outcome-
determinative: that noneconomic activity, whatever its effect
on interstate commerce, cannot be regulated under the Com-
merce Clause.10 Although plaintiff acknowledges that Morri-
son expressly ‘‘declined to ‘adopt a categorical rule against
aggregating the effects of any noneconomic activity’ because a
categorical rule was unnecessary to the outcome of that case,’’
it argues that the Court ‘‘came pretty close’’ to adopting such
a rule. Appellant’s Reply Br. at 4 (quoting Morrison, 529
U.S. at 613). Because the arroyo toad is not itself ‘‘the
subject of commercial activity,’’ id. at 15, Rancho Viejo argues
that regulation of the toad fails Morrison’s (and Lopez’s) first
factor.
10 But see Terry v. Reno, 101 F.3d 1412, 1417 (D.C. Cir. 1996)
(holding, post-Lopez but pre-Morrison, that ‘‘[t]he regulated activity
TTT need not be commercial, so long as its effect on interstate
commerce is substantial’’).

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16
But how close the Court came to embracing plaintiff’s view
is irrelevant to the disposition of this appeal, because the
ESA regulates takings, not toads. 11 Morrison instructs that
‘‘the proper inquiry’’ is whether the challenge is to ‘‘a regula-
tion of activity that substantially affects interstate com-
merce.’’ 529 U.S. at 609 (emphasis added). Similarly,
SWANCC declares that what is required is an evaluation of
‘‘the precise object or activity that, in the aggregate, substan-
tially affects interstate commerce.’’ 531 U.S. at 173 (empha-
sis added). When, as directed, we turn our attention to the
precise activity that is regulated in this case, there is no
question but that it is economic in nature.
That regulated activity is Rancho Viejo’s planned commer-
cial development, not the arroyo toad that it threatens. The
ESA does not purport to tell toads what they may or may not
do. Rather, section 9 limits the taking of listed species, and
its prohibitions and corresponding penalties apply to the
persons who do the taking, not to the species that are taken.
See 16 U.S.C. § 1538(a)(1), (a)(1)(B) (making it ‘‘unlawful for
any person TTT to take any such species’’) (emphasis added);
id. § 1540 (providing civil and criminal penalties for ‘‘[a]ny
person who knowingly violates’’ the ESA). In this case, the
prohibited taking is accomplished by commercial construction,
and the unlawful taker is Rancho Viejo.
Nothing in the facts of Morrison or Lopez suggests that
focusing on plaintiff’s construction project is inappropriate or
insufficient as a basis for sustaining this application of the
ESA. Both of those cases involved the regulation of purely
noneconomic activity: the statute in Morrison regulated gen-
der-motivated violence; the one in Lopez regulated gun pos-
session. See, e.g., Morrison, 529 U.S. at 610 (noting that ‘‘the
noneconomic, criminal nature of the conduct at issue was
central to our decision in’’ Lopez). Although Rancho Viejo
argues that, in fact, the Lopez defendant had brought the gun
to school in order to sell it, one can examine the Supreme
Court’s opinion with a microscope without learning that fact.
11 See Oral Arg. Tr. at 5 (acknowledgment by plaintiff’s counsel
that ‘‘the regulated activity here [is] the taking of an Arroyo Toad’’).

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17
It appears only in the lower court’s opinion, see United States
v. Lopez, 2 F.3d 1342, 1345 (5th Cir. 1993), and the Supreme
Court attached no significance to it. To the contrary, Morri-
son describes Lopez as a case in which ‘‘neither the actors nor
their conduct ha[d] a commercial character, and neither the
purposes nor the design of the statute ha[d] an evident
commercial nexus.’’ 529 U.S. at 611 (quoting Lopez, 514 U.S.
at 580 (Kennedy, J., concurring)).
Here, by contrast, both the ‘‘actor,’’ a real estate company,
and its ‘‘conduct,’’ the construction of a housing development,
have a plainly commercial character. So too does the ‘‘de-
sign’’ of the statute: the ESA seeks in part to regulate
‘‘economic growth and development untempered by adequate
concern and conservation,’’ which, Congress found, had the
consequence of rendering ‘‘various species TTT extinct.’’ 16
U.S.C. § 1531(a)(1). As Judge Henderson wrote in NAHB:
‘‘It is plain, then, that TTT the Congress contemplated protect-
ing 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.’’ 130 F.3d at 1059.12
B
Rancho Viejo suggests that even if the regulated activity
here is the taking of the toads through economic activity, that
fact still does not end the matter. Although the ESA may
regulate economic activity, plaintiff insists that the statute has
12 In United States v. Ho, the Fifth Circuit applied a similar
analysis in affirming, against a Commerce Clause challenge, the
conviction of a contractor who violated asbestos work practice
standards promulgated under the Clean Air Act. 311 F.3d 589,
601–04 (5th Cir. 2002). Focusing on ‘‘the regulated intrastate
activity, asbestos removal,’’ id. at 602, rather than on ‘‘the effects of
interstate pollution,’’ id. at 602 n.12, the court concluded that
asbestos removal ‘‘is very much a commercial activity in today’s
economy,’’ id. at 602.

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18
a noneconomic purpose: the preservation of biodiversity, and,
in this case, the preservation of toads that Rancho Viejo
maintains are without commercial value. Asserting that to
survive Commerce Clause scrutiny a statute must be aimed at
economic activity and not simply regulate it for some other
purpose, Rancho Viejo concludes that the ESA (at least as
applied to its project) must fall. This argument suffers from
a number of serious defects.
First, the ESA, like many statutes, has multiple purposes.
Whether or not economic considerations were the primary
motivation for the Act, there is no question that the commer-
cial value of preserving species diversity played an important
role in Congress’ deliberations. As Judge Wald described in
NAHB, ‘‘[t]he 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 inter-
state commerce.’’ 130 F.3d at 1050. Likewise, the Fourth
Circuit has noted that ‘‘[c]ommittee reports and legislative
debates have emphasized the importance of endangered spe-
cies to interstate commerce.’’ Gibbs, 214 F.3d at 494 n.3.
Thus, to use a ‘‘noneconomic purpose’’ test to overturn a
multi-purpose statute like the ESA, we would have to do so
on the ground that economic concerns were not the Act’s
‘‘true’’ or ‘‘primary’’ motivation. Such an enterprise is
fraught with both difficulty and danger, see Michael M. v.
Super. Ct., 450 U.S. 464, 469–70 (1981) (plurality opinion of
Rehnquist, J.); United States v. O’Brien, 391 U.S. 367, 382–
86 (1968), and the Supreme Court has therefore permitted
inquiry into legislative purpose in only a narrow class of
cases, see City of Columbia v. Omni Outdoor Advertising,
Inc., 499 U.S. 365, 377–78 & n.6 (1991).13 The enterprise is
13 In City of Columbia, Justice Scalia noted that the Court has
probed governmental motivation ‘‘only in the ‘very limited and well-
defined class of cases where the very nature of the constitutional
question requires [this] inquiry.’ ’’ 499 U.S. at 378 n.6 (quoting
O’Brien, 391 U.S. at 383 n.30). As an example of a case in that
limited class, he cited Village of Arlington Heights v. Metropolitan

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19
difficult because distilling the true or primary legislative
purpose out of the motivations of 435 representatives and 100
senators is inherently problematic. And it is that difficulty
that makes the project a dangerous one — dangerous because
the indeterminacy of outcome leaves courts open to the
charge that they have manipulated the determination of
purpose in order to achieve their own policy preferences, and
because rejecting a stated congressional purpose as ‘‘untrue’’
reflects considerable disrespect for the pronouncements of a
democratically elected branch of government. Is the ESA’s
true purpose to preserve the economic potential of species
whose commercial value we cannot now foresee, or did Con-
gress regard species protection as a moral imperative? Was
the Occupational Safety and Health Act enacted to spare the
country the loss of productivity occasioned by workplace
injury, or to protect the lives of American workers for their
own sake? Did Congress pass the Clean Air and Clean
Water Acts out of concern that pollution hurts the economy,
or out of a fundamental concern for the health of the citizen-
ry? For courts to insist on making these kinds of determina-
tions a prerequisite for upholding the validity of congressional
legislation is a recipe for judicial intervention in the political
process.
Moreover, the Supreme Court has long held that Congress
may act under the Commerce Clause to achieve noneconomic
ends through the regulation of commercial activity. The first
case in this line is Champion v. Ames, in which the Court
upheld the constitutionality of a statute prohibiting the inter-
state transportation of lottery tickets, notwithstanding that
Congress passed the statute ‘‘for the protection of public
morals.’’ 188 U.S. 321, 355–57 (1903). ‘‘We should hesitate
long,’’ the Court said, ‘‘before adjudging that an evil of such
appalling character, carried on through interstate commerce,
cannot be met and crushed by the only power competent to
that end.’’ Id. at 357–58. Ten years later, citing Champion,
the Court rejected a Commerce Clause attack on the Mann
Act, which prohibited the transportation of women in inter-
Housing Development Corp., 429 U.S. 252, 268 & n.18 (1977), a case
involving ‘‘race-based motivation.’’ 499 U.S. at 378 n.6.

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20
state commerce ‘‘for immoral purposes.’’ Hoke v. United
States, 227 U.S. 308, 317, 320 (1913). The Court rejected the
defendant’s claims that the act was ‘‘a subterfuge and an
attempt to interfere with the police power of the states to
regulate the morals of their citizens.’’ Id. at 321. ‘‘[T]he
powers reserved to the states and those conferred on the
nation,’’ the Court said, ‘‘are adapted to be exercised, whether
independently or concurrently, to promote the general wel-
fare, material and moral.’’ Id. at 322 (emphasis added).
The Supreme Court briefly departed from this line in
Hammer v. Dagenhart, enjoining, on Commerce Clause
grounds, the enforcement of a 1916 federal statute excluding
the products of child labor from interstate commerce. 247
U.S. 251, 277 (1918). Over Justice Holmes’ dissent, the Court
held the statute unconstitutional because ‘‘[t]he thing intend-
ed’’ was not regulation of ‘‘transportation among the states,’’
but rather ‘‘standardiz[ation] [of] the ages at which children
may be employed in mining and manufacturing.’’ Id. at 271–
72. But Hammer was expressly overruled in United States
v. Darby, in which the Court upheld the Fair Labor Stan-
dards Act’s prohibition on the shipment in interstate com-
merce of products produced by employees whose wages or
hours did not conform to the Act’s requirements. 312 U.S.
100, 116–17 (1941). ‘‘The motive and purpose of a regulation
of interstate commerce,’’ the Court declared, ‘‘are matters for
the legislative judgment upon the exercise of which the
Constitution places no restriction and over which the courts
are given no control.’’ Id. at 115.
Since then, the Supreme Court has never held an exercise
of Congress’ commerce power unconstitutional on the ground
that the legislature had a noneconomic purpose. Perhaps the
most important of the subsequent cases is Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 261–62 (1964), in
which the Court rebuffed a Commerce Clause attack on Title
II of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a et seq.
The Court acknowledged that ‘‘[t]he Senate Commerce Com-
mittee made it quite clear that the fundamental object of Title
II was to vindicate the deprivation of personal dignity that

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21
surely accompanies denials of equal access to public establish-
ments.’’ Id. at 250 (internal quotation marks omitted). But
the fact that Congress passed the statute to attack the moral
outrage of racial discrimination did not lead the Supreme
Court to find it unconstitutional. To the contrary, citing
several of the cases discussed above, the Court held that the
fact ‘‘[t]hat Congress was legislating against moral wrongs
TTT render[s] its enactments no less valid.’’ Id. at 257; see
id. at 256–57.
The position urged by Rancho Viejo puts the constitutional-
ity of many of the above-described statutes at risk. And they
are hardly the only ones. Congress’ primary object in pass-
ing product safety legislation, for example, was not to im-
prove the productivity of industry but rather to protect the
well-being of the public.14 Much the same can be said of
federal environmental legislation.15 And plaintiff’s position
would make federal criminal law an area of particular vulner-
ability. Surely statutes proscribing the use or possession of
explosives, of weapons of mass destruction, and of firearms by
convicted felons, were not passed merely (or even primarily)
to protect commercial property — but to protect lives.16 Nor
did Congress bar the murder of public safety officers because
14 See, e.g., Consumer Product Safety Act, 15 U.S.C. § 2051(b)(1)
(declaring that the first purpose of the Act is ‘‘to protect the public
against unreasonable risks of injury associated with consumer prod-
ucts’’); National Traffic and Motor Vehicle Safety Act of 1966, 49
U.S.C. § 30101 (stating that ‘‘the purpose of this chapter is to
reduce traffic accidents and deaths and injuries resulting from
traffic accidents’’).
15 See, e.g., Hodel v. Indiana, 452 U.S. 314, 329 (1981) (noting that
‘‘Congress adopted the Surface Mining Act in order to ensure that
production of coal for interstate commerce would not be at the
expense of agriculture, the environment, or public health and safe-
ty’’).
16 See, e.g., Homeland Security Act of 2002, Pub. L. No. 107-296,
§ 1123, 116 Stat. 2135, 2283–85 (amending 18 U.S.C. § 842(i), which
had prohibited certain categories of persons from receiving or
possessing any explosive that has been shipped ‘‘in interstate com-
merce,’’ by inserting ‘‘or affecting’’ before ‘‘interstate’’); 18 U.S.C.

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22
it was concerned about the economic impact of their deaths,17
or the shipment of child pornography because it thought that
the market for such materials was suboptimal.18
It is true that Congress has tied the application of many of
these statutes to jurisdictional hooks. But there are many
other criminal statutes that are not so tied. See, e.g., 21
U.S.C. § 841(a) & (b)(1)(A)(iv) (making it unlawful to possess
with intent to distribute 100 grams of PCP). Moreover, as
we have noted above, a jurisdictional element is not critical to
a statute’s constitutionality as long as there is other evidence
that interstate commerce is substantially affected. See supra
Part II.B. Rancho Viejo offers no reason to regard a noneco-
nomic purpose as acceptable if tied to a jurisdictional hook,
but unacceptable if effectuated — as it is here — through the
direct regulation of commercial activity.19
§ 2332a (making it unlawful to use a weapon of mass destruction
against any person within the United States where the results of
such use ‘‘affect interstate TTT commerce’’); id. § 844(o) (barring
the transfer of explosive materials with knowledge that they will be
used to commit a crime of violence); id. § 922(g) (making it
unlawful for a convicted felon to possess a firearm ‘‘in or affecting
commerce’’).
17 See, e.g., 18 U.S.C. § 844(d) (setting penalties for receiving an
explosive in interstate commerce with intent to kill or injure, where
injury or death results to any person, including a public safety
officer).
18 See, e.g., 18 U.S.C. § 2252A (criminalizing the transportation of
child pornography in interstate commerce); see also United States
v. Kallestad, 236 F.3d 225, 228 (5th Cir. 2000) (upholding a federal
statute prohibiting the possession of child pornography on the
ground of substantial effect on interstate commerce).
19 Similarly, it is also true that the cases in the Champi-
on/Hoke/Darby/Heart of Atlanta line can be described as falling
within the first Lopez category — the regulation of the use of the
channels of interstate commerce. See Morrison, 529 U.S. at 609
(citing Darby and Heart of Atlanta as examples of that category of
cases). But the demarcation between the Lopez categories is far
from clear. For example, the Court has repeatedly referred to
Heart of Atlanta (and its companion case, Katzenbach v. McClung)

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23
There is nothing in Morrison or Lopez to put the Champi-
on/Hoke/Darby/Heart of Atlanta line of precedent in doubt.
Indeed, both decisions repeatedly cite Darby and Heart of
Atlanta. See, e.g., Morrison, 529 U.S. at 609, 610, 614;
Lopez, 514 U.S. at 555, 556, 557, 558, 559. Morrison did
overturn a statute that was passed with a moral purpose:
protecting women against violent crime. But unlike the ESA,
the Violence Against Women Act sought to achieve its objec-
tive by regulating an activity — gender-motivated violence —
that the Court found was not ‘‘in any sense of the phrase,
economic activity.’’ Morrison, 529 U.S. at 613. Similarly,
the Gun-Free School Zones Act sought to achieve its noneco-
nomic purpose — the preemption of potential gun violence
near schools — by regulating conduct, ‘‘[t]he possession of a
gun in a local school zone,’’ that was ‘‘in no sense an economic
activity.’’ Lopez, 514 U.S. at 573–74 (quoted in Morrison, 529
U.S. at 610). Thus, neither case precludes the conclusion that
it is constitutional to apply the ESA to a commercial construc-
tion project like Rancho Viejo’s. And a court must hesitate
before extending those two cases, neither of which involved
economic regulation of any kind, to require the unraveling of
a vast fabric of Supreme Court precedent and congressional
legislation.
C
Rancho Viejo next argues that even if the taking regulated
in this case is commercial in character, the ESA bans other
takings that are not. Because the ESA’s prohibition on
takings applies as much to a hiker’s ‘‘casual walk in the
woods’’ as to the commercial activities of a real estate compa-
ny, Rancho Viejo contends that the statute cannot constitu-
as also falling within the third category — the regulation of
activities having a substantial relation to interstate commerce. See
Morrison, 529 U.S. at 610; Lopez, 514 U.S. at 559. Moreover,
Rancho Viejo again proffers no reason why it would be permissible
for Congress to have a noneconomic purpose when regulating the
use of the channels of interstate commerce but impermissible when
regulating activities having a substantial relation to interstate com-
merce.

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24
tionally be applied to its taking of arroyo toads. Appellant’s
Reply Br. at 5. Plaintiff’s ‘‘overbreadth’’ argument is unavail-
ing.
In Lopez, the Supreme Court noted that ‘‘where a general
regulatory statute bears a substantial relation to commerce,
the de minimis character of individual instances arising under
that statute is of no consequence.’’ 514 U.S. at 558 (emphasis
omitted) (quoting Maryland v. Wirtz, 392 U.S. 183, 196 n.27
(1968)). Hence, because much activity regulated by the ESA
does bear a substantial relation to commerce, it may well be
that the hiker hypothetical proffered by the plaintiff is ‘‘of no
consequence’’ to the statute’s constitutionality. See Hodel v.
Indiana, 452 U.S. 314, 329 n.17 (1981) (‘‘A complex regulatory
program TTT can survive a Commerce Clause challenge with-
out a showing that every single facet of the program is
independently and directly related to a valid congressional
goal. It is enough that the challenged provisions are an
integral part of the regulatory program and that the regulato-
ry scheme when considered as a whole satisfies [the Com-
merce Clause] test.’’).20
But we need not decide that question here because there is
a more basic answer to Rancho Viejo’s hiker hypothetical: it
is not this case. Plaintiff characterizes its complaint as
‘‘fundamentally TTT an as-applied challenge to the constitu-
tionality of the Defendants’ regulation of the ‘taking’ of
Arroyo toads under the ESA.’’ Complaint ¶ 2. And as we
have already discussed, the particular application before us
involves the regulation of Rancho Viejo’s commercial real
estate development, which falls well within the powers grant-
ed Congress under the Commerce Clause.
At oral argument, Rancho Viejo asserted that it has a
different kind of ‘‘as-applied’’ challenge in mind. Plaintiff’s
20 It may also be that application of the ESA to hikers or toad
hunters can be sustained on the other rationale relied on in NAHB,
‘‘that the loss of biodiversity itself has a substantial effect on our
ecosystem and likewise on interstate commerce.’’ 130 F.3d at 1058
(Henderson, J., concurring); see Gibbs, 214 F.3d at 497 (citing
NAHB).

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25
objection, it said, is not confined to the application of the ESA
to its development project, but ‘‘to the listing of this particu-
lar endangered species,’’ the arroyo toad. Oral Arg. Tr. at 5.
In effect, plaintiff explained, ‘‘[w]e are facially challenging the
listing of the arroyo toad.’’ Id. at 20. But this curious
characterization is simply the plaintiff’s attempt to have its
cake and eat it too. The company would like us to consider
its challenge to the ESA only as applied to the arroyo toad,
which it says has no ‘‘known commercial value’’ — unlike, for
example, Mark Twain’s celebrated jumping frogs of Calaveras
County. Appellant’s Reply Br. at 9; see Appellant’s Br. at
20–21. Yet it would also like us to regard that narrow
challenge as a facial one, unconstrained by the fact that
plaintiff is a commercial developer.
This artificially constructed ‘‘facial’’ challenge must fail. As
the Supreme Court held in United States v. Salerno, to
mount a successful facial challenge, ‘‘the challenger must
establish that no set of circumstances exists under which the
Act would be valid. The fact that the TTT Act might operate
unconstitutionally under some conceivable set of circum-
stances is insufficient to render it wholly invalid, since we
have not recognized an ‘overbreadth’ doctrine outside the
limited context of the First Amendment.’’ 481 U.S. 739, 745
(1987).21 Because Rancho Viejo’s own case represents a ‘‘set
of circumstances’’ under which the ESA may constitutionally
be applied — even to the lowly arroyo toad — plaintiff cannot
shoulder the ‘‘heavy burden’’ required to prevail in a facial
challenge. Id. In effect, Rancho Viejo seeks to trade the
21 See S.D. Myers, Inc. v. City & County of San Francisco, 253
F.3d 461, 467 (9th Cir. 2001) (applying Salerno to a Commerce
Clause challenge and holding that the plaintiff ‘‘must establish that
no set of circumstances exists under which the [challenged ordi-
nance] would be valid’’ (internal quotation marks omitted)); United
States v. Sage, 92 F.3d 101, 106 (2d Cir. 1996) (same); see also
AMFAC Resorts v. U.S. Dep’t of Interior, 282 F.3d 818, 826 (D.C.
Cir. 2002) (noting that this circuit has repeatedly ‘‘invoked Salerno’s
no-set-of-circumstances test to reject facial constitutional chal-
lenges’’), cert. granted on other grounds sub nom. Nat’l Park
Hospitality Ass’n v. Dep’t of Interior, 123 S.Ct. 549 (2002).

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26
shoes of a commercial developer for those of a weekend hiker.
But permitting plaintiff to stand in the hiker’s shoes would
mean recognizing the kind of overbreadth challenge the Su-
preme Court has expressly forsworn.
Before leaving this point, we further note that the constitu-
tional circumstances we rely on here — takings by commer-
cial developers — are neither an unintended nor an insignifi-
cant portion of the activities regulated by the ESA. In that
statute, ‘‘Congress expressly found that ‘economic growth and
development untempered by adequate concern and conserva-
tion’ was the cause for ‘various species of fish, wildlife, and
plants in the United States hav[ing] been rendered extinct.’ ’’
NAHB, 130 F.3d at 1059 (Henderson, J., concurring) (quoting
16 U.S.C. § 1531(a)(1)). Moreover, as Secretary Norton
points out, ‘‘the activities that cause the loss of endangered
species and that are regulated by the take prohibition are
themselves generally commercial and economic activities.’’
Appellees’ Br. at 34. Finally, in listing the arroyo toad as an
endangered species, the FWS specifically found that ‘‘[d]evel-
opment projects in riparian wetlands have caused permanent
losses of riparian habitats and are the most conspicuous
factor in the decline of the arroyo toad.’’ 59 Fed. Reg. at
64,863. Because Congress has constitutional authority to
regulate such development projects, Rancho Viejo’s complaint
fails regardless of whether it is characterized as an as-applied
or facial challenge.
D
Finally, Rancho Viejo draws our attention to Morrison’s
declaration that ‘‘[t]he Constitution requires a distinction
between what is truly national and what is truly local.’’ 529
U.S. at 617–18. Plaintiff argues that the ESA represents an
unlawful assertion of congressional power over local land use
decisions, which it describes as an area of traditional state
regulation. The ESA, however, does not constitute a general
regulation of land use.22 Far from encroaching upon territo-
22 Cf. California Coastal Comm’n v. Granite Rock Co., 480 U.S.
572, 587 (1987) (stating that ‘‘the core activity described by’’ land

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27
ry that has traditionally been the domain of state and local
government, the ESA represents a national response to a
specific problem of ‘‘truly national’’ concern.
In making these points, we can do little to improve upon
the Fourth Circuit’s opinion in Gibbs, which upheld, as a valid
exercise of federal power under the Commerce Clause, an
FWS regulation that limited the taking of red wolves. 214
F.3d at 487. As Chief Judge Wilkinson explained, regulation
of the taking of endangered species ‘‘does not involve an ‘area
of traditional state concern,’ one to which ‘States lay claim by
right of history and expertise.’ ’’ Id. at 499 (quoting Lopez,
514 U.S. at 580, 583 (Kennedy, J., concurring)). Rather, as
the Supreme Court acknowledged in Minnesota v. Mille Lacs
Band of Chippewa Indians, ‘‘[a]lthough States have impor-
tant interests in regulating wildlife and natural resources
within their borders, this authority is shared with the Federal
Government when the Federal Government exercises one of
its enumerated constitutional powers.’’ 526 U.S. 172, 204
(1999). Moreover, while ‘‘states and localities possess broad
regulatory and zoning authority over land within their juris-
dictions, TTT [i]t is well established TTT that Congress can
regulate even private land use for environmental and wildlife
conservation.’’ Gibbs, 214 F.3d at 500. Tracing a hundred-
year history of congressional involvement in natural resource
conservation, Chief Judge Wilkinson concluded that ‘‘it is
clear from our laws and precedent that federal regulation of
endangered wildlife does not trench impermissibly upon state
powers.’’ Id. at 500–01.
The Fourth Circuit also recognized the national scope of
the problem posed by species conservation. Citing the ESA’s
legislative history, the court noted Congress’ concern that
‘‘ ‘protection of endangered species is not a matter that can be
handled in the absence of coherent national and international
use planning and environmental regulation ‘‘is undoubtedly differ-
ent,’’ because ‘‘environmental regulation TTT does not mandate
particular uses of the land but requires only that, however the land
is used, damage to the environment is kept within prescribed
limits’’).

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28
policies: the results of a series of unconnected and disorga-
nized policies and programs by various states might well be
confusion compounded.’ ’’ Gibbs, 214 F.3d at 502 (quoting
H.R. R EP. NO. 93-412, at 7 (1973)). As the Gibbs court
explained: ‘‘States may decide to forego or limit conservation
efforts in order to lower these costs, and other states may be
forced to follow suit in order to compete.’’ Id. at 501. Our
court has recognized this problem as well. See NAHB, 130
F.3d at 1055 (Wald, J.) (noting that states may be ‘‘motivated
to adopt lower standards of endangered species protection in
order to attract development’’). And the Supreme Court, as
the Fourth Circuit observed, ‘‘has held that Congress may
take cognizance of this dynamic and arrest the ‘race to the
bottom’ in order to prevent interstate competition whose
overall effect would damage the quality of the national envi-
ronment.’’ Gibbs, 214 F.3d at 501 (citing Hodel v. Virginia
Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981)).23
For these reasons, the protection of endangered species
cannot fairly be described as a power ‘‘which the Founders
denied the National Government and reposed in the States.’’
Morrison, 529 U.S. at 618. Rather, ‘‘the preservation of
endangered species is historically a federal function,’’ Gibbs,
214 F.3d at 505, and invalidating this application of the ESA
‘‘would call into question the historic power of the federal
government to preserve scarce resources in one locality for
the future benefit of all Americans,’’ id. at 492. We therefore
agree with Chief Judge Wilkinson that to sustain challenges
of this nature ‘‘would require courts to move abruptly from
23 See Hodel v. Virginia Surface Mining, 452 U.S. at 268, 281–82
(rejecting a claim that the Surface Mining Control and Reclamation
Act exceeds Congress’ Commerce Clause power because it regu-
lates local land use, noting that the Act responds to congressional
concern that ‘‘nationwide ‘surface mining and reclamation standards
are essential in order to insure that competition in interstate
commerce TTT will not be used to undermine the ability of the
several States to improve and maintain adequate standards,’ ’’ and
holding that ‘‘[t]he prevention of this sort of destructive interstate
competition is a traditional role for congressional action under the
Commerce Clause’’ (quoting 30 U.S.C. § 1201(g))).

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29
preserving traditional state roles to dismantling historic fed-
eral ones.’’ Id. at 504.
IV
‘‘Due respect for the decisions of a coordinate branch of
Government demands that we invalidate a congressional en-
actment only upon a plain showing that Congress has exceed-
ed its constitutional bounds.’’ Morrison, 529 U.S. at 607
(citations omitted). Rancho Viejo has not made that ‘‘plain
showing’’ here. Rather, its attack on the constitutionality of
the application of the ESA to its commercial housing develop-
ment is indistinguishable from the attack we turned back in
NAHB, and nothing in subsequent Supreme Court jurispru-
dence has undermined the precedential authority of that
decision. Accordingly, NAHB controls our decision in this
case, and the district court’s grant of summary judgment in
favor of Secretary Norton is therefore
Affirmed.

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1
GINSBURG , Chief Judge, concurring: Although I do not
disagree with anything in the opinion of the court, I write
separately because I do not believe our opinion makes clear,
as the Supreme Court requires, that there is a logical stop-
ping point to our rationale for upholding the constitutionality
of the exercise of the Congress’s power under the Commerce
Clause here challenged. See Lopez, 514 U.S. at 564 (‘‘if we
were to accept the Government’s arguments, we are hard
pressed to posit any activity by an individual that Congress is
without power to regulate’’); Morrison, 529 U.S. at 615-16;
see also United States v. Wall, 92 F.3d 1444, 1455-56 (6th Cir.
1996) (Boggs, J., dissenting in part) (‘‘the rationale offered to
support the constitutionality of the statute TTT 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’’).
In this case I think it clear that our rationale for concluding
the take of the arroyo toad affects interstate commerce does
indeed have a logical stopping point, though it goes unre-
marked in the opinion of the court. Our rationale is that,
with respect to a species that is not an article in interstate
commerce and does not affect interstate commerce, a take
can be regulated if – but only if – the take itself substantially
affects interstate commerce. The large-scale residential de-
velopment that is the take in this case clearly does affect
interstate commerce. Just as important, however, the lone
hiker in the woods, or the homeowner who moves dirt in
order to landscape his property, though he takes the toad,
does not affect interstate commerce.
Without this limitation, the Government could regulate as a
take any kind of activity, regardless whether that activity had
any connection with interstate commerce. With this under-
standing of the rationale of the case, I concur in the opinion
of the court.

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