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
–————
Filed On: July 22, 2003
No. 01–5373
RANCHO VIEJO, LLC,
APPELLANT
v.
GALE A. N ORTON, SECRETARY OF THE INTERIOR, ET AL.,
APPELLEES
–————
BEFORE: G INSBURG, Chief Judge, and EDWARDS ,
SENTELLE, HENDERSON, RANDOLPH, ROGERS , TATEL , GARLAND,
and ROBERTS, Circuit Judges.
O R D E R
Appellant’s petition for rehearing en banc and the response
thereto have been circulated to the full court. The taking of
a vote was requested. Thereafter, a majority of the judges of
the court in regular, active service did not vote in favor of the
petition. Upon consideration of the foregoing, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
Michael C. McGrail
Deputy Clerk

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Circuit Judge SENTELLE and Circuit Judge ROBERTS would
grant the petition for rehearing en banc.
Separate statements of Circuit Judge SENTELLE and Circuit
Judge ROBERTS dissenting from the denial of rehearing en
banc are attached.

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SENTELLE, Circuit Judge, dissenting from denial of rehear-
ing en banc: The court’s opinion in this case continues a
divergence from contemporary Supreme Court Commerce
Clause jurisprudence begun, or at least evidenced, in Nation-
al Association of Home Builders v. Babbitt, 130 F.3d 1041
(D.C. Cir. 1997) (NAHB). Indeed, it broadens that diver-
gence. At least at the time of NAHB, the Supreme Court
had not yet entered its decision in United States v. Morrison,
529 U.S. 598 (2000), underlining and explaining its decision in
United States v. Lopez, 514 U.S. 549 (1995). This time we
uphold the order of the Fish and Wildlife Service to a
developer to remove a fence from its own property in order to
accommodate the movement of arroyo toads, a species of
neither migratory habit nor commercial use. Thus, as in
NAHB, this Circuit holds that the intrastate ‘‘taking’’ of a
non-commercial species of fauna may be constitutionally regu-
lated by the federal government under the authority of the
Commerce Clause, U.S. CONST. art. I, § 8, cl. 3, which empow-
ers Congress ‘‘[t]o regulate Commerce TTT among the several
statesTTTT’’
Once again, this Circuit upholds under the rubric of the
interstate commerce power the regulation of ‘‘an activity that
is neither interstate nor commerceTTTT’’ NAHB, 130 F.3d at
1061 (Sentelle, J., dissenting). As in NAHB, the panel’s
reasoning runs athwart the Supreme Court’s analysis of the
reach of the Commerce Clause in Lopez, and now in Morri-
son. Under the Lopez analysis, Congress may regulate (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 hav-
ing a substantial relation to interstate commerce.’’ Lopez,
514 U.S. at 558–59 (citations omitted). The arroyo toad is not
a channel of commerce nor is it in one. It is not an
instrumentality of commerce, nor is it a person or thing in
interstate commerce. The ‘‘taking’’ of that toad (especially by
land preparation) does not have any substantial relationship
to interstate commerce. The protection of a non-commercial,
purely local toad is not within any of the Lopez categories.

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As I understand the court’s rationale in the present opin-
ion, because the ‘‘taking’’ of the toad is done by an entity
engaging in commercial activity, Congress can regulate that
taking under the third category. I disagree. In analyzing
the parameters of the third category in Lopez, the Supreme
Court examined whether:
—the regulation controls a commercial activity, or an
activity necessary to the regulation of some commercial
activity;
—the statute includes a jurisdictional nexus requirement
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.
NAHB, 130 F.3d at 1064 (Sentelle, J., dissenting) (citing
Lopez, 514 U.S. at 559–65; other citations omitted). Protect-
ing a toad from a land owner pinning a fence on its own
property does not become commercial under any of the three
elements of that examination. The point of Lopez, as further
explained in Morrison, is not that Congress can regulate any
activity if the act of regulating catches an entity or an action
that is itself commercial independent of the noncommercial
nature of the regulated entity and activity. It is rather that
‘‘ ‘[w]here economic activity substantially affects interstate
commerce, legislation regulating that activity will be sus-
tained.’ ’’ Morrison, 529 U.S. at 610 (quoting Lopez, 514 U.S.
at 560). As the Morrison Court went on to explain, ‘‘a fair
reading of Lopez shows that the noneconomic, criminal nature
of the conduct at issue was central to our decision in that
case,’’ the decision to strike down the Gun–Free School Zones
Act as beyond the reach of the Commerce Clause. Id.
Despite the valiant efforts of my colleagues on the panel, the
notion that the rationale of the present decision has a stop-

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ping point fails. It is at odds, most importantly, with the
Supreme Court. It is also conspicuously in conflict with
another circuit. The Fifth Circuit has explicitly rejected the
claim that federal regulation protecting a noncommercial
species is permissible if the activity constituting the ‘‘take’’
was itself economic.
Neither the plain language of the Commerce Clause, nor
judicial decisions construing it, suggest that, concerning
substantial effect vel non, Congress may regulate activity
(here, Cave Species takes) solely because non-regulated
conduct (here, commercial development) by the actor
engaged in the regulated activity will have some connec-
tion to interstate commerceTTTT To accept [such an]
analysis would allow application of otherwise unconstitu-
tional statutes to commercial actors, but not to non-
commercial actors. There would be no limit to Congress’
authority to regulate intrastate activities, so long as
those subjected to the regulation were entities which had
an otherwise substantial connection to interstate com-
merce.
GDF Realty Inv., Ltd. v. Norton, 326 F.3d 622, 634 (5th Cir.
2003).
In fact, even if it were constitutionally sufficient that the
take, although not required by the terms of the statute,
coincidentally constituted activity in interstate commerce,
that does not match the facts of this case. Ground prepara-
tion and erection of a fence are not commerce, and certainly
not interstate. Even the construction of houses hardly con-
stitutes interstate commerce. In short, because this decision
of the court continues a line of cases in conflict with Supreme
Court jurisprudence, and is in conflict with at least one other
circuit, I would en banc this cause so that the full court might
bring the jurisprudence of the Circuit in harmony with the
Supreme Court.

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ROBERTS, Circuit Judge, dissenting from denial of rehear-
ing en banc: The panel’s opinion in effect asks whether the
challenged regulation substantially affects interstate com-
merce, rather than whether the activity being regulated does
so. Thus, the panel sustains the application of the Act in this
case because Rancho Viejo’s commercial development consti-
tutes interstate commerce and the regulation impinges on
that development, not because the incidental taking of arroyo
toads can be said to be interstate commerce. See Rancho
Viejo, LLC v. Norton, 323 F.3d 1062, 1071–73.
Such an approach seems inconsistent with the Supreme
Court’s holdings in United States v. Lopez, 514 U.S. 549
(1995) and United States v. Morrison, 529 U.S. 598 (2000).
The Court in those cases upheld facial Commerce Clause
challenges to legislation prohibiting the possession of firearms
in school zones and violence against women. Given United
States v. Salerno, 481 U.S. 739 (1987), such a facial challenge
can succeed only if there are no circumstances in which the
Act at issue can be applied without violating the Commerce
Clause. Under the panel’s approach in this case, however, if
the defendant in Lopez possessed the firearm because he was
part of an interstate ring and had brought it to the school to
sell it, or the defendant in Morrison assaulted his victims to
promote interstate extortion, then clearly the challenged reg-
ulations in those cases would have substantially affected
interstate commerce, and the facial Commerce Clause chal-
lenges would have failed.
That is precisely what the Fifth Circuit concluded recently
in rejecting the approach the panel took in this case. See
GDF Realty Inv., Ltd. v. Norton, 326 F.3d 622, 634–35 (5th
Cir. 2003). As the Fifth Circuit explained, ‘‘looking primarily
beyond the regulated activity TTT would ‘effectually obliterate’
the limiting purpose of the Commerce Clause,’’ and, under
such an approach, ‘‘the facial challenges in Lopez and Morri-
son would have failed.’’ Id.
The panel’s approach in this case leads to the result that
regulating the taking of a hapless toad that, for reasons of its
own, lives its entire life in California constitutes regulating
‘‘Commerce TTT among the several States.’’ U.S. CONST. art.

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I, § 8, cl. 3. To be fair, the panel faithfully applied National
Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C.
Cir. 1997). En banc review is appropriate because the ap-
proach of the panel in this case and NAHB now conflicts with
the opinion of a sister circuit – a fact confirmed by that
circuit’s quotation from the NAHB dissent. See GDF Realty,
326 F.3d at 636 (quoting NAHB, 130 F.3d at 1067 (Sentelle,
J., dissenting)). Such review would also afford the opportuni-
ty to consider alternative grounds for sustaining application
of the Act that may be more consistent with Supreme Court
precedent. See Rancho Viejo, LLC v. Norton, 323 F.3d at
1067–68 n.2.

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