11th Cir. Commerce Clause case re Endangered Species

The Court of Appeals for the Eleventh Circuit held that Congress did not exceed its Commerce Clause powers in the Endangered Species Act (ESA) by protecting a fish that was so near extinction it existed only in very small numbers in just one state. The suit was brought by the Alabama-Tombigbee Rivers Coalition (Coalition), a group of industries and business associations opposed to the designation of the Alabama sturgeon as an endangered species. The primary contention of the suit was that the Fish and Wildlife Service (FWS) had violated the ESA when it failed to designate the critical habitat of the Alabama sturgeon within two years of listing the fish as an endangered species. The alternative theory advanced by the Coalition was that the regulation of a purely intrastate fish by Congress violated the Commerce Clause. The Eleventh Circuit affirmed the district court decision that had ruled against the Coalition on both grounds. Alabama-Tombigbee Rivers Coalition v. Kempthorne, 2007 WL 414327 (11th Cir. February 8, 2007).

The Court of Appeals for the Eleventh Circuit held that Congress did not exceed its Commerce Clause powers in the Endangered Species Act (ESA) by protecting a fish that was so near extinction it existed only in very small numbers in just one state.  The suit was brought by the Alabama-Tombigbee Rivers Coalition (Coalition), a group of industries and business associations opposed to the designation of the Alabama sturgeon as an endangered species.  The primary contention of the suit was that the Fish and Wildlife Service (FWS) had violated the ESA when it failed to designate the critical habitat of the Alabama sturgeon within two years of listing the fish as an endangered species.  The alternative theory advanced by the Coalition was that the regulation of a purely intrastate fish by Congress violated the Commerce Clause.  The Eleventh Circuit affirmed the district court decision that had ruled against the Coalition on both grounds.  Alabama-Tombigbee Rivers Coalition v. Kempthorne, 2007 WL 414327 (11th Cir. February 8, 2007).  The Eleventh Circuit panel consisted of a Bush I appointee, a Clinton appointee, and a Carter appointee.  

 

The business groups argued that the listing of the fish as endangered should be removed due to the failure of the FWS to designate the critical habitat in the timeframe required by the ESA.  The court stated:

 

The Alabama sturgeon is a fish so near extinction that the Service [FWS] withdrew its first attempt to list it as endangered because there was then no evidence that the species still existed.  Four thousand man hours of fishing effort on the rivers produced a total of five Alabama sturgeon.  Requiring the Service [FWS] to re-start the listing process now could condemn the Alabama sturgeon to extinction.  That result probably would not bring tears to the collective eyes of the Coalition, but it not one to which the group is entitled.  The Endangered Species Act does not require that a species be destroyed in order to preserve a part of the process meant to save it.

 

The court completely rejected the Coalition’s Commerce Clause challenge.  The court noted that three other circuits had also upheld the constitutionality of Congress authorizing the FWS to list a purely intrastate species as endangered under the ESA.  GDF Realty Invs. v. Norton, 326 F.3d 622 (5th Cir. 2003); Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); Gibbs v. Babbitt, 215 F.3d 483 (4th Cir. 2000).  The court stated that no circuit had held to the contrary. 

 

The Eleventh Circuit’s decision quotes heavily from the Supreme Court’s decision in Gonzales v. Raich, 545 U.S. 1 (2005), a case in which the Supreme Court upheld the constitutionality under the Commerce Clause of a federal law criminalizing the manufacture, distribution, and possession of marijuana to intrastate growers and users of marijuana for medicinal purposes.  The Raich decision was written by Justice Stevens.  Justice Scalia concurred, and Justices O’Connor, Rehnquist and Thomas dissented.  While the other three circuits upholding the listing of a purely intrastate species as endangered under the ESA preceded Raich, the Eleventh Circuit decision bolsters this conclusion with multiple quotes from Raich.  For instance, the Eleventh Circuit quotes Raich in stating: “If the process of listing endangered species … is ‘an essential part of a larger regulation of economic activity,’ then whether that process ‘ensnares some purely intrastate activity is of no moment.’  When Congress can and has regulated a class of activities, we ‘have no power to excise, as trivial, individual instances of the class.’” 

 

The Eleventh Circuit noted that the interstate economic impact of the protection of endangered species is many billions of dollars.  The court observed that many industries, including pharmaceuticals, agriculture, fishing, hunting and wildlife tourism, fundamentally depend on a diverse stock of wildlife, and the court concluded that the ESA is designed to safeguard that stock.  Quoting Raich, the Eleventh Circuit held: “Just as it is apparent that the ‘comprehensive scheme’ of species protection contained in the Endangered Species Act has a substantial effect on interstate commerce, it is clear that the listing process is ‘an essential part’ of that ‘larger regulation of economic activity.’”  The court concluded that the protection of all endangered species, regardless of their geographic range, was a “rational decision … within Congress’ authority to make.”