PEOPLE FOR THE ETHICAL TREATMENT OF PROPERTY OWNERS, Plaintiff-Appellee,
UNITED STATES FISH AND WILDLIFE SERVICE; DANIEL M. ASHE, acting in his official capacity as Director of the United States Fish and Wildlife Service; NOREEN WALSH, acting in her official capacity as Regional Director of the United States Fish and Wildlife Service's Mountain-Prairie Region; UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, [*] Defendants-Appellants, and FRIENDS OF ANIMALS, Intervenor Defendant-Appellant. DEFENDERS OF WILDLIFE; DAVID S. COHEN; ERIC M. FREEDMAN; STEPHEN GARDBAUM; STEPHEN GOTTLIEB; M. ISABEL MEDINA; STEVEN D. SCHWINN; ENVIRONMENTAL LAW PROFESSORS; WILLIAM C. BANKS; NATIONAL ASSOCIATION OF HOME BUILDERS; ANIMAL WELFARE INSTITUTE; WYOMING ASSOCIATION OF CONSERVATION DISTRICTS; CENTER FOR BIOLOGICAL DIVERSITY; WYOMING FARM BUREAU FEDERATION; HUMANE SOCIETY OF THE UNITED STATES; SIERRA CLUB; WYOMING STOCK GROWERS ASSOCIATION; WILDEARTH GUARDIANS; WYOMING WOOL GROWERS ASSOCIATION; UTAH FARM BUREAU FEDERATION; CATO INSTITUTE AND PROFESSORS OF CONSTITUTIONAL LAW; STATE OF UTAH; STATE OF ALASKA; STATE OF ARIZONA; STATE OF COLORADO; STATE OF IDAHO; STATE OF KANSAS; STATE OF MONTANA; STATE OF SOUTH DAKOTA; STATE OF WYOMING; STATE OF MICHIGAN; CHAMBER OF COMMERCE OF THE UNITED STATES AND THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS; MOUNTAIN STATES LEGAL FOUNDATION;UNITED STATES SENATORS MIKE LEE, JAMES INHOFE, MIKE ENZI, DAVID VITTER, TED CRUZ, AND ORRIN HATCH AND CONGRESSMEN JASON CHAFFETZ, CHRIS STEWART, MIA LOVE, AND ROB BISHOP; CENTER FOR CONSTITUTIONAL JURISPRUDENCE, Amici Curiae.
from the United States District Court for the District of
Utah (D.C. No. 2:13-CV-00278-DB)
T. Katselas, Attorney (John C. Cruden, Assistant Attorney
General, David C. Shilton, and Mary Hollingsworth, Attorneys,
of the U.S. Department of Justice, Environment and Natural
Resources Division, Washington, D.C., with her on the
briefs), for Defendants-Appellants.
Michael Ray Harris, of Friends of Animals, Wildlife Law
Program, Centennial, Colorado, for Intervenor
Jonathan Wood (M. Reed Hopper, with him on the brief), of
Pacific Legal Foundation, Sacramento, California, for
C. Rylander and Karimah Schoenhut of Defenders of Wildlife,
Washington, D.C., filed an amici curiae brief for Defenders
of Wildlife, Animal Welfare Institute, Center for Biological
Diversity, Humane Society of the United States, Sierra Club,
and Wildearth Guardians, in support of Defendants-Appellants.
M. Driesen, Unversity Professor, of Syracuse University
College of Law, Syracuse, New York, filed an amici curiae
brief for Constitutional Law Professors William C. Banks,
David S. Cohen, Eric M. Freedman, Stephen Gardbaum, Stephen
E. Gottlieb, M. Isabel Medina, and Steven D. Schwinn, in
support of Defendants-Appellants.
H. Lutz and Hope M. Babcock of Institute for Public
Representation, Georgetown University Law Center, Washington,
D.C., filed an amicus curiae brief for Environmental Law
Professors in support of Defendants-Appellants.
J. Ward and Jeffrey B. Augello of National Association of
Home Builders, Washington, D.C., and Norman D. James,
Fennemore Craig, P.C., Phoenix, Arizona, filed an amicus
curiae brief in support of Plaintiff-Appellee.
Budd-Falen of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming,
filed an amici curiae brief for Wyoming Association of
Conservation Districts, Wyoming Farm Bureau Federation,
Wyoming Stock Growers Association, Wyoming Wool Growers
Association, and Utah Farm Bureau Federation, in support of
Shapiro and Julio Colomba, of Cato Institute, Washington,
D.C., filed an amici curiae brief for Cato Institute and
Professors of Constitutional Law, in support of
M. Schiff of Alston & Bird LLP, Sacramento, California,
filed an amici curiae brief for United States Senators Mike
Lee, James Inhofe, Mike Enzi, David Vitter, Ted Cruz, and
Orrin Hatch and Congressmen Jason Chaffetz, Chris Stewart,
Mia Love, and Rob Bishop in support of Plaintiff-Appellee.
D. Reyes, Utah Attorney General, and Bridget K. Romano, Utah
Solicitor General, Anthony L. Rampton and Kathy A.F. Davis,
Assistant Utah Attorneys General, Salt Lake City, Utah, Craig
W. Richards, Attorney General, Juneau, Alaska, Mark Brnovich,
Attorney General, Phoenix, Arizona, Cynthia Coffman, Attorney
General, Denver, Colorado, Lawrence G. Wasden, Attorney
General, Boise, Idaho, Derek Schmidt, Attorney General,
Topeka, Kansas, Tim Fox, Attorney General, Helena, Montana,
Marty Jackley, Attorney General, Pierre, South Dakota, and
Peter K. Michael, Attorney General, Cheyenne, Wyoming, filed
an amici curiae brief for the States of Utah, Alaska,
Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, and
Wyoming in support of Plaintiff-Appellee.
J. Lechner of Moutain States Legal Foundation, Lakewood,
Colorado, filed an amicus curiae brief for Mountain States
Legal Foundation in support of Plaintiff-Appellee.
C. Eastment, Anthony T. Caso, and Cristen Wohlgemuth of
Center for Constitutional Jurisprudence, Orange, California,
filed an amicus curiae brief for Center for Constitutional
Jurisprudence in support of Plaintiff-Appellee.
William S. Consovoy and J. Michael Connolly of Consovoy
McCarthy PLLC, Arlington, Virginia; Patrick Strawbridge of
Consovoy McCarthy PLLC, Boston, Massachusetts; Kate Comerford
Todd and Sheldon Gilbert of U.S. Chamber Litigation Center,
Inc., Washington, D.C.; and Karen R. Harned and Luke A. Wake
of NFIB Small Business Legal Center, Washington, D.C., filed
an amici curiae brief for the Chamber of Commerce of the
United States and the National Federation of Independent
Business in support of Plaintiff-Appellee.
HOLMES, McHUGH, and MORITZ, Circuit Judges.
HOLMES, Circuit Judge.
for the Ethical Treatment of Property Owners
("PETPO") challenges a regulation promulgated by
the United States Fish and Wildlife Service ("FWS"
or "Service") pursuant to the Endangered Species
Act ("ESA"). The challenged regulation prohibits
the "take" of the Utah prairie dog, a purely
intrastate species, on nonfederal land. The ESA defines
"take" as meaning "to harass, harm, pursue,
hunt, shoot, wound, kill, trap, capture, or collect." 16
U.S.C. § 1532(19).
district court granted summary judgment for PETPO on the
ground that neither the Commerce Clause nor the Necessary and
Proper Clause of the Constitution authorizes Congress to
regulate take of the Utah prairie dog on nonfederal land. FWS
and intervenor-defendant Friends of Animals ("FoA")
appeal from that grant of summary judgment, arguing that the
challenged regulation is authorized by both the Commerce
Clause and the Necessary and Proper Clause, and that PETPO
lacks standing. We hold that the district court correctly
concluded that PETPO has standing, but erred in concluding
that Congress lacked authority under the Commerce Clause to
regulate (and authorize the Service to regulate) the take of
the Utah prairie dog.
purpose of the ESA is to conserve endangered and threatened
species and the ecosystems on which they depend. See
16 U.S.C. § 1531(b). In order to effectuate this
purpose, Congress tasked two executive officers with jointly
implementing the Act: the Secretary of the Interior and the
Secretary of Commerce. Id. § 1532(15). They, in
turn, delegated their implementation responsibilities to,
respectively, FWS and the National Marine Fisheries Service.
expressly defines the objects of its protections, that is,
both "endangered species" and "threatened
species." An endangered species "is in danger of
extinction throughout all or a significant portion of its
range, " except for insect species determined to be
pests "present[ing] an overwhelming and overriding risk
to man." Id. § 1532(6). A threatened
species is one "which is likely to become an endangered
species within the foreseeable future throughout all or a
significant portion of its range." Id. §
protect these categories of species, the ESA "authorizes
the Secretary of the Interior to list domestic or foreign
species as endangered or threatened." Wyo. Farm
Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231 (10th
Cir. 2000) (citing 16 U.S.C. § 1533(a)-(b)). At least
five factors are to be considered in listing a species as
endangered or threatened: "(A) the present or threatened
destruction, modification, or curtailment of its habitat or
range; (B) overutilization for commercial, recreational,
scientific or educational purposes; (C) disease or predation;
(D) the inadequacy of existing regulatory mechanisms; or (E)
other natural or manmade factors affecting its continued
existence." 16 U.S.C. § 1533(a)(1). "Once a
species is so listed, it is afforded certain protections, and
federal agencies assume special obligations to conserve,
recover and protect that species." Wyo. Farm Bureau
Fed'n, 199 F.3d at 1231.
"cornerstone" of the ESA's protections is a
section prohibiting the take of any endangered species
without a permit or other authorization. Gibbs v.
Babbitt, 214 F.3d 483, 487 (4th Cir. 2000) (citing 16
U.S.C. § 1538(a)(1)(B)). Pursuant to 16 U.S.C. §
1533(d), the Secretary of the Interior is authorized to
extend the statutory prohibitions on take of endangered
species to threatened species. See 16 U.S.C. §
1533(d) ("The Secretary may by regulation prohibit with
respect to any threatened species any act prohibited under
section 1538(a)(1) of this title, in the case of fish or
wildlife . . . ."). FWS extended that cornerstone take
prohibition to protect all threatened species.
See 50 C.F.R. § 17.31 ("General Rule
4(d)" or "General Rule"). More specifically,
FWS's General Rule 4(d) prohibits the take of all species
listed as threatened by incorporating as to those species the
prohibitions applicable to endangered species under 50 C.F.R.
§ 17.21, except when FWS issues a specific rule for a
particular threatened species. See id.; see
also 50 C.F.R. § 17.21 (setting forth take and
other prohibitions with respect to endangered species). In
such cases, the specific rule, or "special rule, "
regarding the particular species takes precedence over
General Rule 4(d), such that the General Rule's blanket
prohibition on take of threatened species no longer applies
to that species and the special rule governs instead. See
id. § 17.31(c).
Utah prairie dog is a threatened species whose take is
regulated by a special rule. The Utah prairie dog lives only
in Utah and approximately seventy percent of the population
is on nonfederal land. Originally listed as an endangered
species under the ESA, Amendments to Lists of Endangered Fish
and Wildlife, 38 Fed. Reg. 14678-01, 14678 (June 4, 1973)
(codified as amended at 50 C.F.R. § 17.11), the species
was reclassified as threatened in 1984; at that time, the FWS
issued a special rule to regulate its take, Final Rule to
Reclassify the Utah Prairie Dog as Threatened, With Special
Rule To Allow Regulated Taking, 49 Fed. Reg. 22330-01, 22330
(May 29, 1984) (codified as amended at 50 C.F.R. §
17.40(g)). The special rule ("Special Rule 4(d)" or
"Special Rule") was amended in 1991, Final Rule to
Amend Special Rule Allowing Regulated Taking of the Utah
Prairie Dog, 56 Fed. Reg. 27438-01, 27438 (June 14, 1991)
(codified as amended at 50 C.F.R. § 17.40(g)), and again
in 2012, Revising the Special Rule for the Utah Prairie Dog,
77 Fed. Reg. 46158-01, 46158 (Aug. 2, 2012) (codified at 50
C.F.R. § 17.40(g)).
Special Rule 4(d) regulates the take of Utah prairie dog by
limiting: (1) the permissible locations of such take to
agricultural lands, properties within 0.5 miles of
conservation lands, and "areas where Utah prairie dogs
create serious human safety hazards or disturb the sanctity
of significant human cultural or burial sites[;]" (2)
the permissible amount of such take; and (3) the permissible
methods of such take. 50 C.F.R. § 17.40(g). In addition,
the Special Rule authorizes incidental take that occurs as
part of standard agricultural practices. See id.
a nonprofit organization, was founded by Utah "residents
who suffer as a result of the regulation of Utah prairie dog
take." J.A. at 160 (Decl. of Derek Morton, filed Nov.
18, 2013). PETPO is comprised of more than 200 "private
property owners and other persons and entities subject to
overly burdensome regulations, " id., who
allege that they "have been prevented from building
homes, starting small businesses, and, in the case of the
local government, from protecting recreational facilities, a