130 F.3d 1041 (D.C. Cir. 1997), 96-5354, National Ass'n of Home Builders v. Babbitt

Docket Nº:96-5354.
Citation:130 F.3d 1041
Party Name:Envtl. NATIONAL ASSOCIATION OF HOME BUILDERS, et al., Appellants, v. Bruce BABBITT, Secretary, United States Department of Interior and Mollie Beattie, Director, United States Fish and Wildlife Service, Appellees.
Case Date:December 05, 1997
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1041

130 F.3d 1041 (D.C. Cir. 1997)

Envtl.

NATIONAL ASSOCIATION OF HOME BUILDERS, et al., Appellants,

v.

Bruce BABBITT, Secretary, United States Department of

Interior and Mollie Beattie, Director, United

States Fish and Wildlife Service, Appellees.

No. 96-5354.

United States Court of Appeals, District of Columbia Circuit

December 5, 1997

Argued Oct. 3, 1997.

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Appeal from the United States District Court for the District of Columbia; No. 95cv01973.

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

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

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

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

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

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

Before: WALD, SENTELLE and HENDERSON, Circuit Judges.

Opinion filed by Circuit Judge WALD.

Dissenting opinion filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge KAREN LECRAFT HENDERSON.

WALD, Circuit Judge:

The National Association of Home Builders of the United States, the Building Industry Legal Defense Fund, the County of San Bernardino, and the City of Colton, California brought this action in the United States District Court for the District of Columbia to challenge an application of section 9(a)(1) of the Endangered Species Act ("ESA"), 16 U.S.C. § 1538(a)(1), which makes it unlawful for any person to "take"--i.e., "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct," 16 U.S.C. § 1532(19)--any endangered species. The plaintiffs sought a declaration that the application of section 9 of the ESA to the Delhi Sands Flower-Loving Fly ("the Fly"), which is located only in California, exceeds Congress' Commerce Clause power and an injunction against application of the section to the plaintiff's construction activities in areas containing Fly habitat.

This dispute arose when the Fish and Wildlife Service ("FWS") placed the Fly, an insect that is native to the San Bernardino area of California, on the endangered species list. The listing of the Fly, the habitat of which is located entirely within an eight mile radius in southwestern San Bernardino County and northwestern Riverside County, California, forced San Bernardino County to alter plans to construct a new hospital on a recently purchased site that the FWS had determined contained Fly habitat. The FWS and San Bernardino County agreed on a plan that would allow the County to build the hospital and a power plant in the area designated as Fly habitat in return for modification of the construction plans and purchase and set aside of nearby land as Fly habitat. In November 1995, FWS issued a permit to allow construction of the power plant. During the same month, however, the County notified the FWS that it planned to redesign a nearby intersection to improve emergency vehicle access to the hospital. The FWS informed the County that expansion of the intersection as planned would likely lead to a "taking" of the Fly in violation of ESA section 9(a). After brief unsuccessful negotiations between the County and FWS, the County filed suit in district court challenging the application of section 9(a)(1) to the Fly.

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

I. FACTUAL AND PROCEDURAL BACKGROUND

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

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search of nectar, thereby pollinating native plant species. See id. at 1.

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

In 1990, after receiving two petitions asking that the Fly be placed on the endangered species list, the FWS began an investigation into whether listing of the Fly as endangered was warranted. Soon thereafter, the FWS found that substantial information had been presented to indicate that the Fly was an endangered species. Two years later, the FWS published its final determination that the Fly is "in imminent danger of extinction due to extensive habitat loss and degradation that has reduced its range by 97 percent." 58 Fed.Reg. at 49,881. The listing of the Fly as endangered triggered the automatic statutory prohibitions of section 9(a)(1) of the ESA, 16 U.S.C. § 1538(a)(1). As a result, commercial trade in the species could no longer occur lawfully and no person could "take" individuals of the species without a permit or an exemption.

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

In November 1992, the FWS notified the County that the Fly was likely to be listed as endangered, and in May 1993--after the Fly was listed--the FWS advised the County that the hospital site was occupied by the Fly and that construction of the facility as then proposed would likely "take" members of the species in violation of the ESA. The County decided to modify the layout and design of the hospital to eliminate direct and indirect impacts to the Fly and to eliminate the need for a section 10 "incidental take permit." 2 One of the modifications to the original design for the hospital included in the plan was to move the hospital 250 feet north to "avoid[ ] direct impact to the entire area identified as occupied or suitable Delhi Fly habitat." Habitat Preservation, Habitat Enchangement [sic] and Impact Avoidance Plan for the Delhi Sands Flower-Loving Fly at the San Bernardino County Hospital Replacement Site 8 (Dec. 1, 1993). This resulted in an 8.35 acre Delhi Fly habitat preserve. Id. The plan also created a 100-foot wide corridor to link two Fly habitat areas and permit interbreeding between Fly colonies.

In October 1994, the County approached FWS with a proposal to construct a substation to power the hospital on "the best remaining habitat" for the Fly. See Declaration of Jeffery M. Newman 8 (Apr. 29, 1996) ("Newman Declaration"). The County submitted an application for incidental "take" of

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the Fly, which would permit it to build on about 4 acres of Fly habitat. To offset this reduction in Fly habitat, the County proposed to acquire and manage a nearby 7.5 acre site as Fly habitat. In November 1995, the FWS issued the section 10 permit for the substation and construction began shortly thereafter. See id. at 9.

In November 1995, the County informed FWS of its plans to redesign an intersection near the hospital that the County argues is critical to emergency vehicle access to the new hospital. The FWS determined that the plan, which called for a reduction of the 100 foot wide corridor to an 18 foot...

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