214 F.3d 483 (4th Cir. 2000), 99-1218, Gibbs v. Babbitt

Docket Nº:99-1218 (CA-97-41-4-BO).
Citation:214 F.3d 483
Party Name:CHARLES GILBERT GIBBS; RICHARD LEE MANN, III; HYDE COUNTY, NORTH CAROLINA; WASHINGTON COUNTY, NORTH CAROLINA, Plaintiffs-Appellants, v. BRUCE BABBITT, Secretary of the Interior, in his official capacity; UNITED STATES FISH AND WILDLIFE SERVICE; UNITED STATES DEPARTMENT OF THE INTERIOR; JAMIE CLARK, Director of the U.S. Fish and Wildlife Service, De
Case Date:June 06, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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214 F.3d 483 (4th Cir. 2000)

CHARLES GILBERT GIBBS; RICHARD LEE MANN, III; HYDE COUNTY, NORTH CAROLINA; WASHINGTON COUNTY, NORTH CAROLINA, Plaintiffs-Appellants,

v.

BRUCE BABBITT, Secretary of the Interior, in his official capacity; UNITED STATES FISH AND WILDLIFE SERVICE; UNITED STATES DEPARTMENT OF THE INTERIOR; JAMIE CLARK, Director of the U.S. Fish and Wildlife Service, Defendants-Appellees,

DEFENDERS OF WILDLIFE, Intervenor-Appellee.

PACIFIC LEGAL FOUNDATION; NATIONAL WILDERNESS INSTITUTE; WASHINGTON LEGAL FOUNDATION; THE ALLIED EDUCATION FOUNDATION; NATIONAL WILDLIFE FEDERATION; NORTH CAROLINA WILDLIFE FEDERATION; ENVIRONMENTAL DEFENSE FUND; WORLD WILDLIFE FUND; CENTER FOR MARINE CONSERVATION, Amici Curiae.

No. 99-1218 (CA-97-41-4-BO).

United States Court of Appeals, Fourth Circuit

June 6, 2000

Argued: October 28, 1999.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville.

Terrence W. Boyle, Chief District Judge.

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COUNSEL ARGUED: Sean Eric Andrussier, WOMBLE, CARLYLE, SAND-RIDGE & RICE, P.L.L.C., Raleigh, North Carolina, for Appellants. Andrew Christopher Mergen, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Timothy Joseph Preso, MILLER, CASSIDY, LARROCA & LEWIN, L.L.P., Washington, D.C., for Appellees. ON BRIEF: E. Lawrence Davis, III, Christopher T. Graebe, WOMBLE, CARLYLE, SANDRIDGE & RICE, P.L.L.C., Raleigh, North Carolina, for Appellants. Peter Coppelman, ActingAssistant Attorney General, David C. Shilton, Charles Carson, Environmental & Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; John Ebersole, David Gayer, UNITED STATES DEPARTMENT OF THE INTERIOR, Washington, D.C., for Federal Appellees. Scott L. Nelson, MILLER, CASSIDY, LARROCA & LEWIN, L.L.P., Washington, D.C.; Katherine Meyer, MEYER & GLITZENSTEIN, Washington, D.C.; Derb S. Carter, Jr., SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellee Defenders of Wildlife. M. Reed Hopper, Anne M. Hayes, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Amici Curiae Pacific Legal Foundation, et al. Daniel J. Popeo, Paul D. Kamenar, WASHINGTON LEGAL FOUNDATION, Washington, D.C., for Amici Curiae Washington Legal Foundation, et al. James B. Dougherty, Washington, D.C., for Amici Curiae National Wildlife Federation, et al. Louis R. Cohen, James R. Wrathall, Matthew A. Brill, Susan A. MacIntyre, WILMER, CUTLER & PICKERING, Washington, D.C.; Michael J. Bean, ENVIRONMENTAL DEFENSE FUND, Washington, D.C.; Christopher E. Williams, WORLD WILDLIFE FUND, Washington, D.C.; Wm. Robert Irvin, CENTER FOR MARINE CONSERVATION, Washington, D.C., for Amici Curiae Environmental Defense Fund, et al.

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL, Circuit Judges.

Affirmed by published opinion. Chief Judge Wilkinson wrote the majority opinion, in which Judge Michael joined. Judge Luttig wrote a dissenting opinion.

OPINION

WILKINSON, Chief Judge:

In this case we ask whether the national government can act to conserve scarce natural resources of value to our entire country. Appellants challenge the constitutionality of a Fish and Wildlife Service regulation that limits the taking of red wolves on private land. The district court

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upheld the regulation as a valid exercise of federal power under the Commerce Clause. We now affirm because the regulated activity substantially affects interstate commerce and because the regulation is part of a comprehensive federal program for the protection of endangered species. Judicial deference to the judgment of the democratic branches is therefore appropriate.

I.

A.

In response to growing concern over the extinction of many animal and plant species, Congress enacted the Endangered Species Act of 1973 (ESA), Pub. L. 93-205, 81 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531-44 (1994 & Supp. III 1997)). Congress found that many of the species threatened with extinction are of "esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people." 16 U.S.C. § 1531(a)(3) (1994). Congress also found that "various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation." Id. § 1531(a)(1). To address these national concerns, the ESA sets forth a comprehensive regulatory scheme to conserve these species and the ecosystems upon which they depend. The Act provides, inter alia, for the listing of "endangered" and "threatened" species, id. § 1533, and various recovery plans for the "conservation and survival" of listed species, id. § 1533(f).

The cornerstone of the statute is section 9(a)(1), which prohibits the taking of any endangered species without a permit or other authorization. Id. § 1538(a)(1)(B). The term "take" is defined as "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 ESA also authorizes the Fish and Wildlife Service (FWS) to issue any necessary regulations for the conservation of threatened species. Id. § 1533(d). Finally, in keeping with its commitment to species conservation, the ESA states that a state law may be more restrictive than the provisions of the Act, but not less. Id. § 1535(f).

In order to increase the Service's flexibility in reintroducing endangered species into portions of their historic range, Congress extensively amended the ESA in 1982, Pub. L. 97-304, 96 Stat. 1426. Prior to 1982, reintroduced species were treated the same as any other endangered species. See id. § 1536 & 1538(a) (providing for stringent consultation and reporting requirements and a near absolute prohibition on the taking of endangered species). These strict limits led to significant local opposition to the re-introductions. In response to these problems, Congress added section 10(j), which allows the FWS to designate as "experimental" some reintroduced populations of endangered or threatened species. Id. § 1539(j). Under the looser standards of section 10(j), members of an experimental population are generally to be treated as threatened rather than endangered. Id. § 1539(j)(2)(C). This means that protective regulations may be established for their conservation. See id. at 1533(d). By promulgating special rules for an experimental population the Service can determine which prohibitions and exceptions shall apply. See 50 C.F.R.§ 17.82 (1998).

A population may be designated as "experimental" only after the Service determines that it is not "essential" to the continuation of the species. Id. § 1539(j)(2)(B). An experimental population located on private land can be exempt from some of the more stringent requirements for endangered species. See id. § 1539(j)(2)(C)(i). If a population is found to be "non-essential" and is designated as "experimental," the FWS can develop "special regulations for each experimental population that will address the particular needs of that population." H.R. Rep. No. 97-567, at 34 (1982), reprinted in 1982

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U.S.C.C.A.N. 2807, 2834. Furthermore, "there will be instances where the regulations allow for the incidental take of experimental populations." Id. Thus, under section 10(j), the FWS has the authority to promulgate regulations allowing the taking of experimental reintroduced populations under limited circumstances.

B.

The red wolf, Canis rufus, is an endangered species whose protection is at issue in this case. The red wolf was originally found throughout the southeastern United States. It was once abundant in the "riverine habitats of the southeast," and was especially numerous near the "canebrakes" that harbored large populations of swamp and marsh rabbits, the primary prey of the red wolf. 51 Fed. Reg. 41,790, 41,791 (1986). The FWS found that "the demise of the red wolf was directly related to man's activities, especially land changes, such as the drainage of vast wetland areas for agricultural purposes . . . and predator control efforts at the private, State, and Federal levels." Id. Activities such as wetlands drainage, dam construction, and hunting reduced the red wolf to such meager numbers that it was listed as endangered in 1976. See 32 Fed. Reg. 4001 (1976). Because of the paucity of animals left in the wild, their poor physical condition, and the threats posed by inbreeding, the FWS decided to trap the remaining red wolves in the mid-1970s and place them in a captive breeding program. See 51 Fed. Reg. at 41,791. The breeding program anticipated the eventual reintroduction of some red wolves into the wild. Id.

In 1986, the FWS issued a final rule outlining a reintroduction plan for red wolves in the 120,000-acre Alligator River National Wildlife Refuge in eastern North Carolina. See 51 Fed. Reg. 41,790. This area was judged the ideal habitat within the red wolf's historic range. Id. at 41,791. Between 1987 and 1992, a total of 42 wolves were released in the Refuge. In 1993, the reintroduction program was expanded to include the release of red wolves in the Pocosin Lakes National Wildlife Refuge in Tennessee. Since reintroduction, some red wolves have wandered from federal refuges onto private property. From available data, as of February 1998 it was estimated that about 41 of the approximately 75 wolves in the wild may now reside on private land.1

This case raises a challenge to 50 C.F.R. § 17.84(c), a regulation governing the experimental populations of red wolves reintroduced into North Carolina and Tennessee pursuant to section 10(j). The FWS has extended the takings prohibitions of...

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