Gibbs v. Babbitt
| Decision Date | 21 December 1998 |
| Docket Number | No. 4 97-CV-41-BO.,4 97-CV-41-BO. |
| Citation | 31 F.Supp.2d 531 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Charles Gilbert GIBBS, Sr.; Richard Lee Mann; Hyde County, North Carolina; and Washington County, North Carolina, Plaintiffs, v. Bruce BABBITT, U.S. Secretary of the Interior, in his official capacity; U.S. Department of the Interior; Jamie Clark, Director U.S. Fish and Wildlife Service, in her official capacity; and U.S. Fish and Wildlife Service, Federal Defendants, and Defenders of Wildlife, Defendant-Intervenor. |
E. Lawrence Davis, Womble, Carlyle, Sandridge & Rice, Pressly M. Millen, Womble, Carlyle, Sandridge & Rice, Christopher T. Graebe, Womble, Carlyle, Sandridge & Rice, Raleigh, Harvey W. Raynor, III, Belhaven, for Charles Gilbert Gibbs, Richard Lee Mann, III, Hyde County, North Carolina Washington County, North Carolina, plaintiffs.
R.A. Renfer, Jr., Asst. U.S. Attorney, Office of U.S. Attorney, Raleigh, Kelly E. Mofield, Trial Attorney, Environment & Natural Resource Div., Wildlife & Marine Resources Sedction, Washington, DC, for Bruce Babbitt, U.S. Fish and Wildlife Service, Defendants.
Derb S. Carter, Southern Environmental Law Center, Chapel Hill, Charles C. Carson, Environment & Natural Resource Div., Wildlife & Marine Resources Section, Washington, DC, for Secretary of the Interior, U.S. Department of the Interior, Defenders of Wildlife, Jamie Clark, defendants.
This matter is before the Court on three motions for summary judgment: one each from the Plaintiffs, Federal Defendants, and Defendant-Intervenors. The underlying action, in its present form, is for relief from alleged violations of the Constitution, and especially the Tenth Amendment, by the United States Fish and Wildlife Service ("FWS"). Plaintiffs seek various forms of relief, including a declaration that all federal regulations relating to the taking of red wolves on private land are invalid, a declaration of the primacy of North Carolina laws regarding the red wolves over conflicting federal regulation, an injunction against FWS enforcement of federal regulations relating to the taking of red wolves on private land in Hyde and Washington Counties, and an award of attorney's fees and costs.
Plaintiffs filed suit against Defendants on March 3, 1997, initially presenting four claims for relief. On June 29, 1998, this Court received a stipulation of dismissal of the Plaintiffs' first, second, and third claims, leaving only one claim for relief, centering around alleged violation of the Tenth Amendment. On October 27, 1997, this Court granted a motion to intervene by the group Defenders of Wildlife, who were accordingly added as to the case as Defendant-Intervenors. A hearing was held in this matter on October 21, 1998. Discovery is complete in this matter, and the three motions for summary judgment before this Court are ripe for decision.
The saga of the red wolf1 in eastern North Carolina began in 1986, when the United States Fish and Wildlife Service announced that it was proposing to introduce an "experimental"2 population of red wolves into the Alligator River National Wildlife Refuge. After a period of public comment, the FWS issued a final rule outlining its release plan for red wolves on November 19, 1986.
In the fall of 1987, the FWS released four pairs of captive red wolves into the Alligator River National Wildlife Refuge. Significant resources have been devoted to this program, and the population of red wolves in the wild has grown. As the red wolves have begun to establish themselves, they have, of course, wandered off of federal land and on to surrounding private land.
This movement of red wolves onto private land provides the basis of this case. Under the Endangered Species Act ("ESA"), as well as the current rule relating to red wolves, the FWS regulates the extent to which citizens can take3 a red wolf that has strayed off government land. See 50 C.F.R. § 17.84(c).4 This regulation is promulgated pursuant to § 9(a)(1) of the ESA. See 16 U.S.C § 1538(a). Under this regulation, Plaintiff Richard Lee Mann was prosecuted, and after he pled guilty, fined and sentenced to perform community service building "wolfhouses" and feeding red wolves. Opposition to the red wolf project grew, and in 1992, the County Commission of Washington County, North Carolina passed a resolution opposing the red wolf program. This was followed in 1994 by a Hyde County, North Carolina, resolution requesting removal of red wolves from the County's private lands. This led to a 1994 North Carolina Department of Agriculture protest of the red wolf program.
Finally, in 1994, frustrated opponents of the red wolf program introduced "An Act to Allow the Trapping and Killing of Red Wolves by Owners of Private Land." See 1994 N.C. Sess. Laws Ch. 635. This bill, as passed into law, declared it "lawful for a private landowner or the landowner's agent at any time to trap and kill red wolves that are on the landowner's property, and that the property owner reasonably believes may be a threat to the person's own life or the lives of others, or to the life of livestock on the property," provided that the "landowner has previously requested the [FWS] to remove the red wolves from the landowner's property and that the landowner shall report the killing of a wolf to the [FWS] withing 48 hours." See 1994 N.C. Sess. Laws Ch. 635 (July 1, 1994) (). In 1995, this law was amended to include Beaufort and Craven Counties. See 1995 N.C. Sess. Laws Ch. 83 (May 15, 1995). The FWS regulations regarding the red wolf are thus in direct conflict with the laws of the State of North Carolina.5
As of February 1998, approximately 75 red wolves were living in the wild in eastern North Carolina.6
Because of the Plaintiffs' stipulation voluntarily dismissing three of their four claims for relief, this Court need only consider those issues elucidated in Plaintiffs' Fourth Claim for Relief. This claim alleges that the federal government has violated the Tenth Amendment to the United States Constitution by "exceed[ing] its constitutional power and privilege by prohibiting the take (sic) of red wolves on private land in Hyde County and Washington County." Plaintiffs request that this Court invalidate all federal regulations relating to the taking of red wolves on private land in Hyde and Washington Counties, "declare the primacy of North Carolina state law [relating to the taking of red wolves] against all conflicting federal regulation," and enjoin the Fish and Wildlife Service from enforcing regulations relating to the taking of red wolves on private land in Hyde and Washington Counties.
Due to the Plaintiffs' decision to concede all but their fourth claim for relief, the issue before this Court can be clearly stated by a single question; Does the federal government have the power under the Constitution of the United States to promulgate 50 C.F.R. § 17.84?
Plaintiffs, by dismissing with prejudice their other claims, have chosen to concede any issues relating to the propriety of the rulemaking process. Thus, this Court can analyze 50 C.F.R. § 17.84 in the same way it would had that regulation been passed by both Houses of Congress and signed by the President, as opposed to promulgated through the exercise of delegated rulemaking authority.
Thus, this Court begins its analysis by searching in the Constitution for a grant of authority to Congress to make a law regulating the taking of red wolves on private land. Upon examination, the most likely source for such authority is the Commerce Clause, which states that "The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
Supreme Court precedent tells us that the Commerce Clause is much broader than it might appear, and that it is important to remember that "[t]he task of a court that is asked to determine whether a particular exercise of congressional power is valid under the Commerce Clause is relatively narrow." Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 276, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981). Even after Lopez placed limits on the Commerce Clause as a grant of Congressional authority, a reviewing court need only determine "whether a rational basis existed for concluding that a regulated activity" substantially affects interstate commerce. United States v. Lopez, 514 U.S. 549, 557, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).7
Lopez set forth the three broad categories of activity that Congress may regulate consistent with the Commerce Clause:
First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. 514 U.S. at 558-59, 115 S.Ct. 1624.
In this case, the nexus between the regulation at issue and interstate commerce is the red wolf. The record in this case clearly demonstrates that red wolves are "things in interstate commerce," and that they substantially affect interstate commerce through their tourism value. Under Lopez, it is irrelevant that the threat to red wolf-related commerce comes from intrastate "taking" of red wolves.8
Defendants in this case have demonstrated that tourists do cross state lines to see the red wolf, and that these tourists have an impact on commerce.9 Defendants have further demonstrated that red wolves are to be found in several States,10 and that some of the red wolves of Eastern North Carolina either have...
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Gibbs v. Babbitt
...to regulate interstate commerce includes the power to regulate conduct that might harm red wolves on private land. See Gibbs v. Babbitt, 31 F. Supp. 2d 531 (E.D.N.C. 1998). The district court found that the red wolves are "things in interstate commerce" because they have moved across state ......
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...wolf and the red wolf recovery program in two prior cases. See Gibbs v. Babbitt, 214 F.3d 483, 488 (4th Cir.2000) ; Gibbs v. Babbitt, 31 F.Supp.2d 531, 532 (E.D.N.C.1998), Red Wolf Coal. v. N. Carolina Wildlife Res. Comm'n, No. 2:13–CV–60–BO, 2014 WL 1922234, at *1 (E.D.N.C. May 13, 2014). ......
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