Rancho Viejo vs. Norton, Gale, 040103 FEDDC, 01-5373a

Docket Nº:040103 FEDDC, 01-5373a
Party Name:Rancho Viejo vs. Norton
Case Date:April 01, 2003
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Rancho Viejo vs. Norton, Gale




United States Court of Appeals


Argued November 12, 2002 Decided April 1, 2003

No. 01-5373




Appeal from the United States District Court for the District of Columbia (No. 00cv02798)

John C. Eastman argued the cause for appellant. With him on the briefs were Hugh Hewitt, Steven B. Imhoof, John W. Wilmer, Jr., and Gregory D. Russell.

M. Reed Hopper and Anne M. Hayes were on the brief for amicus curiae Pacific Legal Foundation in support of rever- sal.

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.


Katherine J. Barton, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Ellen J. Durkee and Seth M. Barsky, Attorneys. David C. Shilton, Attorney, entered an appearance.

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Concurring opinion filed by Chief Judge GINSBURG.

GARLAND, Circuit Judge: Rancho Viejo is a real estate development company that wishes to construct a 202-acre housing development in San Diego County, California. The United States Fish and Wildlife Service determined that Rancho Viejo’s construction plan was likely to jeopardize the continued existence of the arroyo southwestern toad, which the Secretary of the Interior has listed as an endangered species since 1994. Rather than accept an alternative plan proposed by the Service, Rancho Viejo filed suit challenging the application of the Endangered Species Act, 16 U.S.C. §§ 1531 et seq., to its project as an unconstitutional exercise of federal authority under the Commerce Clause. The dis- trict court dismissed the suit. We conclude that this case is governed by our prior decision in National Association of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), and therefore affirm.

I The Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq., is ‘‘the most comprehensive legislation for the preserva- tion of endangered species ever enacted by any nation.’’ Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180 (1978). Finding that ‘‘various species of fish, wildlife, and plants in the United States have been rendered extinct as a conse- quence of economic growth and development untempered by adequate concern and conservation,’’ 16 U.S.C. § 1531(a)(1), Congress passed the ESA ‘‘to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved,’’ id. § 1531(b).


The ESA directs the Secretary of the Interior to list fish, wildlife, or plant species that she determines are endangered or threatened. 16 U.S.C. § 1533(a). Section 9 of the Act makes it unlawful to ‘‘take’’ any such listed species without a permit. Id. § 1538(a)(1)(B). ‘‘The term ‘take’ means 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 Secretary has promulgated, and the Su- preme Court has upheld, a regulation that defines ‘‘harm’’ as including ‘‘significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding.’’ 50 C.F.R. § 17.3; see Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 708 (1995) (sustaining 50 C.F.R. § 17.3 as a reasonable interpretation of 16 U.S.C. § 1532(19)).

Section 7 of the ESA requires all federal agencies to ensure that none of their activities, including the granting of licenses and permits, will ‘‘jeopardize the continued existence of any endangered species TTT or result in the destruction or ad- verse modification of habitat of such species which is deter- mined by the Secretary TTT to be critical.’’ Id. § 1536(a)(2). When an agency concludes that its activities may adversely affect a listed species, it must engage in a formal consultation with the Interior Department’s Fish and Wildlife Service (FWS). 50 C.F.R. § 402.14; see 16 U.S.C. § 1536(a)(2). Where applicable, such consultations result in the issuance of a Biological Opinion that includes a ‘‘jeopardy’’ or ‘‘no jeopar- dy’’ determination. 50 C.F.R. § 402.14(h)(3); see 16 U.S.C. § 1536(b)(4). If the FWS decides that the proposed action is likely to ‘‘jeopardize the continued existence of a listed spe- cies or result in the destruction or adverse modification of critical habitat,’’ the opinion must set forth ‘‘reasonable and prudent alternatives,’’ if any, that will avoid such conse- quences. 50 C.F.R. § 402.14(h)(3); see 16 U.S.C. § 1536(b)(3)(A).

The Secretary listed the arroyo toad as an endangered species on December 16, 1994. See Endangered and Threat- ened Wildlife and Plants; Determination of Endangered Sta-


tus for the Arroyo Southwestern Toad, 59 Fed. Reg. 64,859 (codified at 50 C.F.R. pt. 17). The toads live in scattered populations from California’s Monterey County in the north to Mexico’s Baja California in the south. Id.; Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for the Arroyo Toad, 66 Fed. Reg. 9414 (Feb. 7, 2001) (codified at 50 C.F.R. pt. 17). They breed in shallow, sandy, or gravelly pools along streams, and spend most of their adult lives in upland habitats. 66 Fed. Reg. at 9415. The toads range no farther than 1.2 miles from the streams where they breed, and none in the area at issue in this case travel outside the state of California. Id. Habitat destruc- tion has driven the toad from approximately 76% of its former California range. Id. at 9414.

Plaintiff Rancho Viejo plans to build a 280-home residential development on a 202-acre site in San Diego County. The property is bordered on the south by Keys Creek, a major tributary of the San Luis Rey River, and is just east of Interstate 15. FWS, Biological/Conference Opinion on the Rancho Viejo Residential Development at 8, 26 (Aug. 24, 2000). The company’s construction plan is to build homes in an upland area of approximately 52 acres, and to use an additional 77 acres of its upland property and portions of the Keys Creek streambed as a ‘‘borrow area’’ to provide fill for the project. Rancho Viejo wants to remove six feet or more of soil from the surface of the borrow area, amounting to approximately 750,000 cubic yards of material, and to trans- port that soil to the 52-acre housing site to the north. Joint Stip. ¶ 2. Surveys of Keys Creek have confirmed the pres- ence of arroyo toads on and adjacent to the project site. Id. ¶ 7.

Because Rancho Viejo’s plan would involve the discharge of ‘‘fill into waters of the United States, including wetlands,’’ Biological/Conference Opinion at 8, the company was required by section 404 of the Clean Water Act, 33 U.S.C. § 1344, to obtain a permit from the U.S. Army Corps of Engineers (the ‘‘Corps’’). See id. § 1344(a). The Corps determined that the project ‘‘may affect’’ the arroyo toad population in the area,


and sought a formal consultation with the FWS pursuant to ESA § 7.

In May 2000, Rancho Viejo excavated a trench and erected a fence, each running parallel to the bank of Keys Creek. Arroyo toads were observed on the upland side of the fence. Joint Stip. ¶ 8. In the FWS’s view, the fence has prevented and may continue to impede movement of the toads between their upland habitat and their breeding habitat in the creek. Id. ¶ 9. On May 22, the FWS informed Rancho Viejo that construction of the fence ‘‘has resulted in the illegal take and will result in the future illegal take of federally endangered’’ arroyo toads ‘‘in violation of the Endangered Species Act.’’ May 22, 2000 Letter at 1; Joint Stip. ¶ 10.

In August 2000, the FWS issued a Biological Opinion that determined that excavation of the 77-acre borrow area would result in the taking of arroyo toads and was ‘‘likely to jeopardize the continued existence’’ of the species. Biologi- cal/Conference Opinion at 35; see Joint Stip. ¶ 14. Pursuant to ESA § 7(b)(3)(A) and 50 C.F.R. § 402.02, the FWS pro- posed an alternative that would, without jeopardizing the continued existence of the toad, allow Rancho Viejo to com- plete its development by obtaining fill dirt from off-site sources instead of from the proposed borrow area. Joint Stip. ¶ 14; Biological/Conference Opinion at 37.

Rancho Viejo neither removed the fence nor adopted the FWS’s proposed alternative. Instead, it filed a complaint in the United States District Court for the District of Columbia against the Secretary of the Interior and other federal defen- dants, alleging that the listing of the arroyo toad as an endangered species under the ESA, and the application of the ESA to Rancho Viejo’s construction plans, exceeded the federal government’s power under the Commerce Clause. See U.S. CONST. art. I, § 8, cl. 3 (‘‘The Congress shall have Power TTT [t]o regulate Commerce TTT among the several StatesTTTT’’).

The parties filed cross motions for summary judgment. In ruling on those motions, the district court noted that this circuit had only recently sustained, against a Commerce


Clause challenge, a determination by the FWS that hospital construction in San Bernardino County, California would likely lead to the take of the Delhi Sands Flower-Loving Fly in violation of the ESA. See National Ass’n of Home Build- ers v. Babbitt (‘‘NAHB’’), 130 F.3d 1041 (D.C. Cir. 1997). Holding that Rancho Viejo’s case was indistinguishable from NAHB, and finding nothing in subsequent Supreme Court opinions to cast doubt on that decision, the court granted the government’s motion.1


We review the district court’s grant of summary judgment de novo, United Seniors Ass’n v. Shalala, 182 F.3d 965, 969 (D.C. Cir. 1999)...

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