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Full Opinion
Opinion for the Court filed by Circuit Judge GARLAND.
Concurring opinion filed by Chief Judge GINSBURG.
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 district 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 preservation of endangered species ever enacted by any nation.” Tennessee Valley Auth. v. Hill, 437 U.S. 153, 180, 98 S.Ct. 2279, 2281, 57 L.Ed.2d 117 (1978). Finding 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,” 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 Supreme 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, 115 S.Ct. 2407, 2417-18, 132 L.Ed.2d 597 (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 ... or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary ... 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 jeopardy” 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 species 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 consequences. 50 C.F.R. § 402.14(h)(3); see 16 U.S.C. § 1536(b)(3)(A).
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 transport that soil to the 52-acre housing site to the north. Joint Stip. ¶ 2. Surveys of Keys Creek have confirmed the presence 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. Biological/Conference Opinion at 35; see Joint Stip. ¶ 14. Pursuant to ESA § 7(b)(3)(A) and 50 C.F.R. § 402.02, the FWS proposed an alternative that would, without jeopardizing the continued existence of the toad, allow Rancho Viejo to complete 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 alterna
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 Builders 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.
II
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), and in so doing accord the ESA a “presumption of constitutionality,” United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 1747, 146 L.Ed.2d 658 (2000). In this Part, we first discuss the NAHB decision, focusing particularly on the Supreme Court opinion that provided that case’s analytic framework, United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). We then consider the application of NAHB and Lopez to the complaint filed by Rancho Viejo. In Part III, we examine Rancho Viejo’s argument that Supreme Court opinions issued after this court decided NAHB have deprived that decision of its precedential force.
A
In Lopez, the Supreme Court considered whether a provision of the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(l)(A) (1988 ed., Supp. V), which made it a federal offense to possess a firearm near a school, exceeded Congress’ authority under the Commerce Clause. 514 U.S. at 551, 115 S.Ct. at 1626. The Court held that the clause authorizes Congress to regulate “three broad categories of activity”:
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.
Id. at 558-59, 115 S.Ct. at 1629-30 (citations omitted). With respect to the third
First, the Court said, “the possession of a gun in a school zone ... has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S. at 560-61, 115 S.Ct. at 1630-31. Second, the Court observed that the Act “has no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.” Id. at 562, 115 S.Ct. at 1630. Third, Lopez noted that, “[although as part of our independent evaluation of constitutionality under the Commerce Clause we of course consider legislative findings, and indeed even congressional committee findings, ... neither the statute nor its legislative history contains express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.” Id. (internal citations, quotations, and alterations omitted). Finally, the Court determined that the relationship between gun possession and interstate commerce was simply too “tenuous! ]” to be regarded as substantial, and that if the government’s arguments were accepted, the Court would be “hard pressed to posit any activity by an individual that Congress is without power to regulate.” Id. at 564, 115 S.Ct. at 1632.
In NAHB, this circuit applied Lopez in a case challenging the application of the ESA to a construction project in an area that contained the habitat of the Delhi Sands Flower-Loving Fly. 130 F.3d at 1043 (Wald, J.). The fly, an endangered species, is found in only two counties, both in California. Id. One of those counties reported to the FWS that it planned to construct a hospital and power plant on a site occupied by the fly, and to expand a highway intersection in connection with that work. Id. at 1044-45. The FWS informed the county that the expansion of the intersection would likely lead to a take of the fly in violation of section 9 of the ESA. Id. at 1045. Thereafter, the county filed suit against the Secretary of the Interior, contending that application of the ESA in those circumstances exceeded the authority of the federal government under the Commerce Clause.
A majority of the NAHB court held that the take provision of ESA § 9, and its application to the facts of that case, constituted a valid exercise of Congress’ commerce power. 130 F.3d at 1042, 1057 (Wald, J.); id. at 1057 (Henderson, J., concurring). The court found that application of the ESA fell within the third Lopez category, concluding that the regulated activity “substantially affects” interstate commerce. In so holding, the majority agreed upon two rationales: (1) “the loss of biodiversity itself has a substantial effect on our ecosystem and likewise on interstate commerce”; and (2) “the Department’s protection of the flies regulates and substantially affects commercial development activity which is plainly interstate.” Id. at 1058 (Henderson, J., concurring); see id. at 1046 n. 3, 1056 (Wald, J.). Examining those two rationales within the context of Lopez’s four factors, the NAHB court concluded that, application of the ESA to the county’s proposed construction project was constitutional. Id. at 1042, 1057 (Wald, J.); id. at 1057 (Henderson, J., concurring). Because the second NAHB rationale readily resolves this case, it is the focus of the balance of our discussion.
Secretary Norton argues, and the district court concluded, that application of the four Lopez factors leads to the same result here as it did in NAHB. We agree.
The first Lopez factor is whether the regulated activity has anything “to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.” Lopez, 514 U.S. at 561, 115 S.Ct. at 1630-31; accord Morrison, 529 U.S. at 610, 120 S.Ct. at 1749-50. The regulated activity at issue in NAHB — the construction of a hospital, power plant, and supporting infrastructure — was plainly an economic enterprise. As Judge Henderson observed, “the Department’s protection of the flies regulates and substantially affects commercial development activity.” NAHB, 130 F.3d at 1058; see id. at 1056 (Wald, J.) (“[T]he case at hand involves a regulation of the conditions under which commercial activity takes place.”). The same is true here, where the regulated activity is the construction of a 202 acre commercial housing development.
Second, the court must consider whether the statute in question contains an “express jurisdictional element.” Lopez, 514 U.S. at 561-62, 115 S.Ct. at 1631; accord Morrison, 529 U.S. at 611-12, 120 S.Ct. at 1751. Section 9 of the ESA has no express jurisdictional hook that limits its application, for example, to takes “in or affecting commerce.” Lopez did not indicate that such a hook is required, however, and its absence did not dissuade the NAHB court from finding application of the ESA constitutional.
The fourth Lopez factor is whether the relationship between the regulated activity and interstate commerce is too attenuated to be regarded as substantial. See Lopez, 514 U.S. at 563-67, 115 S.Ct. at 1632-34; accord Morrison, 529 U.S. at 612, 120 S.Ct. at 1751. Although Rancho Viejo avers that the effect on interstate commerce of preserving endangered species ■ is too tenuous to satisfy this test, it does not argue that the effect of commercial construction projects is similarly attenuated. Because the rationale upon which we rely focuses on the activity that the federal government seeks to regulate in this ease (the construction of Rancho Viejo’s housing development), and because we are required to accord congressional legislation a “presumption of constitutionality,” Morrison, 529 U.S. at 607, 120 S.Ct. at 1748, plaintiffs failure to demonstrate (or even to argue) that its project and those like it are without substantial, interstate effect is fatal to its cause.
This conclusion is not diminished by the fact that the arroyo toad, like the Flower-Loving Fly, does not travel outside of California, or that Rancho Viejo’s development, like the San Bernardino hospital, is located wholly within the state. See NAHB, 130 F.3d at 1043-44 (Wald, J.) (noting that the fly has an eight-mile radius, limited to California alone). As Judge Henderson said in NAHB, the regulation of commercial land development, quite “apart from the characteristics or range of the specific endangered species involved, has a plain and substantial effect on interstate commerce.” Id. at 1059. There, “the regulation relate[d] to both the proposed redesigned traffic intersection and the hospital it [was] intended to serve, each of which ha[d] an obvious connection with interstate commerce.” Id. (Henderson, J., concurring); accord id. at 1048, 1056 (Wald, J.). Here, Rancho Viejo’s 202-acre project, located near a major interstate highway, is likewise one that “is presumably being constructed using materials and people from outside the state and which will attract” construction workers and purchasers “from both inside and outside the state.” Id. at 1048 (Wald, J.).
Ill
Rancho Viejo does not seriously dispute that NAHB is indistinguishable from this case. Rather, plaintiff argues that, as a result of subsequent Supreme Court decisions in United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (“SWANCC’), 531 U.S. 159, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), NAHB is no longer “good law.” Appellant’s Br. at 9. Before considering plaintiffs argument in detail, we explain why the nature of the
In Morrison, the Court considered a challenge to a section of the Violence Against Women Act, 42 U.S.C. § 13981, which provided a federal civil remedy for victims of gender-motivated violence. Concluding that the case was “controlled by our decision[ ] in United States v. Lopez,” the Court held that Congress lacked authority to enact the provision under the Commerce Clause. Morrison, 529 U.S. at 602, 120 S.Ct. at 1746. Lopez, of course, is the case that controlled this court’s decision in NAHB. Accordingly, because NAHB was based upon Lopez, and because Morrison made clear that “Lopez ... provides the proper framework for conducting the required analysis,” id. at 609, 120 S.Ct. at 1749, it would be quite surprising if Morrison undermined our decision in NAHB. See Norton v. Ashcroft, 298 F.3d 547, 556 (6th Cir.2002) (“Rather than breaking new Commerce Clause ground, Morrison derived its four-factor framework directly from Lopez.”).
Rancho Viejo’s reliance on SWANCC is even further from the mark. In that case, the Supreme Court held, as a matter of statutory construction, that an abandoned gravel pit that provided habitat for migratory birds did not constitute “navigable waters” within the meaning of the Clean Water Act, 33 U.S.C. § 1344(a), and hence was beyond the regulatory authority of the Army Corps of Engineers. 531 U.S. at 167, 171-72, 121 S.Ct. at 682-83. Although the petitioner in SWANCC also asked the Court to decide whether Congress could exercise such authority under the Commerce Clause if it chose to do so, the Court expressly declined to reach that question. Id. at 162, 121 S.Ct. at 677-78. As Rancho Viejo notes, the Court did indicate that if it were to consider the constitutionality of such an exercise, it “would have to evaluate the precise object or activity that, in the aggregate, substantially affects interstate commerce.” Id. at 173, 121 S.Ct. at 683 (quoted in Appellant’s Br. at 17). But as we discuss below, identifying the “precise activity” at issue in Rancho Viejo’s case only strengthens the conclusion that the take provision of the ESA can constitutionally be applied to plaintiffs construction project.
A
Plaintiffs principal argument is that, although Lopez made clear that the first of its four factors was whether the object of regulation was “economic activity,” 514 U.S. at 559, 115 S.Ct. at 1630, Morrison “reaffirmed and elaborated upon” that factor in a way that undercuts this circuit’s opinion in NAHB. Appellant’s Br. at 14. We agree that Morrison reaffirmed and elaborated upon the first factor, but we see nothing in Morrison’s discussion to suggest any dissatisfaction with the way the Court treated the factor in Lopez, and hence nothing to undercut our prior reliance on that case. To the contrary, Morrison largely proceeded by quoting and paraphrasing Lopez’s analysis. See, e.g., 529 U.S. at 610, 120 S.Ct. at 1750 (noting that in Lopez, the Court “observed that § 922(q) was ‘a criminal statute that by its terms has nothing to do with “commerce” or any sort of economic enterprise, however broadly one might define those terms’ ” (quoting Lopez, 514 U.S. at 561, 115 S.Ct. at 1631)).
Rancho Viejo contends that Morrison stands for the proposition that whether the regulated activity is economic is not simply a factor in the analysis, but instead is outcome-determinative: that noneconomic activity, whatever its effect on interstate commerce, cannot be regulated under the Commerce Clause.
But how close the Court came to embracing plaintiffs view is irrelevant to the disposition of this appeal, because the ESA regidates takings, not toads.
That regulated activity is Rancho Viejo’s planned commercial development, not the arroyo toad that it threatens. The ESA does not purport to tell toads what they may or may not do. Rather, section 9 limits the taking of listed species, and its prohibitions and corresponding penalties apply to the persons who do the