modification of an endangered species' habitat. See 50 C.F.R. § 17.3 (1991). Violation of the "take" provision can subject the violator to severe penalties. 16 U.S.C. § 1540. The listing of the Fly as an endangered species caused a delay in the start of construction on the hospital and eventually forced the county to build the hospital some 250 feet north of the original site to ensure that there was no "taking" of the Fly.
As part of this construction project, the county is also redesigning an intersection located near the hospital. The redesign of this intersection calls for the realignment of one of the roads which constitute the intersection. The parties agree that the realignment plan chosen by the county will cause the new roadway to encroach on a "migration corridor" set up by the FWS for the Fly. The purpose of the corridor is to enable the Fly to travel from one protected area to another nearby area where a colony of the Fly is located. The FWS steadfastly maintains that the alignment plan chosen by the county will amount to a taking of the Fly's habitat and is therefore in violation of the "take" provision of the Act.
Plaintiffs have provided ample evidence that the listing of the Fly as an endangered species has caused them to incur a substantial economic burden. These costs include the added expense of re-drafting the plans for the construction of the hospital, setting aside habitat for the Fly and examining different alternatives to minimize the impact of the redesign of the intersection on the Fly. In addition, the listing of the Fly has affected several local governments' ability to attract new employers to the region and to expand the physical plants of at least two current industrial employers in the area. Plaintiffs, however, do not ask this court to nullify the Act or its application to the Fly based on this sustained economic burden. Plaintiffs state that they are not asking the court "to make any sort of value judgment" which would require a balancing of the economic burdens imposed on individuals or municipalities by the Act versus the potential value to the nation of a single species.
Rather, Plaintiffs argue that Congress has no authority to regulate the "taking" of the Fly, irrespective of whether such regulation imposes an economic burden.
A. Legal Standard
Summary judgment is appropriate when the "pleadings, depositions  show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also National Cable Television Assoc., Inc. v. FCC, 156 U.S. App. D.C. 91, 479 F.2d 183, 186 (D.C. Cir. 1973). When more than one party moves for summary judgment, each party must carry its own burden of proof. United States Dep't. of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989). On cross-motions for summary judgment, the court shall not grant summary judgment unless one of the parties is entitled to judgment as a matter of law. Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir 1975); see also 6 James W. Moore, et al., Moore's Federal Practice P 56.13, at 56-171 (2d ed. 1994). When the unresolved issues are preliminarily legal, however, summary judgment is particularly appropriate. Crain v. Police Comm'rs of Metro. Police Dep't., 920 F.2d 1402, 1405-06 (8th Cir. 1990).
B. Congress' Power to Regulate Wildlife
1. The Commerce Clause
Article 1, Section 8 of the United States Constitution provides Congress with the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." The Supreme Court has held that the Commerce Clause provides Congress with broad regulatory authority. See Hughes v. Oklahoma, 441 U.S. 322, 325 n.2, 60 L. Ed. 2d 250, 99 S. Ct. 1727 (1979) (stating that, "'the Commerce Clause is one of the most prolific sources of national power[.]'") (quoting H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 533, 93 L. Ed. 865, 69 S. Ct. 657 (1949)). Moreover, "[a] court's review of congressional enactments under the Commerce Clause should be highly deferential." Leslie Salt Co. v. United States, 55 F.3d 1388, 1395 (9th Cir. 1995) (citing United States v. Evans, 928 F.2d 858, 862 (9th Cir. 1991)). "The power to regulate commerce is plenary and once the power exists it is for Congress, not the courts, to choose the ends for which its exercise is appropriate." United States v. Helsley, 615 F.2d 784, 787 (9th Cir. 1979).
In addition, regulation of intrastate activity is a proper exercise of the authority granted to Congress pursuant to the Commerce Clause if there is a rational basis to conclude that the federal regulation of said activity was essential to the control of interstate commerce. See Maryland v. Wirtz, 392 U.S. 183, 198, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968) (test is "whether there is a rational basis for regarding [the statute] as regulations of commerce among the States."); see also United States v. Rambo, 74 F.3d 948, 952 (9th Cir. 1996).
"A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate commerce, or that there is no reasonable connection between the regulatory means selected and the asserted ends." Hodel v. Indiana, 452 U.S. at 323-24. "The pertinent inquiry is  whether Congress could rationally conclude that the regulated activity affects interstate commerce." Id. at 324. Importantly, each provision of a statute does not have to be independently related to interstate commerce. Id. at 329 n.17. A court must evaluate the particular statute as a whole. Id.
Whether an activity is "local" or "intrastate" is not dispositive with respect to the issue of whether Congress may regulate it under the commerce clause. Hodel, 452 U.S. at 281. The Commerce Clause power extends to local activity which affects interstate commerce, or the exertion of the power of Congress over it, as to make regulation of the local activity "an appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce." Id. ; Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471, 66 L. Ed. 2d 659, 101 S. Ct. 715 (1981) (Commerce Clause limits the power of individual states to interfere with interstate commerce even if the state's actions are aimed at addressing a legitimate local concern); see also Wickard v. Filburn, 317 U.S. 111, 124-25, 87 L. Ed. 122, 63 S. Ct. 82 (1942). Furthermore, a state's right to control wildlife within its border must yield to the federal government proper exercise of federal power. Baldwin v. Fish and Game Commission of Montana, 436 U.S. 371, 385-86, 56 L. Ed. 2d 354, 98 S. Ct. 1852 (1978).
The Supreme Court has recently re-examined Congress' power under the Commerce Clause and identified three broad categories of activities that may be regulated by Congress under its interstate commerce authority. See United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624, 1629 (1995).
First, Congress may regulate the use of the channels of interstate commerce. Id. at 1629. 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. Id. Third, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce. Id. at 1629-30. The Lopez Court, however, was clear in stating that "where economic activity substantially affects interstate commerce, legislation regulating that activity" should be judicially sustained, even though the activity may be purely local. Id. at 1630. In this case, Congress has validly exercised its power to regulate "things," specifically wildlife, that affect interstate commerce. The government has also established that the local activity that the "take" provision of the Act seeks to prohibit has a substantial relation to interstate commerce.
2. Federal Regulation of Wildlife
A review of the framework of the Endangered Species Act, the legislative record supporting its enactment, and the case law construing Congress' power to regulate wildlife, establishes, in this court's view, that Congress has the constitutional power to protect wildlife, including the Fly at issue in this case. The Endangered Species Act was enacted to address Congress' concern over the rapid depletion of our Nation's, as well as the world's, natural wildlife. Congress found that "these species  are of esthetic, ecological, educational, historical, recreational and scientific value to the Nation and its people." 16 U.S.C. § 1531 (a)(3). The Act builds upon the work of previous legislation directed at this objective.
The passage of the Act in 1973 was the result of Congress being persuaded that "a more expansive approach was needed if the newly declared national policy of preserving endangered species was to be realized." TVA v. Hill, 437 U.S. 153, 176, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (1978). At the congressional hearings held prior to the passage of the Act, Congress was informed that species were being lost at a rate of one per year, despite the earlier passage of two bills aimed at curbing the destruction and extinction of endangered species. Id. In addition, the "pace of the disappearance of species" was accelerating. H.R.Rep.No.93-412, p.4 (1973).
Officials of the Department of the Interior testified that this accelerated pace of species disappearance was due to man's continued destruction and exploitation of natural habitats:
Man and his technology has [sic] continued at any [sic] ever-increasing rate to disrupt the natural ecosystem. This has resulted in a dramatic rise in the number and severity of the threats faced by the world's wildlife. The truth in this is apparent when one realizes that half of the recorded extinctions of mammals over the past 2000 years have occurred in the most recent 50 year period.