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NATL. ASSOC. OF HOME BUILDERS OF THE UNITED STATES

December 6, 1996

National Association of Home Builders of the United States, et al., Plaintiffs,
v.
Bruce Babbit, Secretary, United States Department of Interior and Mollie Beattie, Director, United States Fish and Wildlife Service, Defendants.



The opinion of the court was delivered by: URBINA

 Granting Defendants' Motion For Summary Judgment

 I. INTRODUCTION

 The court must address purely legal questions regarding the Endangered Species Act and its application to the Fly. Plaintiffs argue that the federal government has "limited and enumerated" powers, and that the authority to regulate wildlife and regulate the use of non-federal land is not among these powers. *fn1" Plaintiffs maintain that both of these areas of regulation have been reserved to the States by the Tenth Amendment of the U.S. Constitution. Specifically, Plaintiffs assert that the "take" provision of the Endangered Species Act, 16 U.S.C. § 1538 (a)(1)(B), is unconstitutional. *fn2" In support of this argument, Plaintiffs posit that the Commerce Clause of the Constitution does not provide Congress with the authority to regulate "purely local activities that affect a species found only in California." *fn3" As a result, Plaintiffs ask this court to enjoin Defendants from enforcing the "take" provision of the Endangered Species Act as it applies to the Fly. *fn4" This court, after considering the parties' submissions and the relevant law, concludes that: (1) the federal government's "limited and enumerated" powers do include the power to regulate wildlife and non-federal lands which serve as the habitat for endangered wildlife; and (2) the Endangered Species Act provides for a regulatory scheme that is within the bounds of Congress' power to enact under the Commerce Clause. The court therefore grants Defendants' Motion for Summary Judgment.

 II. BACKGROUND

 This matter concerns a species of fly and the Endangered Species Act. The Deli Sands Flower-loving Fly is indigenous to southwestern San Bernardino County and northwestern Riverside County, California. The parties agree that the all known colonies of the Fly exist solely within an 8 to 10 mile radius of each other in an area straddling both of these counties. The sand contained in this area in California is known as Delhi sand and is the only known habitat for the Fly. Delhi sand covers approximately forty square miles, in irregular patches, in the area between northwestern Riverside and southwestern San Bernardino Counties.

 In the recent past, the Fly's habitat was used primarily for agricultural purposes. Over approximately the past ten years, however, residential and commercial development has severely depleted the Fly's habitat. The Fish and Wildlife Service (FWS) estimates that only approximately 1200 acres of suitable habitat remains for the Fly. There are also several thousand acres of potentially restorable acreage.

 Plaintiff County of San Bernardino has pursued the construction of a hospital which is located on and adjacent to one of the last remaining habitats of the Fly. The hospital site was selected in 1987. After the selection process, the site was discovered to be the home to a colony of the Fly. The day before construction was to begin, September 23, 1993, the FWS designated the Fly to be an endangered species. See 58 Fed. Reg. 49881 (1993). The FWS found that the Fly was in "imminent danger of extinction due to extensive habitat loss and degradation that has reduced its range by 97 percent." Id. at 49881. The listing of the Fly as an endangered species automatically activated the protections included in the Act. Included in these protections is a prohibition against the "taking" of an endangered species. 16 U.S.C. § 1538 (a)(1)(B). The definition of "taking" includes the destruction or adverse 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. *fn5" Rather, Plaintiffs argue that Congress has no authority to regulate the "taking" of the Fly, irrespective of whether such regulation imposes an economic burden. *fn6"

 III. ANALYSIS

 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). *fn7" "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 ...


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