People for Ethical Treatment v. U.S. Fish & Wildlife, et al

Filing

[10455104] Reversed and Remanded. Terminated on the merits after oral hearing. Written, signed, published. Judges Holmes (authoring judge), McHugh and Moritz. Mandate to issue. [14-4151, 14-4165]

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FILED
United States Court of Appeals
Tenth Circuit

PUBLISH

UNITED STATES COURT OF APPEALS

March 29, 2017

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

PEOPLE FOR THE ETHICAL
TREATMENT OF PROPERTY
OWNERS,
Plaintiff-Appellee,
v.

Nos. 14-4151 & 14-4165

UNITED STATES FISH AND
WILDLIFE SERVICE; DANIEL M.
ASHE, acting in his official capacity
as Director of the United States Fish
and Wildlife Service; NOREEN
WALSH, acting in her official
capacity as Regional Director of the
United States Fish and Wildlife
Service’s Mountain-Prairie Region;
UNITED STATES DEPARTMENT OF
THE INTERIOR; RYAN ZINKE, *
Defendants-Appellants,
and
FRIENDS OF ANIMALS,
Intervenor DefendantAppellant.
________________

*

Pursuant to Fed. R. App. P. 43(c)(2), recently confirmed Secretary of
the Department of Interior, Ryan Zinke, is substituted for former Secretary of the
Interior Sally Jewell.

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DEFENDERS OF WILDLIFE; DAVID S.
COHEN; ERIC M. FREEDMAN;
STEPHEN GARDBAUM; STEPHEN
GOTTLIEB; M. ISABEL MEDINA;
STEVEN D. SCHWINN;
ENVIRONMENTAL LAW
PROFESSORS; WILLIAM C. BANKS;
NATIONAL ASSOCIATION OF HOME
BUILDERS; ANIMAL WELFARE
INSTITUTE; WYOMING
ASSOCIATION OF CONSERVATION
DISTRICTS; CENTER FOR
BIOLOGICAL DIVERSITY; WYOMING
FARM BUREAU FEDERATION;
HUMANE SOCIETY OF THE UNITED
STATES; SIERRA CLUB; WYOMING
STOCK GROWERS ASSOCIATION;
WILDEARTH GUARDIANS;
WYOMING WOOL GROWERS
ASSOCIATION; UTAH FARM
BUREAU FEDERATION; CATO
INSTITUTE AND PROFESSORS OF
CONSTITUTIONAL LAW; STATE OF
UTAH; STATE OF ALASKA; STATE
OF ARIZONA; STATE OF
COLORADO; STATE OF IDAHO;
STATE OF KANSAS; STATE OF
MONTANA; STATE OF SOUTH
DAKOTA; STATE OF WYOMING;
STATE OF MICHIGAN; CHAMBER OF
COMMERCE OF THE UNITED
STATES AND THE NATIONAL
FEDERATION OF INDEPENDENT
BUSINESS; MOUNTAIN STATES
LEGAL FOUNDATION;

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UNITED STATES SENATORS MIKE
LEE, JAMES INHOFE, MIKE ENZI,
DAVID VITTER, TED CRUZ, AND
ORRIN HATCH AND CONGRESSMEN
JASON CHAFFETZ, CHRIS STEWART,
MIA LOVE, AND ROB BISHOP;
CENTER FOR CONSTITUTIONAL
JURISPRUDENCE,
Amici Curiae.

Appeals from the United States District Court
for the District of Utah
(D.C. No. 2:13-CV-00278-DB)

Anna T. Katselas, Attorney (John C. Cruden, Assistant Attorney General, David
C. Shilton, and Mary Hollingsworth, Attorneys, of the U.S. Department of
Justice, Environment and Natural Resources Division, Washington, D.C., with
her on the briefs), for Defendants-Appellants.
Michael Ray Harris, of Friends of Animals, Wildlife Law Program, Centennial,
Colorado, for Intervenor Defendant-Appellant.
Jonathan Wood (M. Reed Hopper, with him on the brief), of Pacific Legal
Foundation, Sacramento, California, for Plaintiff-Appellee.
Jason C. Rylander and Karimah Schoenhut of Defenders of Wildlife,
Washington, D.C., filed an amici curiae brief for Defenders of Wildlife, Animal
Welfare Institute, Center for Biological Diversity, Humane Society of the United
States, Sierra Club, and Wildearth Guardians, in support of DefendantsAppellants.
David M. Driesen, Unversity Professor, of Syracuse University College of Law,
Syracuse, New York, filed an amici curiae brief for Constitutional Law
Professors William C. Banks, David S. Cohen, Eric M. Freedman, Stephen
Gardbaum, Stephen E. Gottlieb, M. Isabel Medina, and Steven D. Schwinn, in
support of Defendants-Appellants.

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Daniel H. Lutz and Hope M. Babcock of Institute for Public Representation,
Georgetown University Law Center, Washington, D.C., filed an amicus curiae
brief for Environmental Law Professors in support of Defendants-Appellants.
Thomas J. Ward and Jeffrey B. Augello of National Association of Home
Builders, Washington, D.C., and Norman D. James, Fennemore Craig, P.C.,
Phoenix, Arizona, filed an amicus curiae brief in support of Plaintiff-Appellee.
Karen Budd-Falen of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming, filed
an amici curiae brief for Wyoming Association of Conservation Districts,
Wyoming Farm Bureau Federation, Wyoming Stock Growers Association,
Wyoming Wool Growers Association, and Utah Farm Bureau Federation, in
support of Plaintiff-Appellee.
Ilya Shapiro and Julio Colomba, of Cato Institute, Washington, D.C., filed an
amici curiae brief for Cato Institute and Professors of Constitutional Law, in
support of Plaintiff-Appellee.
Damien M. Schiff of Alston & Bird LLP, Sacramento, California, filed an amici
curiae brief for United States Senators Mike Lee, James Inhofe, Mike Enzi, David
Vitter, Ted Cruz, and Orrin Hatch and Congressmen Jason Chaffetz, Chris
Stewart, Mia Love, and Rob Bishop in support of Plaintiff-Appellee.
Sean D. Reyes, Utah Attorney General, and Bridget K. Romano, Utah Solicitor
General, Anthony L. Rampton and Kathy A.F. Davis, Assistant Utah Attorneys
General, Salt Lake City, Utah, Craig W. Richards, Attorney General, Juneau,
Alaska, Mark Brnovich, Attorney General, Phoenix, Arizona, Cynthia Coffman,
Attorney General, Denver, Colorado, Lawrence G. Wasden, Attorney General,
Boise, Idaho, Derek Schmidt, Attorney General, Topeka, Kansas, Tim Fox,
Attorney General, Helena, Montana, Marty Jackley, Attorney General, Pierre,
South Dakota, and Peter K. Michael, Attorney General, Cheyenne, Wyoming,
filed an amici curiae brief for the States of Utah, Alaska, Arizona, Colorado,
Idaho, Kansas, Montana, South Dakota, and Wyoming in support of PlaintiffAppellee.
Steven J. Lechner of Moutain States Legal Foundation, Lakewood, Colorado,
filed an amicus curiae brief for Mountain States Legal Foundation in support of
Plaintiff-Appellee.
John C. Eastment, Anthony T. Caso, and Cristen Wohlgemuth of Center for
Constitutional Jurisprudence, Orange, California, filed an amicus curiae brief for
Center for Constitutional Jurisprudence in support of Plaintiff-Appellee.

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William S. Consovoy and J. Michael Connolly of Consovoy McCarthy PLLC,
Arlington, Virginia; Patrick Strawbridge of Consovoy McCarthy PLLC, Boston,
Massachusetts; Kate Comerford Todd and Sheldon Gilbert of U.S. Chamber
Litigation Center, Inc., Washington, D.C.; and Karen R. Harned and Luke A.
Wake of NFIB Small Business Legal Center, Washington, D.C., filed an amici
curiae brief for the Chamber of Commerce of the United States and the National
Federation of Independent Business in support of Plaintiff-Appellee.

Before HOLMES, McHUGH, and MORITZ, Circuit Judges.

HOLMES, Circuit Judge.

People for the Ethical Treatment of Property Owners (“PETPO”)
challenges a regulation promulgated by the United States Fish and Wildlife
Service (“FWS” or “Service”) pursuant to the Endangered Species Act (“ESA”).
The challenged regulation prohibits the “take” of the Utah prairie dog, a purely
intrastate species, on nonfederal land. The ESA defines “take” as meaning “to
harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 16
U.S.C. § 1532(19).
The district court granted summary judgment for PETPO on the ground that
neither the Commerce Clause nor the Necessary and Proper Clause of the
Constitution authorizes Congress to regulate take of the Utah prairie dog on
nonfederal land. FWS and intervenor-defendant Friends of Animals (“FoA”)
appeal from that grant of summary judgment, arguing that the challenged
regulation is authorized by both the Commerce Clause and the Necessary and
Proper Clause, and that PETPO lacks standing. We hold that the district court

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correctly concluded that PETPO has standing, but erred in concluding that
Congress lacked authority under the Commerce Clause to regulate (and authorize
the Service to regulate) the take of the Utah prairie dog.
I
A
The purpose of the ESA is to conserve endangered and threatened species
and the ecosystems on which they depend. See 16 U.S.C. § 1531(b). In order to
effectuate this purpose, Congress tasked two executive officers with jointly
implementing the Act: the Secretary of the Interior and the Secretary of
Commerce. Id. § 1532(15). They, in turn, delegated their implementation
responsibilities to, respectively, FWS and the National Marine Fisheries Service.
The ESA expressly defines the objects of its protections, that is, both
“endangered species” and “threatened species.” An endangered species “is in
danger of extinction throughout all or a significant portion of its range,” except
for insect species determined to be pests “present[ing] an overwhelming and
overriding risk to man.” Id. § 1532(6). A threatened species is one “which is
likely to become an endangered species within the foreseeable future throughout
all or a significant portion of its range.” Id. § 1532(20).
To protect these categories of species, the ESA “authorizes the Secretary of
the Interior to list domestic or foreign species as endangered or threatened.”
Wyo. Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000) (citing
16 U.S.C. § 1533(a)–(b)). At least five factors are to be considered in listing a

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species as endangered or threatened: “(A) the present or threatened destruction,
modification, or curtailment of its habitat or range; (B) overutilization for
commercial, recreational, scientific or educational purposes; (C) disease or
predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other
natural or manmade factors affecting its continued existence.” 16 U.S.C.
§ 1533(a)(1). “Once a species is so listed, it is afforded certain protections, and
federal agencies assume special obligations to conserve, recover and protect that
species.” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231.
The “cornerstone” of the ESA’s protections is a section prohibiting the take
of any endangered species without a permit or other authorization. Gibbs v.
Babbitt, 214 F.3d 483, 487 (4th Cir. 2000) (citing 16 U.S.C. § 1538(a)(1)(B)).
Pursuant to 16 U.S.C. § 1533(d), the Secretary of the Interior is authorized to
extend the statutory prohibitions on take of endangered species to threatened
species. See 16 U.S.C. § 1533(d) (“The Secretary may by regulation prohibit
with respect to any threatened species any act prohibited under section 1538(a)(1)
of this title, in the case of fish or wildlife . . . .”). FWS extended that cornerstone
take prohibition to protect all threatened species. See 50 C.F.R. § 17.31
(“General Rule 4(d)” or “General Rule”). More specifically, FWS’s General Rule
4(d) prohibits the take of all species listed as threatened by incorporating as to
those species the prohibitions applicable to endangered species under 50 C.F.R.
§ 17.21, except when FWS issues a specific rule for a particular threatened
species. See id.; see also 50 C.F.R. § 17.21 (setting forth take and other

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prohibitions with respect to endangered species). In such cases, the specific rule,
or “special rule,” regarding the particular species takes precedence over General
Rule 4(d), such that the General Rule’s blanket prohibition on take of threatened
species no longer applies to that species and the special rule governs instead.
See id. § 17.31(c).
The Utah prairie dog is a threatened species whose take is regulated by a
special rule. The Utah prairie dog lives only in Utah and approximately seventy
percent of the population is on nonfederal land. Originally listed as an
endangered species under the ESA, Amendments to Lists of Endangered Fish and
Wildlife, 38 Fed. Reg. 14678-01, 14678 (June 4, 1973) (codified as amended at
50 C.F.R. § 17.11), the species was reclassified as threatened in 1984; at that
time, the FWS issued a special rule to regulate its take, Final Rule to Reclassify
the Utah Prairie Dog as Threatened, With Special Rule To Allow Regulated
Taking, 49 Fed. Reg. 22330-01, 22330 (May 29, 1984) (codified as amended at
50 C.F.R. § 17.40(g)). The special rule (“Special Rule 4(d)” or “Special Rule”)
was amended in 1991, Final Rule to Amend Special Rule Allowing Regulated
Taking of the Utah Prairie Dog, 56 Fed. Reg. 27438-01, 27438 (June 14, 1991)
(codified as amended at 50 C.F.R. § 17.40(g)), and again in 2012, Revising the
Special Rule for the Utah Prairie Dog, 77 Fed. Reg. 46158-01, 46158 (Aug. 2,
2012) (codified at 50 C.F.R. § 17.40(g)).
Today, Special Rule 4(d) regulates the take of Utah prairie dog by limiting:
(1) the permissible locations of such take to agricultural lands, properties within

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0.5 miles of conservation lands, and “areas where Utah prairie dogs create serious
human safety hazards or disturb the sanctity of significant human cultural or
burial sites[;]” (2) the permissible amount of such take; and (3) the permissible
methods of such take. 50 C.F.R. § 17.40(g). In addition, the Special Rule
authorizes incidental take that occurs as part of standard agricultural practices.
See id. § 17.40(g)(5).
PETPO, a nonprofit organization, was founded by Utah “residents who
suffer as a result of the regulation of Utah prairie dog take.” J.A. at 160 (Decl. of
Derek Morton, filed Nov. 18, 2013). PETPO is comprised of more than 200
“private property owners and other persons and entities subject to overly
burdensome regulations,” id., who allege that they “have been prevented from
building homes, starting small businesses, and, in the case of the local
government, from protecting recreational facilities, a municipal airport, and the
local cemetery from the Utah prairie dog’s maleffects,” Aplee.’s Br. at 3
(citations omitted).
B
PETPO filed the instant action against FWS under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 551 et seq., alleging that neither the
Commerce Clause nor the Necessary and Proper Clause authorizes Congress to
regulate take of the Utah prairie dog on nonfederal land. PETPO requested both
declaratory and injunctive relief against the regulation of Utah prairie dog take on

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nonfederal land. FoA filed a motion to intervene, and the district court granted
the motion.
PETPO then moved for summary judgment. FWS cross-moved for
summary judgment, defending the constitutionality of the challenged regulation
under both the Commerce Clause and the Necessary and Proper Clause and
arguing that PETPO lacks standing. The district court granted summary judgment
for PETPO and denied summary judgment for FWS and FoA, concluding that: (1)
PETPO has standing; (2) the Commerce Clause does not authorize Congress to
regulate the take of a purely intrastate species (i.e., the Utah prairie dog) that has
no substantial effect on interstate commerce; and (3) the Necessary and Proper
Clause does not authorize Congress to regulate take of the Utah prairie dog
because such regulation is not essential to the ESA’s economic scheme.
FWS and FoA timely appealed. They raise two arguments on appeal:
(1) PETPO lacks standing; and (2) both the Commerce Clause and the Necessary
and Proper Clause authorize Congress to regulate take of the Utah prairie dog on
nonfederal land. We hold that the district court correctly concluded that PETPO
has standing, but erred in concluding that the challenged regulation is not
authorized by the Commerce Clause. In light of our Commerce Clause holding,
we have no need to opine regarding the merits of the district court’s Necessary
and Proper Clause ruling, and do not do so. We accordingly reverse and remand
for entry of summary judgment for FWS and FoA.
II

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First, we conclude that PETPO has standing to challenge the
constitutionality of the regulation. We review issues of standing de novo. S.
Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013). To
demonstrate standing, a plaintiff must show that “(1) it has suffered an ‘injury in
fact’ that is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to merely speculative, that
the injury will be redressed by a favorable decision.” Bronson v. Swensen, 500
F.3d 1099, 1106 (10th Cir. 2007) (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 180–81 (2000)). In making this showing at the
summary-judgment stage, a plaintiff is not entitled to depend on “mere
allegations”—rather, he must “‘set forth’ by affidavit or other evidence ‘specific
facts,’ which for purposes of the summary judgment motion will be taken to be
true.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (quoting Fed. R. Civ.
P. 56(e)).
The parties agree that the first two elements of standing are satisfied, 1 but
FoA argues that the third element, redressability, is not. Specifically, FoA argues
that PETPO’s alleged injuries are not redressable because if the district court
were to grant the requested relief and strike down Special Rule 4(d), the absence
1

And we agree, too. PETPO members presented affidavits that they
suffered injuries in fact (the first element), and that their injuries are fairly
traceable to FWS through its regulation of Utah prairie dog take (the second
element).

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of a special rule regarding the Utah prairie dog would trigger General Rule 4(d)
to govern take of that species, and the General Rule prohibits even more take than
the Special Rule. Thus, FoA argues that “even if PETPO succeeds [at
invalidating Special Rule 4(d)], stricter federal rules [i.e., General Rule 4(d)]
would come into play that would bar all take of prairie dog on private land.”
Aplt. FoA’s Opening Br. at 12.
As a preliminary matter, FoA is correct that General Rule 4(d) prohibits
more take than Special Rule 4(d) because under the General Rule, take is
prohibited completely unless the party first obtains a permit. See 50 C.F.R.
§ 17.31(a); see also id. § 17.21(a), (c). In contrast, under the Special Rule, take
of the Utah prairie dog is not prohibited completely, but regulated with regard to
location, amount, and method. Id. § 17.40(g). Thus, while the General Rule
prohibits all take of Utah prairie dog without a permit, the Special Rule carves
out certain allowances for take without a permit.
However, the fact that the General Rule prohibits more take than the
Special Rule is irrelevant for our purposes because PETPO’s suit, in substance,
attacks not any particular regulation but Congress’s ability to authorize any
regulation of Utah prairie dog take. See Ala.-Tombigbee Rivers Coal. v.
Kempthorne, 477 F.3d 1250, 1271 (11th Cir. 2007) (considering Commerce
Clause challenge to final rule listing the Alabama sturgeon as endangered under
the theory that “Congress has exceeded the power granted to it under the
Commerce Clause by authorizing protection of the Alabama Sturgeon”). To be

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sure, in its briefing and at oral argument, PETPO curiously characterizes its claim
as attacking the Special Rule and disclaims any attack on the ESA. But our
standing inquiry must focus on the substance of PETPO’s lawsuit. See Buchwald
v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 494 (10th Cir. 1998) (focusing on
“the substance of [the plaintiff’s] complaint” and the fact that there was “no
evidence in the record” to support her claim of standing). And, as a matter of
logic, PETPO’s wish to attack the regulation of prairie dog take on Commerce
Clause and Necessary and Proper grounds implicates 16 U.S.C. § 1533(d), which
grants authority to the Secretaries of the Interior and of Commerce to issue regulations
extending the take prohibitions of § 1538(a)(1) to threatened species. See 16 U.S.C.
§ 1533(d). If Congress lacks such authority under the Commerce Clause or the
Necessary and Proper Clause, then it stands to reason that § 1533(d) cannot authorize any
regulation of prairie dog take, and FWS could not enforce either the general or specific
rule.
An examination of PETPO’s complaint, particularly the requested relief,
clearly bears out this understanding of PETPO’s claim. First, the relief requested
would apply to both rules (as they pertain to take of Utah prairie dogs on
nonfederal land). PETPO’s requested relief is not limited to a particular FWS
regulation; instead, both the declaratory and injunctive relief requested would
expressly pertain to any federal prohibition on the take of Utah prairie dogs on
nonfederal land. PETPO requests the following relief:

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(1)
for a declaration that the prohibition of the take of the
Utah prairie dog on non-federal land is invalid under the [APA],
because it is inconsistent with constitutional right, power, privilege,
or immunity and not in accordance with law;
(2)
for a declaration that the prohibition of the take of the
Utah prairie dog is an invalid exercise of delegated legislative power
under the United States Constitution, and that the Service is without
authority to prohibit the take of the prairie dog on non-federal land;
[and]
(3)
for a permanent injunction preventing the Service from
enforcing the prohibition of the take of the Utah prairie dog on nonfederal land[.]
J.A. at 34. 2 By its terms, the requested relief would apply equally to the prohibition of
Utah prairie dog take in General Rule 4(d) as to the prohibition of Utah prairie dog take
in Special Rule 4(d); that is, granting the relief that PETPO seeks would necessarily make
unenforceable both rules to the extent that they prohibit take of the Utah prairie dog on
nonfederal land.
Moreover, this conclusion is also consistent with how PETPO expressly framed its
claim for relief under the APA. In its complaint, PETPO ended that claim by stating that
110. No enumerated power supports the regulation of the
take of the Utah prairie dog on non-federal land.
111. The regulation of the take of the Utah prairie dog on
non-federal land is neither necessary nor proper to the exercise of
any power of the federal government.
112. Therefore, the regulation of the take of the Utah prairie
dog on non-federal land is contrary to constitutional right, power,
privilege, or immunity, 5 U.S.C. § 706(2)(B), as well as arbitrary,
capricious, and contrary to law, 5 U.S.C. § 706(2)(A). The Service
2

PETPO also requests costs of litigation and “other relief as the Court
may deem just and proper.” J.A. at 35.

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has no authority to require PETPO’s members to obtain a permit, or
satisfy any other conditions, before taking the prairie dog on nonfederal land.
J.A. at 32 (emphasis added). This last sentence in particular shows that although
the vehicle for this suit is an APA claim, the gist of PETPO’s claim is that the
Service does not have delegated authority to regulate the take of Utah prairie
dogs because, under the Constitution, Congress has no such authority to delegate.
Were PETPO to win on that claim and FWS nonetheless attempted to enforce the
General Rule insofar as it prohibits prairie dog take, FWS could expect its
enforcement activities to be justifiably enjoined by a district court. Indeed, the
district court here expressly understood this to be the question presented on the
merits. See J.A. at 200 (“At the heart of the dispute . . . is whether one of the
enumerated powers in the Constitution authorizes Congress—and, through
congressional delegation, [FWS]—to regulate take of the Utah prairie dog on
non-federal land.”) (Mem. Decision & Order, filed Nov. 5, 2014).
Further, it is unclear how a court could set aside the Special Rule’s
prohibition on take but not the General Rule’s, because the Special Rule prohibits
take only to the extent that it incorporates by reference the take prohibitions
found in the General Rule. See 50 C.F.R. § 17.40(g)(1) (“Except as noted in . . .
this [Special Rule], all prohibitions of [General Rule 4(d)] . . . apply to the Utah
prairie dog.”). In other words—with the sole exception of its incorporation of the
General Rule’s take prohibition—the Special Rule actually permits take only in
certain locations, amounts, and methods. Thus, we are satisfied that if PETPO

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prevails on its claim that Congress lacks authority to prohibit take of the Utah
prairie dog, neither FWS nor a private party bringing a citizen’s suit could
enforce any prohibition on Utah prairie dog take. 3
For these reasons, the district court correctly concluded that PETPO has
standing—more specifically, that its alleged injuries are redressable by its requested
relief.
III
A
We now turn to the merits, where PETPO challenges FWS’s prohibition on take of
the Utah prairie dog on nonfederal land by arguing that Congress’s authorization of this
regulation is unconstitutional because neither the Commerce Clause nor the Necessary
and Proper Clause grants Congress power to so regulate.4 In short, if Congress could
not itself regulate take of the Utah prairie dog on nonfederal land, neither could it
authorize the Secretary of the Interior to promulgate regulations so regulating the
species.
3

And if we were to grant this requested relief, all sources of PETPO’s
alleged injuries would be eliminated. Cf. Vill. of Arlington Heights v. Metro.
Hous. Dev. Corp., 429 U.S. 252, 261–64 (1997) (finding standing even though
the requested relief removed only one barrier—zoning requirements—from
construction of a housing development because the remaining barriers—such as
financing—were mere “uncertainties” rather than “absolute barriers,” which
permitted the court to infer a “substantial probability” that the housing would be
built if the zoning requirements were invalidated).
4

PETPO concedes that Congress has the power under the Property
Clause, U.S. C ONST . Art. IV, § 3, cl. 2, to regulate take of the Utah prairie dog on
federal land.

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The APA permits an aggrieved party to challenge and requires us to “hold
unlawful and set aside” final agency action that is “contrary to constitutional
right, power, privilege, or immunity.” 5 5 U.S.C. § 706(2)(b); Lincoln v. Vigil,
508 U.S. 182, 195 (1993) (“[T]he APA contemplates, in the absence of a clear
expression of contrary congressional intent, that judicial review will be available
for colorable constitutional claims . . . .”). Although we generally grant
considerable deference to agency action, “[w]e review de novo claims alleging
constitutional abuse by an agency.” Burke v. Bd. of Governors of Fed. Reserve
Sys., 940 F.2d 1360, 1367 (10th Cir. 1991); see also Copar Pumice Co. v.
Tidwell, 603 F.3d 780, 802 (10th Cir. 2010) (“Because constitutional questions
arising in a challenge to agency action under the APA ‘fall expressly within the
domain of the courts,’ we review de novo whether agency action violated a
claimant’s constitutional rights.” (quoting Darden v. Peters, 488 F.3d 277, 283–
84 (4th Cir. 2007))); cf. Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps
of Eng’rs, 531 U.S. 159, 172–73 (2001) (applying constitutional avoidance in
construing statute rather than deferring to agency interpretation because a serious
constitutional question was raised under the Commerce Clause by the agency’s
interpretation of statute); Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1249

5

We note that neither FWS nor FoA challenges PETPO’s ability to
use the APA to challenge the prohibition on take of Utah prairie dogs by asserting
that such a prohibition exceeds Congress’s power under the Commerce Clause.
Indeed, with the exception of FoA’s standing argument, the parties engage almost
entirely on the merits of the Commerce Clause question.

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(10th Cir. 2008) (“It is well established that the canon of constitutional avoidance
does constrain an agency’s discretion to interpret statutory ambiguities, even
when Chevron deference would otherwise be due.”); U.S. West, Inc. v. FCC, 182
F.3d 1224, 1231 (10th Cir. 1999) (“[D]eference to an agency interpretation is
inappropriate not only when it is conclusively unconstitutional, but also when it
raises serious constitutional questions.”). Accordingly, we review de novo
whether Congress lacks power under the Commerce Clause to authorize the
prohibition of Utah prairie dog take.
B
We conclude that the district court erred in holding that the challenged
regulation is not authorized under the Commerce Clause, which gives Congress
authority “[t]o regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.” U.S. C ONST . art. I, § 8, cl. 3.
1
The district court concluded that the Commerce Clause does not authorize
the regulation because the regulated activity—i.e., take of the Utah prairie dog on
nonfederal land—does not have a substantial effect on interstate commerce. The
court reasoned that: (1) take of the Utah prairie dog on nonfederal land is not
commercial or economic activity, and the fact that the challenged regulation
prohibits people “from engaging in commercial activities . . . is irrelevant,” J.A.
at 203–04; and (2) the value of the Utah prairie dog, whether biological,

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commercial, scientific, or through potential future effects, has too attenuated an
effect on interstate commerce, if any at all.
2
The Commerce Clause authorizes Congress to regulate three categories of
activity: (1) “use of the channels of interstate commerce”; (2) “instrumentalities
of interstate commerce, or persons or things in interstate commerce”; and (3)
“activities that substantially affect interstate commerce.” United States v. Lopez,
514 U.S. 549, 558–59 (1995). “[T]he parties in the present dispute agree that the
first two Lopez categories do not apply . . . .” J.A. at 202. Thus, we inquire only
whether, under the third Lopez category, the activity regulated substantially
affects interstate commerce. See Lopez, 514 U.S. at 558–59 (holding that
“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” (emphases added) (citation omitted)).
To determine whether a regulated activity substantially affects interstate
commerce, we ask “whether Congress had a rational basis to find that the
regulated activity, taken in the aggregate, would substantially affect interstate
commerce.” United States v. Patton, 451 F.3d 615, 623 (10th Cir. 2006)
(emphasis added). The Supreme Court has “stress[ed] that the task before us is a
modest one. We need not determine whether respondents’ activities, taken in the
aggregate, substantially affect interstate commerce in fact, but only whether a

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‘rational basis’ exists for so concluding.” Gonzales v. Raich, 545 U.S. 1, 22
(2005) (quoting Lopez, 514 U.S. at 557).
Under the third Lopez category, Congress has the “power to regulate purely
local activities that are part of an economic ‘class of activities’ that have a
substantial effect on interstate commerce.” Raich, 545 U.S. at 17; accord Taylor
v. United States, --- U.S. ----, 136 S. Ct. 2074, 2080 (2016). Consequently,
“where a general regulatory statute bears a substantial relation to commerce, the
de minimis character of individual instances arising under that statute is of no
consequence.” Lopez, 514 U.S. at 558; see also Taylor, 136 S. Ct. at 2079
(“[A]ctivities . . . that ‘substantially affect’ commerce . . . may be regulated so
long as they substantially affect interstate commerce in the aggregate, even if
their individual impact on interstate commerce is minimal.” (emphasis added));
Raich, 545 U.S. at 23 (distinguishing between regulation that “f[alls] outside
Congress’ commerce power in its entirety” and regulation that constitutes an
“individual application[] of a concededly valid statutory scheme”). As a result,
the Supreme Court has made clear that “[t]he question . . . is whether Congress’ .
. . policy judgment, i.e., its decision to include [a] narrower ‘class of activities’
within [a] larger regulatory scheme, was constitutionally deficient,” or whether
“the subdivided class of activities . . . was an essential part of the larger
regulatory scheme.” Raich, 545 U.S. at 26–27; see also id. at 28 (“The
congressional judgment that an exemption for . . . a significant segment of the

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total market would undermine the orderly enforcement of the entire regulatory
scheme is entitled to a strong presumption of validity.”).
Moreover, the Court has underscored that the fact that a regulated activity
is noncommercial or “trivial by itself” is “not a sufficient reason for removing [it]
from the scope of [otherwise valid] federal regulation.” 6 Raich, 545 U.S. at 20;
see id. at 17 (“[E]ven if appellee’s activity be local and though it may not be
regarded as commerce, it may still, whatever its nature, be reached by Congress
if it exerts a substantial economic effect on interstate commerce.” (emphasis
added) (quoting Wickard v. Filburn, 317 U.S. 111, 125 (1942))); id. at 22 (“That
the regulation ensnares some purely intrastate activity is of no moment. As we
have done many times before, we refuse to excise individual components of that
larger scheme.”); see also Taylor, 136 S. Ct. at 2081 (“[I]t makes no difference
under our cases that any actual or threatened effect on commerce in a particular
case is minimal.” (emphasis added)).
In short, the Commerce Clause authorizes regulation of noncommercial,
purely intrastate activity that is an essential part of a broader regulatory scheme

6

In addition to arguing that the challenged regulation is constitutional
under the Raich framework, FWS argues that the regulation substantially affects
interstate commerce because the activity at which it is directed is commercial or
economic in nature. See, e.g., Patton, 451 F.3d at 623 (noting that this criterion
“determines whether the regulated activity falls within the definition of
‘commerce.’ If so, . . . there is a heavy—perhaps in reality irrebuttable—
presumption that it affects more states than one, and falls within congressional
power.”). However, we need not and do not reach this argument because, as we
explain below, our holding under the Raich framework fully resolves this appeal.

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that, as a whole, substantially affects interstate commerce (i.e., has a substantial
relation to interstate commerce). Therefore, to uphold the challenged regulation
here, we need only conclude that Congress had a rational basis to believe that
such a regulation constituted an essential part of a comprehensive regulatory
scheme that, in the aggregate, substantially affects interstate commerce.
a
We conclude that Congress had a rational basis to believe that regulation of
the take of the Utah prairie dog on nonfederal land is an essential part of the
ESA’s broader regulatory scheme which, in the aggregate, substantially affects
interstate commerce. We first examine the ESA’s status as a comprehensive
regulatory scheme substantially affecting commerce and then turn to whether
Congress had a rational basis to believe that regulation of take of the Utah prairie
dog on nonfederal land is an essential part of that scheme.
As a preliminary matter, PETPO argues that we must employ a substantial
effects analysis with regard to regulation of take of the Utah prairie dog alone,
not with respect to all species or the ESA generally. See Aplee.’s Br. at 27–31.
Specifically, PETPO contends that its claim is like those presented in Lopez and
Morrison, because PETPO facially challenges a provision rather than “an
application to a particular subset of activity, as in Raich.” Id. at 28. In essence,
PETPO argues that because it characterizes its claim as a facial challenge to a
regulatory provision, the concerns implicated in Raich do not apply and so we
must engage in a straightforward substantial effects analysis as to the regulation

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of take of the Utah prairie dog alone. But this argument misconstrues the
standard that Raich establishes and the substance of the claim that PETPO
actually asserts.
As established supra, the real crux of PETPO’s challenge is not a challenge
to any particular FWS regulation but to Congress’s power to authorize regulation
of the Utah prairie dog. Although PETPO is, in a sense, correct that the
prohibition on take of the Utah prairie dog is “a particular challenged provision,”
Aplee.’s Br. at 29, this prohibition finds its place within the broader regulatory
scheme of the ESA’s protections of endangered and threatened species. More
specifically, the prohibition at issue is an instance of Congress’s broad
authorization to use regulations to extend the take protections that endangered
species enjoy to those listed as threatened. See 16 U.S.C. § 1533(d).
PETPO points to no authority suggesting that a challenge such as this
should be considered under a narrow application of the substantial effects test
rather than the Raich comprehensive regulatory scheme framework. PETPO
mischaracterizes FWS’s and FoA’s arguments as suggesting that the substantial
effects test must be applied “to an enactment as a whole, rather than a particular
challenged provision.” Aplee.’s Br. at 29. In doing so, PETPO cites Morrison,
Lopez, and our own decision in Patton, arguing that in each case an individual
provision was examined despite the fact that it was part of a larger piece of
legislation. See id. at 29–30. But the legislation at issue in those cases did not
constitute comprehensive regulatory schemes such as the CSA in Raich or the

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ESA in the present case. The CSA “repealed most of the earlier antidrug laws in
favor of a comprehensive regime to combat the international and interstate traffic
in illicit drugs.” Raich, 545 U.S. at 12.
In contradistinction to the CSA, the Court pointed to the Gun-Free School
Zones Act of 1990 that Lopez struck down as being “at the opposite end of the
regulatory spectrum.” Id. at 24; see also Lopez, 514 U.S. at 561 (“Section 922(q)
is not an essential part of a larger regulation of economic activity, in which the
regulatory scheme could be undercut unless the intrastate activity were regulated.
It cannot, therefore, be sustained under our cases upholding regulations of
activities that arise out of or are connected with a commercial transaction, which
viewed in the aggregate, substantially affects interstate commerce.”). Despite the
fact that the Gun-Free School Zones Act of 1990 was part of a single, large
enactment—the Crime Control Act of 1990, Pub. L. 101-647, 104 Stat. 4789—the
Court had no difficulty recognizing that this broader enactment was not a
comprehensive regulatory scheme, dealing as it did with subjects as diverse as
international money laundering, child abuse, and victims’ rights. See 104 Stat. at
4789, 4792 (for example, Title I of the Crime Control Act of 1990 addresses
international money laundering, while Title II is the Victims of Child Abuse Act
of 1990). Indeed, the Court in both Lopez and Raich looked past the larger
enactment and characterized the Gun-Free School Zones Act as an independent
statute. Lopez, 514 U.S. at 561 (“Section 922(q) is a criminal statute . . . .”);
Raich, 545 U.S. at 23 (describing the Gun-Free School Zones Act as “a brief,

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single-subject statute”); see also Crime Control Act of 1990 § 1702, 104 Stat. at
4844 (containing the Gun-Free School Zones Act of 1990 in Title XVII of the
enactment, bearing the heading, “General Provisions,” which contains provisions
concerning railroad police officers and the use of private prisons for federal
prisoners, as well as a directive to the Sentencing Commission to produce a report
on mandatory minimum sentences).
The prohibition against felon possession of body armor we dealt with in
Patton and the Violence Against Women Act of 1994 that Morrison addressed are
equally distinguishable from comprehensive regulatory schemes such as the CSA
or ESA. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L.
No. 103-322, § 2, 108 Stat. 1796, 1796–1807 (table of contents of the enactment
containing the Violence Against Women Act as one of thirty-three separate titles
addressing a variety of subjects); 21st Century Department of Justice
Appropriations Authorization Act, Pub. L. No. 107-273, § 1(b), 116 Stat. 1758,
1758–62 (2002) (table of contents of the enactment containing the James Guelff
and Chris McCurley Body Armor Act of 2002 along with, inter alia, provisions
addressing appropriations for the Department of Justice, drug treatment and
prevention, and the Boys and Girls Clubs of America). That all of these laws
were passed as parts of larger congressional enactments is immaterial under
Raich, which concerns comprehensive regulatory regimes.
PETPO concedes that because “all classes of activities can be subdivided to
find that they don’t substantially affect interstate commerce, excising a particular

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party’s activity could potentially subject the Commerce Clause to death by a
thousand cuts.” Aplee.’s Br. at 28. Although the language of “excising a
particular party’s activity” is at least not linguistically congruent with Raich,
which speaks of “individual instances of [a] class,” 545 U.S. at 17, 23, we would
do well to heed the danger that PETPO itself warns us about. Application of the
rule that PETPO suggests would lead to just such a lingering death for the ESA—
and likely for other regulatory schemes—insofar as every individual regulation
passed within a larger regulatory scheme would be subject to a narrowly applied
substantial effects test—a result that Raich directly forecloses. It should not
surprise then, that every circuit to have addressed the constitutionality of take
prohibitions under the ESA has, in effect, rejected such an approach.
More specifically, every federal appellate court that has addressed whether
the ESA is a comprehensive scheme substantially affecting commerce has
aggregated its effects on all threatened and endangered species. 7 See San Luis &
7

While it is true that many of these cases concern the statutory
protections granted to species listed as endangered rather than prohibitions
established by agency rulemaking, that distinction is immaterial for the Raich
analysis, insofar as species are also listed as endangered by rulemaking. See 50
C.F.R. § 17.11 (listing endangered and threatened wildlife). Indeed, one case,
Alabama-Tombigbee Rivers Coalition, expressly dealt with a challenge to the
decision to list a species as endangered, not the application of the statutory
protections to that species. See 477 F.3d at 1271–72 (“The Coalition’s third
contention is that the Final Rule should be vacated because Congress has
exceeded the power authorized to it under the Commerce Clause by authorizing
protection of the Alabama sturgeon, which the Coalition characterizes as an
intrastate, noncommercial species.”). Indeed, PETPO itself concedes that the fact
that here “the activity is regulated under a regulation rather than a statutory
provision” amounts to “a distinction without a difference.” Aplee.’s Br. at 28.

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Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1175–76 (9th Cir. 2011)
(“Pursuant to Raich, when a statute is challenged under the Commerce Clause,
courts must evaluate the aggregate effect of the statute (rather than an isolated
application) in determining whether the statute relates to ‘commerce or any sort
of economic enterprise.’ . . . We and other courts have discussed at length why
the protection of threatened or endangered species implicates economic
concerns.”); Ala.-Tombigbee Rivers Coal., 477 F.3d at 1273 (“If the process of
listing endangered species is ‘an essential part of a larger regulation of economic
activity,’ then whether that process ‘ensnares some purely intrastate activity is of
no moment.’ . . . The [ESA] prohibits all interstate and foreign commerce in
endangered species.” (quoting Raich, 545 U.S. at 24)); GDF Realty Invs., Ltd. v.
Norton, 326 F.3d 622, 639 (5th Cir. 2003) (determining whether “the larger
regulation [is] directed at activity that is economic in nature” and noting that
“ESA’s protection of endangered species dtw10 is economic in nature” and that
“ESA’s drafters were concerned by the ‘incalculable’ value of the genetic
heritage that might be lost absent regulation,” as well as observing that the
majority of takes of species “result from economic activity” (emphasis added));
Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041, 1046 (D.C. Cir. 1997)
(“[W]e may look not only to the effect of the extinction of the individual
endangered species at issue in this case, but also to the aggregate effect of the
extinction of all similarly situated endangered species.”); cf. Markle Interests,
L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452, 475–77 (5th Cir. 2016)

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(aggregating all ESA critical-habitat designations and upholding FWS
designation of private, purely intrastate land for purely intrastate frog species
under the Commerce Clause).
PETPO next argues that the ESA “is a comprehensive scheme to provide
for environmental conservation, not [to] regulate a market.” Aplee.’s Br. at 38. 8

8

PETPO appears to proceed under the theory that Raich implicates not
the Commerce Clause alone but also the Necessary and Proper Clause, insofar as
this argument appears in the section of its brief on the Necessary and Proper
clause. See Aplee.’s Br. at 31–41. The district court appears to have operated
under a similar assumption, holding as it did that the prohibition on take of the
Utah prairie dog was “not necessary to the ESA’s economic scheme.” J.A. at
207.
In Raich, the Court stated that a comprehensive regulatory scheme that
substantially affects interstate commerce is “well within [Congress’s] authority to
‘make all Laws which shall be necessary and proper’ to ‘regulate Commerce
. . . among the several States.’” 545 U.S. at 22 (quoting U.S. C ONST . art. I, § 8).
In upholding the constitutionality of the statute at issue in that case, however, the
Court analyzed only Commerce Clause jurisprudence to conclude that the
regulatory scheme substantially affected interstate commerce; the Court did not
conduct a separate inquiry under the Necessary and Proper Clause. Only Justice
Scalia’s concurring opinion in Raich, joined by no other justice, squarely
considered the case as implicating the Necessary and Proper Clause. See 545
U.S. at 34 (Scalia, J., concurring in the judgment) (opining that the substantial
effects analysis of intrastate activities “derives from the Necessary and Proper
Clause”). Further, we have before recognized that Raich is concerned with the
third prong of traditional Commerce Clause analysis: “The Supreme Court’s
decisions in Lopez, United States v. Morrison, and Raich all hinged on
interpretation of the third category of [Commerce Clause analysis].” Patton, 451
F.3d at 623 (citation omitted). But see United States v. Carel, 668 F.3d 1211,
1219 (10th Cir. 2011) (suggesting that Raich is a Necessary and Proper Clause
case).
Because PETPO seemingly understands Raich to be a Necessary and Proper
Clause case, its arguments relevant to Raich appear in that section of its brief.
While we perform our Raich analysis under the Commerce Clause, we present
and address PETPO’s arguments—irrespective of where they are found in its

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This argument rests on the premise that, under Raich, 9 Congress may only reach
intrastate activity “which, if beyond [Congress’s] grasp, would frustrate a
comprehensive regulatory scheme’s ability to function as a regulation of
commerce.” Id. at 32 (emphasis added) (citing, inter alia, Raich, 545 U.S. at 22).
But this premise is flawed and improperly narrows the standard that Raich
establishes.
As an initial matter, the passage that PETPO cites from Raich as support
for this argument concerns whether a rational basis exists for believing that
regulation of intrastate activity was essential to the CSA, not whether the
comprehensive scheme of the CSA itself involved the regulation of commerce.
545 U.S. at 22 (“[W]e have no difficulty concluding that Congress had a rational
basis for believing that failure to regulate the intrastate manufacture and
possession of marijuana would leave a gaping hole in the CSA.”). Further, the
Ninth Circuit has persuasively rejected such a narrow reading of Raich.
Specifically, in San Luis & Delta-Mendota Water Authority, the court rejected the
argument that the ESA does not have a “substantial effect” on interstate

briefing—insofar as they are relevant to that analysis. We would also note that
were we to proceed instead under the assumption that Raich was decided under
the Necessary and Proper Clause, our ultimate conclusion—that the prohibition
on take of the Utah prairie dog is constitutional—would remain unchanged.
9

PETPO also cites National Federation of Independent Business v.
Sebelius, 567 U.S. 519, 132 S. Ct. 2566, 2591–92 (2012) for this proposition, but
the cited portion of Chief Justice Robert’s opinion was joined by no other
member of the Court.

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commerce because, unlike the Controlled Substance Act upheld in Raich, it “is
not a ‘comprehensive economic regulatory scheme.’” San Luis, 638 F.3d at 1177
(emphasis added). The Ninth Circuit explained that “[t]he Supreme Court has
never required that a statute be a ‘comprehensive economic regulatory scheme’ or
a ‘comprehensive regulatory scheme for economic activity’ in order to pass
muster under the Commerce Clause. Indeed, it has never used those terms.” Id.
The court continued that “[t]he only requirement—which was expressly detailed
in Raich—is that the ‘comprehensive regulatory scheme’ have a ‘substantial
relation to commerce.’” Id. (quoting Raich, 545 U.S. at 17). We agree with the
Ninth Circuit on this, and so consider whether the ESA has a substantial relation
to interstate commerce, and conclude that it does.
PETPO wisely does not even attempt to dispute this; the substantial relationship
between the ESA and interstate commerce is patent. First, regulation of take of
endangered and threatened species is directly related to—indeed, arguably inversely
correlated with—economic development and commercial activity. See 16 U.S.C.
§ 1531(a)(1) (Congress’s finding and declaration of purpose 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”);
H.R. Rep. No. 93-412 (1973), reprinted in A Legislative History of the Endangered
Species Act of 1973, as Amended in 1976, 1977, 1978, 1979, and 1980 [hereinafter A
Legislative History of the Endangered Species Act], at 141 (1982) (“The threat to animals
may arise from a variety of sources; principally pollution, destruction of habitat and the

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pressures of trade.”). In other words, the necessity of putting into place the ESA’s
protections was engendered in part by the excesses of commerce, and the statute acts as a
brake on economic activity, as confirmed by the harms that underlie PETPO’s standing.
Second, Congress’s purposes in enacting the ESA were to conserve species by
restricting commerce and to promote long-term commerce by conserving species. See
H.R. Rep. No. 93-412, reprinted in A Legislative History of the Endangered Species Act,
at 144–45 (describing how the profit motive can incentivize the conservation of species
and the potential for unknown commercial uses should engender appropriate caution,
“[t]he institutionalization of that caution lies at the heart of [the ESA]”); cf. S. Rep. No.
91-526, at 3 (1969), as reprinted in 1969 U.S.C.C.A.N. 1413, 1415 (stating that the
protections offered by a predecessor to the ESA could “permit the regeneration of [an
exploited] species to a level where controlled exploitation can be resumed,” thus creating
“profit from the trading and marketing of that species for an indefinite number of years,
where otherwise it would have been completely eliminated from commercial channels”).
Thus, while the ESA’s prohibitions may act as a short-term brake on economic activity,
the statutory scheme was intended to promote commercial activity in the long run.
And third, the ESA’s prohibitions help fuel an illegal wildlife trade that generates
$5–8 billion annually—an illegal market second in size only to the illegal narcotics
market. Because “Congress’ power to regulate commerce includes the power to prohibit
commerce,” whether the targeted market “is a lawful market that Congress sought to
protect and stabilize” or “an unlawful market that Congress sought to eradicate” “is of no

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constitutional import.” Raich, 545 U.S. at 19 n.29. These are salient reasons why the
ESA substantially affects interstate commerce.
Next, we conclude that Congress had a rational basis to believe that providing for
the regulation of take of purely intrastate species like the Utah prairie dog is essential to
the ESA’s comprehensive regulatory scheme. Approximately sixty-eight percent of
species that the ESA protects exist purely intrastate;10 thus, piecemeal excision of
purely intrastate species would severely undercut the ESA’s conservation
purposes. 11 Put another way, excising purely intrastate species “would leave a
gaping hole in the” ESA. Raich, 545 U.S. at 22; see also Ala.-Tombigbee Rivers
Coal., 477 F.3d at 1275 (“Because a species’ scientific or other commercial value
is not dependent on whether its habitat straddles a state line, Congress had good

10

FWS generated this estimate and PETPO has not challenged it. We
discern nothing in the record that calls into doubt its accuracy.
11

PETPO argues that “there’s no reasonable basis to conclude that” the
government’s inability to regulate take of the Utah prairie dog “would frustrate
the government’s ability to regulate the market for any commodity.” Aplee.’s Br.
at 35. But this argument is based on the same narrow reading of Raich that we
rejected supra. The relevant question is not whether the inability to regulate take
of the Utah prairie dog alone would undermine the ESA but whether the inability
to regulate take of intrastate species more generally would undermine the ESA.
See, e.g., GDF Realty Invs., 326 F.3d at 640 (concluding that “Cave Species takes
may be aggregated with all other ESA takes” because otherwise the ESA would
be undermined given “the interdependence of species [that] compels the
conclusion that regulated takes under ESA do affect interstate commerce”).
Applying Raich narrowly to the FWS’s prohibition of take of the Utah prairie
dog, rather than more generally to the statutory authorization for such take
regulations with respect to purely intrastate species, leads to a “death by a
thousand cuts” of the ESA, to use PETPO’s colorful phrase. Aplee.’s Br. at 28.

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reason to include all species within the protection of the Act. It did not behave
irrationally by taking the broader approach.”).
Every one of our sister circuits that has addressed this issue has agreed that
regulation of purely intrastate species is an essential part of the ESA’s regulatory
scheme. See GDF Realty, 326 F.3d at 640 (concluding that regulation of purely
intrastate Cave Species takes “is an essential part of” ESA’s larger regulatory
scheme); Gibbs, 214 F.3d at 487 (“This regulation [prohibiting take of red
wolves] is also sustainable as ‘an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless the intrastate
activity were regulated.’” (quoting Lopez, 514 U.S. at 561)); see also Markle
Interests, 827 F.3d at 476–78 (upholding FWS critical-habitat designations—in
that case, of purely intrastate land for a purely intrastate species—under the
Commerce Clause because such regulation is an essential part of ESA’s
regulatory scheme); Ala.-Tombigbee, 477 F.3d at 1274 (“Just as it is apparent that
the ‘comprehensive scheme’ of species protection contained in the Endangered
Species Act has a substantial effect on interstate commerce, it is clear that the
listing process is ‘an essential part’ of that ‘larger regulation of economic
activity.’” (quoting Raich, 545 U.S. at 22, 24)). We agree with these courts that
Congress had a rational basis to conclude that providing for the protection of
purely intrastate species is essential to the ESA’s comprehensive regulatory
scheme.

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And, having reached such a determination, courts appear to be led
ineluctably to conclude that Congress has authority under the Commerce Clause
to regulate purely intrastate species, including regulating the take thereof, under
the ESA—either through a particular application of the ESA itself or through an
agency regulation as here. See Markle Interests, 827 F.3d at 476–78 (upholding
designation of private, intrastate land as critical habitat for a purely intrastate
frog species under the Commerce Clause as an essential part of ESA’s
comprehensive regulatory scheme); San Luis & Delta-Mendota Water Auth., 638
F.3d at 1174–77 (upholding regulation of take of purely intrastate,
noncommercial delta smelt as essential part of ESA’s comprehensive regulatory
scheme); Ala.-Tombigbee Rivers Coal., 477 F.3d at 1271 (upholding regulation of
purely intrastate, noncommercial Alabama sturgeon as essential part of ESA’s
comprehensive regulatory scheme); GDF Realty Invs., Ltd., 326 F.3d at 638–41
(upholding regulation of take of purely intrastate Cave Species as essential to
ESA’s comprehensive regulatory scheme); Gibbs, 214 F.3d at 488, 492–98
(holding that take of forty-one purely intrastate red wolves is economic activity
that substantially affects interstate commerce, and that regulation of that take is
an essential part of ESA’s comprehensive regulatory scheme); see also Nat’l
Ass’n of Home Builders, 130 F.3d at 1052–57; see also id. at 1058 (Henderson, J.,
concurring) (stating that regulation of take of a purely intrastate fly species
substantially affects interstate commerce by preventing loss of biodiversity and
regulating interstate commercial development). Indeed, the facts of many of

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Appellate Case: 14-4151

Document: 01019786637

Date Filed: 03/29/2017

Page: 35

these cases closely track the present case, insofar as they concern challenges to
regulation under the ESA of activity on nonfederal land. See Markle Interests,
827 F.3d at 458–59; GDF Realty Invs., Ltd., 326 F.3d at 624–26; Gibbs, 214 F.3d
at 489; Nat’l Ass’n of Home Builders, 130 F.3d at 251.
Finding the foregoing authority persuasive, we likewise conclude that the
regulation on nonfederal land of take of a purely intrastate species, like the Utah
Prairie dog, under the ESA is a constitutional exercise of congressional authority
under the Commerce Clause. And if Congress could itself regulate take of the
Utah prairie dog on nonfederal land, it could also constitutionally authorize the
Secretary of the Interior to promulgate regulations to achieve this end. Because
we uphold this regulatory exercise under an enumerated power, the Commerce
Clause, we need not consider its constitutionality under the Necessary and Proper
Clause. “[I]f it is not necessary to decide more, it is necessary not to decide
more.” PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004), quoted in
Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1094
(10th Cir. 2010) (“Judicial restraint, after all, usually means answering only the
questions we must, not those we can.”).
III
In sum, we REVERSE and REMAND with instructions to enter judgment
for FWS and FoA.

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