Stewart & Jasper Orchards, et al v. Kenneth Salazar, et al

Filing

FILED OPINION (MARY M. SCHROEDER, SIDNEY R. THOMAS and MARK W. BENNETT) AFFIRMED. Judge: SRT Authoring. FILED AND ENTERED JUDGMENT. [7694124]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAN LUIS & DELTA-MENDOTA
WATER AUTHORITY; WESTLANDS
WATER DISTRICT; STATE WATER
CONTRACTORS; METROPOLITAN
WATER DISTRICT OF SOUTHERN
CALIFORNIA; COALITION FOR A
SUSTAINABLE DELTA; KERN COUNTY
WATER AGENCY,
Plaintiffs,
and
STEWART & JASPER ORCHARDS;
ARROYO FARMS, LLC; KING
PISTACHIO GROVE,
Plaintiffs-Appellants,
v.
KENNETH LEE SALAZAR, as
Secretary of the Department of the
Interior; UNITED STATES
DEPARTMENT OF THE INTERIOR; U.S.
FISH AND WILDLIFE SERVICE; ROWAN
GOULD, as Acting Director of the
U.S. Fish and Wildlife Service;

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REN LOHOEFENOR, as Regional
Director of the U.S. Fish and
Wildlife Service, Pacific
Southwest Region, U.S.
Department of the Interior; UNITED
STATES BUREAU OF RECLAMATION; J.
WILLIAM MCDONALD, as Acting
Commissioner of the U.S. Bureau
of Reclamation, U.S. Department
of the Interior; DONALD GLASER, as
Director of the U.S. Bureau of
Reclamation, Mid-Pacific Region,
U.S. Department of the Interior;
CALIFORNIA DEPARTMENT OF WATER
RESOURCES; LESTER A. SNOW;
MICHAEL L. CONNOR,
Commissioner; UNITED STATES
DEPARTMENT OF JUSTICE; UNITED
STATES ENVIRONMENTAL PROTECTION
AGENCY; LISA JACKSON, in her
official capacity as Administrator
of the Environmental Protection
Agency; UNITED STATES
DEPARTMENT OF TRANSPORTATION;
RAY LAHOOD, in his official
capacity as Secretary of
Transportation; MARITIME
ADMINISTRATION; JAMES E.
CAPONITI, in his official capacity as
Acting Deputy Maritime
Administrator; UNITED STATES
DEPARTMENT OF HOMELAND
SECURITY;

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JANET NAPOLITANO, in her official
capacity as Secretary of Homeland
Security; FEDERAL EMERGENCY
MANAGEMENT AGENCY; WILLIAM
CRAIG FUGATE, in his official
capacity as Administrator of the
Federal Emergency Management
Agency; UNITED STATES ARMY
CORPS OF ENGINEERS; ROBERT VAN
ANTWERP, Lieutenant General,
Defendants-Appellees,
NATURAL RESOURCES DEFENSE
COUNCIL; THE BAY INSTITUTE, nonprofit organizations,
Defendant-intervenors-Appellees.

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No. 10-15192
D.C. No.
1:09-cv-00407OWW-DLB
OPINION



Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted
February 15, 2011—San Francisco, California
Filed March 25, 2011
Before: Mary M. Schroeder and Sidney R. Thomas,
Circuit Judges, and Mark W. Bennett, District Judge.*
Opinion by Judge Thomas

*The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for Northern Iowa, Sioux City, sitting by designation.

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COUNSEL
James S. Burling, M. Reed Hopper, Damien M. Schiff, Brandon M. Middleton, Pacific Legal Foundation, Sacramento,
California, for the plaintiffs/appellants.
Ignacia S. Moreno, Assistant Attorney General, David Shilton, Ethan Carson Eddy, Charles R. Scott, United States
Department of Justice, Environment & Natural Resources
Division, Washington, D.C., for the federal defendants/appellees.
Trend W. Orr, George M. Torgun, Earthjustice, Oakland, California, Katherine Poole, Doug Obegi, Natural Resources
Defense Council, San Francisco, California, for the
defendant-intervenors/appellees.

OPINION
THOMAS, Circuit Judge:
In this appeal, we consider whether application of sections
7 and 9 of the Endangered Species Act to the California delta
smelt violates the Commerce Clause in the United States Constitution. We conclude that it does not, and we affirm the
judgment of the district court.

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I
The delta smelt is a small fish, 60-70 millimeters in length,
that is undisputedly endemic to California. Though once
inhabiting California’s San Francisco Bay/Sacramento-San
Joaquin Delta Estuary, its range has diminished. The delta
smelt presently has no commercial value, but it was commercially harvested as bait in the past.
The United States Fish and Wildlife Service (“Service”)
listed the delta smelt as a threatened species in 1993 under the
Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-1544.
58 Fed. Reg. 12854 (Mar. 5, 1993). The Service designated
critical habitat for the delta smelt in 1994. 59 Fed. Reg. 65256
(Dec. 19, 1994). And, in 2010, it announced that the delta
smelt should be re-listed as endangered but that the Service
would forgo re-listing for the time being on account of higherpriority listings. 75 Fed. Reg. 17667 (Apr. 7, 2010).
Section 7 of the ESA requires federal agencies to consult
with the Service before undertaking any action “authorized,
funded, or carried out” by the agency that might “jeopardize
the continued existence of any endangered species or threatened species” or might “result in the destruction or adverse
modification of habitat” used by any endangered or threatened
species. 16 U.S.C. § 1536(a)(2). After the consultation, the
Service provides the agency with a written statement describing how the proposed action will affect the endangered or
threatened species. Id. at § 1536(b)(3)(A). This statement is
commonly known as a “biological opinion.” If the Service
concludes that the proposed action will likely jeopardize the
species, then it may suggest “reasonable and prudent alternatives” for agency action that, the Service believes, will not
result in violations of the ESA. Id.
In 2008, the Service, acting under ESA § 7, 16 U.S.C.
1536(a)(2), issued a Biological Opinion to the Bureau of Reclamation (“Bureau”). The Biological Opinion concerned the

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Bureau’s and the California Department of Water Resource’s
operation of the Central Valley Project and the State Water
Project, two of the world’s largest water diversion projects.
The Biological Opinion concluded that “the coordinated operations of [the water projects], as proposed, are likely to jeopardize the continued existence of the delta smelt” and
“adversely modify delta smelt habitat.”
The Biological Opinion included a “Reasonable and Prudent Alternative,” as well as an “Incidental Take Statement.”
The Reasonable and Prudent Alternative consisted of various
components designed to reduce entrainment and other “taking”1
of smelt during critical times of the year by controlling water
flows to and in the delta. If the Bureau complied with the
Reasonable and Prudent Alternative, then the Incidental Take
Statement would insulate the Bureau from liability under the
“no-take provision” in ESA § 9, 16 U.S.C. § 1538(a)(1)(C),
which prevents taking of endangered or threatened species.
II
Stewart & Jasper Orchards; Arroyo Farms, LLC; and King
Pistachio Grove (collectively “the Growers”) sued the Service, claiming that their almond, pistachio, and walnut
orchards “experienced substantially reduced water deliveries
as a result of the Service’s decision to act on behalf of the
delta smelt.”
Among other claims, the Growers alleged that—as applied
to the delta smelt—the Service’s application of ESA § 7 and
power to enforce the “no-take provision” in ESA § 9 were
unconstitutional under the Commerce Clause. The Growers
claimed that, since “the delta smelt is a purely intrastate spe1

ESA § 9 makes it illegal to “take” an endangered or threatened species.
16 U.S.C. § 1538(a)(1)(C). “The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage
in any such conduct.” 16 U.S.C. § 1532(19).

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cies, and because it has no commercial value, Sections 7(a)(2)
and 9 of the ESA . . . as applied to [the operation] of the Central Valley Project and the State Water Project, are invalid
exercises of constitutional authority [under the Commerce
Clause].”
The Growers moved for summary judgment. The Service,
along with intervenors, Natural Resources Defense Council
and The Bay Council (collectively “the Environmental Parties”), cross-moved for summary judgment. The Service and
the Environmental Parties argued that (1) the Growers do not
have Article III standing, (2) their claim is not ripe, and (3)
application of ESA §§ 7 and 9 to the operations of the water
projects is a valid exercise of Congress’ power under the
Commerce Clause. In re Delta Smelt Consolidated Cases, 663
F. Supp. 2d 922, 926 (E.D. Cal. 2009).
The district court denied the Growers’ motion and granted
the Service’s and Environmental Parties’ cross-motions. With
respect to the issue of standing, the district court first noted
that while the Growers’ complaint challenges sections
“7(a)(2) and 9” of the ESA, the motion for summary judgment “focuses exclusively on the theory that the application
of Section 9’s take prohibition to the smelt exceeds Congress’
authority under the Commerce Clause.” Id. at 929 (emphasis
original). Nevertheless, the court concluded, “[T]here is no
dispute that Plaintiffs have standing to bring a section 7
claim.” Id. at 931. But the court determined the Growers do
not have standing to bring a § 9 claim. Id. at 929-31. It reasoned, “Given that there is no threat of imminent Section 9
enforcement in this case, there is no causal connection
between Plaintiffs’ injury and the conduct complained of,
namely Section 9’s application to the coordinated operation of
the project.” Id. at 931.
The district court similarly decided that the ESA § 9 claim
is not ripe: “Plaintiffs point to no concrete plans on the part
of project operators to violate the ESA, no communication of

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a specific warning or threat to initiate enforcement proceedings, nor any history of past prosecution or enforcement
against the project operators.” Id.
Even though the district court concluded that the Growers
were not advancing their motion under ESA § 7 and that they
did not have standing under ESA § 9, the court went on to
address the merits of the Commerce Clause challenge. Id. at
931. Because the Service and the Environmental Parties had
cross-moved for summary judgment on application of “Sections 7(a)(2) and 9” together, the district court addressed the
Commerce Clause challenge to ESA § 7. Id. It rejected the
challenge, though. Delta Smelt, 663 F. Supp. 2d at 945. It held
that the Service’s protection of the delta smelt was valid under
the Commerce Clause, even though the delta smelt is, by all
accounts, a purely intrastate species.
The Growers timely filed their appeal. We have jurisdiction
over the Growers’ appeal under 28 U.S.C. § 1291 and 5
U.S.C. § 704.
III
The Growers have Article III standing to challenge the notake provision in ESA § 9 because the Service’s coercive
power to enforce ESA § 9 caused the Bureau to reduce water
flows, which injured the Growers. See Bennett v. Spear, 520
U.S. 154, 169 (1997).
[1] Article III of the United States Constitution confines
federal courts to hearing only “cases” and “controversies.”
Barnum Timber Co. v. EPA, __ F.3d __, 2011 WL 383012,
at *2 (9th Cir. Feb. 3, 2011). “Standing is a core component
of the Article III case or controversy requirement.” Id. (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To
establish Article III standing: (1) a plaintiff “must have suffered an injury in fact—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual

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or imminent, not conjectural or hypothetical”; (2) “there must
be a causal connection between the injury and the conduct
complained of—the injury has to be fairly traceable to the
challenged action of the defendant, and not the result of independent action of some third party not before the court”; and
(3) “it must be likely, as opposed to merely speculative that
the injury will be redressed by a favorable decision.” Lujan,
504 U.S. at 560-61; see also Barnum Timber Co., 2011 WL
383012, at *2. Here, the Growers meet each of these “relatively modest” requirements. See Bennett, 520 U.S. at 171.
A
[2] The Growers have sufficiently alleged an injury in fact
because they claim “the issuance of the [Biological Opinion]
has resulted in reduced water deliveries to south-of-Delta
users . . . .” Delta Smelt, 663 F. Supp. 2d at 930. The adverse
consequences flowing from the reduction in water delivery
are “concrete and particularized” and “actual or imminent.”
See Lujan, 504 U.S. at 560; see also Laub v. U.S. Dep’t of
Interior, 342 F.3d 1080, 1086 (9th Cir. 2003) (“[L]oss of
affordable irrigation water for [individual farmers’] agricultural lands” is an injury in fact.). The Growers, therefore, satisfy the first of Lujan’s three requirements.
B
The direct cause of the Growers’ injury is the Bureau’s
reduction of water flow. But the Service’s power to enforce
the no-take provision in ESA § 9 is an indirect cause since
that power has coerced the Bureau to comply with the Biological Opinion by reducing water flow.
[3] Article III standing cannot be supported by the “independent action of some third party not before the court,” but
“that does not exclude injury produced by determinative or
coercive effect upon the action of someone else.” Bennett,
520 U.S. at 169. In Bennett, the Supreme Court held that

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ranchers in Oregon had standing to challenge a Biological
Opinion issued by the Service because the Opinion caused the
Bureau to reduce water flows, which injured the ranchers. Id.
at 169-71. The Supreme Court reached this conclusion
because the Biological Opinion had a “powerful coercive” or
“determinative” effect on the Bureau’s regulation of water
flow. Id. at 169-70.
[4] The Biological Opinion in Bennett had a determinative
or coercive effect on the Bureau precisely because the Bureau
would be subject to the Service’s enforcement of the no-take
provision in ESA § 9 if it failed to comply with the Opinion.2
Id. at 170. The Supreme Court remarked that the Bureau was
free to disregard the Biological Opinion, but it would do so
“at its own peril,” since any person who knowingly takes an
endangered species—in violation of ESA § 9—is “subject to
substantial civil and criminal penalties.” Id. at 170; see also
Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d
1229, 1240 (9th Cir. 2001) (“[T]he action agency rarely, if
ever, chooses to disregard the terms and conditions of an Incidental Take Statement [in a Biological Opinion].”).
[5] In other words, the determinative or coercive effect of
a Biological Opinion stems directly from the Service’s power
to enforce the no-take provision in ESA § 9. As the Biological
Opinion here stated, “The measures [in the Incidental Take
Statement] are nondiscretionary and must be implemented by
[the Bureau] . . . in order [to be exempt from the no-take provision in ESA § 9].” The Growers’ injury, then—although
directly caused by Bureau’s compliance with the Biological
2

The Service distinguishes Bennett on the ground that Bennett did not
involve a challenge to the no-take provision in ESA § 9. Instead, the plaintiffs there challenged the Biological Opinion issued under ESA § 7. The
Service’s point is well taken, but Bennett does not foreclose the possibility
that a plaintiff might have standing to challenge the no-take provision in
ESA § 9 following the Service’s issuance of a Biological Opinion. If anything, Bennett makes clear that such a plaintiff has standing on account of
ESA § 9’s “determinative and coercive effect.” See 520 U.S. at 169-70.

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Opinion—is “fairly traceable” to the Service’s ability to
enforce ESA § 9. Lujan, 504 U.S. at 560-61.
The district court concluded the Growers did not have
standing because “there is no threat of imminent Section 9
enforcement in this case” and, as a result, “there is no causal
connection between Plaintiffs’ injury and the conduct complained of, namely Section 9’s application to the coordinated
operation of the project.” Delta Smelt, 663 F. Supp. 2d at 931
(emphasis added). But, in Bennett, the Supreme Court held
that—regardless of whether the threat of section 9 enforcement was imminent—the Service’s ability to enforce ESA § 9
had a “powerful coercive” and “determinative” effect. Id. at
169-70.
[6] Bennett illustrates the peril of applying the concept of
imminency (which belongs in the injury analysis) to the causation analysis. In Bennett, as here, the fact that enforcement
was not imminent arguably exemplifies the determinative or
coercive effect of the Service’s enforcement power. The Service might never enforce ESA § 9 precisely because the
Bureau is keenly aware of the consequences of violating the
no-take provision. In short, the Growers do not have to show
a threat of imminent section 9 enforcement (and there is no
authority to support such a requirement).
The Service raises two arguments germane to the causation
analysis. First, it argues the Bureau was motivated to comply
with the Biological Opinion on account of the “no-jeopardy
provision” in ESA § 7 and not the no-take provision in ESA
§ 9. Thus, they claim the Growers do not have standing to sue
under ESA § 9 because the “determinative or coercive effect”
is attributable to ESA § 7 and not ESA § 9. The Service’s
argument, though, is unavailing.
The “no-jeopardy” provision in ESA § 7 requires an agency
to ensure that any action it takes “is not likely to jeopardize

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[3] the continued existence of any endangered or threatened
species.” 16 U.S.C. § 1536(a)(2). Sections 7 and 9 of the ESA
arguably create separate duties,4 but they do not function
entirely independent of one another. Indeed, as we have
observed, the core purpose of ESA § 7 is to “impose an affirmative duty to prevent violations of Section 9 upon federal
agencies . . . .”5 Ariz. Cattle Grower’s Ass’n, 273 F.3d at
1238; Or. Natural Resources Council v. Allen, 476 F.3d 1031,
1040 (9th Cir. 2007).
[7] And even if the no-jeopardy provision in ESA § 7
partly motivates an agency to comply with a Biological Opinion, the no-take provision in ESA § 9 still has a sufficient “determinative or coercive effect” under Bennett if it is a
“substantial factor motivating” the agency to comply with the
Biological Opinion. Tozzi v. U.S. Dep’t of Health & Human
Servs., 271 F.3d 301, 309 (D.C. Cir. 2001). Bennett leaves us
with little doubt that the Service’s power to enforce ESA § 9
3

“Jeopardize the continued existence of means to engage in an action
that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species
in the wild by reducing the reproduction, numbers, or distribution of that
species.” 50 C.F.R. § 402.02
4
See, e.g, Loggerhead Turtle v. Cnty. Council of Volusia Cnty., Fla.,
148 F.3d 1231, 1246 (11th Cir. 1998) (citing Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 703 (1995)); see also Envtl.
Prot. Info. Ctr. v. Simpson Timber Co., 255 F.3d 1073, 1085-86 (9th Cir.
2001) (D.W. Nelson, J., dissenting).
5
This conclusion is wholly consistent with the Supreme Court’s discussion in Bennett:
The action agency is technically free to disregard the Biological
Opinion and proceed with its proposed action, but it does so at
its own peril (and that of its employees), for ‘any person’ who
knowingly ‘takes’ an endangered or threatened species[—in violation of ESA § 9—]is subject to substantial civil and criminal
penalties.
520 U.S. at 170. Notably, even though ESA § 7 was plainly at issue, the
Supreme Court did not hold that agencies are motivated (even in part) by
liability under the no-jeopardy provision in ESA § 7.

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is at least a “substantial factor motivating” agencies to comply
with a Biological Opinion. That power, as a result, sufficiently establishes Lujan’s causation requirement.
Second, the Service, relying on Summers v. Earth Island
Institute, 129 S. Ct. 1142 (2009), argues that the Growers do
not have standing to bring an as-applied challenge to ESA § 9
because the Service has not “concrete[ly] appli[ed]” it here.
Summers, though, has little or no applicability here.
In Summers, environmental organizations filed suit to
enjoin the U.S. Forest Service from enforcing its regulations
that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the
Forest Service for more significant land management decisions. 129 S. Ct. at 1147. In particular, the environmental
organizations sought to prevent the Forest Service from
applying the regulations to the Burnt Ridge salvage-timber
sale. Id. at 1148. The district court granted the preliminary
injunction. Id. Immediately afterwards, the parties settled their
dispute over the Burnt Ridge sale. Id. The Supreme Court
held that, as a result of the settlement, the environmental organizations no longer had standing to challenge the regulations
because the dispute was no longer live and the regulations
could not be “concrete[ly] appli[ed]” to the Burnt Ridge sale.
Id. at 1150.
Summers is easily distinguishable from both this case and
Bennett. Summers applies to circumstances where a regulation
can no longer be applied because there is no longer a live dispute in which to apply the regulation. Here, as in Bennett,
there is a “concrete” harm (i.e., the reduction in water flow),
and the Service has the “concrete” power to apply the no-take
provision in ESA § 9. As discussed above, the fact that the
Service has not yet exercised that power does not diminish its
“determinative or coercive effect.” See Bennett, 520 U.S. at
170.

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[8] In summary, the Service’s ability to enforce the no-take
provision in ESA § 9 has a “determinative or coercive effect”
that compelled the Bureau to reduce water flows and, consequently, caused the Growers to suffer an injury.
C
[9] Finally, under Lujan, the Growers must show that
invalidating the no-take provision in ESA § 9 would redress
their injury. Below, the Service apparently conceded this
point: “Plaintiffs assert, and Federal Defendants do not refute,
that invalidating the application of section 9 to the facts of
this case would preclude enforcement of the [Biological Opinion]. In this way, invalidating section 9 would arguably
redress Plaintiffs’ injury . . . .” Delta Smelt, 663 F. Supp. 2d
at 931 n.5. If the no-take provision in ESA § 9 is invalidated,
the Growers’ injury will “likely” be redressed because the
Bureau could restore water flows without worrying about
whether the flows would result in a taking. See Bennett, 520
U.S. at 171. The Service conceded this point below at the
summary judgment hearing: “[I]f the Court were to invalidate
Section 9, it would affect the [Reasonable and Prudent Alternative] and obviously the [Reasonable and Prudent Alternative] is what’s causing the injury to the plaintiffs.”6
[10] Because the Growers have met the three requirements
under Lujan, they have Article III standing to challenge ESA
§ 9 as applied to the delta smelt.
IV
[11] The Growers’ as-applied challenge to ESA § 9 is ripe
for our review. The district court concluded otherwise,
6

And, even if ESA § 7 is not invalidated, the Bureau would have no reason to comply with the no-jeopardy provision in ESA § 7—if an agency
is permitted to “take” a particular species, then it would certainly be permitted to “jeopardize the existence” of that species.

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because it characterized the Growers’ challenge to the no-take
provision in ESA § 9 as a pre-enforcement challenge. Delta
Smelt, 663 F. Supp. 2d at 931. As the district court observed,
a pre-enforcement challenge is only ripe if a plaintiff is presented with “the immediate dilemma to choose between complying with newly imposed, disadvantageous restrictions and
risking serious penalties for violation.” Id. (citing Reno v.
Catholic Soc. Servs., 509 U.S. 43, 57 (1993)). In evaluating
a pre-enforcement challenge, courts examine:
1.

“whether the plaintiffs have articulated a concrete plan to violate the law in question”;

2.

“whether the prosecuting authorities have communicated a specific warning or threat to initiate
proceedings”; and

3.

“the history of past prosecution or enforcement
under the challenged statute.”

Id. (citing Thomas v. Anchorage Equal Rights Comm’n, 220
F.3d 1134, 1139 (9th Cir. 2000) (en banc)).
Applying these factors, the district court concluded the
Growers’ challenge was not ripe because they could “point to
no concrete plans on the part of project operators to violate
the ESA, no communication of a specific warning or threat to
initiate enforcement proceedings, nor any history of past prosecution or enforcement against the project operators.” Id. We
conclude that the claims are ripe for review.
[12] First, unlike plaintiffs in most pre-enforcement cases,
the Growers are not the target of enforcement. Consequently,
the consideration of “whether the plaintiffs have articulated a
concrete plan to violate the law in question,” see id., has little
meaning because the Growers are not potential violators of
ESA § 9.

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[13] Second, unlike plaintiffs in most pre-enforcement
cases, the Growers would not be injured if the challenged statute is enforced. Instead, if the Service took enforcement
action against the Bureau, that would mean the Bureau had
increased the water flow, which would be favorable to the
Growers. The Growers’ injury derives from the Service’s
coercive power to enforce ESA § 9, not enforcement itself.
[14] These differences are important, and, as a result, the
familiar pre-enforcement analysis articulated in Thomas does
not apply here. See id. Instead, we apply the more general
ripeness standard the Supreme Court first articulated in Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967), overruled on
other grounds, Califano v. Sanders, 430 U.S. 99 (1977).
There the Supreme Court held that ripeness depends on two
factors: “the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration.” Id.
at 149; accord Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 812 (2003); W. Watersheds Project v.
Kraayenbrink, 632 F.3d 472, 486 (9th Cir. 2011).
[15] The Growers’ challenge to the no-take provision in
ESA § 9 is ripe under Abbott. First, the challenge is fit for
judicial review because further factual development would
not “significantly advance [the Court’s] ability to deal with
the legal issues presented.” Nat’l Hospitality Ass’n, 538 U.S.
at 812. Second, the Growers will suffer hardship if the court
withholds consideration because the Service’s continued
power to enforce ESA § 9 “imposes a significant practical
harm upon” the Growers. See Natural Resource Def. Council
v. Abraham, 388 F.3d 701, 706-07 (9th Cir. 2004) (quoting
Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726,
733-34 (1998)). The Growers’ claim under ESA § 9 is therefore ripe.

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V
The Growers’ as-applied Commerce Clause challenge to
ESA §§ 77 and 9 fails because the ESA “bears a substantial
relation to commerce.” Gonzales v. Raich, 545 U.S. 1, 17
(2005).
A
[16] The Commerce Clause, U.S. Const. art. 1, § 8, cl. 3,
allows Congress to regulate three broad categories of activity:
(1) channels of interstate commerce, (2) instrumentalities of
interstate commerce, and (3) activities that have a substantial
effect on interstate commerce. United States v. Lopez, 514
U.S. 549, 558-59 (1995); United States v. Morrison, 529 U.S.
598, 610 (2000); Raich, 545 U.S. at 16-17.
By all accounts, the category most applicable here is the
third—the “substantial effects” category. In Lopez and Morrison, the Supreme Court articulated four factors to consider
when evaluating whether a law has a “substantial effect” on
interstate commerce:
1.

whether the statute has anything to do with
“commerce or any sort of economic enterprise,
however broadly one might define those terms”;

7
The Service argues on appeal that the Growers abandoned their challenge to ESA § 7 because the Growers “insist[ ] only that they have standing to challenge the Biological Opinion under Section 9, . . . and that their
challenge to the Biological Opinion . . . is based on Section 9 of the ESA.”
The Service’s argument is without merit. First, regardless of their position
before the district court, the court addressed ESA § 7 precisely because the
Service put ESA § 7 at issue in its cross-motion for summary judgment.
Delta Smelt, 663 F. Supp. 2d at 931-32. The district court denied the
Growers’ Commerce Clause claim as to both sections 7 and 9 of the ESA.
And the Growers sufficiently raised their ESA § 7 claim in their opening
brief before this Court. As a result, the Growers’ challenge to ESA § 7 is
properly before us.

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Lopez, 514 U.S. at 561; Morrison, 529 U.S. at
610;
2.

whether the statute contains an “express jurisdictional element”; Lopez, 514 U.S. at 561;
Morrison, 529 U.S. at 611-12;

3.

whether the “legislative history contain[s]
express congressional findings regarding the
effects upon interstate commerce”; Lopez, 514
U.S. at 562; Morrison, 529 U.S. at 612; and

4.

whether the link between the regulated activity
and the effect on interstate commerce is too “attenuated”; Lopez, 514 U.S. at 563-67; Morrison,
529 U.S. at 612.

We have previously held that Lopez and Morrison “established what is now the controlling . . . test for determining
whether a regulated activity substantially affects interstate
commerce.” United States v. Alderman, 565 F.3d 641, 647
(9th Cir. 2009).
[17] In Raich the Supreme Court elaborated on Lopez and
Morrison. 545 U.S. 1. There, the Court held that Congress
may use its Commerce Clause power to prohibit the cultivation and possession of marijuana, even if the cultivation and
possession are wholly intrastate. Id. Important for the purposes of this case, the Court held that its precedent “firmly
establishes” ”Congress’ power to regulate purely local activities that are part of an economic ‘class of activities’ that have
a substantial effect on interstate commerce.” Id. at 17 (citing
Perez v. United States, 402 U.S. 146, 151 (1971); Wickard v.
Filburn, 317 U.S. 111, 128-29 (1942)).
[18] The Raich Court went on to reiterate its holding from
Lopez and prior cases: “[W]hen a general regulatory statute
bears a substantial relation to commerce, the de minimis char-

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acter of individual instances arising under that statute is of no
consequence.” 545 U.S. at 17 (citations and internal quotations omitted). Further, “That [a] 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.” Id. at 22; accord United States v.
McCalla, 545 F.3d 750, 754-55 (9th Cir. 2008) (applying
Raich to federal child pornography laws); United States v.
Stewart, 451 F.3d 1071 (9th Cir. 2006) (applying Raich to
federal firearm laws).
[19] In sum, Congress has the power to regulate purely
intrastate activity as long as the activity is being regulated
under a general regulatory scheme that bears a substantial
relationship to interstate commerce. Id. 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.”
See Lopez, 514 U.S. at 561; Morrison, 529 U.S. at 610.
B
Our precedent is in accord with these principles. In United
States v. Bramble, 103 F.3d 1475 (9th Cir. 1996), for example, we upheld a post-Lopez Commerce Clause challenge to
the Eagle Protection Act, 16 U.S.C. § 668. We rejected the
challenge for many of the same reasons other circuits have
rejected the ESA challenges presented in this case. Notably,
in Bramble, we observed that “[b]oth the Supreme Court and
this court have, prior to Lopez, concluded that congressional
efforts at protecting endangered and migratory species are
constitutional under the commerce clause.” Id. at 1480. See
also Leslie Salt Co. v. United States, 896 F.2d 354, 360 (9th
Cir.1990) (“The commerce clause power . . . is broad enough
to extend [federal] jurisdiction to local waters which may provide habitat to migratory birds and endangered species.”).

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Four other circuits have addressed post-Lopez Commerce
Clause challenges to sections 4 or 9 of the ESA, and each has
rejected those challenges.8 Of particular significance is
Alabama-Tombigbee Rivers v. Kempthorne, 477 F.3d 1250
(11th Cir. 2007), a post-Raich decision involving almost identical circumstances as those confronting us here.
In Alabama-Tombigbee, the Eleventh Circuit relied principally on Raich in rejecting the plaintiffs’ as-applied challenge
to the ESA. The plaintiffs argued the Commerce Clause did
not permit the Service to protect the Alabama sturgeon under
the ESA. Id. at 1271. The court acknowledged that, much like
the delta smelt here, the evidence tended to show that the Alabama sturgeon was a purely intrastate species. Id. at 1253.
But, the court reasoned, if the challenged sections of the ESA
were “an essential part of a larger regulation of economic
activity,” then whether that section “ensnares some purely
intrastate activity is of no moment.” Id. at 1273 (quoting
Raich, 545 U.S. at 24).
[20] The Eleventh Circuit had little difficulty concluding
that “the Endangered Species Act is a general regulatory statute bearing a substantial relation to commerce.” Id. at 1273.
The three other circuits that previously examined this question
reached the same conclusion. GDF, 326 F.3d 622; Gibbs, 214
F.3d 483; NAHB, 130 F.3d 1041. And for many of the same
reasons, we reached a similar conclusion in Bramble. 103
F.3d 1475. We and other courts have discussed at length why
the protection of threatened or endangered species implicates
economic concerns. To summarize:
•
8

A species might become threatened or endan-

Alabama-Tombigbee Rivers v. Kempthorne, 477 F.3d 1250 (11th Cir.
2007); Rancho Viejo v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); GDF
Realty Invest. Ltd. v. Norton (GDF), 326 F.3d 622 (5th Cir. 2003); Gibbs
v. Babbitt, 214 F.3d 483 (4th Cir. 2000); Nat’l Ass’n of Home Builders v.
Babbitt (NAHB), 130 F.3d 1041 (D.C. Cir. 1997).

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gered precisely because of “overutilization for
commercial . . . purposes.” 16 U.S.C.
§ 1533(a)(1)(B); see also Trout Unlimited v.
Lohn, 559 F.3d 946 (9th Cir. 2009).
•

•

9

The ESA protects endangered or threatened species, in part, by prohibiting all interstate and foreign commerce in those species. AlabamaTombigbee, 477 F.3d at 1273 (citing 16 U.S.C.
§ 1538(a)(1)(F)); see generally, 16 U.S.C.
§§ 1531(a)(4)(F), 1537a, 1538(a), (c); Man Hing
Ivory & Imports, Inc. v. Deukmejian, 702 F.2d
760 (9th Cir. 1983); United States v. Lewis, 518
F.3d 1171 (9th Cir. 2008).
The ESA protects the future and unanticipated
interstate-commerce value of species. See Tenn.
Valley Auth. v. Hill, 437 U.S. 153, 178-79
(1978); Bramble, 103 F.3d at 1481.9 We
observed, “Even where the species . . . has no
current commercial value, Congress may regulate
under its Commerce Clause authority to ‘prevent[ ] the destruction of biodiversity and thereby
protect[ ] the current future interstate commerce
that relies on it.’ ” Conservation Force v. Manning, 301 F.3d 985, 994 n.8 (quoting NAHB, 130
F.3d at 1052). The Alabama-Tombigbee court
similarly reasoned that “[b]ecause Congress
could not anticipate which species might have
undiscovered scientific and economic value, it
made sense to protect all those species that are

In Bramble, for instance, we reasoned, “[A] national program to protect and improve the natural habitats of endangered species preserves the
possibilities of interstate commerce in these species and of interstate
movement of persons, such as amateur students of nature or professional
scientists who come to a state to observe and study these species, that
would otherwise be lost by state inaction.” 103 F.3d at 1481 (citations
omitted)

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endangered.” 477 F.3d at 1274-75 (citing GDF,
326 F.3d at 632).
•

Regeneration of a threatened or endangered species might allow future commercial utilization of
the species. Id. at 1275 (discussing Gibbs, 214
F.3d at 495); see also Bramble, 103 F.3d at 1482.

•

Interstate travelers stimulate interstate commerce
through recreational observation and scientific
study of endangered or threatened species. Gibbs,
214 F.3d at 493; Bramble, 103 F.3d at 1481; 16
U.S.C. § 1531(a)(3) (“[Endangered or threatened]
species of fish, wildlife, and plants are of
esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its
people.”)

•

The genetic diversity provided by endangered or
threatened species improves agriculture and
aquaculture, which clearly affect interstate commerce. Alabama-Tombigbee, 477 F.3d at
1273-74; NAHB, 130 F.3d at 1053; Gibbs, 214
F.3d at 495

[21] This is not an exhaustive summary, but it sufficiently
illustrates that the ESA, including sections 7 and 9, “bears a
substantial relation to commerce.” See Raich, 545 U.S. at 17.
Thus, even though the ESA might “ensnare[ ] some purely
intrastate activity, . . . we refuse to excise individual components of that larger scheme.”
The Growers, on the other hand, argue that, under Raich,
the ESA does not have a “substantial effect” on interstate
commerce. They reason that the ESA, unlike the Controlled
Substance Act (which was upheld in Raich), is not a “comprehensive economic regulatory scheme.” The Growers misconstrue Raich. The Supreme Court has never required that a

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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. The only requirement—which
was expressly detailed in Raich—is that the “comprehensive
regulatory scheme” have a “substantial relation to commerce.” See Raich, 545 U.S. 17. The statute need not be a
purely economic or commercial statute, as the Growers would
have us believe.
[22] We conclude that the ESA is “substantial[ly]
relat[ed]” to interstate commerce and, thus, the Growers’ asapplied challenge to ESA §§ 7 and 9 fails.
VI
[23] In summary, the Growers have Article III standing to
challenge ESA § 9, and that claim is ripe for review. The district court properly concluded that the Growers’ challenge to
ESA §§ 7 and 9 fails under the Commerce Clause. We need
not and do not reach any other issues urged by the parties.
AFFIRMED.