Rancho Viejo planned to build a 280-home residential development, but the U.S. Fish and Wildlife Service determined the construction plan would likely jeopardize the existence of the arroyo southwestern toad, an endangered species. The FWS warned Rancho Viejo that its plan would result in the “illegal taking” of a federally endangered species in violation of the Endangered Species Act. Rancho Viejo filed suit challenging the application of the ESA to its project as an unconstitutional exercise of federal authority under the Commerce Clause.
Applying the test in United States v. Lopez, 514 U.S. 549 (1995), the court found that the ESA’s “take” provision was an authorized regulation of activity having a substantial relation to interstate commerce: while there was no jurisdictional hook or congressional findings on the effect of housing construction on interstate commerce, the construction was plainly an economic enterprise, and Rancho Viejo failed to demonstrate that the regulated activity was without substantial interstate effect.
Rancho Viejo argued that United States v. Morrison, 529 U.S. 598 (2000) came close to adopting a categorical rule against aggregating the effects of noneconomic activity; whether the regulated activity is economic is outcome-determinative. But Garland wrote that this argument missed the mark. “The ESA does not purport to tell toads what they may or may not do.” What was being regulated was construction of the housing development, which has a plainly commercial character, in contrast to Morrison andLopez.
Rancho Viejo argued that to survive Commerce Clause scrutiny, a statute must be aimed at economic activity, not at some other purpose. But the court noted that the ESA has multiple purposes, one of which was unquestionably the commercial value of preserving species. Trying to discern a statute’s “true” or “primary” motivation is “an enterprise … fraught with both difficulty and danger.” Moreover, Garland noted that Rancho Viejo’s argument was undermined by the Champion-Darby-Heart of Atlanta Motel line of cases.
Finally, the court rejected Rancho Viejo’s argument that the ESA represented an unlawful assertion of congressional power over local land use decisions. The ESA does not constitute a general regulation of land use; it represents a national response to a problem of truly national concern, which cannot be addressed in the absence of coherent national policies.