Rancho Viejo v. Norton, Gale
357 U.S. App. D.C. 336, 2003 WL 21692175, 334 F.3d 1158 (2003)
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Rule of Law:
The Commerce Clause permits federal regulation of purely intrastate, non-commercial activities that impact a non-commercial, non-migratory species, if the actor engaging in those activities is a commercial entity whose broader operations affect interstate commerce.
Facts:
- Rancho Viejo, LLC, was a developer engaged in commercial development activities on its property.
- As part of its land preparation and development, Rancho Viejo, LLC, erected a fence on its property.
- The Fish and Wildlife Service ordered Rancho Viejo, LLC, to remove the fence.
- The order to remove the fence was issued to accommodate the movement of arroyo toads.
- The arroyo toad is a species of fauna that is neither migratory in habit nor of commercial use, and is purely local.
Procedural Posture:
- Rancho Viejo, LLC, was subject to an order from the Fish and Wildlife Service regarding its property.
- Rancho Viejo, LLC, challenged the Fish and Wildlife Service's order in a U.S. District Court.
- The District Court's decision was appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
- A panel of the U.S. Court of Appeals for the D.C. Circuit issued an opinion affirming the Fish and Wildlife Service's authority to regulate Rancho Viejo, LLC's activities (Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C.Cir.2003)).
- Rancho Viejo, LLC (appellant), filed a petition for rehearing en banc with the U.S. Court of Appeals for the D.C. Circuit, requesting that the full court review the panel's decision.
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Issue:
Does the Commerce Clause authorize Congress to regulate the intrastate 'taking' of a non-commercial, non-migratory species by a commercial developer, where the justification for regulation stems from the developer's general commercial activities rather than the specific regulated activity (the 'take') having a substantial effect on interstate commerce?
Opinions:
Majority - PER CURIAM
Yes, the Commerce Clause permits federal regulation of the intrastate 'taking' of a non-commercial, non-migratory species by a commercial developer, based on the developer's broader commercial activities. A majority of the judges of the court in regular, active service did not vote in favor of the petition for rehearing en banc, thus denying the petition and allowing the prior panel decision to stand.
Dissenting - Sentelle, Circuit Judge
No, the Commerce Clause does not permit federal regulation of the intrastate 'taking' of a non-commercial, non-migratory species by a commercial developer based on the developer's broader commercial activities. The court’s refusal to grant rehearing en banc continues and broadens a divergence from contemporary Supreme Court Commerce Clause jurisprudence established in United States v. Lopez and United States v. Morrison. The regulation of the arroyo toad, a non-commercial, purely local species, does not fall within any of the three categories of activities regulable under the Commerce Clause (channels of commerce, instrumentalities of commerce, or activities having a substantial relation to interstate commerce) as outlined in Lopez. The panel's reasoning that the 'taking' can be regulated because it is done by an entity engaged in commercial activity improperly broadens the Commerce Clause, conflicting with the Supreme Court's emphasis that the economic activity itself must substantially affect interstate commerce. This position also places the D.C. Circuit in conflict with the Fifth Circuit's decision in GDF Realty Inv., Ltd. v. Norton, which explicitly rejected such an analysis.
Dissenting - Roberts, Circuit Judge
No, the Commerce Clause does not permit federal regulation of the intrastate 'taking' of a non-commercial, non-migratory species by a commercial developer based on the developer's broader commercial activities, as this approach improperly focuses on the regulation's effect on commerce rather than the regulated activity itself. The panel’s opinion incorrectly asks whether the challenged regulation substantially affects interstate commerce, rather than whether the activity being regulated does so, which is inconsistent with United States v. Lopez and United States v. Morrison. If the panel's approach were correct, facial Commerce Clause challenges in those Supreme Court cases would have failed if the defendants were engaged in any commercial activity. This approach effectively obliterates the limiting purpose of the Commerce Clause and conflicts with the Fifth Circuit's reasoning in GDF Realty Inv., Ltd. v. Norton, which expressly rejected this method of analysis.
Analysis:
This case highlights a significant circuit split regarding the scope of the Commerce Clause, particularly in the context of environmental protection and the Endangered Species Act. The D.C. Circuit's stance, allowed to stand by the denial of en banc review, suggests a broad interpretation where purely intrastate and non-commercial activities can be federally regulated if the actor is a commercial entity. This potentially expands federal power over local land use and species protection by focusing on the identity of the actor rather than the nature of the regulated activity, a position strongly criticized by the dissents as inconsistent with Supreme Court precedent and other circuits. The disagreement underscores the ongoing judicial debate about federalism and the limits of congressional power under the Commerce Clause.
