Coalition of businesses argues that federal protection of the Alabama Sturgeon, a nearly-extinct fish found only in Alabama, violates the Commerce Clause
Status: final
Discussion & Analysis: The Alabama Sturgeon, a freshwater fish thought now to exist only in south Alabama, has become exceedingly rare due to over-fishing, dam construction, dredging and channeling, loss of habitat, and diminished water quality. To save what remains of the species, the Fish and Wildlife Service (FWS) first proposed to list the fish as endangered under the Endangered Species Act (ESA) in 1993. A coalition of businesses and industry groups fought the listing, with the result that FWS did not list the Alabama Sturgeon until 2000. The business coalition then sued the government, claiming that federal regulation of a non-commercial species found within a single state is unconstitutional. The district court rejected the coalition’s argument, and the Eleventh Circuit has affirmed that decision.
Citing Supreme Court precedent (including Gonzales v. Raich, 545 U.S. 1 (2005)), the appeals court explained that “when 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.” Conducting a traditional Commerce Clause analysis, the court had no problem concluding that the ESA is a general regulatory statute bearing a substantial relation to commerce: the ESA addresses a $5-to-$6 billion-per-year worldwide market in illegal wildlife trade; it protects a genetic heritage of “incalculable” value, safeguarding species and genetic diversity that are essential to medicine, agriculture, and aquaculture; and it protects species whose presence stimulates expenditures by anglers, hunters, and tourists of tens or hundreds of billions of dollars annually.
The court went on to explain that Congress could have rationally concluded that the regulation of intrastate, non-commercial species was an essential part of the ESA’s larger regulatory scheme. First, Congress was concerned with the unknown, future uses that endangered species might have—and a species’ scientific or other commercial value does not depend “on whether its habitat straddles a state line.” Congress was also cognizant of the unforeseeable place that creatures can have within the chain of life, making it rational to protect all species, rather than risk that the disappearance of any one species could trigger the loss of entire ecosystems. Finally, Congress could have reasoned that broad species protection may allow for species regeneration to the level where controlled exploitation of the species can one day be resumed. Thus, “Congress was not constitutionally obligated to carve out an exception” for intrastate species or non-commercial species from “the otherwise comprehensive statutory scheme” that is the ESA. When Congress can and has regulated a class of activities, the courts are powerless to excise, as trivial, individual instances of the class.
To date, all four U.S. Circuit Courts of Appeal presented with Commerce Clause challenges to the ESA (Fourth, Fifth, Eleventh, and DC Circuits) have rejected them. As a result, some experts argue that Raich effectively spelled an end to this legal theory. However, challenges continue, often pressed by anti-regulatory groups that may be seeking to get the attention of the Supreme Court. That Court’s composition has changed since Raich was decided, with now-Chief Justice Roberts having famously expressed keen interest in the case of a “hapless toad, which for reasons of its own, lives its entire life in California.” And while Raich does provide a helpful precedent in defense of the ESA, that case involved illegal drugs—which certain judges and justices may view as a more appropriate subject for federal regulation than local activities affecting threatened and endangered species.
Key Opinion: Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007), cert denied, 128 S. Ct. 8775 (2008).
See Also: GDF Realty Investments v. Norton, 326 F.3d 622 (5th Cir. 2003); Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); and National Association of Homebuilders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997).
The Ninth Circuit will likely be the fifth court of the appeals to adjudicate this question. See Stewart & Jasper Orchards v. Salazar, -- F.Supp.2d--, 2009 WL 3273843 (E.D.
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