ELR Citation: ELR 20707
No(s). 95-1973 RMU (D.D.C. Dec 6, 1996)

The court holds that the Endangered Species Act's (ESA's) prohibition on the "take" of endangered species is not unconstitutional as applied to purely local activities that affect a fly that exists only in California. The court first holds that the record clearly shows that wildlife in general, and the fly in particular, are "things in interstate commerce." Moreover, the government has established that wildlife, including insects, is part of the stream of interstate commerce, and has offered uncontroverted evidence that the fly is, and would likely continue to be, an article in interstate commerce. Next, the court holds that the prohibition on the "taking" of threatened or endangered species has a substantial relation to interstate commerce. The aggregate impact on interstate commerce of trade in wildlife is substantial and as such, it may be regulated by Congress. The taking of individual species located entirely within one state, would clearly, in the aggregate, have a significant effect upon interstate commerce. Last, the court holds that the "take" provision is an essential part of a larger regulatory scheme. It allows the federal government to regulate intrastate activities that, in the aggregate, have an interstate impact and that affect endangered species indigenous to small localized areas completely within one state's borders. The court therefore holds that the application of ESA §9(a)(1)(B) to the fly is a valid exercise of Congress' power under the Commerce Clause.

Counsel for Plaintiffs
Patrick J. Hurd
Keller & Heckman
1001 G St. NW, Ste. 500-W., Washington DC 20001
(202) 434-4100

Counsel for Defendants
John L. Marshall
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000