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BRUCE BABBITT, Secretary of the Interior, in his official capacity; UNITED STATES FISH AND WILDLIFE SERVICE; UNITED STATES DEPARTMENT OF THE INTERIOR; JAMIE CLARK, Director of the U.S. Fish and Wildlife Service, 
Defendants-Appellees, No. 99-1218

DEFENDERS OF WILDLIFE, Intervenor-Appellee. 

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Terrence W. Boyle, Chief District Judge. (CA-97-41-4-BO) 

Argued: October 28, 1999 

Decided: June 6, 2000 

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL, Circuit Judges. 


LUTTIG, Circuit Judge: 

I wrote extensively on the Supreme Court's decision in United States v. Lopez and on the Commerce Clause in the wake of that decision, in Brzonkala v. Virginia Polytechnic Institute. And the Supreme Court has now provided even further guidance for the lower courts through its decision in Brzonkala,  which is ultimately styled in that court as United States v. Morrison. If one holds the views expressed by the Supreme Court majority in Lopez and Morrison, and by our court in Brzonkala, a belabored discussion of the implications of those decisions for the regulation at issue before us today is not necessary.

Here, the Fish and Wildlife Service has promulgated a regulation that prohibits private landowners from shooting, wounding, killing, trapping, or otherwise harming the canis rufus, or the red wolf, even when the wolves are on the private landowners' property and threatening their crops and livestock. However, in what the majority characterizes as an act of beneficence by the government to benefit the landowners, the government does allow a property owner--even on his own property--to kill a wolf if the wolf is about to kill the property owner himself or his family.  The question presented to us for decision is not "whether the national government can act to conserve scarce natural resources of value to our entire country,” whether we should "hold as a basic maxim of judicial restraint that Congress may constitutionally address the problem of protecting endangered species," or whether our decision today will "work a rent in the fabric of Our Federalism," "turn federalism on its head," or "open the door to standardless judicial rejection of democratic initiatives of all sorts." Rather, the simple (and frankly, considerably less incitant) question of law for us to decide is whether, assuming its validity under statute, this one particular Fish and Wildlife regulation exceeds Congress' power under the Commerce Clause.

As the majority recites, there are an estimated 41 red wolves resident on private property and 75 red wolves total, in eastern North Carolina. The majority sustains the Fish and Wildlife's regulation unhesitatingly on the ground that the taking of the 41 red wolves that might occur as property owners attempt to protect themselves and their families, their property, their crops, and their livestock from these wolves, will have a "substantial effect" on interstate commerce. This substantial effect on interstate commerce comprises, according to the majority, four separate effects on such commerce, each of which the majority views as "substantial."

First, the majority concludes, in exclusive reliance upon a Cornell University professor's unpublished study entitled "Red Wolf Recovery in Northeastern North Carolina and the Great Smoky Mountains National Park," that "many tourists travel to North Carolina from throughout the country for 'howling events'--evenings of listening to wolf howls accompanied by educational programs," and thus that the taking of these wolves will have a substantial effect on the interstate commercial industry of tourism.

Second, the majority concludes, largely in reliance, not upon their substantive conclusions, but rather upon the fact of the generation of two articles--"The Red Wolf as a Model for Carnivore Reintroductions," which was published in the Symposium of the Zoological Society of London, and the 1994 unpublished study "Alligator River National Wildlife Refuge Red Wolf (Canis Rufus) Scat Analysis"--that the taking of these red wolves will have a substantial effect on the "interstate market" of "scientific research."

Third, the majority concludes, largely on the strength of an article that appears in the University of Pennsylvania Journal of International Economic Law, that the taking of these wolves will have a substantial effect on the majority-anticipated resurrection of an interstate trade in fur pelts. In reliance upon an article that appeared two years ago in the Calgary Herald entitled "Hunters on Snowmobiles Cut Down Wolf Count in N.W.T.," the majority observes that "for example, in the Northwestern Territories of Canada where wolves are plentiful, a hunter can command about $300 per pelt." The majority frankly acknowledges that there has not been a trade in wolf pelts since the 1800s, but, to the majority, "this temporal difference is beside the point."

Finally, in reliance upon yet another unpublished study by Robert Esher and Theodore Simons entitled "Red Wolf Propagation on Horn Island, Mississippi: Red Wolf Ecological Studies," and by analogy to the finding therein of "increased shore bird nesting, likely due to the reduction in raccoon predation," the majority concludes that the red wolves which the farmers and landowners have heretofore thought threatened their families, their  crops, and their livestock, actually help the farmers, by killing the animals that destroy the farmers' crops, and thereby substantially affect interstate commerce.

That these conclusions are not even arguably sustainable under Lopez, Morrison, and Brzonkala, much less for the reasons cobbled together by the majority, is evident from the mere recitation of the conclusions. The killing of even all 41 of the estimated red wolves that live on private property in North Carolina would not constitute an economic activity of the kind held by the Court in Lopez and in Morrison to be of central concern to the Commerce Clause, if it could be said to constitute an economic activity at all.  ("[A] fair reading of Lopez shows that the noneconomic, criminal nature of the conduct at issue was central to our decision in that case."). It is for this reason that the majority's attempted aggregation is impermissible: "While we need not adopt a categorical rule against aggregating the effects of any noneconomic activity in order to decide these cases, thus far in our Nation's history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature." But even assuming that such is an economic activity, it certainly is not an activity that has a substantial effect on interstate commerce. The number of inferences (not even to mention the amount of speculation) necessary to discern in this activity a substantial effect on interstate commerce is exponentially greater than the number necessary in Lopez to show a substantial effect on interstate commerce from the sale of guns  near schools or in Morrison to show a substantial effect on interstate commerce from domestic assault. The number (and the speculation) is even greater than that necessary in Wickard v Fillburn.  And, it bears reminding, the regulated activity in Lopez and Wickard at least was in some sense economic in character.

In a word, the expansive view of the Commerce power expressed by the majority today is closely akin to that separately expressed by Justice Breyer in his dissent in Lopez and Justice Souter in his dissent in Morrison, and certainly more closely akin to those dissenting Justices' views than it is to the view of the Lopez majority in Lopez and Morrison. Indeed, all in all, it is a view far more expansive than that expressed by any of the dissenting Justices in either Lopez or Morrison--a fact confirmed by the dissents in Morrison, ironically the case for which the majority herein unnecessarily held this case in abeyance…

Indeed, if the Supreme Court were to render tomorrow the identical opinion that the majority does today (not necessarily the decision, but the opinion, worded capaciously as it is), both Lopez and Morrison would be consigned to aberration. And, by deciding this case as it does, and on the particular reasoning that it does, the majority would have all but consigned to aberration our own decision in Brzonkala were it not for the Supreme  Court's recent affirmance of that decision.

I would invalidate this particular agency regulation under Lopez, Morrison, and Brzonkala, and instead recognize as the aberration that action of invalidation, rather than the opinions in Lopez, Morrison, and Brzonkala, as does the majority…The affirmative reach and the negative limits of the Commerce Clause do not wax and wane depending upon the subject matter of the particular legislation under challenge.