## Facts

- The Secretary of the Interior listed the arroyo southwestern toad as an endangered species under the Endangered Species Act (ESA).
- Rancho Viejo, LLC planned a 202-acre residential housing development in northern San Diego County, California.
- Federal review concluded the project would modify the toad’s habitat and likely “jeopardize” the species, triggering ESA protections.
- The U.S. Fish and Wildlife Service (FWS) determined the construction would likely result in an unlawful “take” under ESA § 9, principally through habitat destruction.
- Under an Interior regulation (consistent with Supreme Court precedent), “harm” includes significant habitat modification or degradation that kills or injures wildlife by impairing essential behavioral patterns, including breeding.
- FWS proposed an alternative construction plan intended to allow development while avoiding an unlawful take; Rancho Viejo refused.
- Rancho Viejo sued, arguing the ESA’s application to its private land to protect a purely intrastate, non-commercial species exceeded Congress’s Commerce Clause power.
- The district court granted summary judgment to the federal defendants; Rancho Viejo appealed.

## Issues

1. Whether applying ESA § 9’s “take” prohibition to restrict a private housing development, to protect an intrastate non-commercial species, is a valid exercise of Congress’s power under the Commerce Clause.

## Decision

- The D.C. Circuit affirmed summary judgment for the federal defendants.
- The court held circuit precedent controlled and required upholding the ESA’s application to the project.
- The court treated the regulated conduct as the development activity, not the species itself, and characterized that conduct as economic.
- The court concluded the ESA is a comprehensive national regulatory scheme addressing activities that substantially affect interstate commerce, permitting regulation of intrastate conduct to make the scheme effective.
- The court denied rehearing en banc; two judges dissented from that denial, arguing the approach conflicted with modern Commerce Clause limits.

## Legal Principles

- Under the Commerce Clause, Congress may regulate intrastate activity that is economic in nature and that, in the aggregate, substantially affects interstate commerce.
- When a statute forms a comprehensive regulatory scheme with substantial interstate commerce effects, Congress may reach intrastate conduct if doing so is necessary to avoid undermining the scheme’s effectiveness.
- For Commerce Clause analysis of ESA enforcement, courts may focus on the regulated activity (e.g., land development causing a take) rather than the commercial value or interstate character of the protected species.
- Within a circuit, a panel is bound by controlling circuit precedent unless overturned by the Supreme Court or the court sitting en banc.

## Conclusion

The court upheld the ESA’s application to Rancho Viejo’s housing project, reasoning that restricting development that would “take” an intrastate endangered species is within Congress’s Commerce Clause power because the regulated activity is economic and the prohibition operates as part of a broader national scheme addressing matters with substantial interstate commerce effects.


Rancho Viejo, L.L.C. v. Norton, 323 F.3d 1062 (D.C. Cir. 2003)