## Facts

- Rancho Viejo, LLC, a real estate developer, sought to build a 202‑acre residential project in San Diego County, California.
- The project site contained habitat used by the arroyo southwestern toad, a species listed as endangered under the Endangered Species Act (ESA).
- ESA § 9 makes it unlawful, absent authorization, to “take” an endangered species; “take” includes “harm,” which federal regulations define to include certain habitat modification that kills or injures wildlife by impairing essential behaviors.
- The U.S. Fish and Wildlife Service (FWS) concluded Rancho Viejo’s development features would likely cause a prohibited take and proposed project changes intended to allow toad movement and reduce harm; Rancho Viejo declined and filed suit in the U.S. District Court for the District of Columbia.
- Rancho Viejo argued that applying ESA § 9 to its project was unconstitutional because the arroyo southwestern toad is noncommercial, nonmigratory, and located entirely within California, and the regulated conduct was therefore beyond Congress’s Commerce Clause power.
- The district court rejected the Commerce Clause challenge and entered judgment for the federal defendants.
- A D.C. Circuit panel affirmed, relying on circuit precedent (including National Ass’n of Home Builders v. Babbitt) that had upheld ESA § 9 regulation as a valid exercise of Commerce Clause authority when applied to activities with substantial aggregate effects on interstate commerce.
- Rancho Viejo petitioned for rehearing en banc; the D.C. Circuit issued a per curiam order denying rehearing en banc at 334 F.3d 1158.
- Judge Sentelle and then‑Judge Roberts filed separate dissenting statements from the denial of rehearing en banc, arguing the panel’s approach conflicted with Supreme Court Commerce Clause limits described in United States v. Lopez and United States v. Morrison.

## Issues

1. Whether the D.C. Circuit should grant rehearing en banc to reconsider the panel’s holding that applying ESA § 9’s take prohibition to Rancho Viejo’s intrastate housing development is within Congress’s Commerce Clause power.

## Decision

- The court (per curiam) denied Rancho Viejo’s petition for rehearing en banc.
- Judge Sentelle dissented from the denial, arguing the panel’s decision extended circuit precedent in a way that departed from Lopez and Morrison and warranted full‑court review.
- Then‑Judge Roberts also dissented from the denial, arguing the case presented a serious federalism question because the regulated “take” involved a purely intrastate, noncommercial species and did not fit comfortably within the Supreme Court’s Commerce Clause categories.

## Legal Principles

- Rehearing en banc is discretionary and generally reserved for cases of exceptional importance or to secure or maintain uniformity of circuit decisions.
- Under the Commerce Clause framework described in Lopez (and applied in Morrison), Congress may regulate (1) channels of interstate commerce, (2) instrumentalities of interstate commerce and persons or things in interstate commerce, and (3) intrastate activity that substantially affects interstate commerce.
- In the underlying panel decision (left in place by the denial of rehearing), the court treated the regulated conduct as economic activity—commercial land development—and held ESA § 9 constitutional as applied under circuit precedent, viewing such development and species loss as part of a class of activities with substantial aggregate effects on interstate commerce.
- A dissent from denial of rehearing en banc may argue that precedent is inconsistent with intervening Supreme Court doctrine and that en banc review is needed to realign circuit law with controlling authority.
- Judges Sentelle and Roberts, dissenting from denial, questioned whether regulation of a local “take” involving a noncommercial, nonmigratory, intrastate species can be sustained under the substantial‑effects category without stretching Commerce Clause limits.

## Conclusion

In 334 F.3d 1158, the D.C. Circuit declined to rehear en banc a panel decision upholding application of ESA § 9 to Rancho Viejo’s California housing development affecting the arroyo southwestern toad, leaving the panel’s Commerce Clause analysis in place while recording dissents by Judges Sentelle and Roberts objecting that the case raised major limits‑of‑federal‑power concerns under Lopez and Morrison.


Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (2003)