On February 9, 2017, we posted about legal challenges to designations of endangered species by the U.S. Fish & Wildlife Service, when the specie is confined to a single state. The Tenth Circuit Court of Appeals has reversed the first of these challenges. People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service, No. 14-4151 (2017).

The court of appeals held that the Endangered Species Act (ESA), taken as a whole, substantially affected interstate commerce. It distinguished Supreme Court decisions striking down the Violence Against Women Act and the Gun-Free School Zones, on the ground that those were small parts of omnibus bills covering a wide variety of disparate subjects. By contrast, the ESA was a comprehensive bill addressed to one particular problem.

The court of appeals reasoned that the ESA as a whole clearly had a substantial effect on interstate commerce. First, prohibiting the taking of endangered species has a clear relationship to economic activity, the very activity which in many cases led to the endangerment finding. Second, Congress believed that by conserving species, it would promote commerce in the long term. Third, there is a multi-billion dollar-a-year illegal trade in endangered species.

The court of appeals also believed that regulation of purely intrastate species was necessary to the ESA’s comprehensive scheme. It found that 68% of endangered species were purely intrastate, so their exclusion would drive a gaping hole in the statute.

Expect a petition for certiorari.