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GDF Realty Invs., Ltd. v. Norton

Citation: 32 ELR 20103
No. No. A 00 CA 369 SS, 169 F. Supp. 2d 648/(W.D. Tex., 08/30/2001)

The court holds that the take provision of the Endangered Species Act (ESA), as applied to landowners, does not violate the U.S. Commerce Clause. After purchasing property, the landowners sought to develop it, but were prevented from doing so because of the restrictions placed on the land under the ESA due to the presence of endangered species on the property. The landowners brought suit claiming that the take provision of the ESA was unconstitutional as applied to all takes of the endangered species on their property. The court first holds that the landowners relied on an overly broad definition of the regulated activity at issue. The case involves the regulation of one specific alleged take of an endangered species by the landowners' proposed commercial development of the property, not the take of all of the endangered species on the property. The court then holds that the application of the take provision in this case is a constitutional exercise of the Commerce Clause power because the activity being regulated, both standing alone or under the aggregation principle, would easily be classified as substantially affecting interstate commerce. Moreover, the application of the take provision here is a valid regulation of an activity that substantially affects interstate commerce and, therefore, is a valid exercise of the Commerce Clause power. Therefore, the landowners' motion for summary judgment is denied, but the government's is granted.

Counsel for Plaintiffs
David B. Armbrust
Armbrust & Brown
100 Congress Ave., Ste. 1300, Austin TX 78701
(512) 435-2300

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