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Gibbs v. Babbitt

ELR Citation: 30 ELR 20602
Nos. No. 99-1218, 214 F.3d 483/50 ERC 1863/(4th Cir., 06/06/2000)

The court holds that a U.S. Fish and Wildlife Service (FWS) regulation that prohibits private landowners in Tennessee and North Carolina from intentionally taking red wolves found on their property unless the wolf is attacking or has attacked a person, livestock, or pets, is a valid exercise of federal power under the U.S. Commerce Clause. The court first holds that the anti-taking provision involves regulable economic and commercial activity as understood by current Commerce Clause jurisprudence. The protection of the red wolf on both federal and private land substantially affects interstate commerce through tourism, trade, scientific research, and other potential economic activities. Moreover, while the taking of one red wolf on private land may not be substantial, the takings of red wolves in the aggregate have a sufficient impact on interstate commerce. The court further holds that the regulation is also sustainable as an essential part of a larger regulation of economic activity in which the regulatory scheme could be undercut unless the intrastate activity were regulated. FWS issued the regulation under the Endangered Species Act, a comprehensive and far-reaching piece of legislation that aims to conserve the health of our national environment.

The court next holds that the federal regulation of the red wolf does not trench impermissibly on state powers. The taking of red wolves is not an area in which the states may assert an exclusive and traditional prerogative in derogation of an enumerated federal power. Nor does the regulation implicate any immediate and concrete federalism concerns by negating state contributions to species protection. Further, the regulation does not confer upon Congress a broad police power. If the federal government cannot regulate the taking of an endangered or threatened species on private land, its conservation and preservation efforts would be limited to federal lands, which would place the entire federal regulatory scheme for wildlife and natural resource protection in peril.

A dissenting judge would hold that the regulation violates the Commerce Clause.

Counsel for Plaintiffs
Sean E. Andrussier
Womble, Carlyle, Sandridge & Rice
2100 First Union Capital Center
150 Fayetteville St. Mall, Raleigh NC 27602
(919) 755-2100

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

Joined by Michael, J., with Luttig, J., dissenting