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The Commerce Clause authorizes Congress to regulate three categories of activity: (1) use of the channels of interstate commerce; (2) instrumentalities of interstate commerce, or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce. Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce. To determine whether a regulated activity substantially affects interstate commerce, the court asks whether Congress had a rational basis to find that the regulated activity, taken in the aggregate, would substantially affect interstate commerce. The task is a modest one. The court need not determine whether activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a rational basis exists for so concluding.
People for the Ethical Treatment of Property Owners ("PETPO") challenged a resolution promulgated by the United States Fish and Wildlife Service ("FWS" or "Service") pursuant to the Endangered Species Act ("ESA"). The challenged regulation prohibited the “take” of the Utah prairie dog, a purely intrastate species, on nonfederal land. The ESA defined “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." The district court granted summary judgment for PETPO on the ground that neither the Commerce Clause nor the Necessary and Proper Clause of the Constitution authorized Congress to regulate take of the Utah prairie dog on nonfederal land. FWS and intervenor-defendant Friends of Animals ("FoA") appealed from that grant of summary judgment, arguing that the challenged regulation was authorized by both the Commerce Clause and the Necessary and Proper Clause, and that PETPO lacked standing.
The court held that the Commerce Clause authorized the United States Fish and Wildlife Service to prohibit the "take" of the Utah prairie dog, a purely intrastate species, on nonfederal land; the activity substantially affected interstate commerce because Congress had a rational basis to believe it was an essential part of the broader regulatory scheme of the Endangered Species Act, which has a substantial relation to interstate commerce. Moreover, the court held that the PETPO had standing to challenge the regulation of the Utah prairie dog; there was a redressable injury, even if the general rule would have prohibited even more take than the special rule, because the suit did not attack the particular regulation but rather the authority of Congress to regulate at all.