The Delhi Sands Flower Loving Fly obtained endangered species status on the day a county planned to construct a hospital on the fly's dwindling habitat. Since the Endangered Species Act (ESA) prohibits the taking of any endangered species and courts have interpreted "taking" to include “significant habitat modification or degradation where it actually kills or injures” a member of the species, the county made concessions to comply with the ESA. However, when the county learned that the fly stood in the way of its plans to redesign an intersection, the county filed suit challenging the application of the ESA to the fly's habitat; many others who also wished to build on the fly's habitat joined in the suit as well. Using United States v. Lopez, 514 U.S. 549 (1995), these groups hoped the district court would find that the ESA, under the Commerce Clause of the U.S. Constitution, could not constitutionally protect the fly's habitat. The district court, however, upheld the act's application. In the appeal of the district case, known as the National Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997), the appellate court upheld the lower court's decision, but offered three different explanations why the ESA could or could not constitutionally require protection of the fly. In this article, John Copeland Nagle investigates these three strikingly diverse explanations. In doing so, Nagle also investigates whether Congress has the power to protect something that is very rare, very valuable, and seemingly entirely uninvolved with commerce between the states.
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