author: HOLMES, Circuit Judge.

text:
    PEOPLE FOR the ETHICAL TREATMENT OF PROPERTY OWNERS, Plaintiff-Appellee, v. UNITED STATES FISH AND WILDLIFE SERVICE; Daniel M. Ashe, acting in his official capacity as Director of the United States Fish and Wildlife Service; Noreen Walsh, acting in her official capacity as Regional Director of the United States Fish and Wildlife Service’s Mountain-Prairie Region; United States Department of the Interior; Ryan Zinke, Defendants-Appellants, and Friends of Animals, Intervenor Defendant-Appellant. Defenders of Wildlife; David S. Cohen; Eric M. Freedman; Stephen Gardbaum; Stephen Gottlieb; M. Isabel Medina; Steven D. Schwinn; Environmental Law Professors; William C. Banks; National Association of Home Builders; Animal Welfare Institute; Wyoming Association of Conservation Districts; Center for Biological Diversity; Wyoming Farm Bureau Federation; Humane Society of the United States; Sierra Club; Wyoming Stock Growers Association; Wildearth Guardians; Wyoming Wool Growers Association; Utah Farm Bureau Federation; Cato Institute and Professors of Constitutional Law; State of Utah; State of Alaska; State of Arizona; State of Colorado; State of Idaho; State of Kansas; State of Montana; State of South Dakota; State of Wyoming; State of Michigan; Chamber of Commerce of the United States and The National Federation of Independent Business; Mountain States Legal Foundation; United States Senators Mike Lee, James Inhofe, Mike Enzi, David Vitter, Ted Cruz, and Orrin Hatch and Congressmen Jason Chaffetz, Chris Stewart, Mia Love, and Rob Bishop; Center for Constitutional Jurisprudence, Amici Curiae.
    Nos. 14-4151 & 14-4165
    United States Court of Appeals, Tenth Circuit.
    FILED March 29, 2017

      Anna T. Katselas, Attorney (John C. Cruden, Assistant Attorney General, David C. Shilton, and Mary Hollingsworth, Attorneys, of the U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., with her on the briefs), for Defendants-Appellants.
    Michael Ray Harris, of Friends of Animals, Wildlife Law Program, Centennial, Colorado, for Intervenor Defendant-Appellant.
    Jonathan Wood (M. Reed Hopper, with him on the brief), of Pacific Legal Foundation, Sacramento, California, for Plaintiff-Appellee.
    Jason C. Rylander and Karimah Schoen-hut of Defenders of Wildlife, Washington, D.C., filed an amici curiae brief for Defenders of Wildlife, Animal Welfare Institute, Center for Biological Diversity, Humane Society of the United States, Sierra Club, and Wildearth Guardians, in support of Defendants-Appellants.
    David M. Driesen, University Professor, of Syracuse University College of Law, Syracuse, New York, filed an amici curiae brief for Constitutional Law Professors William C. Banks, David S. Cohen, Eric M. Freedman, Stephen Gardbaum, Stephen E. Gottlieb, M. Isabel Medina, and Steven D. Schwinn, in support of Defendants-Appellants.
    Daniel H. Lutz and Hope M. Babcock of Institute for Public Representation, Georgetown University Law Center, Washington, D.C., filed an amicus curiae brief for Environmental Law Professors in support of Defendants-Appellants.
    Thomas J. Ward and Jeffrey B. Augello of National Association of Home Builders, Washington, D.C., and Norman D. James, Fennemore Craig, P.C., Phoenix, Arizona, .filed an amicus curiae brief in support of Plaintiff-Appellee.
    Karen Budd-Falen of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming, filed an amici curiae brief for Wyoming Association of Conservation Districts, Wyoming Farm Bureau Federation, Wyoming Stock Growers Association, Wyoming Wool Growers Association, and Utah Farm Bureau Federation, in support of Plaintiff-Appellee.
    Ilya Shapiro and Julio Colomba, of- Cato Institute, Washington, D.C., filed an amici curiae brief for Cato Institute and Professors of Constitutional Law, in support of ■ Plaintiff-Appellee.
    Damien M. Schiff of Alston & Bird LLP, Sacramento, California, filed an amici curiae brief for United States Senators Mike Lee, James Inhofe, Mike Enzi, David Vit-ter, Ted: Cruz, and Orrin Hatch and Congressmen Jason Chaffetz, Chris Stewart, Mia Love, and Rob Bishop in support of Plaintiff-Appellee.
    Sean D. Reyes, Utah Attorney General, and Bridget K. Romano, Utah Solicitor General, Anthony L. Rampton and Kathy A.F. Davis, Assistant Utah Attorneys General, Salt Lake City, Utah, Craig W. Richards, Attorney General, Juneau, Alaska, Mark Brnovich, Attorney General, Phoenix, Arizona, Cynthia Coffman, Attorney General, Denver, Colorado, Lawrence G. Wasden, Attorney General, Boise, Idaho, Derek Schmidt, Attorney General, Topeka, Kansas, Tim Fox, Attorney General, Helena, Montana, Marty Jackley, Attorney General, Pierre, South Dakota, and Peter K. Michael, Attorney General, Cheyenne, Wyoming, filed an amici curiae brief for the States of Utah, Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, and Wyoming in support of Plaintiff-Appellee.
    Steven J. Lechner of Mountain States Legal Foundation, Lakewood, Colorado, filed an amicus curiae brief for Mountain States Legal Foundation in support of Plaintiff-Appellee.
    John C. Eastment, Anthony T. Caso, and Cristen Wohlgemuth of Center for Constitutional Jurisprudence, Orange, California, filed an amicus curiae brief for Center for Constitutional Jurisprudence in support of Plaintiff-Appellee.
    William S. Consovoy and J. Michael Connolly of Consovoy McCarthy PLLC, Arlington, Virginia; Patrick Strawbridge of Consovoy McCarthy PLLC, Boston, Massachusetts; Kate Comerford Todd and Sheldon Gilbert of U.S. Chamber Litiga-tion Center, Inc., Washington, D.C.; and Karen R. Harned and Luke A. Wake of NFIB Small Business Legal Center, Washington, D.C., filed an amici curiae brief for the Chamber of Commerce of the United States and the National Federation of Independent Business in support of Plaintiff-Appellee.
    Before HOLMES, McHUGH, and MORITZ, Circuit Judges.

       Pursuant to Fed. R. App. P. 43(c)(2), recently confirmed Secretary of the Department of Interior, Ryan Zinke, is substituted for former Secretary of the Interior Sally Jewell.

   HOLMES, Circuit Judge.

People for the Ethical Treatment of Property Owners (“PETPO”) challenges a regulation promulgated by the United States Fish and Wildlife Service (“FWS” or “Service”) pursuant to the Endangered Species Act (“ESA”). The challenged regulation prohibits the “take” of the Utah prairie dog, a purely intrastate species, on nonfederal land. The ESA defines “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 16 U.S.C. § 1532(19).

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 authorizes Congress to regulate take of the Utah prairie dog on nonfederal land. FWS and intervenor-defendant Friends of Animals (“FoA”) appeal from that grant of summary judgment, arguing that the challenged regulation is authorized by both the Commerce Clause and the Necessary and Proper Clause, and that PETPO lacks standing. We hold that the district court correctly concluded that PETPO has standing, but erred in concluding that Congress lacked authority under the Commerce Clause to regulate (and authorize the Service to regulate) the take of the Utah prairie dog.

I

A

The purpose of the ESA is to conserve endangered and threatened species and the ecosystems on which they depend. See 16 U.S.C. § 1531(b). In order to effectuate this purpose, Congress tasked two executive officers with jointly implementing the Act: the Secretary of the Interior and the Secretary of Commerce. Id. § 1532(15). They, in turn, delegated their implementation responsibilities to, respectively, FWS and the National Marine Fisheries Service.

The ESA expressly defines the objects of its protections, that is, both “endangered species” and “threatened species.” An endangered species “is in danger of extinction throughout all or a significant portion of its range,” except for insect species determined to be pests “present[ing] an overwhelming and overriding risk to man.” Id. § 1532(6). A threatened species is one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Id. § 1532(20).

To protect these categories of species, the ESA “authorizes the Secretary of the Interior to list domestic or foreign species as endangered or threatened.” Wyo. Farm Bureau Fed’n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000) (citing 16 U.S.C. § 1533(a)-(b)). At least five factors are to be considered in listing a species as endangered or threatened: “(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recre•ational, scientific or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.” 16 U.S.C. § 1533(a)(1). “Once a species is so listed, it is afforded certain protections, and federal agencies assume special obligations to conserve, recover and protect that species.” Wyo. Farm Bureau Fed’n, 199 F.3d at 1231.

The “cornerstone” of the ESA’s protections is a section prohibiting the take of any endangered species without a permit or other authorization. Gibbs v. Babbitt, 214 F.3d 483, 487 (4th Cir. 2000) (citing 16 U.S.C. § 1538(a)(1)(B)). Pursuant to 16 U.S.C. § 1533(d), the Secretary of the Interior is authorized to extend the statutory prohibitions on take of endangered species to threatened species. See 16 U.S.C. § 1533(d) (“The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife.... ”). FWS extended that cornerstone take prohibition to protect all threatened species. See 50 C.F.R. § 17.31 (“General Rule 4(d)” or “General Rule”). More specifically, FWS’s General Rule 4(d) prohibits the take of all species listed as threatened by incorporating as to those species the prohibitions applicable to endangered species under 50 C.F.R. § 17.21, except when FWS issues a specific rule for a particular threatened species. See id.; see also 50 C.F.R. § 17.21 (setting forth take and other prohibitions with respect to endangered species). In such cases, the specific rule, or “special rule,” regarding the particular species takes precedence over General Rule 4(d), such that the General Rule’s blanket prohibition on take of threatened species no longer applies to that species and the special rule governs instead. See id. § 17.31(c).

The Utah prairie dog is a threatened species whose take is regulated by a special rule. The Utah prairie dog lives only in Utah and approximately seventy percent of the population is on nonfederal land. Originally listed as an endangered species under the ESA, Amendments to Lists of Endangered Fish and Wildlife, 38 Fed. Reg. 14678-01, 14678 (June 4, 1973) (codified as amended at 50 C.F.R. § 17.11), the species was reclassified as threatened in 1984; at that time, the FWS issued a special rule to regulate its take, Final Rule to Reclassify the Utah Prairie Dog as Threatened, With Special Rule To Allow Regulated Taking, 49 Fed. Reg. 22330-01, 22330 (May 29, 1984) (codified as amended at 50 C.F.R. § 17.40(g)). The special rule (“Special Rule 4(d)” or “Special Rule”) was amended in 1991, Final Rule to Amend Special Rule Allowing Regulated Taking of the Utah Prairie Dog, 56 Fed. Reg. 27438-01, 27438 (June 14, 1991) (codified as amended at 50 C.F.R. § 17.40(g)), and again in 2012, Revising the Special Rule for the Utah Prairie Dog, 77 Fed. Reg. 46158-01, 46158 (Aug. 2, 2012) (codified at 50 C.F.R. § 17.40(g)).

Today, Special Rule 4(d) regulates the take of Utah prairie dog by limiting: (1) the permissible locations of such take to agricultural lands, properties within 0.5 miles of conservation lands, and “areas where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or burial sites[;]” (2) the permissible amount of such take; and (3) the permissible methods of such take. 50 C.F.R. § 17.40(g). In addition, the Special Rule authorizes incidental take that occurs as part of standard agricultural practices. See id. § 17.40(g)(5).

PETPO, a nonprofit organization, was founded by Utah “residents who suffer as a result of the regulation of Utah prairie dog take.” J.A. at 160 (Decl. of Derek Morton, filed Nov. 18, 2013). PETPO is comprised of more than 200 “private property owners and other persons and entities subject to overly burdensome regulations,” id., who allege that they “have been prevented from building homes, starting small businesses, and, in the case of the local government, from protecting recreational facilities, a municipal airport, and the local cemetery from the Utah prairie dog’s ma-leffects,” Aplee.’s Br. at 3 (citations omitted).

B

PETPO filed the instant action against FWS under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., alleging that neither the Commerce Clause nor the Necessary and Proper Clause authorizes Congress to regulate take of the Utah prairie dog on nonfederal land. PETPO requested both declaratory and injunctive relief against the regulation of Utah prairie dog take on nonfederal land. FoA filed a motion to intervene, and the district court granted the motion.

PETPO then moved for summary judgment. FWS cross-moved for summary. judgment, defending the constitutionality of the challenged regulation under both the Commerce Clause and the Necessary and Proper Clause and arguing that PET-PO lacks standing. The district court granted summary judgment for PETPO and denied summary judgment for FWS and FoA, concluding that: (1) PETPO has standing; (2) the Commerce Clause does not authorize Congress to regulate the take of a purely intrastate species (i.e., the Utah prairie dog) that has no substantial effect on interstate commerce; and (3) the Necessary and Proper Clause does not authorize Congress to regulate take of the Utah prairie dog because such regulation is not essential to the ESA’s economic scheme.

FWS and FoA timely appealed. They raise two arguments on appeal: (1) PETPO lacks standing; and (2) both the Commerce Clause and the Necessary and Proper Clause authorize Congress to regulate take of the Utah prairie dog on nonfederal land. We hold that the district court correctly concluded that PETPO has standing, but erred in concluding that the challenged regulation is not authorized by the Commerce Clause. In light of our Commerce Clause holding, we have no need to opine regarding the merits of the district court’s Necessary and Proper Clause ruling, and do not do so. We accordingly reverse and remand for entry of summary judgment for FWS and FoA.

II

First, we conclude that PETPO has standing to challenge the constitutionality of the regulation. We review issues of standing de novo. S. Utah Wilderness All. v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013). To demonstrate standing, a plaintiff must show that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000)). In making this showing at the summary-judgment stage, a plaintiff is not entitled to depend on “mere allegations” — rather, he must “ ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the summary judgment motion will be taken to be true.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Fed. R. Civ. P. 56(e)).

The parties agree that the first two elements of standing are satisfied, but FoA argues that the third element, redressability, is not. Specifically, FoA argues that PETPO’s alleged injuries are not redressa-ble because if the district court were to grant the requested relief and strike down Special Rule 4(d), the absence of a special rule regarding the Utah prairie dog would trigger General Rule 4(d) to govern take of that species, and the General Rule prohibits even more take than the Special Rule. Thus, FoA argues that “even if PETPO succeeds [at invalidating Special Rule 4(d) ], stricter federal rules [i.e., General Rule 4(d)] would come into play that would bar all take of prairie dog on private land.” Aplt. FoA’s Opening Br. at 12.

As a preliminary matter, FoA is correct that General Rule 4(d) prohibits more take than Special Rule 4(d) because under the General Rule, take is prohibited completely unless the party first obtains a permit. See 50 C.F.R. § 17.31(a); see also id. § 17.21(a), (c). In contrast, under the Special Rule, take of the Utah prairie dog is not prohibited completely, but regulated with regard to location, amount, and method. Id. § 17.40(g). Thus, while the General Rule prohibits all take of Utah prairie dog without a permit, the Special Rule carves out certain allowances for take without a permit.

However, the fact that the General Rule prohibits more take than the Special Rule is irrelevant for our purposes because PETPO’s suit, in substance, attacks not any particular regulation but Congress’s ability to authorize any regulation of Utah prairie dog take. See Ala.-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1271 (11th Cir. 2007) (considering Commerce Clause challenge to final rule listing the Alabama sturgeon as endangered under the theory that “Congress has exceeded the power granted to it under the Commerce Clause by authorizing protection of the Alabama Sturgeon”). To be sure, in its briefing and at oral argument, PETPO curiously characterizes its claim as attacking the Special Rule and disclaims any attack on the ESA. But our standing inquiry must focus on the substance of PET-PO’s lawsuit. See Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d 487, 494 (10th Cir. 1998) (focusing on “the substance of [the plaintiffs] complaint” and the fact that there was “no evidence in the record” to support her claim of standing). And, as a matter of logic, PETPO’s wish to attack the regulation of prairie dog take on Commerce Clause and Necessary and Proper grounds implicates 16 U.S.C. § 1533(d), which grants authority to the Secretaries of the Interior and of Commerce to issue regulations extending the take prohibitions of § 1538(a)(1) to threatened species. See 16 U.S.C. § 1538(d). If Congress lacks such authority under the Commerce Clause or the Necessary and Proper Clause, then it stands to reason that § 1533(d) cannot authorize any regulation of prairie dog take, and FWS could not enforce either the general or specific rule.

An examination of PETPO’s complaint, particularly the requested relief, clearly bears out this understanding of PETPO’s claim. First, the relief requested would apply to both rules (as they pertain to take of Utah prairie dogs on nonfederal land). PETPO’s requested relief is not limited to a particular FWS regulation; instead, both the declaratory and injunctive relief requested would expressly pertain to any federal prohibition on the take of Utah prairie dogs on nonfederal land. PETPO requests the following relief:

(1) for a declaration that the prohibition of the take of the Utah prairie dog on non-federal land is invalid under the [APA], because it is inconsistent with constitutional right, power, privilege, or immunity and not in accordance with law;
(2) for a declaration that the prohibition of the take of the Utah prairie dog is an invalid exercise of delegated legislative power under the United States Constitution, and that the Service is without authority to prohibit the take of the prairie dog on non-federal land; [and]
(3) for a permanent injunction preventing the Service from enforcing the prohibition of the take of the Utah prairie dog on nonfederal land[.]

J.A. at 34. By its terms, the requested relief would apply equally to the prohibition of Utah prairie dog take in General Rule 4(d) as to the prohibition of Utah prairie dog take in Special Rule 4(d); that is, granting the relief that PETPO seeks would necessarily make unenforceable both rules to the extent that they prohibit take of the Utah prairie dog on nonfederal land.

Moreover, this conclusion is also consistent with how PETPO expressly framed its claim for relief under the APA. In its complaint, PETPO ended that claim by stating that

110. No enumerated power supports the regulation of the take of the Utah prairie dog on non-federal land.
111. The regulation of the take of the Utah prairie dog on non-federal land is neither necessary nor proper to the exercise of any power of the federal government.
112. Therefore, the regulation of the take of the Utah prairie dog on non-federal land is contrary to constitutional right, power, privilege, or immunity, 5 U.S.C. § 706(2)(B), as well as arbitrary, capricious, and contrary to law, 5 U.S.C. § 706(2)(A). The Service has no authority to require PETPO’s members to obtain a permit, or satisfy any other conditions, before taking the prairie dog on nonfederal land.

J.A. at 32 (emphasis added). This last sentence in particular shows that although the vehicle for this suit is an APA claim, the gist of PETPO’s claim is that the Service does not have delegated authority to regulate the take of Utah prairie dogs because, under the Constitution, Congress has no such authority to delegate. Were PETPO to win on that claim and FWS nonetheless attempted to enforce the General Rule insofar as it prohibits prairie dog take, FWS could expect its enforcement activities to be justifiably enjoined by a district court. Indeed, the district court here expressly understood this to be the question presented on the merits. See J.A. at 200 (“At the heart of the dispute ... is whether one of the enumerated powers in the Constitution authorizes Congress — and, through congressional delegation, [FWS] — to regulate take of the Utah prairie dog on non-federal land.”) (Mem. Decision & Order, filed Nov. 5, 2014).

Further, it is unclear how a court could set aside the Special Rule’s prohibition on take but not the General Rule’s, because the Special Rule prohibits take only to the extent that it incorporates by reference the take prohibitions found in the General Rule. See 50 C.F.R. § 17.40(g)(1) (“Except as noted in ... this [Special Rule], all prohibitions of [General Rule 4(d) ] ... apply to the Utah prairie dog.”). In other words — with the sole exception of its incorporation of the General Rule’s take prohibition — the Special Rule actually permits take only in certain locations, amounts, and methods. Thus, we are satisfied that if PETPO prevails on its claim that Congress lacks authority to prohibit take of the Utah prairie dog, neither FWS nor a private party bringing a citizen’s suit could enforce any prohibition on Utah prairie dog take.

For these reasons, the district court correctly concluded that PETPO has standing — more specifically, that its alleged injuries are redressable by its requested relief.

Ill

A

We now turn to the merits, where PET-PO challenges FWS’s prohibition on take of the Utah prairie dog on nonfederal land by arguing that Congress’s authorization of this regulation is unconstitutional because neither the Commerce Clause nor the Necessary and Proper Clause grants Congress power to so regulate. In short, if Congress could not itself regulate take of the Utah prairie dog on nonfederal land, neither could it authorize the Secretary of the Interior to promulgate regulations so regulating the species.

The APA permits an aggrieved party to challenge and requires us to “hold unlawful and set aside” final agency action that is “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(b); Lincoln v. Vigil, 508 U.S. 182, 195, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993) (“[T]he APA contemplates, in the absence of a clear expression of contrary congressional intent, that judicial review will be available for colorable constitutional claims.... ”). Although we generally grant considerable deference to agency action, “[w]e review de novo claims alleging constitutional abuse by an agency.” Burke v. Bd. of Governors of Fed. Reserve Sys., 940 F.2d 1360, 1367 (10th Cir. 1991); see also Copar Pumice Co. v. Tidwell, 603 F.3d 780, 802 (10th Cir. 2010) (“Because constitutional questions arising in a challenge to agency action under the APA ‘fall expressly within the domain of the courts,’ we review de novo whether agency action violated a claimant’s constitutional rights.” (quoting Darden v. Peters, 488 F.3d 277, 283-84 (4th Cir. 2007))); cf. Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172-73, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (applying constitutional avoidance in construing statute rather than deferring to agency interpretation because a serious constitutional question was raised under the Commerce Clause by the agency’s interpretation of statute); Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1249 (10th Cir. 2008) (“It is well established that the canon of constitutional avoidance does constrain an agency’s discretion to interpret statutory ambiguities, even when Chevron deference would otherwise be due.”); U.S. West, Inc. v. FCC, 182 F.3d 1224, 1231 (10th Cir. 1999) (“[D]eference to an agency interpretation is inappropriate not only when it is conclusively unconstitutional, but also when it raises serious constitutional questions.”). Accordingly, we review de novo whether Congress lacks power under the Commerce Clause to authorize the prohibition of Utah prairie dog take.

B

We conclude that the district court erred in holding that the challenged regulation is not authorized under the Commerce Clause, which gives Congress authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art. I, § 8, cl. 3.

1

The district court concluded that the Commerce Clause does not authorize the regulation because the regulated activity— i.e., take of the Utah prairie dog on non-federal land — does not have a substantial effect on interstate commerce. The court reasoned that: (1) take of the Utah prairie dog on nonfederal land is not commercial or economic activity, and the fact that the challenged regulation prohibits people “from engaging in commercial activities ... is irrelevant,” J.A. at 203-04; and (2) the value of the Utah prairie dog, whether biological, commercial, scientific, or through potential future effects, has too attenuated an effect on interstate commerce, if any at all.

2

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.” United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). “[T]he parties in the present dispute agree that the first two Lopez categories do not apply....” J.A. at 202. Thus, we inquire only whether, under the third Lopez category, the activity regulated substantially affects interstate commerce. See Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624 (holding that “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” (emphases added) (citation omitted)).

To determine whether a regulated activity substantially affects interstate commerce, we ask “whether Congress had a rational basis to find that the regulated activity, taken in the aggregate, would substantially affect interstate commerce.” United States v. Patton, 451 F.3d 615, 623 (10th Cir. 2006) (emphasis added). The Supreme Court has “stress[ed] that the task before us is a modest one. We need not determine whether respondents’ activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a ‘rational basis’ exists for so concluding.” Gonzales v. Raich, 545 U.S. 1, 22, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (quoting Lopez, 514 U.S. at 557, 115 S.Ct. 1624).

Under the third Lopez category, Congress has the “power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” Raich, 545 U.S. at 17, 125 S.Ct. 2195; accord Taylor v. United States, — U.S. -, 136 S.Ct. 2074, 2080, 195 L.Ed.2d 456 (2016). Consequently, “where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.” Lopez, 514 U.S. at 558, 115 S.Ct. 1624; see also Taylor, 136 S.Ct. at 2079 (“[AJctivities ... that ‘substantially affect’ commerce ... may be regulated so long as they substantially affect interstate commerce in the aggregate, even if their individual impact on interstate commerce is minimal.” (emphasis added)); Raich, 545 U.S. at 23, 125 S.Ct. 2195 (distinguishing between regulation that “f[alls] outside Congress’ commerce power in its entirety” and regulation that constitutes an “individual application!] of a concededly valid statutory scheme”). As a result, the Supreme Court has made clear that “[t]he question ... is whether Congress’ ... policy judgment, i.e., its decision to include [a] narrower ‘class of activities’ within [a] larger regulatory scheme, was constitutionally deficient,” or whether “the subdivided class of activities ... was an essential part of the larger regulatory scheme.” Raich, 545 U.S. at 26-27, 125 S.Ct. 2195; see also id. at 28, 125 S.Ct. 2195 (“The congressional judgment that an exemption for ... a significant segment of the total market would undermine the orderly enforcement of the entire regulatory scheme is entitled to a strong presumption of validity.”).

Moreover, the Court has underscored that the fact that a regulated activity is noncommercial or “trivial by itself’ is “not a sufficient reason for removing [it] from the scope of [otherwise valid] federal regulation.” Raich, 545 U.S. at 20, 125 S.Ct. 2195; see id. at 17, 125 S.Ct. 2195 (“[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.” (emphasis added) (quoting Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942))); id. at 22, 125 S.Ct. 2195 (“That the regulation ensnares some purely intrastate activity is of no moment. As we have done many times before, we refuse to excise individual components of that larger scheme.”); see also Taylor, 136 S.Ct. at 2081 (“[I]t makes no difference under our cases that any actual or threatened effect on commerce in a particular case is minimal.” (emphasis added)).

In short, the Commerce Clause authorizes regulation of noncommercial, purely intrastate activity that is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce (i.e., has a substantial relation to interstate commerce). Therefore, to uphold the challenged regulation here, we need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.

a

We conclude that Congress had a rational basis to believe that regulation of the take of the Utah prairie dog on nonfederal land is an essential part of the ESA’s broader regulatory scheme which, in the aggregate, substantially affects interstate commerce. We first examine the ESA’s status as a comprehensive regulatory scheme substantially affecting commerce and then turn to whether Congress had a rational basis to believe that regulation of take of the Utah prairie dog on nonfederal land is an essential part of that scheme.

As a preliminary matter, PETPO argues that we must employ a substantial effects analysis with regard to regulation of take of the Utah prairie dog alone, not with respect to all species or the ESA generally. See Aplee.’s Br. at 27-31. Specifically, PETPO contends that its claim is like those presented in Lopez and Morrison, because PETPO facially challenges a provision rather than “an application to a particular subset of activity, as in Raich.” Id. at 28. In essence, PETPO argues that because it characterizes its claim as a facial challenge to a regulatory provision, the concerns implicated in Raich do not apply and so we must engage in a straightforward substantial effects analysis as to the regulation of take of the Utah prairie dog alone. But this argument misconstrues the standard that Raich establishes and the substance of the claim that PETPO actually asserts.

As established supra, the real crux of PETPO’s challenge is not a challenge to any particular FWS regulation but to Congress’s power to authorize regulation of the Utah prairie dog. Although PETPO is, in a sense, correct that the prohibition on take of the Utah prairie dog is “a particular challenged provision,” Aplee.’s Br. at 29, this prohibition finds its place within the broader regulatory scheme of the ESA’s protections of endangered and threatened species. More specifically, the prohibition at issue is an instance of Congress’s broad authorization to use regulations to extend the take protections that endangered species enjoy to those listed as threatened. See 16 U.S.C. § 1533(d).

PETPO points to no authority suggesting that a challenge such as this should be considered under a narrow application of the substantial effects test rather than the Raich comprehensive regulatory scheme framework. PETPO mischaracterizes FWS’s and FoA’s arguments as suggesting that the substantial effects test must be applied “to an enactment as a whole, rather than a particular challenged provision.” Aplee.’s Br. at 29. In doing so, PETPO cites Morrison, Lopez, and our own decision in Patton, arguing that in each case an individual provision was examined despite the fact that it was part of a larger piece of legislation. See id. at 29-30. But the legislation at issue in those cases did not constitute comprehensive regulatory schemes such as the CSA in Raich or the ESA in the present case. The CSA “repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs.” Raich, 545 U.S. at 12, 125 S.Ct. 2195.

In contradistinction to the CSA, the Court pointed to the Gun-Free School Zones Act of 1990 that Lopez struck down as being “at the opposite end of the regulatory spectrum.” Id. at 24, 125 S.Ct. 2195; see also Lopez, 514 U.S. at 561, 115 S.Ct. 1624 (“Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.”). Despite the fact that the Gun-Free School Zones Act of 1990 was part of a single, large enactment — the Crime Control Act of 1990, Pub. L. 101-647, 104 Stat. 4789 — the Court had no difficulty recognizing that this broader enactment was not a comprehensive regulatory scheme, dealing as it did with subjects as diverse as international money laundering, child abuse, and victims’ rights. See 104 Stat. at 4789, 4792 (for example, Title I of the Crime Control Act of 1990 addresses international money laundering, while Title II is the Victims of Child Abuse Act of 1990). Indeed, the Court in both Lopez and Raich looked past the larger enactment and characterized the Gun-Free School Zones Act as an independent statute. Lopez, 514 U.S. at 561, 115 S.Ct. 1624 (“Section 922(q) is a criminal statute.... ”); Raich, 545 U.S. at 23, 125 S.Ct. 2195 (describing the Gun-Free School Zones Act as “a brief, single-subject statute”); see also Crime Control Act of 1990 § 1702, 104 Stat. at 4844 (containing the Gun-Free School Zones Act of 1990 in Title XVII of the enactment, bearing the heading, “General Provisions,” which contains provisions concerning railroad police officers and the use of private prisons for federal prisoners, as well as a directive to the Sentencing Commission to produce a report on mandatory minimum sentences).

The prohibition against felon possession of body armor we dealt with in Patton and the Violence Against Women Act of 1994 that Morrison addressed are equally distinguishable from comprehensive regulatory schemes such as the CSA or ESA. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 2, 108 Stat. 1796, 1796-1807 (table of contents of the enactment containing the Violence Against Women Act as one of thirty-three separate titles addressing a variety of subjects); 21st Century Department of Justice Appropriations Authorization Act, Pub. L. No. 107-273, § 1(b), 116 Stat. 1758, 1758-62 (2002) (table of contents of the enactment containing the James Guelff and Chris McCurley Body Armor Act of 2002 along with, inter alia, provisions addressing appropriations for the Department of Justice, drug treatment and prevention, and the Boys and Girls Clubs of America). That all of these laws were passed as parts of larger congressional enactments is immaterial under Raich, which concerns comprehensive regulatory regimes.

PETPO concedes that because “all classes of activities can be subdivided to find that they don’t substantially affect interstate commerce, excising a particular party’s activity could potentially subject the Commerce Clause to death by a thousand cuts.” Aplee.’s Br. at 28. Although the language of “excising a particular party’s activity” is at least not linguistically congruent with Raich, which speaks of “individual instances of [a] class,” 545 U.S. at 17, 23, 125 S.Ct. 2195, we would do well to heed the danger that PETPO itself warns us about. Application of the rule that PET-PO suggests would lead to just such a lingering death for the ESA — and likely for other regulatory schemes — insofar as every individual regulation passed within a larger regulatory scheme would be subject to a narrowly applied substantial effects test — a result that Raich directly forecloses. It should not surprise then, that every circuit to have addressed the constitutionality of take prohibitions under the ESA has, in effect, rejected such an approach.

More specifically, every federal appellate court that has addressed whether the ESA is a comprehensive scheme substantially affecting commerce has aggregated its effects on all threatened and endangered species. See San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1175-76 (9th Cir. 2011) (“Pursuant to Raich, when a statute is challenged under the Commerce Clause, courts must evaluate the aggregate effect of the statute (rather than an isolated application) in determining whether the statute relates to ‘commerce or any sort of economic enterprise.’ ... We and other courts have discussed at length why the protection of threatened or endangered species implicates economic concerns.”); Ala-Tombigbee Rivers Coal., 477 F.3d at 1273 (“If the process of listing endangered species is ‘an essential part of a larger regulation of economic activity,’ then whether that process ‘ensnares some purely intrastate activity is of no moment.’ ... The [ESA] prohibits all interstate and foreign commerce in endangered species.” (quoting Raich, 545 U.S. at 24, 125 S.Ct. 2195)); GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622, 639 (5th Cir. 2003) (determining whether “the larger regulation [is] directed at activity that is economic in nature” and noting that “ESA’s protection of endangered species dtwlO is economic in nature” and that “ESA’s drafters were concerned by the ‘incalculable’ value of the genetic heritage that might be lost absent regulation,” as well as observing that the majority of takes of species “result from economic activity” (emphasis added)); Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041, 1046 (D.C. Cir. 1997) (“[W]e may look not only to the effect of the extinction of the individual endangered species at issue in this case, but also to the aggregate effect of the extinction of all similarly situated endangered species.”); cf. Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452, 475-77 (5th Cir. 2016) (aggregating all ESA critical-habitat designations and upholding FWS designation of private, purely intrastate land for purely intrastate frog species under the Commerce Clause).

PETPO next argues that the ESA “is a comprehensive scheme to provide for environmental conservation, not [to] regulate a market.” Aplee.’s Br. at 38. This argument rests on the premise that, under Raich, Congress may only reach intrastate activity “which, if beyond [Congress’s] grasp, would frustrate a comprehensive regulatory scheme’s ability to function as a regulation of commerce.” Id. at 32 (emphasis added) (citing, inter alia, Raich, 545 U.S. at 22, 125 S.Ct. 2195). But this premise is flawed and improperly narrows the standard that Raich establishes.

As an initial matter, the passage that PETPO cites from Raich as support for this argument concerns whether a rational basis exists for believing that regulation of intrastate activity was essential to the CSA, not whether the comprehensive scheme of the CSA itself involved the regulation of commerce. 545 U.S. at 22, 125 S.Ct. 2195 (“[W]e have no difficulty concluding that Congress had a rational basis for believing that failure to regulate the intrastate manufacture and possession of marijuana would leave a gaping hole in the CSA.”). Further, the Ninth Circuit has persuasively rejected such a narrow reading of Raich. Specifically, in San Luis & Delta-Mendota Water Authority, the court rejected the argument that the ESA 'does not have a “substantial effect” on interstate commerce because, unlike the Controlled Substance Act upheld in Raich, it “is not a ‘comprehensive economic regulatory scheme.’ ” San Luis, 638 F.3d at 1177 (emphasis added). The Ninth Circuit explained that “[t]he Supreme Court has never required that a statute be a ‘comprehensive economic regulatory scheme’ or a ‘comprehensive regulatory scheme for economic activity’ in order to pass muster under the Commerce Clause. Indeed, it has never used those terms.” Id. The court continued that “[t]he only requirement— which was expressly detailed in Raich — is that the ‘comprehensive regulatory scheme’ have a ‘substantial relation to commerce.’ ” Id. (quoting Raich, 545 U.S. at 17, 125 S.Ct. 2195). We agree with the Ninth Circuit on this, and so consider whether the ESA has a substantial relation to interstate commerce, and conclude that it does.

PETPO wisely does not even attempt to dispute this; the substantial relationship between the ESA and interstate commerce is patent. First, regulation of take of endangered and threatened species is directly related to — indeed, arguably inversely correlated with — economic development and commercial activity. See 16 U.S.C. § 1531(a)(1) (Congress’s finding and declaration of purpose that “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation”); H.R. Rep. No. 93-412 (1973), reprinted in A Legislative History of the Endangered Species Act of 1973, as Amended in 1976, 1977, 1978, 1979, and 1980 [hereinafter A Legislative History of the Endangered Species Act], at 141 (1982) (“The threat to animals may arise from a variety of sources; principally pollution, destruction of habitat and the pressures of trade.”). In other words, the necessity of putting into place the ESA’s protections was engendered in part by the excesses of commerce, and the statute acts as a brake on economic activity, as confirmed by the harms that underlie PET-PO’s standing.

Second, Congress’s purposes in enacting the ESA were to conserve species by restricting commerce and to promote long-term commerce by conserving species. See H.R. Rep. No. 93-412, reprinted in A Legislative History of the Endangered Species Act, at 144-45 (describing how the profit motive can incentivize the conservation of species and the potential for unknown commercial uses should engender appropriate caution, “[t]he institutionalization of that caution lies at the heart of [the ESA]”); cf. S. Rep. No. 91-526, at 3 (1969), as reprinted in 1969 U.S.C.C.A.N. 1413, 1415 (stating that the protections offered by a predecessor to the ESA could “permit the regeneration of [an exploited] species to a level where controlled exploitation can be resumed,” thus creating “profit from the trading and marketing of that species for an indefinite number of years, where otherwise it would have been completely eliminated from commercial channels”). Thus, while the ESA’s prohibitions may act as a short-term brake on economic activity, the statutory scheme was intended to promote commercial activity in the long run.

And third, the ESA’s prohibitions help fuel an illegal wildlife trade that generates $5-8 billion annually — an illegal market second in size only to the illegal narcotics market. Because “Congress’ power to regulate commerce includes the power to prohibit commerce,” whether the targeted market “is a lawful market that Congress sought to protect and stabilize” or “an unlawful market that Congress sought to eradicate” “is of no constitutional import.” Raich, 545 U.S. at 19 n.29, 125 S.Ct. 2195. These are salient reasons why the ESA substantially affects interstate commerce.

Next, we conclude that Congress had a rational basis to believe that providing for the regulation of take of purely intrastate species like the Utah prairie dog is essential to the ESA’s comprehensive regulatory scheme. Approximately sixty-eight percent of species that the ESA protects exist purely intrastate; thus, piecemeal excision of purely intrastate species would severely undercut the ESA’s conservation purposes. Put another way, excising purely intrastate species “would leave a gaping hole in the” ESA. Raich, 545 U.S. at 22, 125 S.Ct. 2195; see also Ala.-Tombigbee Rivers Coal., 477 F.3d at 1275 (“Because a species’ scientific or other commercial value is not dependent on whether its habitat straddles a state line, Congress had good reason to include all species within the protection of the Act. It did not behave irrationally by taking the broader approach.”).

Every one of our sister circuits that has addressed this issue has agreed that regulation of purely intrastate species is an essential part of the ESA’s regulatory scheme. See GDF Realty, 326 F.3d at 640 (concluding that regulation of purely intrastate Cave Species takes “is an essential part of’ ESA’s larger regulatory scheme); Gibbs, 214 F.3d at 487 (“This regulation [prohibiting take of red wolves] 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.’ ” (quoting Lopez, 514 U.S. at 561, 115 S.Ct. 1624)); see also Markle Interests, 827 F.3d at 476-78 (upholding FWS critical-habitat designations — in that case, of purely intrastate land for a purely intrastate species — under the Commerce Clause because such regulation is an essential part of ESA’s regulatory scheme); Ala.-Tom-bigbee, 477 F.3d at 1274 (“Just as it is apparent that the ‘comprehensive scheme’ of species protection contained in the Endangered Species Act has a substantial effect on interstate commerce, it is clear that the listing process is ‘an essential part’ of that ‘larger regulation of economic activity.’ ” (quoting Raich, 545 U.S. at 22, 24, 125 S.Ct. 2195)): We agree with these courts that Congress had a rational basis to conclude that providing for the protection of purely intrastate species is essential to the ESA’s comprehensive regulatory scheme.

And, having reached such a determination, courts appear to be led ineluctably to conclude that Congress has authority under the Commerce Clause to regulate purely intrastate species, including regulating the take thereof, under the ESA— either through a particular application of the ESA itself or through an agency regulation as here. See Markle Interests, 827 F.3d at 476-78 (upholding designation of private, intrastate land as critical habitat for a purely intrastate frog species under the Commerce Clause as an essential part of ESA’s comprehensive . regulatory scheme); San Luis & Delta-Mendota Water Auth., 638 F.3d at 1174-77 (upholding regulation of take of purely intrastate, noncommercial delta smelt as essential part of ESA’s comprehensive regulatory scheme); Ala.-Tombigbee Rivers Coal., 477 F.3d at 1271 (upholding regulation of purely intrastate, noncommercial Alabama sturgeon as essential part of ESA’s comprehensive regulatory scheme); GDF Realty Invs., Ltd., 326 F.3d at 638-41 (upholding regulation of take of purely intrastate Cave Species as essential to ESA’s comprehensive regulatory scheme); Gibbs, 214 F.3d at 488, 492-98 (holding that take of forty-one purely intrastate red wolves is economic activity that substantially affects interstate commerce, and that regulation of that take is an essential part of ESA’s comprehensive regulatory scheme); see also Nat’l Ass’n of Home Builders, 130 F.3d at 1052-57; see also id. at 1058 (Henderson, J., concurring) (stating that regulation of take of a purely intrastate fly species substantially affects interstate commerce by preventing loss of biodiversity and regulating interstate commercial development). Indeed, the facts of many of these cases closely track the present case, insofar as they concern challenges to regulation under the ESA of activity on nonfed-eral land. See Markle Interests, 827 F.3d at 458-59; CDF Realty Invs., Ltd., 326 F.3d at 624-26; Gibbs, 214 F.3d at 489; Nat’l Ass’n of Home Builders, 130 F.3d at 1051.

Finding the foregoing authority persuasive, we likewise conclude that the regulation on nonfederal land of take of a purely intrastate species, like the Utah Prairie dog, under the ESA is a constitutional exercise of congressional authority under the Commerce Clause. And if Congress could itself regulate take of the Utah prairie dog on nonfederal land, it could also constitutionally authorize the Secretary of the Interior to promulgate regulations to achieve this end. Because we uphold this regulatory exercise under an enumerated power, the Commerce Clause, we need not consider its constitutionality under the Necessary and Proper Clause. “[I]f it is not necessary to decide more, it is necessary not to decide more.” PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004), quoted in Valley Forge Ins. Co. v. Health Care Mgmt. Partners, Ltd., 616 F.3d 1086, 1094 (10th Cir. 2010) (“Judicial restraint, after all, usually means answering only the questions we must, not those we can.”).

IV

In sum, we REVERSE and REMAND with instructions to enter judgment for FWS and FoA.

      . And we agree, too. PETPO members presented affidavits that they suffered injuries in fact (the first element), and that their injuries are fairly traceable to FWS through its regulation of Utah prairie dog take (the second element).

      . PETPO also requests costs of litigation and "other relief as the Court may deem just and proper.” J.A. at 35.

      .And if we were to grant this requested relief, all sources of PETPO’s alleged injuries would be eliminated. Cf. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261-64, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (finding standing even though the requested relief removed only one barrier — zoning requirements — from construction of a housing development because the remaining barriers — such as financing — were mere "uncertainties” rather than “absolute barriers,” which permitted the court to infer a “substantial probability” that the housing would be built if the zoning requirements were invalidated).

      . PETPO concedes that Congress has the power under the Property Clause, U.S. Const. Art. IV, § 3, cl. 2, to regulate take of the Utah prairie dog on federal land.

      . We note that neither FWS nor FoA challenges PETPO’s ability to use the APA to challenge the prohibition on take of Utah prairie dogs by asserting that such a prohibition exceeds Congress's power under the Commerce Clause. Indeed, with the exception of FoA’s standing argument, the parties engage almost entirely on the merits of the Commerce Clause question.

      . In addition to arguing that the challenged regulation is constitutional under the Raich framework, FWS argues that the regulation substantially affects interstate commerce because the activity at which it is directed is commercial or economic in nature. See, e.g., Patton, 451 F.3d at 623 (noting that this criterion "determines whether the regulated activity falls within the definition of 'commerce.’ If so, ... there is a heavy — perhaps in reality irrebuttable — presumption that it affects more states than one, and falls within congressional power.”). However, we need not and do not reach this argument because, as we explain below, our holding under the Raich framework fully resolves this appeal.

      . While it is true that many of these cases concern the statutory protections granted to species listed as endangered rather than prohibitions established by agency rulemaking, that distinction is immaterial for the Raich analysis, insofar as species are also listed as endangered by rulemaking. See 50 C.F.R. § 17.11 (listing endangered and threatened wildlife). Indeed, one case, Alabama-Tombig-bee Rivers Coalition, expressly dealt with a challenge to the decision to list a species as endangered, not the application of the statutory protections to that species. See 477 F.3d at 1271-72 ("The Coalition’s third contention is that the Final Rule should be vacated because Congress has exceeded the power authorized to it under the Commerce Clause by authorizing protection of the Alabama sturgeon, which the Coalition characterizes as an intrastate, noncommercial species.”). Indeed, PET-PO itself concedes that the fact that here "the activity is regulated under a regulation rather than a statutory provision” amounts to "a distinction without a difference.” Aplee.’s Br. at 28.

      . PETPO appears to proceed under the theory that Raich implicates not the Commerce Clause alone but also the Necessary and Proper Clause, insofar as this argument appears in the section of its brief on the Necessary and Proper clause. See Aplee.’s Br. at 31-41. The district court appears to have operated under a similar assumption, holding as it did that the prohibition on take of the Utah prairie dog was "not necessary to the ESA’s economic scheme.” J.A. at 207.
      In Raich, the Court stated that a comprehensive regulatory scheme that substantially affects interstate commerce is "well within [Congress’s] authority to 'make all Laws which shall be necessary and proper’ to 'regulate Commerce ... among the several States."’ 545 U.S. at 22, 125 S.Ct. 2195 (quoting U.S. Const. art. I, § 8). In upholding the constitutionality of the statute at issue in that case, however, the Court analyzed only Commerce Clause jurisprudence to conclude that the regulatory scheme substantially affected interstate commerce; the Court did not conduct a separate inquiry under the Necessary and Proper Clause. Only Justice Scalia’s concurring opinion in Raich, joined by no other justice, squarely considered the case as implicating the Necessary and Proper Clause. See 545 U.S. at 34, 125 S.Ct. 2195 (Scalia, J„ concurring in the judgment) (opining that the substantial effects analysis of intrastate activities “derives from the Necessary and Proper Clause”). Further, we have before recognized that Raich is concerned with the third prong of traditional Commerce Clause analysis: "The Supreme Court's decisions in Lopez, United States v. Morrison, [529 U.S. 598, 609, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)], and Raich all hinged on interpretation of the third category of [Commerce Clause analysis].” Patton, 451 F.3d at 623 (citation omitted). But see United States v. Carel, 668 F.3d 1211, 1219 (10th Cir. 2011) (suggesting that Raich is a Necessary and Proper Clause case).
      Because PETPO seemingly understands Raich to be a Necessary and Proper Clause case, its arguments relevant to Raich appear in that section of its brief. While we perform our Raich analysis under the Commerce Clause, we present and address PETPO’s arguments — irrespective of where they are found in its briefing — insofar as they are relevant to that analysis. We would also note that were we to proceed instead under the assumption that Raich was decided under the Necessary and Proper Clause, our ultimate conclusion — that the prohibition on take of the Utah prairie dog is constitutional — would remain unchanged.

      . PETPO also cites National Federation of Independent Business v. Sebelius, 567 U.S. 519, 132 S.Ct. 2566, 2591-92, 183 L.Ed.2d 450 (2012) for this proposition, but the cited portion of Chief Justice Robert's opinion was joined by no other member of the Court.

      . FWS generated this estimate and PETPO has not challenged it. We discern nothing in the record that calls into doubt its accuracy.

      . PETPO argues that "there’s no reasonable basis to conclude that” the government's inability to regulate take of the Utah prairie dog "■would frustrate the government's ability to regulate the market for any commodity.” Aplee.’s Br. at 35. But this argument is based on the same narrow reading of Raich that we rejected supra. The relevant question is not whether the inability to regulate take of the Utah prairie dog alone would undermine the ESA but whether the inability to regulate take of intrastate species more generally would undermine the ESA. See, e.g., GDF Realty Invs., 326 F.3d at 640 (concluding that “Cave Species takes may be aggregated with all other ESA takes” because otherwise the ESA would be undermined given "the interdependence of species [that] compels the conclusion that regulated takes under ESA do affect interstate commerce”). Applying Raich narrowly to the FWS’s prohibition of take of the Utah prairie dog, rather than more generally to the statutory authorization for such take regulations with respect to purely intrastate species, leads to a "death by a thousand cuts” of the ESA, to use PETPO’s colorful phrase. Aplee.’s Br. at 28.


source: Caselaw Access Project

author: HARTZ, Circuit Judge.

license: Public Domain

text:
    OBERMEYER HYDRO ACCESSORIES, INC., d/b/a Obermeyer Hydro, Inc., Plaintiff Counterclaim Defendant-Appellant, v. CSI CALENDERING, INC., d/b/a CSI Calendering Specialists, Inc., Defendant Counterclaimant-Appellee.
    No. 16-1083
    United States Court of Appeals, Tenth Circuit.
    Filed March 30, 2017

      Daniel M. Gross, Woods & Aitken, LLP, Denver, Colorado; (Mark D. Changaris, Berg Hill Greenleaf & Ruscitti, LLP, Boulder, Colorado, on the briefs), for Plaintiff Counterclaim Defendant-Appellant.
    Reid A. Page, Stinson Leonard Street, LLP, Greenwood Village, Colorado; (Ryan M. Sugden, Stinson Leonard Street, LLP, Greenwood Village, Colorado, on the brief), for Defendant Counterclaimant-Appellee.
    Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
   HARTZ, Circuit Judge.

This appeal concerns a contract dispute. The parties agree that they had a contract but differ on the price. At the core of the dispute is a price quote dated January 11, 2013 (the January quote) from CSI Calendering (CSI) to Obermeyer Hydro Accessories, Inc. (Obermeyer). The quote seems straightforward enough:

Aplt. App. at 188. There is no dispute that the “Polyester Tire Cord Only” line refers to fabric sheets purchased by Obermeyer from CSI and that the “Calendering, Compound & Poly Only” line refers to a process called calendering by which rubber is compressed into the fabric sheets.

But the parties read the document quite differently. CSI claims that the quote unambiguously states that the combined price is $5.97 for each pound of calendered fabric. Obermeyer, on the other hand, views the quote as reflecting prices that the parties had previously agreed to when CSI prepared separate quotes for the fabric sheets and for the calendering of those sheets: $3.74 per pound of untreated fabric and $2.23 per pound of calendered product. Although it may appear that there is no difference whatsoever, the price CSI seeks is almost a 50% increase above what Ober-meyer had been paying.

The increase is a consequence of the fact that calendering doubles the weight of the fabric. To obtain one pound of calendered fabric under the previous pricing, Ober-meyer would purchase one-half pound of fabric sheet (for $1.87) and pay $2.23 for that half pound to be calendered into one pound of calendered fabric. That came to $4.10 per pound of calendered fabric. Under CSI’s interpretation of the January quote, however, Obermeyer would pay $5.97 for the same product. The essence of the parties’ dispute is whether the $3.74/lb price of the fabric sheets is based on the weight of the untreated sheets (the untreated pricing) or the weight of the calendered product (the treated pricing).

The district court granted summary judgment to CSI. On appeal the parties raise a number of arguments about whose view of the price should prevail. They disagree about whether they already had agreed on the price before issuance of the January quote, whether the January quote modified any prior agreement, and whether Obermeyer is bound by CSI’s view of the pricing because Obermeyer paid a number of invoices over several months that reflected that view. In our view, there are unresolved factual disputes that preclude judgment for either party at this time. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand for further proceedings. We begin with a detailed discussion of the relationship between CSI and Obermeyer before and after the January quote because the parties’ arguments rely so much on that relationship.

I. BACKGROUND

Obermeyer is a Colorado-based, family-owned business that designs and manufactures inflatable dams and other water-control structures. It purchased fabric sheets from CSI, a Texas-based company, and frequently paid CSI to compress, or calender, rubber into the sheets. At the time of the dispute Obermeyer was managed by three people. Its president, Henry Obermeyer, was responsible for product development and overall management. Vice President Rob Eckman was responsible for sales, marketing, engineering, and project management. And Katherine Ob-ermeyer, Mr. Obermeyer’s wife, handled administrative matters that included accounts payable and receivable, payroll, and rubber purchasing.

CSI obtained its fabric from a Chinese supplier. Before the January quote it would send Obermeyer an invoice for the fabric 90 days after the fabric arrived in CSI’s warehouse in Arlington, Texas, or when it was removed from the warehouse for calendering, whichever was sooner. CSI billed Obermeyer separately for the fabric at its untreated weight, and for the calendering at the increased weight of the finished fabric. Although Obermeyer was expected to pay CSI within 30 days after invoicing, its payments were typically late because of delayed payments from its customers — usually 20 to 50 days late, but occasionally as much as 60 to 91 days late. From 2010 to 2012, eight fabric and 13 calendering purchase orders were handled this way.

In October 2012, CSI sent Obermeyer a quote for uncalendered fabric at $3.74/lb. The cover e-mail touted, “We are pleased to inform you that [the] below quotes are $0.14/lb lower than our last purchase.” Aplt. App. at 359. The quote was valid until the year’s end. As always in the past, the quote used untreated pricing (that is, used the weight of the fabric before calendering) rather than treated pricing (using the weight after calendering). Mr. Ober-meyer asked if CSI would be willing to delay invoicing Obermeyer for the fabric until CSI had calendered it so that the fabric and calendering would be billed at the same time. CSI responded by reiterating its standing practice.

Beginning in November the communications between Obermeyer and CSI were shaped by Obermeyer’s efforts to obtain a contract for a project involving four dams in Guiyang, China (the China project). In early November, Mr. Obermeyer notified CSI of a “prospective project, requiring expedited delivery” of some 100,000 linear yards of “fabric and associated rubber.” Id. at 369. (A linear yard of untreated fabric weighed about 2.73 pounds.) On November 28, Mr. Obermeyer stressed in an e-mail that the “prospective order from China depends on our commitment to the earliest possible delivery,” requiring as much as 176,000 pounds of fabric to be delivered in weekly batches beginning in January 2013. Id. at 365. The next day, CSI sent Mr. Obermeyer a proposed delivery schedule for the initial months of the China project. CSI already had some fabric in its Texas warehouse and additional fabric would be shipped from China to CSI in 20,000 pound increments from mid-December through January. CSI would send calendered product to Obermeyer from mid-December through January. Because CSI would need to calender the fabric shortly after it arrived from its supplier, it would not be warehoused. A few hours after receiving CSI’s proposed schedule, Mr. Obermeyer sent an e-mail ordering fabric to be sent from China in December and added: “We will speak again in two weeks regarding the next shipment that would be required to meet our China Project schedule. Presumably we will have the contract with our client signed by then.” Id. at 387. It appears that a purchase order was not attached to the e-mail.

Four days later, on December 3, CSI sent Mr. Obermeyer an e-mail beginning, “Attached is the updated pricing for [calendering].” Id. at 179. The attached quote, good for 30 days, set the calendering price at $2.23/lb, a 34% increase over the prior price of $1.66/lb. On December 6, Mrs. Obermeyer sent CSI a purchase order for the untreated fabric that Mr. Obermeyer had ordered on November 29. The price field was left blank.

On December 26, Mr. Obermeyer informed CSI that “[w]e just received notice that our customer has signed their contract with the project owner,” and “[w]e expect to have our contract signed within a few days.” Id. at 396. He then reported on January 3 that “[w]e believe we have reached agreement with our customer on all contract terms” and that “[o]nly the final signed contract remains outstanding.” Id. at 395. CSI responded that it had asked its supplier “to hold on to our locked-in prices.” Id. On January 8, 2013, Mrs. Obermeyer e-mailed a new purchase order for 100,000 pounds of fabric for the China project. The price field was again left blank, though a CSI employee responded the same day: “I am not clear why the unit price has not been mentioned, the unit price is [$]3.74/lb.” Id. at 402. This was the price that CSI had quoted in October as valid through December. The next day, CSI sent Mr. Obermeyer a delivery schedule and stated that it had told its supplier “to proceed with production of [fabric] unless we ask them to stop within [the] next 2 days.” Id. at 409.

CSI representatives met with Mr. Ober-meyer and Mr. Eckman for about 20 minutes on the morning of January 10. CSI relies on this meeting to support its large price increase. The parties discussed Ober-meyer’s prior request that CSI send a single invoice for the fabric and calendering upon completion of calendering, and CSI agreed. Although CSI contends that this change in invoicing was the reason for the price increase, there is no evidence that the parties discussed any price increase or a need for a change from untreated pricing to treated pricing as a result of the change in invoicing.

Also on January 10, Obermeyer gave CSI three purchase orders for the China project: a 60,000-pound fabric order at $3.74/lb, a 100,000-pound fabric order at $3.74/lb, and a calendering order for 178,-500 pounds with the price left blank. It claims that the orders were given at the meeting; CSI claims they were given after. The district court’s Order states that they were delivered on the same day as the meeting, but does not give a time.

Later that day, CSI and Obermeyer confirmed the 100,000-pound fabric order via e-mail, and Mr. Obermeyer placed an additional 40,000-pound order of fabric for other projects at $3.74/lb, to be billed when calendered. CSI acknowledged that it “un-derst[oo]d that this project is a go and we should release all [purchase orders] for the production to be shipped.” Id. at 407, 548. Mr. Obermeyer replied, “The project is a go.” Id. at 407.

On January 11, CSI e-mailed Mr. Ober-meyer and Mr. Eckman the quote copied at the beginning of this opinion. The quote was for material to be used in the China project, and, as CSI must have known, Obermeyer had almost certainly already bound itself to what it would charge its customer because the terms for the China contract had been settled. Yet even though CSI insists that this quote increased the price Obermeyer would pay by about 46% (by doubling the price of untreated fabric), neither the e-mail nor the quote document alerted Obermeyer to any increase in price by changing from untreated pricing to treated pricing for the fabric, or explained why such a huge increase was necessary. The word turnkey in the quote had never been used by the parties in their previous exchanges and was not defined in the email or quote. (The parties disagree on whether it was a term used in the industry for a particular type of billing.) Mr. Ober-meyer testified that he reviewed the quote but did not perceive any price change because CSI and Obermeyer had not discussed a price increase and “[i]t looked like it was restating our — the prices on the [purchase order] for fabric. It looked like it was restating the quoted calendering price.” Id. at 474. (As noted at the outset of this opinion, the lines for fabric and for calendering stated the same prices per pound as before.) Mr. Obermeyer forwarded the quote to Mr. Eckman, asking him to review it “to make sure this matches our numbers and that the quoted price is in line with the historical billings,” id. at 162, but there is no record that Mr. Eckman replied to the e-mail.

From January to June 2013, CSI delivered to Obermeyer 21 shipments of calendered fabric totaling 402,365 pounds. About the same time that it shipped the calendered fabric, it would send Obermeyer an invoice. Although the invoices reflected CSI’s understanding of the January quote, Obermeyer made 21 payments from February to October totaling roughly $2 million for the shipments. During this time, Mrs. Obermeyer “did not do any analysis” of the January quote’s pricing, other than to note that “here’s their line item for our price, here’s another line item for the price, and here’s the sum of what was above.” Id. at 319. In July, Mrs. Ober-meyer issued a new purchase order with one line for 20,000 pounds of fabric at $3.74/lb, totaling $74,800, and another line for 20,000 pounds of calendering at $2.23/ lb, totaling $44,600, without any mention of turnkey or a total price per pound for fabric and calendering. Although it is not clear whether this order was ultimately filed, a CSI representative testified that he would, have likely processed the purchase order at the higher treated pricing.

In late October or early November 2013, Mrs. Obermeyer compared the project costs to the project budget and determined that Obermeyer had been charged much more than it had budgeted. Ober-meyer notified CSI in November of its objection to overbilling, and it later refused to pay its outstanding debt. In January 2014, Obermeyer filed suit in the United States District Court for the District of Colorado for breach of contract, promissory estoppel, money had and received, unjust enrichment, and violation of the Texas Deceptive Trade Practices Act. CSI counterclaimed for breach of contract and unjust enrichment. CSI moved for summary judgment, and Obermeyer moved for partial summary judgment on liability for its breach-of-contract claim. The district court denied Obermeyer’s motion and granted summary judgment for CSI.

II. DISCUSSION

“We review the district court’s grant of summary judgment de novo.” Higby Crane Serv., LLC v. Nat'l Helium, LLC, 751 F.3d 1157, 1160 (10th Cir. 2014). Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmoving party, and a fact is material when it might affect the outcome of the suit under the governing substantive law.” Bird v. West Valley City, 832 F.3d 1188, 1199 (10th Cir. 2016) (brackets and internal quotation marks omitted): We view the evidence, and draw all reasonable inferences therefrom, in the light most favorable to the nonmov-ing party. See Higby Crane Serv., 751 F.3d at 1160. Because the parties agree that Texas law governs the agreement, we apply Texas law. See Carolina Cas. Ins. Co. v. Nanodetex Corp., 733 F.3d 1018, 1022 (10th Cir. 2013) (adopting the parties’ shared view of what law governs).

Although CSI and Obermeyer agree that they had a contract, they do not agree on when it was formed. Obermeyer contends that the contract was entered into before the January quote and was not subsequently modified. CSI contends that the contract was not formed until the January quote and that even if the parties had a prior contract, the contract was modified (1) by the quote or (2) by Obermeyer’s making numerous payments on invoices using the treated pricing. We hold that there was sufficient evidence for a jury to find that the parties had reached a contract before the January quote and that there are disputed issues of fact precluding summary judgment for either party on whether the contract was modified by the quote or by Obermeyer’s later payments.

A. Was there a contract before January 11?

Obermeyer contends that the parties had already formed a contract at the lower rate of $3.74/lb for untreated fabric and $2.23/lb for calendering before the January 11 quote. “Under Texas law, the elements needed to form a valid and binding contract are (1) an offer; (2) acceptance in strict compliance with the offer’s terms; (3) a meeting of the minds; (4) consent by both parties; (5) execution and delivery; and (6) consideration.” Specialty Select Care Ctr. of San Antonio, L.L.C. v. Owen, 499 S.W.3d 37, 43 (Tex. App. 2016) (brackets and internal quotation marks omitted); see also Coleman v. Reich, 417 S.W.3d 488, 491 (Tex. App. 2013). In determining whether there was a meeting of the minds, Texas employs an “objective standard of what the parties said and did.” Copeland v. Alsobrook, 3 S.W.3d 598, 604 (Tex. App. 1999). Obermeyer claims that CSI’s October quote for fabric at $3.74/lb and its December quote for calendering at $2.23/lb were offers that it accepted through its December 6 and January 8 purchase orders for untreated fabric and its January 10 purchase orders for fabric and calendering. Although the January 10 purchase order for calendering did not include a price term, the parties do not dispute that calendering was to be charged at the rate set forth in CSI’s December quote — $2.23 per pound of calendered fabric (the treated price).

In challenging the proposition that the parties had agreed on pricing by January 10, CSI argues only that until the January 10 meeting the parties had not agreed on joint invoicing for fabric and calendering and that the earlier quotes were for fabric-only and calendering-only sales. But there is no evidence that CSI had ever suggested before January 11 that the timing of invoices would affect the price. A jury could reasonably find that a contract price of $3.74/lb for untreated fabric and $2.23/lb for calendering had been offered and accepted before the January 11 quote.

B. January Quote

Even assuming that the parties had formed a contract at the untreated price by January 10, CSI argues that it is entitled to summary judgment because the parties later modified the pricing to the treated rate through the January quote. Like contract formation, modification requires mutual consent, which is ordinarily a question of fact for the jury. See Arthur J. Gallagher & Co. v. Dieterich, 270 S.W.3d 695, 702 (Tex. App. 2008) (“Whether a contract is modified depends on the parties’ intentions and is a question of fact.”). “The burden of proving that a contract has been modified is on the party asserting modification,” who “must prove that the other party had notice of the change and that the change was accepted.” Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 581 (Tex. App. 1998). “[T]he other party [must have] had knowledge of the nature of the change.” Id.

CSI argues that the invoices are clear in stating that the price is $5.97 per pound of calendered fabric and that this change in pricing was signaled by the use of the term turnkey on the January quote. But we think that the clarity of the quote is a question for the jury to decide. There are a number of reasons why Obermeyer could have thought that the quote reflected the prior practice of charging $3.74fib for untreated fabric and $2.23/lb for calendering.

First, the quote shows the $5.97 price as the sum of the previously used prices of $3.74 and $2.23. It would be natural to assume that this indicated consistency, rather than a massive change in pricing.

Second, CSI did not state explicitly that it was changing the price or that it needed to increase the price if it was going to agree to single invoicing. On prior occasions CSI had notified Obermeyer of price changes — -when it “updated” the calendering price on December 3, 2012, Aplt. App. at 179-80, and, unsurprisingly, when it reduced the price of fabric in October 2012. Such evidence of course of dealing is a well-recognized tool of contract interpretation under the Uniform Commercial Code (UCC). See Tex. Bus. & Com. Code § 1.303(d). And there would be no reason for Obermeyer to think that a price increase would be needed as a result of single invoicing. To be sure, the new single-invoice arrangement meant that Ober-meyer would not have to pay for the fabric until it had been calendered, whereas the earlier arrangement was that Obermeyer would have to pay for fabric no later than 90 days after it had been warehoused. But the 90-day limit had not been strictly enforced in the past. And in any event this change was highly unlikely -to affect orders for the China project, because CSI was to calender the fabric immediately after receiving it from its supplier, so all scheduled fabric orders would be invoiced (jointly with calendering) well within 90 days of CSI’s receipt of the fabric from its supplier.

Third, CSI never explained to Obermeyer how it was using the term turnkey and the term had never before been used in their dealings. Mr. Obermeyer swore that he had never encountered the term in his ealendered-fabric transactions.

Fourth, Obermeyer had informed CSI on January 3 that it thought it had “reached agreement with [its] customer on all contract terms [and] [o]nly the final signed contract remains outstanding.” Aplt. App. at 395. CSI responded that it had asked its fabric supplier “to hold on to our locked-in prices,” id. presumably so that CSI could hold its price to Obermeyer steady. Obermeyer could assume that no honest business would suddenly change prices on a customer that had relied on its quotes to submit a bid so significant to its business. Indeed, Texas law requires that the modification of a contract for the sale of goods must be made in objective and subjective good faith. See Man Indus. (India), Ltd. v. Midcontinent Exp. Pipeline, LLC, 407 S.W.3d 342, 363-64 (Tex. App. 2013). “To establish objective good faith, the party asserting the modification must demonstrate that the decision to seek modification was the result of a factor, such as increased costs, that would cause an ordinary merchant to seek a modification of the contract.” Id. at 366. CSI claims that it charged the higher price “in response to a commercial exigency” — the invoicing of fabric and calendering together — and that it faced additional risk from delayed payment for the fabric. Aplee. Br. at 51. As previously noted, however, this concern is questionable. There is no evidence that CSI ever explained the concern to Ober-meyer, which would have given Obermeyer a chance to stick with the prior invoicing practice at a much lower price. And even if some price increase was justified, it beggars belief that CSI calculated its increased risk to be exactly the amount of the higher price achieved by adding together the two earlier prices (for fabric and calendering) and applying them to the increased weight. The specifics of the purported change smack of fast dealing. On this record a jury could reasonably reject CSI’s explanation.

C. Payment of Invoices

CSI’s best argument is that Ober-meyer accepted the treated pricing by paying it over the course of nine months. Regardless of what happened up to and including the January quote, argues CSI, the invoices sent to Obermeyer from then on reflected a price of $5.97 per pound of calendered product and Obermeyer made 21 payments on those invoices between February and October 2013. CSI contends that these payments established a course of performance regarding the contract, which is entitled to significant weight in interpreting the meaning of a contract. See Tex. Bus. & Com. Code § 1.308(d) (course of performance “may give particular meaning to specific terms of the agreement, and may supplement or qualify the terms of the agreement”); id. § 1.303(e)(2) (“[Cjourse of performance prevails over course of dealing and usage of trade.”). Under the UCC:

A “course of performance” is a sequence of conduct between the parties to a particular transaction that exists if:
(1) the agreement of the parties with respect to the transaction involves repeated occasions for performance by a party; and
(2) the other party, with knowledge of the nature of the performance and opportunity for objection to it, accepts the performance or acquiesces in it without objection.

Id. § 1.303(a) (emphasis added). We assume that the repeated “performance” that CSI relies on is its submission of invoices setting forth its treated pricing. What is lacking, however, is conclusive evidence that Obermeyer had “knowledge” that the invoices reflected treated pricing. Here there is substantial evidence that Ober-meyer, relying on the good faith of CSI, acted without realizing that the price had been substantially increased. Even as late as July, when the now-contested invoices were still being paid, Mrs. Obermeyer sent an additional purchase order for fabric and calendering at the original rates of $3.74/lb and $2.23Ab. Mrs. Obermeyer testified that she discovered the price increase only after noting that the cost of calendered product for the China project had substantially exceeded the budgeted amount.

CSI argues that Obermeyer should have known about the new pricing and should be held responsible at that price. This is hardly a frivolous argument. Payment at a higher price can be convincing evidence that the customer agreed to the price. And there may be a reliance interest of the seller who infers from payment that there is agreement on the new price. Texas law supports such a should-have-known test. See Preston Farm & Ranch Supply, Inc. v. Bio-Zyme Enters., 625 S.W.2d 295, 298 (Tex. 1981). But we think that what Obermeyer “should have known” is a question for the jury. We have already recited several reasons why Ober-meyer would have interpreted the January quote as leaving the price unchanged. The question is whether Obermeyer should have realized sooner that the invoices did not reflect its understanding of the pricing. Should Obermeyer have trusted CSI not to be sneaking a huge price increase past it and postponed any audit of their dealings, or should it have carefully studied each invoice as a precaution? In our view, reasonable people could differ in that assessment.

Finally, CSI argues that the contract should be interpreted according to CSI’s intended meaning under what it terms the doctrine of negligent assent set forth in Restatement (Second) of Contracts § 20(2), which provides: “The manifestations of the parties are operative in accordance with the meaning attached to them by one of the parties if ... (b) that party has no reason to know of any different meaning attached by the other, and the other has reason to know the meaning attached by the first party.” CSI contends that its intended meaning of the invoices should prevail because Obermeyer had reason to know that it was being charged under treated pricing. But whether Ober-meyer had “reason to know” is, as far as the parties have informed us, essentially the same question as whether it “should have known” what CSI meant by its pricing. Again, this is a jury question. Reasonable people can disagree on whether Ober-meyer was negligent in not detecting the pricing change sooner. Summary judgment would not be appropriate on the ground of negligent assent.

CSI cautions that a decision against it would “inject untenable uncertainty into commercial transactions” by “encouraging] contracting parties to remain ignorant of the prices they pay.” Aplee. Br. at 40. We disagree. There is a strong policy interest in encouraging trust between parties to commercial transactions. Commerce is not enhanced if buyers and sellers must always treat each other as adversaries, auditing every transaction as it occurs to be sure the other party is not cheating. If the jury finds that Ober-meyer had been misled by an unscrupulous supplier on which it had relied in good faith, we do not think that the world of commerce will suffer from a verdict in favor of Obermeyer.

III. CONCLUSION

We REVERSE the district court’s grant of summary judgment to CSI and REMAND for further proceedings. We GRANT the unopposed motion to seal Volume 4 of appellant’s appendix, which contains four pages. We also GRANT counsel’s motion to withdraw.

      . Obermeyer suggests that we need not address the negligent-assent doctrine because it is inapplicable to UCC transactions under Texas law. But much of Texas common law applies to commercial transactions "[ujnless displaced by the particular provisions of [the UCC].” Tex. Bus. & Com. Code § 1.103(b). And Obermeyer does not contest the applicability of the should-have-known test in Preston Farm, which, in the present context, would appear to assist CSI at least as much as the negligent-assent doctrine.