Texas Court Gives Cave Bugs More Rights than Humans

Published October 1, 2004

In 1983, Dr. Fred Purcell and his brother purchased an interest in 216 acres in Travis County near Austin, Texas. The property lies within 1,200 acres that sit at the intersection of two major highways in a rapidly growing commercial and residential area. The Purcells’ property, on which they installed water and wastewater gravity lines, force mains, lift stations, and other utilities, contains a number of caves.

In 1988 and 1993, the U.S. Fish and Wildlife Service (FWS) declared six invertebrate species that live in the caves “endangered” under the Endangered Species Act (ESA). The cave bugs range in length from 1.4 mm to 8 mm–at most, about one-third of an inch long. The cave bugs are found only in parts of Texas’ Travis and Williamson Counties. There is no commercial market for them, nor do people travel to Texas to see them.

In 1989, the FWS told the Purcells that development of their property would violate the ESA because it would constitute a “take” of cave bugs. In 1990, in an effort to alleviate the FWS’s concerns, the Purcells deeded six acres, containing caves and sinkholes in which the cave bugs were known to live, to a nonprofit environmental organization. But then, in 1993, after Dr. Purcell cleared brush from his property, the FWS told him he was under criminal investigation for “taking” endangered species. In 1998, after years of stonewalling by the federal agency–which drew a rebuke from a federal judge–the FWS barred the Purcells from using their property.

Court: Cave Bugs Affect Interstate Commerce

In 1999, the Purcells and their partners sued the FWS, contending that application of the ESA to the Texas cave bugs violated the Commerce Clause in much the same way that a federal law banning guns on school yards had been declared unconstitutional by the U.S. Supreme Court in United States v. Lopez in 1995.

In 2001, a Texas federal district court ruled for the FWS, holding that application of the ESA to Texas cave bugs was “substantially related” to interstate commerce.

In 2003, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld the lower court’s decision, ruling that, because “takes” of cave bugs threaten the “interdependent web” of all species, the cave bug’s habitat may be regulated, under the Commerce Clause, by the ESA. In the panel’s view, although the “takings” of cave bugs do not themselves affect interstate commerce, the takings of all ESA-listed species, when viewed in the aggregate, affect interstate commerce.

The Purcells and their partners asked the entire Fifth Circuit to rehear the case. On February 27, 2004, the Fifth Circuit refused to rehear the case en banc, over the dissent of six judges (one shy of the number necessary for a rehearing). The dissenting judges condemned the panel’s opinion as giving new meaning to the term reductio ad absurdum and characterized the panel’s circle-of-life analysis as unsubstantiated reasoning that embraces a remote, speculative, attenuated, and indeed more than improbable connection to interstate commerce.

States’ Authority in Question

On May 27, 2004, the Purcells and their partners asked the U.S. Supreme Court to hear their case and to announce whether, in interpreting the Commerce Clause in a manner consistent with the vision of the nation’s founders in the Court’s 1995 Lopez ruling, the Court really meant it.

The Commerce Clause implications are quite serious, given that half of all ESA-listed species exist only in one state and are present only on private land. The Court has yet to decide whether to hear the case, but a decision is expected soon.

Even more is at stake in the case than whether the Commerce Clause means what it says. The Tenth Amendment to the U.S. Constitution provides that states shall have exclusive authority over land-use planning, regulation, and zoning, “by right of history and expertise,” as Justice David Kennedy wrote in his concurrence in Lopez. Justice Thurgood Marshall called this authority local government’s “most essential function” because it is how “we protect [our] quality of life.”

Neither justice ever anticipated the federal courts would one day lay claim to these rights.

William Perry Pendley is president and chief legal office of the Mountain States Legal Foundation. He can be reached through the group’s Web feedback form at http://www.mountainstateslegal.org/contact_us.cfm?Type=E&ContactID=3.