by Dan Byfield

In the early 1970’s, public outcry to save the Bald Eagle achieved banning the use of DDT and jumpstarted the environmental movement. Liberal socialists fanatically lobbied Congress for legislation that was very difficult to oppose. In fact, they won approval for notable laws like the Clean Water Act, Wild and Scenic Rivers, and, of course, the Endangered Species Act. After all, it was very difficult to oppose clean water and saving God’s creatures.

Using the Commerce Clause, as what Justice J. Boggs of the 6th Circuit Federal Court called the “Hey, you-can-do-whatever-you-feel-like Clause,” Congress created dozens of new edicts pretending they had the authority and the patriotic duty to regulate every body of water and every species that flew, swam and roamed the Earth, or at least in the 50 United States.

Then we began to hear horror stories of people losing the use of their land, their jobs and their homes. We learned more than we wanted about the spotted owl, the kangaroo rat, the golden-cheeked warbler, and thousands of other species we were told were in danger of going extinct. Then came cave bugs. Yes, cave bugs!

In 1987, the U.S. Fish and Wildlife Service was persuaded by a member of EarthFirst!, who was caught trespassing on private property, to list a half-dozen six-legged critters as endangered. These bugs are so small you have to view them through a microscope. They claimed that these karst invertebrates (cave bugs) were only found on 216 acres of land just west of Austin, Texas owned by Fred Purcell.

Since then, Fred has lived in a nightmare of bureaucratic red tape trying in vain to obtain permission from the federal government to use his land. But at every turn, they have denied him a permit.

Unfortunately, Fred’s property is riddled with over two-dozen sinkholes and small caves that, according to the government, contain six different supposedly endangered species of scorpions, beetles and spiders. Fred has done everything U.S. Fish and Wildlife has demanded. He even conveyed several of the caves to a non-profit organization, along with twenty or thirty acres as buffer zones around the caves.

But, the government wants more. New landowner guidelines called for 60 to 100 acres per cave as buffer zones to protect the bugs. Out of time and out of money, Fred had to file for bankruptcy to forestall the bank from foreclosing on his property and is working out a plan to keep the constitutional challenge alive. Fred is now the owner of a useless piece of private property estimated to be worth over $60 million.

With the help of the American Land Foundation, Fred filed GDF Realty Investments v. Bruce Babbitt in Austin’s Federal District Court last June. Together, ALF and Fred are challenging the constitutionality of a particular portion of the Endangered Species Act.

If won, the case will not nullify the entire Endangered Species Act, but only the “Take” provision of the Act that gives the federal government the authority to regulate Fred’s property. This is significant because the attorneys for Fred believe that his case could set the precedent for over 70 percent of all species on the Endangered Species Act list. The secondary effect would take away the ability of the FWS to list millions of acres as critical habitat for those species. So, this case is extremely important.

And so far, it’s off to a great start. In early April of this year, federal Judge Sam Sparks denied the U.S. Fish and Wildlife Service’s motion to dismiss Fred’s lawsuit. At the same time, the judge also rejected the government’s claim that Fred should be barred from bringing a constitutional challenge of the Act because of earlier suits brought by him against the federal government.

The court also agreed that it has proper jurisdiction to try this case and, in a motion brought up entirely by the judge, he pronounced that Fred had been significantly injured to have standing to bring the lawsuit. Apparently, the Judge didn’t want the issue raised on appeal and decided to deal with it at the trial level.

More significantly, he ruled that Fred did not have to exhaust all his administrative remedies with the federal government to bring this kind of challenge stating: “Here, plaintiffs’ constitutional challenge is not suitable for determination in the administrative appeal process cited by defendants, because it does not appear the FWS may determine the constitutionality of a federal statute.”

The constitutional challenge all hinges on a U.S. Supreme Court ruling created from a lawsuit known as U.S. v. Lopez. In 1994, Congress created the Gun Free Zone Act. Mr. Lopez was caught with a gun within 300 feet of a school zone and was found guilty of violating the new act.

He decided to challenge the law stating that Congress had no authority to regulate his actions because they had nothing to do with interstate commerce as required by the Commerce Clause. His suit created the litmus test for courts to determine if other laws violate the Constitution.

American Land Foundation’s goal is to prove that the bugs on Fred’s property have nothing to do with interstate commerce because they live their entire lives underground and never leave their place of habitation and have no economic or commercial value.

James R. Reddell, Curator of Invertebrate Zoology at the Texas Memorial Museum, The University of Texas at Austin, has performed extensive research for over forty years on the caves and the bugs on Purcell’s property.

He was the first person to identify the cave bugs involved with Fred’s property and has a sworn affidavit in the case that says the caves are “small, hard to find, and are rarely visited by humans.” In fact, many of the caves have had steel doors placed over their openings and locked so that no one or no critter can disturb the cave bug’s home. The only individuals who come onto on Fred’s property are agents of the Fish and Wildlife Service, who come without his permission, to spread ant poison to kill the fire ants.

Reddell says, “There is no trade or commerce in these bugs or any parts of them.” And, he is “not aware of a single instance in which any of these karst invertebrates has been bought, sold, or traded by any person, and they have no known economic or commercial value.” Having the leading scientist for cave bugs as the star witness is fortunate in this case.

In a sixteen-page ruling, Judge Sparks said, “the Six Species live the life of Gollum, the cave-dwelling creature from J.R.R. Tolkien’s The Hobbit. Adding insult to injury, they allegedly have ‘no known economic or commercial value’ and, as could be expected, do not get out much…”

The ruling is extremely encouraging to Fred and precedent setting for landowners who face a similar problem with other endangered species on their land.

The American Land Foundation and plaintiffs in the lawsuit have filed a motion for summary judgment. All briefings for the summary judgment motion have been filed and the parties are now awaiting a trial or ruling that could come as soon as this summer.

It has taken years for the right scenario to come along where a lawsuit like this could be filed challenging Congress’s authority to regulate private property under the Endangered Species Act.

The Act has been up for reauthorization for almost a decade in Congress and no one has had the fortitude or the votes to make the corrections necessary to protect the interests of the individual landowner. A law like the ESA deserves to be repealed and put up on the shelf to collect dust.

Individual landowners, hands down, are the best protectors of our wildlife and our natural resources. Only when Congress relinquishes it’s stranglehold on private property owners will both the citizens and the species flourish.

Winning this lawsuit will signal to the rest of the country that laws like the Endangered Species Act run contrary to our Constitution and should not be tolerated or revered any longer.