For Immediate Release

October 5, 2001                                              

Contact:  Dan Byfield,   512-708-8083                        
GDF Realty v. Gale NorTON
US District Court, Austin, TX

ESA Challenge Moves to Fifth Circuit

Austin, Texas – Federal Judge Sam Sparks of the U.S. District Court in Austin upheld the constitutionality of the “take provision” of the Endangered Species Act, a key ESA regulation that U.S. Fish and Wildlife Service has used to stop landowners from making use of their land because of endangered species.

“It’s a very unfortunate ruling by this judge who until now had been very supportive of private property and opposed to the heavy-handed tactics of the federal government,” stated Dan Byfield, president of the American Land Foundation, which is funding the lawsuit.

The suit, brought on behalf of landowner Fred Purcell of Austin, is claiming that endangered cave bugs found on his property are preventing him from using his land.   The U.S. Fish and Wildlife Service has denied Purcell permits to use his land.

Fred and ALF brought a lawsuit challenging the constitutionality of the federal statute claiming that recent decisions by the U.S. Supreme Court make clear if an activity has no commercial value or interstate commerce implications, the federal government does not have to authority to regulate the activity.

 Judge Sparks disagreed and state that: “Plaintiffs mistakenly focus only on the commercial aspects (or, in their view, the complete lack thereof) of the Cave Species.   However, the regulated activity in this case is not simply the Cave Species through plaintiffs’ development of the property.   Plaintiffs cannot simply ignore the commercial nature of their activity.”

Paul Terrill, attorney for Fred Purcell stated that: “The basic flaw in Judge Sparks’ analysis is that the take provision of the ESA does not regulate commercial development, such as the development of shopping malls and apartment complexes.   It regulates “takes” of endangered species, such as cave bugs in Fred’s case.”  In fact, Fred has not been able to use, sell or develop his land for over 14 years.   He’s been handcuffed by government red tape so long that he has been forced to file bankruptcy to prevent foreclosure of his property.”

“No ones claims that takes of the cave bugs at issue in the case substantially affects interstate commerce,” Terrill added.   In reality, both the Fish and Wildlife Service and Judge Sparks relied on activities other than what is regulated by the ESA take provision to find a connection with interstate commerce. 

 “We are now in the process of appealing the decision to the Fifth Circuit Court of Appeals in New Orleans,” stated Byfield.  “That has been our goal since we filed this case last summer.   We are confident the Fifth Circuit will agree that the trial judge misread the Supreme Court cases and will overturn our case on appeal.”   The Supreme Court recently said that the Violence Against Women Act Constitutionally exceeds Congress’ authority.  If Congress cannot constitutionally regulate harm to women, how can it regulate harm to bugs?