Travis cave bug case could test U.S. law

Supreme Court pondering whether to hear challenge.

By Kevin Carmody

AMERICAN-STATESMAN STAFF

Monday, January 31, 2005

Critics of and supporters of the federal Endangered Species Act are watching whether the U.S. Supreme Court will agree to hear a Travis County case involving cave bugs that, some say, has the potential to strip protection from more than half the nation's rarest creatures.

The habitats of those creatures — as with the endangered cave bugs found only in Travis and Williamson counties — do not cross state lines. The underlying legal question is whether Congress has the authority under the Constitution's commerce clause to protect single-state species that are not, at least directly, involved in interstate commerce.

The challenge to the 1973 law was brought by the owners of land near RM 620 and RM 2222 in northwest Travis County. They contend the law should not apply to the six species of cave beetles or spiders that they say have held up development of their property for 17 years.

Austin dentist Fred Purcell and his partners bought the land, originally 216 acres, in 1983 and installed roads and utilities before the first cave bugs were discovered in 1988. They allege that the inability to negotiate a federal permit scuttled plans for a Wal-Mart store and apartments on the property that, without restrictions, would have been worth $60 million in 1999.

The property owners have lost in the lower courts, most recently last February at the 5th U.S. Circuit Court of Appeals. The appeal to the Supreme Court was considered a long shot, even by the plaintiffs' lawyers, given that other courts have ruled that the species act's reliance on the commerce clause was legitimate.

But the high court has had numerous opportunities since October to reject the case, yet has not, Austin lawyer Paul Terrill said. He represents the property owners in the case: GDF Realty Investments Ltd. v. Gale A. Norton, secretary of the interior.

"All the other cases up for conference at the time were denied, but they've been holding our case for three months, and that's very unusual," Terrill said. "Naturally the odds, normally 1 in 100, are now much better. Whether it's 50-50, or better than that, it's hard to say."

The court's weekly announcement of cases accepted or rejected comes each Monday.

"The conventional wisdom is that the court is unlikely to take it up," said Michael Bean, senior attorney for the group Environmental Defense. "Typically the court takes such cases when there is a division in the circuit court decisions, and that's not the case here."

But Bean concurs with Terrill that one factor could boost the chances of the case being heard: Federal courts have offered different rationales about why the commerce clause applies. Thus, the high court might take the opportunity to settle which rationale is correct, without altering the outcome of the case, Bean said.

Some courts have focused on the "web of life" argument — that any species is part of an ecosystem and the effect of its loss would reverberate across state borders. Others have noted the economic effects of, say, scientists traveling from afar to study a species, or the potential for a species to provide ingredients for medicines. The 5th Circuit focused on the cumulative potential effect of species loss in finding a commercial impact, although six of the circuit's 16 judges issued a strong dissent.

"Just taking the case would not be a big deal, but how the court decides it might be," Bean said. "The majority of the (1,264) species covered by the act are found within a single state, so it would be a very big deal if the court found the law does not apply to them."

The Taylor-based American Land Foundation, which has helped pay for the legal challenge, contends that the facts of any particular case are so specific that even a Supreme Court decision favoring landowners would not automatically strip protection from other single-state species. Although subsequent court challenges would become possible, some of the single-state species might retain protection, said foundation President Dan Byfield.

The Barton Springs salamander, for example, lives in a navigable waterway and on public property instead of on private land. "When you have flowing water, that's different," Byfield said. "It would add another twist to it."

"We're not looking to gut the Endangered Species Act," he said. "Although we do believe that what the environmentalists and that act are doing is gutting the Constitution as it relates to property rights."