The Honorable Robert Henneke is General Counsel at the Texas Public Policy Foundation. Before joining the Foundation, Robert served as the twice-elected Kerr County Attorney where he brought conservative values to county government. Robert began his legal career serving as an Assistant Attorney General in the General Litigation division under the leadership of Texas Attorney General Greg Abbott.
Date Filed: December 15, 2015 Original Court: United States District Court for the Western District of Texas Case Status: Pending
The Center for the American Future filed suit to intervene into the pending lawsuit seeking delisting of the Bone-Cave Harvestman from the Endangered Species Act. The suit challenges the authority of the federal government to use the Interstate Commerce Clause to regulate non-commercial interactions with the Bone Cave Harvestman arachnid. If successful, the Center’s position may be a catalyst for unraveling decades of overregulation in the areas of endangered species and private property rights. See more at lonestarpropertyrights.com.
What to Know
The United States Fish and Wildlife Service is trying to use its authority under the Interstate Commerce Clause to regulate interactions with a small arachnid (the BCH) that doesn’t cross state lines or affect commerce. This federal overreach costs cities and land owners millions of dollars a year and prevents families from using their land for harmless things like camping and recreation. We represent Williamson County, Texas and private property owner John Yearwood in a lawsuit to stop this unconstitutional power-grab.
John Yearwood is a decorated military veteran. He runs a small business and lives on a farm that has been in the family since 1871.
Over the years, he and his wife have used their farmland to benefit the community. The Yearwoods have allowed local church youth groups and the high school 4-H club to use the property for camping. Last year, Mr. Yearwood built a shooting range for the high school 4-H club to practice gun-sports. The Yearwoods do not charge the groups to use the property.
These community outreach projects are in jeopardy, however, because the best part of the land for camping is also home to the Bone Cave Harvestman. (BCH). Under the Endangered Species Act, it is a federal crime to do anything to harm the BCH or its habitat. So the Yearwoods are left to choose between thousands of dollars in permits or thousands more in civil and criminal penalties, or to abandon the use of the property.
For years, Williamson County has been the poster-child for species conservation. Just this year, the County was given an Award by the United States Fish and Wildlife Service (USFWS) for its efforts to preserve the Georgetown and Jollyville Salamanders.
The County currently maintains 11 wildlife preserves designed to protect the Bone Cave Harvestman—two more than what USFWS claims is necessary to preserve the species in perpetuity.
But USFWS is demanding more. Under the federally adopted Conservation Plan (the Plan), USFWS is demanding that the County purchase and maintain even more preserves. Moreover, the County is required to maintain an account of a least $20,000,000.00 in taxpayer funds on hand to mitigate for any damage to habitat in the county. Finally, the County is required to spend thousands of dollars a year removing fire ants from the county, because they are BCH’s natural predators.
The County has concluded that its citizens tax dollars could be better spent on municipal services than on additional protections for an arachnid that is no longer in danger of extinction.
The Endangered Species Act (ESA) prohibits the “take” of any endangered species, including the Bone Cave Harvestman (BCH). Like all other federal regulations, the ESA must be authorized by a grant of authority from the Constitution. The ESA’s constitutional basis is the Interstate Commerce Clause of Article 1 Section 8. The Commerce Clause grants Congress the authority to “regulate commerce between the states.”
The United States Supreme Court has interpreted the Commerce Clause to lawfully regulate three categories of activities: 1) interstate commercial activity; 2) intrastate commercial activity that has a “substantial effect on interstate commerce”; and 3) non-commercial activities, the regulation of which are necessary to regulate an interstate market. These three categories are commonly referred to as the “Lopez Categories.” In 2005, the Court clarified that the third Lopez category, is actually regulated under the Necessary and Proper Clause.
The BCH lives solely in isolated caves in central Texas. It is not bought or traded in interstate commerce, and has no substantial effect on interstate commerce. Likewise, BCH spiders are not a fungible good, the regulation of which is necessary to regulate an interstate market. Accordingly, neither the Commerce Clause, nor the Necessary and Proper Clause grant Congress the authority to regulate BCH takes.
In 2003, the Fifth Circuit held in GDF Realty Investments, Ltd. v. Norton, 326 F.3d 622, 624 (5th Cir. 2003), that regulating BCH takes is justified under the third Lopez Category. According to the Court, all species are interconnected, and therefore anything that affects one species affects commerce. The Fifth Circuit’s evaluation of ESA regulation of the BCH under the third Lopez category is no longer good case law due to subsequent Supreme Court and Fifth Circuit decisions.
Relevant Opinions Since GDF Realty
Since GDF Realty was decided in 2003, two Supreme Court opinions have changed the constitutional basis to evaluate the Commerce Clause under third Lopez category. Furthermore, one Federal District Court has expressly rejected the basis for GDF Realty.
In Gonzales v. Raich, 545 U.S. 1 (2005), Justice Scalia opined that the third Lopez Category – under which GDF Realty was decided – is not properly interpreted under the Commerce Clause, but instead falls under the Necessary and Proper Clause. The Fifth Circuit adopted this approach four years later in U.S. v. Whaley, 577 F.3d. 254, 260 (5th Cir. 2009).
Interpretation of the Necessary and Proper Clause applies a higher standard to regulations claiming to affect commerce than under a Commerce Clause analysis. Under the Necessary and Proper Clause, the regulation of a non-economic activity must be “plainly adapted” to the regulation of interstate commerce.
Second, in NFIB v. Sebelius, 132 S.Ct 2566 (2012), the Court reiterated that the Commerce Clause regulates commerce. It is not a “whatever-it-takes-to-solve-a-national-problem power.” As the Court explained, “[t]he proposition that the Federal Government cannot do everything is a fundamental precept.” This directly contradicts GDF Realty’s holding that anything that affects the eco-system (basically everything) is commerce and therefore subject to Federal regulation.
Finally in the only federal case to review the ESA after Raich and Sebelius, the district court held that neither the Commerce Clause, nor the Necessary and Proper Clause “authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce.” PETPO v. USFWS, 57 F. Supp. 3d 1337 (D. Utah 2014), As a result, the court struck down the ESA listing of the Utah Prairie Dog – an intrastate animal that only exists in Utah and does not impact interstate commerce.
Together, Raich, Sebelius, and PETPO provide a clear roadmap to challenge the ESA regulation of the BCH.
 “The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”