NCPA - National Center for Policy Analysis


August 4, 2004

In some courts, critters have as many constitutional protections -- if not more -- than ordinary citizens do.

At issue is a case involving 216 acres of land near Austin, Texas. In 1983, Fred Purcell and his brother purchased the land and began altering it, only to be told by the U.S. Fish and Wildlife Service (FWS) that the land was habitat to endangered cave bugs, found only in two Texas counties.

  • In 1989, the FWS told the Purcells that development of the property would amount to taking an endangered species.
  • The Purcells then donated 6 acres of their land, where most of the cave bugs supposedly existed, to a nonprofit environmental organization; but in 1993, the FWS again cited Purcell for the "taking" of endangered species.
  • By 1998, the Purcells were prohibited by the FWS from using their property.

In 1999, the Purcells took their case to court, alleging that the prohibition violated the Interstate Commerce Clause, making an argument similar to that in a case that in which a federal gun-free school zone law was struck down. However, a Texas court ruled decided that the application of the Endangered Species Act to Texas cave bugs was "substantially related" to interstate commerce. A 5th Circuit Appellate Court agreed, in essence saying that since cave bugs are part of the interdependent web of all species, taking them does indeed fall under the Interstate Commerce Clause.

The Purcells have now requested that their case be heard before the Supreme Court, which will decide the matter on August 6. The Purcell's case could have a large impact on property owners, since half of all critters on the Endangered Species Act list are present in only one state and only on private land.

Source: William Perry Pendley, "Cave Bug Ruling Endorses Elton John's Circle of Life," Mountain States Legal Foundation, August 1, 2004.


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