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01/26/2017

Mark Pulliam on Blind, Cave Dwelling Arachnids and the Commerce Clause
Michael Ramsey

At Liberty Law Blog, Mark Pulliam: Will a Tiny, Blind, Subterranean Bug Be the Undoing of the Federal Leviathan?  Fro the introduction:

In 1942, deciding the case of Wickard v. Filburn, the U.S. Supreme Court deemed the wheat grown by an Ohio farmer purely for his own use and consumption—not for sale—to “exert a substantial effect on interstate commerce.” This infamous decision led many to conclude that the scope of Congress’s authority under the Commerce Clause is essentially unlimited.

Now that understanding may be upended by a tiny, blind arachnid known as the “Bone Cave harvestman” (scientific name: Texella reyesi). This cave-dwelling invertebrate, which resembles a spider, has been included by the U.S. Fish and Wildlife Service on the Endangered Species list since 1988. Pursuant to the Endangered Species Act and its enabling regulations, the “habitats” of endangered species cannot be modified or “degraded” without a federal permit.

The problem is, the Bone Cave harvestman is known to exist only in central Texas—only in Williamson and Travis Counties, to be exact.

John Yearwood, a third generation ranch owner whose 865-acre spread north of Austin has been in his family since 1871, is suing to remove the insect from protected status. State surveyors discovered Texella reyesi living underground on Yearwood’s property more than a decade ago when considering a road expansion project adjacent to his ranch. As a result, Yearwood, a 71-year old Vietnam vet, has been forbidden to alter his property or “harass” the insect with noise, light, or activity. Landowners who knowingly harm an endangered species or its habitat can face up to $50,000 in fines and up to a year in prison. The insect’s “habitat” is the limestone caves and crevices that are ubiquitous in central Texas. Due to the Endangered Species Act, Yearwood is being held hostage by a tiny subterranean insect that hardly anyone has ever seen or heard of.  (The facts are reported here and here.)

Also:

What makes Yearwood’s lawsuit—now pending in federal district court in Austin—unique is that Texas Attorney General Ken Paxton has weighed in on behalf of the property owners. Last month, Paxton filed an amicus curiae brief that is remarkable for its fidelity to the principles of federalism and limited government.

...

Throughout his brief, Paxton cites the views of the Framers, the Federalist Papers, and Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). It is a tour de force of originalist reasoning.