Property-rights advocates are hoping this week that the U.S. Supreme Court elects to take up the case of Texas developer Fred Purcell, who is suing for the right to develop a 216-acre Texas tract despite the presence of an obscure endangered cave bug within the geological catacombs underneath his land. While Purcell has lost the case at every level thus far, backers believe that strong arguments of dissent from six appellate judges in the most recent round of litigation could provide an entrée to the highest court in the land, where a decision in favor of developers could jeopardize the endangered status of hundreds of rare and struggling species across the country.
Purcell"s ingenious twist invokes the cave bug"s lack of commercial appeal as a wedge to undermine endangered species protections prohibiting development. The Endangered Species Act became law in 1973 under the commerce clause of the Constitution, which empowers Congress to regulate trade between states. Many property rights advocates decry the commerce clause for giving the federal government more power than the Constitution"s framers intended.
According to Paul Terrill, Purcell"s attorney, the cave bugs cannot be regulated through the clause because they have no commercial value and as such never cross state lines. “This is not about whether these cave bugs are important or irrelevant,” says Terrill. “What our case is about is whether the federal government has the right to regulate this species or this property.”
Meanwhile, environmentalists are busy working up a defense if the Supreme Court does decide to hear the case. “We are looking at this with great concern,” says John Kostyack, senior counsel of the National Wildlife Federation. “If the Supreme Court took the case, it certainly would be a sign that they are considering declaring the Endangered Species Act unconstitutional with regard to species that don’t cross state borders.”
And perhaps nothing would make the other two branches of the federal government happier. Both the Bush administration and a conservative Congress have been looking into ways to challenge the legal validity of the Endangered Species Act for the last several years, and are optimistic that Fred Purcell might be just the man for the job.