A tiny, blind spider-like creature found only in Central Texas is at the center of a lawsuit that is threatening the Endangered Species Act and federal agencies abusing the Interstate Commerce Clause.
Texas Attorney General Ken Paxton last week brought the state of Texas in on the side of a rancher suing the U.S. Fish and Wildlife Service for refusing to take the little orange arachnid, the Bone Cave harvestman, off its endangered list.
John Yearwood and a group called the American Stewards of Liberty have been fighting Fish and Wildlife since June of 2014, alleging the protection of the harvestman has cost Yearwood’s ranch and Williamson County, north of Austin, millions of dollars in benefits from blocked development.
Williamson County is also a plaintiff in the lawsuit. Oral arguments are expected to be heard in late March of 2017 in federal court in Austin.
“I welcome Texas’ engagement in support of our claims,” Yearwood said last Wednesday. “This case doesn’t just affect my family and our property. It affects property owners all across the state. We’re grateful that the Texas Attorney General is standing up for us, and for Texas.”
What makes this more than just a property rights case and could very well have national implications is the contention that Fish and Wildlife cannot regulate commerce on behalf of a species that exists only in a single state.
Nearly 70 percent of the 1,447 animal and 919 plant species listed by the federal government as threatened or endangered are native only to one state.
“This is a request for a court review of the concept of the limited enumerated powers of the federal government hardwired into our Constitution,” Robert Henneke, counsel for Yearwood, said Wednesday. “It’s something we’ve lost with the growth of Commerce Clause powers. We’re trying to restore its original, Constitutional meaning.”
Henneke, director of the Texas Public Policy Foundation’s Center For the American Future, said the attorney general’s amicus brief has added momentum to a movement to test the 10th Amendment as a restraint on Commerce Clause overreach.
That the brief hit its mark was confirmed when lawyers for Fish and Wildlife took the rare step of formally opposing it.
“The Obama administration is abusing its power under the Endangered Species Act by unlawfully listing a species on the endangered list that only lives in the state of Texas and has no impact on interstate commerce whatsoever,” Paxton said in a release last week. “Under the Constitution, the federal government can only act when there is a direct logical connection between the subject being regulated and interstate commerce.”
When Fish and Wildlife first added little Texella reyesi to its endangered list in 1988 it had been found only in a handful of caves in two Central Texas counties. It has since been found in more than 170 places in those counties.
After a five-year review, however, Fish and Wildlife in 2009 declined to remove the Bone Cave harvestman from the endangered list. Of the thousands of species it has listed, the agency has only reversed itself 62 times.
Although no one has done a full accounting, Fish and Wildlife has demanded some form of protection for the harvestman in more than half of the places it has been found. Williamson County maintains 11 harvestman preserves covering nearly 900 acres at a cost to the Texas Department of Transportation and the county of at least $6 million in land purchases.
Construction of a $40 million Highway 195 was blocked for years until the state and Williamson County capitulated on a habitat purchase.
Mitigation permits to develop near harvestman caves cost $400,000 an acre, making it all but impossible for adjacent landowners to do anything with their property.
Frustrated by the habitat sprawl, Yearwood sought out Margaret and Dan Byfield, whose American Stewards of Liberty group was taking aim at the Endangered Species Act. They filed a detailed petition charging Fish and Wildlife with woefully incomplete scientific research on the harvestman and its rarity.
The agency took a year to dismiss the petition.
“I knew from the beginning that this fight could take a long time, but I also knew that it was about more than just our land,” Yearwood said. “This case is about freedom and the Constitution. I’m proud to be a part of that.”