CAVE BUG RULING ENDORSES ELTON JOHN’S CIRCLE OF LIFE

In 1999, the Purcells and their partners sued, contending that application of the ESA to the Texas cave bugs violated the Commerce Clause in much the same way that a federal law banning guns on school yards had been declared unconstitutional by the U.S. Supreme Court in United States v. Lopez in 1995. In 2001, a Texas federal district court ruled for the FWS, holding that application of the ESA to Texas cave bugs was “substantially related” to interstate commerce. In 2003, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit upheld the lower court’s decision, ruling that, because “takes” of cave bugs threaten the “interdependent web” of all species, the cave bug’s habitat may be regulated, under the Commerce Clause, by the ESA. In the panel’s view, although the “takings” of cave bugs do not themselves affect interstate commerce, the takings of all ESA-listed species, when viewed in the aggregate, affect interstate commerce.

The Purcells and their partners asked the entire Fifth Circuit to rehear the case. On February 27, 2004, the Fifth Circuit refused to rehear the case en banc over the dissent of six judges (one shy of that necessary for a rehearing). The dissenting judges condemned the panel’s opinion as giving new meaning to the term “reduction ad absurdum” and called the panel’s circle of life analysis unsubstantiated reasoning that embraces a remote, speculative, attenuated, indeed more than improbable, connection to interstate commerce....