American Stewards of Liberty v United States Fish & Wildlife Service

This document provides a procedural statement and history of the American Stewards of Liberty v United States Fish & Wildlife Service case. It discusses the Endangered Species Act, the classification of species as endangered or threatened, and the power of Congress to regulate commerce. The document also includes facts about the Bee Creek Cave Harvestman and the arguments presented in the case. The issue before the court is whether the Commerce Clause authorizes the county government to regulate the Bone Cave Harvestman as an endangered species. The analysis examines the jurisdiction of the federal government, the rules regulating the protection of endangered species, and the application of these rules to the case. The conclusion argues that the federal government's efforts to protect the Bone Cave Harvestman go against the provisions of the law.

To: Judge Lee Yeakel
From: Law Clerk to Judge Lee Yeakel
Date: March 31, 2019
Re: American Stewards of Liberty v United States Fish & Wildlife Service, 15-Cv-1174-LY
(W.D.Tex)
Procedural Statement and History
In 1973, The Endangered Species Act1 was adopted with the objective of enhancing protection of
species threatened with extinction. Through the implementation of the Act, the congress
prohibited takes of some endangered and threatened species. Takes in this instance means; the
annoying, damaging, shadowing, chasing, firing, upsetting, massacre, conning, bagging, or
amassing, or endeavoring to engage in any such behavior.
The classification of species as endangered or threatened makes it mandatory for individuals
owning property to seek permission from the United States Fish & Wildlife Service for approval
in order for them to carry out activities that can potentially result to inhabitable environment this
species2. Therefore, any unauthorized take will include civil and criminal penalties such as fines
amounting to $50,000 and imprisonment for a year.
In this regard, the United States Constitution gives power to Congress to regulate commerce in
several states. Commerce power means; power to ensure adherence to the rule by which
commerce is governance3. The commerce clause gives Congress authority to regulate: channels
of interstate commerce; instrumentalities of interstate commence and any other activities that
constitute any important part of interstate commerce or rather affect it. However, in this instance,
the only applicable category is the third Lopez.
1 Relevant provisions of the Endangered Species Act: 16 U.S.C. §§ 1531, 1532, 1538, 1539
50 C.F.R. § 17.21
2 American Stewards of Liberty v. U.S. Fish & Wildlife Serv., Defendant’s Opposition to MSJ & Cross-Motion.
3 Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000).

In addition, at the time when GDF Reality 1 was decided in accordance with the Fifth Circuit,
the court still applied the traditional reasoning to commerce clause claims arising under the
Lopez category. Following that, the Supreme Court and the Fifth Circuit have been of the
opinion that: the 3rd Lopez category has not been accurately interpreted since it is categorized
under the Necessary and Proper Clause that provides for a higher level scrutiny than the basis of
rational4. The statement offers capacity to the Congress to make all laws that are vital and
appropriate towards executing the forces stipulated in the Constitution. With respect to the
connection between the Necessary Proper Clause and Commerce Clause, the Supreme Court on
account of GDF Realty Invs., Ltd. v. Norton 5 gave that Congress has capacity to make any laws
that will be important and legitimate in controlling business among a few States.
Facts
In 1988, the fish & wildlife service listed the Bee Creek Cave Harvestman as endangered in
accordance with the United States Constitution as provided for under Article 166. This was the
final rule in determination of the five Texas cave invertebrates to be termed as endangered
species.
In 1993, the wildlife service made a change in regards to the caves by splitting the species into
two, that is: the Bee Creek Cave Harvestman; the Bone Cave Harvestmen; Coffin Cave Mold
Beetle and the Bone Cave Harvestman (Texella Reyesi) were also considered to be endangered7.
However, the first findings that were made in the Bee Creek Harvestman apply to the BCH and
ever since 1993, several petitions have been made to have BCH delisted but neither has been
successful.
BCH refers to a small arachnid with no eyes that measure between 1.4 to 4 mm whose
habitation is isolated caves and voids north of the Colorado River in Travis and the counties of
Williamson in Texas. The BCH has almost zero ability to be able to move a quite distance on the
surface. Due to it being limited to isolated caves, BCH takes do not consist a major effect on the
whole ecosystem thou the disintegration of the habitat has contributed to isolation of a number of
caves that have lead to growth of own, highly localized faunas.
4 United States v. Whaley, 577 F.3d 254 (5th Cir. 2009).
5 GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003).
6 United States Constitution as provided for under Article 16, 53 Fed. Reg. 36029-1
7 Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007).

In addition, there is no commercial market value attached to BCH since it has never been bought,
traded for nor neither does it generate tourism. Also, there is no history indicating trade of the
species in the cave or tourist visiting Texas to view the BCH. In regard to this, the wildlife
service has always been of the opinion that commercial overutilization has no negative effect to
the BCH, (GDF Realty 1).
Therefore, the Service in justifying its regulation of the BCH takes relies on the grounds that: the
species is easily affected by human activities that take place in and around the BCH habitat. In
justifying the position they indicate that; things such as people’s presence around the caves,
construction, interference with the caves entrance and vandalism contributes to cave-ins8. In
addition, the service considers other less threat activities such as any form of development
around the BCH habitat can possibly contribute to change in drainage passage into the caves or
result to runoff entering the caves carrying chemicals and pesticides. The service is also of the
opinion that any interference with the humidity level of the BCH habitat could negatively affect
the species.
Following the service regulations, any development that goes within 345 feet of an identified
cave of a BCH requires one to pay $10,000 for an acre beginning from the outermost edge of the
habitat as it exists and not at the species entrance habitat. Similarly, development within 35 feet
of a BCH habitat requires one to pay $400,000.
On 2nd June 2014, the plaintiff basing their reasons on a scientific research filed a petition as to
whether the species were not threatened. On 1st June 2015, a year the petition had been
submitted, the service pronounced a negative finding where it refused to exclude the BCH from
the list of the endangered species.
The reasons for submission for petition were based on some injuries suffered by some
individuals as a result of the listing. For instance: John Yearwood who owns around 865 acres of
land in Williamson county in Texas lives on the land with his wife and son after he recently
returned from Afghanistan9. On his land, there are 3 BCH occupied sites, and since the
Endangered Species Act limits him from engaging in any activities that would negatively affect
the species, he has to ensure that he complies with the listing provisions.
8 People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 57 F. Supp. 3d 1337 (D. Utah 2014).
9 Sabri v. United States, 541 U.S. 600 (2004) .

Before the BCH were discovered on his land, he allowed some church members to use the place,
allowed horseback riding; military camping as well as any other recreational activities. Mr.
Yearwood does not ask for any consideration for use of his property. Unfortunately, following
the regulation, Mr. Yearwood would less likely allow neither the members nor himself to use the
area around the bch caves because the chance of him being prosecuted for the violation of the
laws prohibiting disturbing or harming BCH will be high. Similarly, he is informed that using his
property for purposes such as clearing the bush to reduce the risk of snakes and fires around the
species habitats would likely result to a bch take and therefore the risk of prosecution limits his
ability to make use of his property as he might consider fit10.
In reference to Williamson County situated in Texas, there are a total number of 100 caves
considered to be the BCH habitats. The county’s regional habitat conservation plan and that of
the county observe the service permit where a county has to take over the maintenance of at least
3 perpetual BCH preserves11. Currently in the north Williamson KFR, the county is in charge of
service-recognized KFAs that are: Cob Cavern, Karankawa, Twin Springs and Pricilla and it is in
the process of acquiring Shaman KFA. The county estimated preserve owned land is more than
900 acres and it is still going to acquire around 400 acres.
This is an issue since maintaining such places is expensive, time consuming and causes diversion
of funds that would be used to promote health, safety and welfare services to residents of the
county. Similarly, there is need to have personnel to monitor the caves so as to ensure that there
are no ants and other hazards to interfere with the BCH. In addition, the kind of plan requires that
the county maintains a conservation fund of $20,000,000 for meeting any BCH conservation
efforts. The fund partly funded by tax dollars that would play a big role in providing county
residents other services.
On the other hand, county building and facilities, parks infrastructure and other services have
been affected adversely due to the bch prohibition takes and the need to take permit. It is
anticipated that placement and cost of county infrastructure will have an impact on the continued
listing.
10 San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163 (9th Cir. 2011).
11 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)

Issue
The issue before this Court is whether the Commerce Clause authorizes the county
Government, in accordance with the Endangered Species Act (ESA) to regulate the Bone Cave
Harvestman (“BCH”) which is a tiny subterranean arachnid that only exists in two central
Texas12.
Counties, is not bought or traded in interstate commerce, and does not otherwise affect interstate
commerce.
Analysis
Issue
The issue as established from the facts of the case is in regards to whether the federal
government following the provisions of the Endangered Species Act has been given the mandate
under the commerce clause to pronounce a BCH which is an eyeless arachnid leaving in isolated
cave as an endangered species13. Therefore, the issue seeks to look into the jurisdiction of the
federal government in regards to protection of endangered species, specifically being the BCH.
Rule
In regards to the rules regulating or rather giving the federal mandate to protect the endangered
species include the: United States constitution under 16 which provides the definition of takes to
include any activity that results to a threat of the species.
The endangered species act that was enacted in 1993 under the commerce clause in regards to the
third Lopez as determined by the Supreme Court allows congress to regulate interstate
commerce14.
Further, the Administrative Procedures Act (APA) accommodates necessities that last
organization moves should make into thought in circumstances including administrations
12 United States v. Morrison, 529 U.S. 598 (2000).
13 Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003).
14 Gonzales v. Raich, 545 U.S. 1 (2005).

declaration of ward to keep giving arrangements to delist the BCH to be announced invalid in the
event that they are
(a) subjective, eccentric, a maltreatment of prudence, or generally not as per law,
(b) in spite of any sacred right, power, benefit, or insusceptibility,
(c) conflicting with any resolution,
(d) received without consistence with required methodology,
(e) unsupported by considerable proof, or
(f) baseless by the realities.
Application
Following the provisions, of the law, the Wildlife Service has failed to act in accordance to the
provisions of the Administrative Procedure Act since the protection in regards to BCH seems
arbitrary as it violates the rights of land owners such as Mr. Yearwood from fully enjoying their
rights as to use of land15.
Also, considering that the cost used to maintaining the county acquired land habitat by the BCH
is expensive and contributes to use of the tax money in a not intended way violates the citizen’s
right to good health services and therefore proving to be against the provisions of the laws as
provided for. In addition, the authority exercised by the congress was held to be unconstitutional
by three judges in the case United States v. Lopez 16. The rationale of terming it unconstitutional
was in regards to the Necessary and Proper Clause Which ii Interpretation it limits the power of
the congress to economic species unlike the BCH which its protection has no any economic
value. Looking at history there is no place that indicates that the BCH has played a crucial role in
the economy since no tourist visit the habits.
Conclusion
15 American Stewards of Liberty v. U.S. Fish & Wildlife Serv., Intervenor-Plaintiffs’ Motion for Summary
Judgment
16 United States v. Lopez, 514 U.S. 549 (1995)

Following the laws provided and having a keen look at the economic value of BCH, it is right to
conclude that the federal government by putting in place any effort towards the protection of the
BCH goes against the provisions of the law since the congress is only given the mandate to
ensure protection of species with some economic value for instance being able to attract tourism
as a source of economic value. Also, the process has gone against the Administrative Act since it
interferes with ones right to enjoy use of their property, it also contributes to wastage of tax
which would otherwise ensure proper providence of other services such as health.
Recommendation
I respectfully recommend that this court declares the exercise of power by the congress in
regards to BCH as endangered species to be unconstitutional since it goes against the provisions
of the laws that give it mandate by acting in excess of its power. In addition, the court should
order that all individuals who have failed to make use of their land due to risking prosecution of
non-compliance be allowed to enjoy all the rights pertaining their land since the protection of the
BCH maintenance by county governments results to use of public resources that are of no value
to the people at large since there is no economic value attached to the BCH protection.

Bibliography
Case Laws
American Stewards of Liberty v. U.S. Fish & Wildlife Serv., Intervenor-Plaintiffs’ Motion for
Summary Judgment
American Stewards of Liberty v. U.S. Fish & Wildlife Serv., Defendant’s Opposition to MSJ &
Cross-Motion
United States v. Lopez, 514 U.S. 549 (1995)
United States v. Morrison, 529 U.S. 598 (2000)
Sabri v. United States, 541 U.S. 600 (2004)
Gonzales v. Raich, 545 U.S. 1 (2005)
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012)
GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003)
United States v. Whaley, 577 F.3d 254 (5th Cir. 2009)
Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000)
Rancho Viejo, LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003)
Alabama-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007)
San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163 (9th Cir. 2011)
People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 57 F. Supp. 3d 1337
(D. Utah 2014)
Acts
Relevant provisions of the Endangered Species Act: 16 U.S.C. §§ 1531, 1532, 1538, 1539
50 C.F.R. § 17.21
United States Constitution as provided for under Article 16,53 Fed. Reg. 36029-1