When the bone-cave harvestman spider was listed as ‘endangered’

OPINION:

Until recently I had never heard of the bone-cave harvestman, which as it turns out is a little spider that lives almost exclusively in Williamson County, Texas and is listed by the Feds as “endangered.”

Williamson County is north of Austin and the little spider like creature is blind, orange and resembles a tiny “daddy long-legs.” They live their lives in totally dark tiny underground limestone caves which means that although their presence is having quite an impact on county residents, very few people have ever actually seen one.

The Endangered Species Act since its passage in 1973 has allowed the federal government incredible leeway in protecting species deemed “endangered.” Animals, birds and bugs no reasonable person would consider endangered or even know much about can end up on the protected list and when that happens, Washington bureaucrats, public interest lawyers and judges can run wild using an incredibly expansive interpretation of the U.S. Constitution’s Commerce Clause to justify pretty much whatever they want. In fact, while on the Ninth Circuit Court of Appeals, Judge Alex Kozinski once wrote that he wonders why the Commerce Clause shouldn’t be renamed the “Hey, you can do whatever you feel like clause.”

When the feds listed the little bugger as endangered in the ’90s, the U.S. Fish & Wildlife Service, which overseas goings on under the act swung into action and required the county to set up nine sanctuaries to protect the little caves in which they live and keep some $20 million on hand to protect them from their human and non-human neighbors. It seems that the greatest threat the little spiders face is from the fire ant, which considers them something of a delicacy, so the feds demanded that the county declare war on the fire ant.

County officials, wanting to be seen as good conservationists acquiesced and went even further, setting up 11 such sanctuaries. The feds came back suggesting that if 11 sanctuaries were better than nine even more might be better still and have been urging county officials to set aside even more land to house the little ants.

With protection also comes heavy fines and perhaps even jail time if landowners interfere in any way with the spider’s lifestyle or habitat on their own land.

Those warnings are what got John Yearwood’s attention. Mr. Yearwood is a decorated veteran and a native of Williamson County who lives with his family on a farm that has been in his family since 1871. Before the feds decided that anything he or his family does on his own land might affect the spider, the Yearwoods allowed and even encouraged local 4-H clubs and church groups to camp on and use the land for recreational purposes. They at their own expense even constructed a rifle range for the local 4-H shooting club. They charged for none of this.

Once the feds put the spider under Endangered Species Act regulation, none of this could continue without a federal permit that would cost thousands or perhaps tens of thousands of dollars unless he was willing to risk penalties that could include a $50,000 fine and a year in a federal lock-up. Instead, Mr. Yearwood took his fight to court.

That was in 2015 when, with the backing of the Texas Public Policy Foundation’s Center for the American Future, Mr. Yearwood and Williamson County initiated a suit supported by the State of Texas challenging the unlimited use of the Commerce Clause by the government to regulate matters that have nothing to do with interstate commerce. The spider the government says it is protecting has no commercial value and has never been in interstate commerce. As a practical matter, it cannot even exist outside the caves in which it lives and thus has little if any interaction with other creatures that might somehow find themselves in interstate commerce.

The Yearwoods’ lawyers want the spider removed from the endangered list, which recent science shows is not, in fact, endangered, and are arguing that the Fish & Wildlife Service is basing its claim of jurisdiction on an absurdly broad 2003 Fifth Circuit Court of Appeals decision declaring that all species are interconnected and that as a result anything that affects any one species affects all. If they prevail … and other court decisions since 2005 suggest that they may … the Yearwood family and its lawyers may manage to do something no one else has thus far accomplished … rein in out-of-control bureaucrats and bring common sense back to environmental regulation.

• David A. Keene is an editor at large for The Washington Times.