Connect with CP&DR

facebook twitter

Follow us on Facebook and Twitter

Subscribe to our Free Weekly Enewsletter

Northern California Builders' Attack of Endangered Species Act Fails

The U.S. Supreme Court has declined to review an endangered species decision in a California case handled by the U.S. Court of Appeals for the District of Columbia. The Supreme Court's decision, issued in mid-January, means that the appellate court opinion upholding the U.S. Fish & Wildlife Services listing of four species of fairy shrimp that live in California as either endangered or threatened will stand. The Building Industry Association of Northern California (BIA) filed the lawsuit in 1994. The builders argued that the listings should be overturned because the federal agency failed to make available to the public a study on which the listing decision was based. The BIA also claimed the decision was not based on the best available science and the agency misapplied its own policy on independent peer review. The BIA further argued that the listing violated the commerce clause because the fairy shrimp live in only one state and the federal government's regulation has nothing to do with interstate economics. (The Endangered Species Act is predicated on Congress's authority to regulate interstate commerce.) The trial court and the appellate court both ruled that the Fish & Wildlife Service followed proper procedures. The BIA did not press the commerce clause claim at the trial court level, and the appellate panel dismissed it in a footnote. Still, the commerce clause argument was central to the BIA's petition with the U.S. Supreme Court. Since 1995, the court has struck down a federal law against possessing a gun near a school and a law allowing a victim to sue a rapist in federal court. In those instances, the court ruled that the federal laws had nothing to do with interstate commerce. Property rights advocates hoped that the high court would apply the same reasoning to strike a major blow against the Endangered Species Act. However, the court declined without comment to hear the case. Fairy shrimp are small crustaceans that live in vernal pools small indentations in the earth's surface that fill with water during the rainy season. Vernal pools are somewhat common in portions of the Central Valley and in San Diego County. Some scientists say that development and farming have wiped out most vernal pool complexes in the state, a factor that led to the endangered species listings. The case is Bldg. Indus. Ass'n of Superior California v. Norton, No. 01-620. At the court of appeal it was No. 00-5143.