This commentary originally appeared in the Austin American-Statesman on March 28, 2016.
“If you give an inch, they’ll take a mile.” The adage holds especially true for Williamson County and its ongoing relationship with the U.S. Fish and Wildlife Service.
Williamson County recently filed a lawsuit against the Fish and Wildlife Service, seeking to have federal regulation of the Bone Cave harvestman — a tiny cave-dwelling arachnid — under the Endangered Species Act declared unconstitutional. Williamson County claims federal regulation of the Bone Cave harvestman exceeds Congress’ power under the Constitution’s Commerce Clause because the harvestman lives only in Texas and is not bought or traded in interstate commerce.
But the county’s lawsuit follows a long history of concessions made to the Fish and Wildlife Service over the years to reasonably conserve native species within its jurisdiction. In fact, last year the service recognized the county for its joint efforts to elevate water-quality standards and preserve the Georgetown and Jollyville salamanders.
The current litigation is not an act of animosity toward the service or callous disregard for conservation. It is a demand that the rule of law must be acknowledged by the federal government and that a limit to the authority of the Endangered Species Act must be recognized.
The Bone Cave harvestman was added to the endangered species list in 1988 out of nothing more than an abundance of caution. Little was known of the species, and at the time there were only five known harvestman caves. Today, more than 160 harvestman caves have been located, and there is ample evidence that the species was never endangered to begin with. Nonetheless, the Bone Cave harvestman remains on the endangered species list and the Fish and Wildlife Service is fighting ongoing efforts to delist the species.
The effects of the listing are onerous. Individuals that knowingly harm a Bone Cave harvestman or its habitat can be subject to up to $50,000 in fines and up to a year in prison. Accidentally harming a protected species will cost you as well. Just building near harvestman habitat can break the bank and double your development time. Development within 345 feet of a known harvestman cave requires $10,000 an acre and development within 35 feet requires $400,000 an acre in mitigation permits. Painfully, this buffer begins at the outermost edge of the cave as it exists underground — not the cave’s entrance. For Williamson County, this has caused delays and increased costs for essential infrastructure.
Williamson County works hard with the Fish and Wildlife Service to preserve the species and aid its recovery. For example, the county maintains a perpetual $20 million fund for endangered species conservation efforts. Additionally, when the service decided that fire ants threatened the Bone Cave harvestman, the county assumed the burden of mitigation measures, hiring individuals to travel to harvestman caves and remove the fire ants at a cost of thousands of dollars each year.
Finally, the service decided that nine preserves were necessary to protect the Bone Cave harvestman in perpetuity. Williamson County purchased and currently maintains 11 harvestman habitat preserves and is in the process of acquiring additional land, bringing the total county-owned preserve land to almost 900 acres. Still, for the Fish and Wildlife Service, that wasn’t enough. The service then wanted to micromanage the location of each preserve in the county; otherwise, they wouldn’t count.
At the end of the day, the Constitution doesn’t give the service the authority to regulate intrastate species that have no effect on commerce. Even if it did, the Bone Cave harvestman was likely never endangered. Nonetheless, Williamson County tried to cooperate because it values the environment.
As this lawsuit progresses, there are those who will try to characterize the plaintiffs as greedy folks in the pockets of developers who don’t care about the environment. But the facts don’t support that. In truth, this case is about limits on federal power and a preference for conservative policymaking favoring local control over federal regulations.
Weldon is an attorney with the Center for the American Future at the Texas Public Policy Foundation.