Walk quickly by and you might miss the coffin-sized fissure on John Yearwood’s sprawling Williamson County ranch, now ground zero in the newest effort to gut the Endangered Species Act.
The small limestone cave is home, maybe, to a seldom-seen, spider-like creature with a scary-movie name: the Bone Cave harvestman.
The harvestman is known to live only in Travis and Williamson counties, and that fact is key to Yearwood and his allies’ revival of a legal strategy that has been rebuffed by courts in the past — including a case a little over a decade ago involving the same species.
But with the ascendance of Donald Trump to the White House, and buoyed by what they say are developments in case law, the plaintiffs are hoping the case ultimately will be decided by a sympathetic U.S. Supreme Court.
Joining forces with Williamson County officials, and represented by a conservative Austin think tank that has long fought to ease endangered species rules, Yearwood aims to attack the federal government’s authority to require habitat protections for such single-state species as the Bone Cave harvestman.
Nearly 70 percent of endangered species are found in only one state. If Yearwood and his allies get their way, special federal protections will disappear for all of them.
“This isn’t just about a cave bug,” said Yearwood, whose property has been in his family’s hands since the 1870s and has three of the crevices where the harvestman has been found. “It’s about the private property rights, about overreach from the government.”
In December, Texas Attorney General Ken Paxton indicated his support of the lawsuit, which was filed a year ago.
“Whether or not a desire to protect the (Bone Cave harvestman) is sound policy is not at issue,” says the Paxton brief. “Rather, this dispute centers on whether the Constitution affords defendants the authority to regulate a species that is found only in Texas. Plainly, it does not.”
But environmentalists plan to argue the law has long been settled on these issues.
“That this is an attempt to create confusion within the circuits and get it up to the Supreme Court — that’s pretty clear,” said Jared Margolis, an Oregon-based attorney for the Center for Biological Diversity.
‘No desire to do away with that bug’
At 71, Yearwood is the picture of a gentleman rancher: He wears blue jeans, a Carhartt jacket and an Army ball cap — he served in the 82nd Airborne Division, fighting in Vietnam and retiring as a lieutenant colonel. His days now are spent tending to his 865-acre spread, which includes a limestone quarry and recycling business he owns.
Yearwood has long been involved in endangered species issues, participating in a group called People First in response to then-Gov. Ann Richards endorsing federal endangered species protections in the early 1990s.
“I have no desire to do away with that bug,” Yearwood said of the harvestman. “I just don’t want my government — the government I fought for — bullying me or anyone else.”
The Bone Cave harvestman is a pitiful creature: Eyeless, pale orange, sensitive to changes in humidity, it spends its entire life scuttling about in the dark. When it was designated as endangered in 1988, researchers feared the caves it called home were in danger of being paved over.
Indeed, that’s how Yearwood learned his property included harvestman habitat.
Rattlesnake Road, parallel to Texas 195, runs by his property, and when the Texas Department of Transportation was considering expanding the road roughly 20 years ago, officials approached him about surveying his land.
They soon reported that his property included endangered species habitat.
Partnering with a property rights group, American Stewards of Liberty, and other Williamson County property owners, Yearwood petitioned in June 2014 to get the species removed from the endangered species list.
The U.S. Fish and Wildlife Service rebuffed the effort. Agency spokeswoman Lesli Gray told the American-Statesman in 2015 that agency decisions are “made on the best available science” and that the agency is committed to “making species preservation work.”
Shifting case law?
Now Yearwood and Williamson County — which, in court documents, says maintenance of the 11 county-owned Bone Cave harvestman preserves, which total more than 800 acres, is “expensive and time consuming” — is suing the U.S. Department of Interior on broader grounds.
When Congress passed the Endangered Species Act, it relied on the Constitution’s grant of powers to Congress to regulate interstate commerce, according to legal experts.
But Yearwood’s coalition argues the government has no right to regulate single-state species such as the harvestman.
“The Obama administration is abusing its power under the Endangered Species Act by unlawfully listing a species on the endangered list that only lives in the state of Texas and has no impact on interstate commerce whatsoever,” Paxton said in December as he filed his brief in support of Yearwood and Williamson County.
In 2003, in another commerce clause challenge to the harvestman’s listing, the 5th U.S. Circuit Court of Appeals held that protection of the harvestman was warranted because real estate development could, as a lower court had put it, “easily be classified” as involving interstate commerce.
But Robert Henneke of the Texas Public Policy Foundation, which has taken on Yearwood and Williamson County as clients and has long fought against endangered species listings, says a new challenge is ripe.
Citing what he calls an “evolution of the case law,” Henneke said a series of cases suggests federal courts are favoring a narrower approach to the powers available under the interstate commerce clause.
The Texas Public Policy Foundation gets major contributions from oil and gas and real estate interests that stand to benefit from a loosening of endangered species protections.
The harvestman suit is part of a broader attack by property rights groups on the commerce clause backbone of the Endangered Species Act.
In 2014, a federal judge decided in favor of People for the Ethical Treatment of Property Owners in the group’s challenge to the protections for a Utah prairie dog. The case was the first from any court to invalidate federal regulation of a species that lives in only one state on federalism grounds, giving hope to the harvestman plaintiffs.
The case is under appeal.
Species ‘under attack’
Margolis, the attorney for the biological diversity group, said the commerce clause challenge “has it backwards.”
The law regulates whether activities associated with harming endangered species — road-building, say — involves interstate commerce, not whether the species themselves are found across state lines, he said.
“We’ll see more of these challenges, and property rights groups will feel empowered,” he said. “But we’re hopeful existing state law will allow for the continued regulation of these species.”
Yearwood’s case is being closely watched.
“My guess about what they are trying to do is to get the 5th Circuit to reject the case and then hope for the Supreme Court to review the case,” said Berkeley law professor Eric Biber, who specializes in environmental law and has written about commerce clause challenges to the Endangered Species Act. “If that happens, assuming Trump appoints a conservative like (Antonin) Scalia to the Supreme Court, the swing vote is Justice (Anthony) Kennedy.”
Yearwood said he couldn’t point to a single activity on his land that he had been prevented from undertaking because of endangered species rules — including any limits on the commercial blasting and harvesting of limestone in his quarry.
But he said he worried about being arrested or fined by federal authorities if he should interfere with or step on a bug, though it’s unclear how federal investigators would ever know if a bug had been killed on his property.
Landowners who knowingly harm a Bone Cave harvestman or its habitat can face up to $50,000 in fines and up to a year in prison.
Yearwood’s lawsuit is centered on concerns about what would happen if he were to kill or harm the cave critter. Yearwood has opened up his land to church groups and 4-H clubs at no charge.
“Mr. Yearwood is less likely to use or allow others to use the land around the (Bone Cave harvestman) caves due to the risk of prosecution for accidentally violating the (Endangered Species Act) provisions prohibiting disturbing or harming (Bone Cave harvestman),” according to the suit.
Yearwood said he wasn’t planning to sell his property, but said the habitat finding undoubtedly affected the property’s value.
“Nobody would want to touch this,” he said. “There’s a cloud hanging over it — what is Fish (and Wildlife) going to want to do with this property?”
The case has been delayed after an Austin federal judge on Dec. 22 ordered the Fish and Wildlife Service to re-examine the initial delisting petition because the agency had failed to review all the material that had been submitted.
Oral arguments are expected next summer at the earliest.