An effort by property rights advocates to attack the legal foundation of the Endangered Species Act was turned away by the U.S. Supreme Court on Monday, marking the end of a curious but closely watched case involving tiny cave bugs and a plot of undeveloped Texas scrubland.
The court let stand, without comment, a lower court’s ruling that the federal government has the authority under the Constitution’s commerce clause to protect rare animals even if they do not cross state borders.
The case, which focused on insects believed to exist nowhere else, was closely watched by environmental and property rights advocates. If successful, the case could have eliminated the protection of more than half of the 1,264 species covered by the Endangered Species Act, including such prized species as the Florida panther.
A separate lawsuit brought by [the landowner] against the government, arguing that decisions made about the insects represent an illegal “taking” of his land, will proceed, said [the landowner’s] Austin attorney, Paul Terrill.
The case which lost was an attack on ESA in a very broad way. This second attack is a fringe argument that any time the government issues a regulation or law which takes something away from you, you should be compensated.
I think it’s obvious that the argument is crap, and I hope the courts agree.
Why is it craP? Have I been compensated for the fact that it was illegal for me to vote until I was 18? Or that my right to drink was taken away until I turned 21? Has restitution been made to all the people who are forbidden from buying pot? Are we to make restitution to those people whose “right” to break into other people’s houses was taken away by laws against theft? Of course not. Before a murder statute was in place, one could argue that a right to murder existed. But then a legislative body passed a law, and that “right” went away (if indeed it could ever have been said to exist).
If you claim that this is about property rights, you’d better be ready to compensate the children of slave owners for the effects of the 13th amendment. Plus you need to overturn a lot of common-law tradition. For instance, English common-law treats wildlife as property of the King, therefore the government, therefore the public at large. It’s a rule that makes sense. The Endangered Species Act never took any property away from anyone, it just clarifies how individuals can use the public’s property.