Fifth Circuit: Spider Causes Havoc with Constitutional Property Rights

Updated: Jan 15, 2020

(Austin, Texas): Unless you live in Travis County or Williamson County, Texas, you have likely never heard of the bone cave harvestman. What sounds like something out of a thriller movie is really just a blind, translucent arachnid – a spider so small that it takes nearly 14 surveys to even be sure of its presence.

Despite the challenges with even finding one of these spiders, the Endangered Species Act (ESA) prevents a private property owner from an effective “take” of this creature – a feat that, considering its miniature size, could easily happen accidentally.

In 2014, American Stewards of Liberty sought to delist the bone cave harvestman. The court rejected that challenge, and private property owners as well as local governments are asking the Fifth Circuit Court of Appeals to overturn that ruling. As Southeastern Legal Foundation explained in the amicus brief it joined with Cato Institute and Mountain States Legal Foundation, “In upholding the application of the ESA to the bone cave harvestman, the district court made numerous errors that contravene the Supreme Court’s Commerce Clause jurisprudence.”

The spider is commercially useless. In fact, the resources expended on the lawsuit are unquestionably the most significant effect the bone cave harvestman has ever had on the world. It is not a marketable commodity. SLF urges the court to affirm the constitutional limits articulated by the U.S. Supreme Court and hold that the Commerce Clause requires a regulation to be both necessary and property to a commercial concern, and leave commercially useless wildlife to the states, the sovereigns who policed it since our founding. To do otherwise would license a general police power that would turn the remainder of Article I, Section 8 of our Constitution into a mere ink blot.

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