Buzz Over a Fly Presents Challenge to Species Act

The Delhi Sands Flower-Loving Fly, which spends nearly all of its short life buried under a few sand dunes in San Bernardino County, may emerge this week as the snail darter of the 1990s.

The once obscure and now federally protected fly is at the center of a major legal battle over the reach of federal environmental laws.

A broad coalition of developers, farmers and property rights activists has urged the Supreme Court to take up a San Bernardino case and use it as a vehicle to restrict drastically the scope of the Endangered Species Act. San Bernardino officials are hoping to be freed from federal regulations that restrict development.

Since 1993, when the fate of the fly gained the attention of the U.S. Fish and Wildlife Service, it has cost the county and its taxpayers at least $6 million, officials said.

A new county emergency medical center had to be relocated slightly to avoid the sandy habitat of the inch-long insect, and a road leading to the facility had to be diverted. Because the flies will not flutter over asphalt or concrete, federal officials insisted on an unbroken sand corridor that would allow one group of flies to make contact with their neighbors a quarter-mile away.

At one point, a federal official suggested that traffic on the San Bernardino Freeway be halted or slowed in late August when the flies were out and about seeking mates.

“I think the system is out of control and something needs to be done,” said Jerry Eaves, chairman of the San Bernardino County Board of Supervisors. “The Endangered Species Act was intended to save eagles and bears. Personally, I don’t think we should be spending this money to save cockroaches, snails and flies.”

Twenty years ago, the extraordinary power of the Endangered Species Act gained wide attention when the high court halted construction of a dam along the Little Tennessee River because it threatened a tiny fish known as the snail darter. On a 6-3 vote, the liberal majority said that Congress intended to save threatened species, regardless of the cost.

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Since then, more than 1,000 species have gained federal protection.

The legal challenge over the rare fly is targeted at a more conservative court and asks whether Congress indeed has the authority to impose such federal control.

In essence, the appeal argues that because the Delhi Sands fly lives exclusively within an 8-mile radius in Southern California, its fate is a local matter and off-limits to federal regulators. In that respect, the fly is not unique. Nearly half the federally protected species live in only one state.

“This is a huge challenge,” said Anne M. Hawkins, an attorney for the Pacific Legal Foundation in Sacramento. If the justices agree with the claim, “it could affect all federal environmental regulation.”

The high court may act on the appeal as early as today.

Environmental activists agreed that the case could prove momentous but said they doubt that the court will take up the challenge.

“I’ll be very surprised if they take this,” said Joel Reynolds, an attorney in the Los Angeles office of the Natural Resources Defense Council. “If they did, though, it could undermine the whole range of environmental protection.”

He credited the developers with a smart “strategic” move. “It’s not an accident they chose this case. This is not about a bald eagle or a peregrine falcon. People might look at this species [of fly] and say it doesn’t matter what happens,” he said.

Some people do suggest as much.

“The joke in our office is that with a can of Raid, we could solve this problem,” said Sacramento lawyer Anne Hawkins, describing the threatened species as looking “like a huge horsefly. It’s about as thick as a thumb.”

The fly’s undisputed champion is Greg Ballmer, a Riverside entomologist.

“It is a very impressive insect and part of California’s natural heritage,” he said. The fly is about an inch long, and it sports a half-inch-long proboscis for sipping nectar. Because it can hover near a flower, it resembles a tiny hummingbird, the entomologist said.

San Bernardino County Deputy Administrator John Giblin does not see the resemblance. “Trust me. It’s a fly.”

Development in the Inland Empire has taken a toll on the insect, which appears for only a few weeks every August. For the rest of its two-year life span, it lives as a larva in the sand. Although no one can say for sure how many of the flies there are at any given time, one estimate pegged their number at a few hundred.

Its brief life above ground is devoted primarily to furthering the species, said Ballmer. “The males spend most of their time cruising near the ground, looking for females,” he said.

The fly’s sandy habitat had shrunk to a few square miles in southwestern San Bernardino County and northwestern Riverside County when Ballmer petitioned the Fish and Wildlife Service to list it as an endangered species.

An emergency listing was announced in 1993 just as San Bernardino County broke ground on a sandy site for a $487-million hospital.

County officials agreed to move the building 250 feet to the north but could not reach agreement with federal officials on how to preserve a 100-foot-wide “fly corridor.” Instead, they joined home builders in filing a lawsuit against the federal government challenging the law.

Protection of the fly’s habitat also halted projects in Colton and Fontana, and those two cities joined the lawsuit as well.

As the case moved forward, it gained a wide range of supporters. Among those joining the county and the home builders in asking the high court to intervene were the U.S. Chamber of Commerce, the Defenders of Property Rights, the American Farm Bureau and the California Farm Bureau Federation.

They have one intriguing precedent on their side. Three years ago, in a ruling that could prove a landmark, the Supreme Court struck down as unconstitutional a federal law that made it a crime to have a gun near a school. The 5-4 ruling marked the first time since the 1930s that the court had nullified a federal law on the grounds that Congress had no power over the area.

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Although the Constitution gives Congress broad power to regulate “commerce among the states,” that authority is not limitless, Chief Justice William H. Rehnquist wrote for the majority. Since mere gun possession has no “substantial” effect on interstate commerce, he said, it is a state and local matter, not a federal issue.

The property rights advocates are asking the court to apply the same reasoning to environmental laws.

“We think this case raises directly the question about the limits of federal power. This fly is not an article of interstate commerce. It has nothing to do with interstate commerce,” said Kenneth B. Bley, a Los Angeles lawyer who filed the appeal in the case (National Assn. of Home Builders and County of San Bernardino vs. Babbitt, 97-1451).

The Clinton administration is arguing that the fly does play a role in the nation’s flow of commerce. It filed a brief saying the “government has uncontroverted evidence” that the fly “is currently on exhibit in at least three museums outside of the State of California,” and, further, that the fly “has been the subject of interstate trade among insect collectors.”

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The U.S. court of appeals here relied on a much stronger argument when it upheld the law on a 2-1 vote late last year. Because endangered species in total affect interstate commerce, Congress has the power to take control over all of them, even the ones, such as the fly, that reside in only one state, said Judge Patricia Wald.

The dissenting judge, Reagan appointee David Sentelle, cited Rehnquist’s opinion and said federal control over endangered species should be limited to those that cross state lines. San Bernardino’s distinctive fly “is not an article of interstate commerce, and even [its] complete destruction . . . will not in fact affect interstate commerce, let alone do so substantially.”

Given that the Supreme Court agrees to hear only about 1% of the cases that come before it, the odds suggest that the San Bernardino appeal will be denied. If that happens, the property rights activists said, they will raise the claim in an array of lower courts, hoping eventually to force a high court review.