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Rare Bugs Arrest a Development

Times Staff Writer

Fred Purcell stabbed the sugary soil with the toe of his tasseled loafer and listened to the soundtrack of a boomtown. Construction workers lined up noisily outside a barbecue joint as concrete trucks rumbled by the Home Depot and new neighborhoods with names like Bella Vista and Rancho Valencia.

Four Points was a crossroads 15 miles northwest of Austin when Purcell and his partners bought 216 acres here 22 years ago. But the Austin area has since tripled in size, its sprawl bleeding over the better part of five counties.

The boom caught up with Four Points soon after Purcell bought the land, but the former dentist never cashed in. His plans were cut short because tiny cave bugs -- believed to exist nowhere else -- live there in a honeycomb of limestone caverns.

In the coming weeks, the U.S. Supreme Court is expected to decide whether to hear Purcell’s lawsuit against the federal government, which he brought in 1999 after determining that he would not be able to develop his land, largely because the cave bugs are protected under the Endangered Species Act.

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The case is more than another skirmish pitting a developer against an obscure critter. Purcell and his partners have taken aim at the Endangered Species Act. His case argues that the government should have never been given the right to protect a number of rare species in the first place.

Legal observers say the case, if Purcell wins, could throw out the protection of more than half of the 1,264 species covered by the law. Environmentalists say it would gut a central plank of conservation, threatening a host of cherished species, such as the Florida panther.

But in a state that views itself as a bastion of unfettered capitalism, Purcell’s tale has become something of a legend among property rights advocates. They say they have been waiting for the right case to challenge the Endangered Species Act, which they believe has come to embody suffocating government regulation.

Purcell’s case is being financed by the American Land Foundation, which uses donations from landowners and federal land banks to fight restrictions on development. The Texas-based group has spent $250,000 on the case, said its president, Dan Byfield.

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An Oklahoma City native, Purcell went to the Baylor College of Dentistry in Dallas and ran a dental practice in the Austin area for 10 years. In 1983, he and his partners bought the property. It was to become his life’s work.

One morning, not long after the purchase, he received a phone call from a friend. Through the work of scientists and cave explorers, environmentalists had discovered the existence of five species -- including a rare version of a daddy longlegs and a curious creature called a pseudoscorpion, just an eighth of an inch long -- on his land.

The region rests at a nexus of several unusual geological structures and sits atop a porous layer of limestone. Scientists know it as a natural laboratory for unusual species, including scores of species of cave bugs, some of which have been isolated for thousands of years, allowing them to develop unusual characteristics.

After receiving the phone call, he raced to his property, where environmental activists were staging a sit-in. They were huddled near the entrance of a narrow cave, eating pizza as television news cameras rolled.

So began a bewildering odyssey for Purcell that would ultimately see him face criminal charges and lose most of his property through foreclosure.

Purcell and his partners bought the land for less than $3 million. It was appraised recently at $60 million, he said. But one after another, Purcell’s proposals for the property were dashed. At one point, he was convicted on two criminal counts after officials accused him of clearing vegetation without a permit. The convictions were overturned in 1994.

Purcell, 56, was able to develop some nearby property, where today there are 400 homes. It would have been enough to make him rich -- except that he has spent, he says, $10 million building infrastructure, such as roads and utilities, in anticipation of more development.

Most of the 216 acres was lost to his lender through foreclosure, leaving him and his partners with about 70 acres.

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“I never would have guessed in a million years that this would happen -- that I would become a poster child for this stuff,” Purcell said as he stood along the fringe of his property, staring into a wild expanse of knobby junipers and cedar elm. “I don’t want to negate the Endangered Species Act. I just want to sell this land to the government or develop it. And the way the law is now, I can’t do either one.”

Purcell’s lawsuit argues that the U.S. Fish and Wildlife Service should have never been given the right, through the Endangered Species Act, to regulate the cave bugs.

The act was created in 1973 through the Constitution’s commerce clause, which gives Congress the right to regulate commercial activity “among the several states.” Many conservatives believe commerce clause regulation has inflated the role of the federal government beyond what the authors of the Constitution intended.

Purcell’s lawsuit argues that cave bugs cannot be regulated through the clause because they have no commercial value and are found only in a tiny area of Texas -- meaning they do not cross state lines.

Austin lawyer Paul Terrill, who represents Purcell, has argued that the case presents an opportunity to both help Purcell regain use of his land and restore the federal government “to its proper constitutional role.”

“This is not about whether these cave bugs are important or irrelevant,” Terrill said. “What our case is about is whether the federal government has the right to regulate this species or this property.”

At least half of protected species live in only one state and could be subjected to the same challenge if Purcell was successful. Byfield said that would help restore the integrity of the act.

John Kostyack, senior counsel with the National Wildlife Federation, called that view shortsighted.

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Courts have ruled repeatedly, he said, that the economic activity regulated by the Endangered Species Act should be gauged by assessing the overall value of conservation. The act was written with the understanding that research could never assign a value to any one species because of the “web of life,” he said.

“The notion that you can pull out one rivet after another from the body of an airplane without affecting the airplane is false,” he said. “So is the notion of pulling out one species after another without affecting the natural system we all depend on.”

The Supreme Court has rejected similar arguments in the past, and many environmentalists say it is unlikely the court will hear the case. But property rights advocates are hopeful.

They say judges have begun calling into question some regulations enacted through the commerce clause. Most significantly, the Supreme Court ruled in 1995 that Congress had overstepped its authority by banning possession of a firearm in a school zone. The law had been passed through the commerce clause.

The case has lost at every turn -- most recently at the U.S. Court of Appeals in New Orleans -- but property rights advocates say they were emboldened by a dissent signed last year by six appellate judges, who wrote that the “commerce clause regulates commerce, not ecosystems.”

“We are looking at this with great concern,” Kostyack said. “If the Supreme Court took the case, it certainly would be a sign that they are considering declaring the Endangered Species Act unconstitutional with regard to species that don’t cross state borders.”

But Purcell says something must be done.

“If you are unfortunate enough to wake up one morning and find out you’ve got an endangered species living on your property, it is your burden,” he said. “Despite what the Constitution says, no one is ever going to pay you. That is reality.”


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