Saving the Bufo Microscaphus Californicus

The little critter is known to biologists as Bufo microscaphus californicus. He is known to ordinary peasants as the Southwestern arroyo toad. He is known to a landowner in San Diego County, Calif., as a costly nuisance, and thereby hangs this tale.

Nine years ago, the U.S. Fish and Wildlife Service listed the toad as an endangered species. This particular toad is 2 to 3 inches long. It is distinguished by a V-shaped stripe across the top of its head. During breeding season, which typically runs from March to July, full-grown arroyo toads will hop up to 1.2 miles to a nearby stream or pool, where they lay and fertilize their eggs. The toad has no known biological or commercial value. Its habitat in three California counties has been greatly diminished by the march of putative civilization, but it is said to thrive in Baja California below the border.

That is all I know about the Southwestern arroyo toad.

Rancho Viejo LLC owns a 202-acre parcel of land in San Diego County. In May 1999, the company applied to the Corps of Engineers for a permit under the Clean Water Act to build 280 homes on 52 acres of the site. Its proposal designated an additional 77 acres as an area from which it would borrow soil to be transported to the building area. The Engineers called in the Fish and Wildlife Service (FWS). The service investigated and found toads in residence.

Negotiations followed. The FWS proposed an alternative plan by which the developers would haul soil from miles away. John C. Eastman, of counsel for Rancho Viejo, tells me the plan would add millions of dollars to the cost of construction and make the whole project untenable. Unwilling to accept the FWS proposal, the company sued the secretary of the interior. It lost in U.S. District Court, and lost again in the U.S. Court of Appeals for the District of Columbia. Now it has filed a petition for review in the Supreme Court.

For the record, I whooped it up for the Endangered Species Act when it was proposed 30 years ago. It seemed to me a great idea to enlist the government’s help in preserving certain rare species in our ecosystem. The list of protected species now runs to 1,260 animals, birds, fish, reptiles and plants. I was not so hot for preserving snail darters in Tennessee or snapdragons in New England, but it probably is useful to protect most of the listed species. I certainly have nothing against the arroyo toad. It may make excellent bait.

But from time to time I wonder if the defenders of the act are losing touch with (1) economic reality and (2) sound constitutional doctrine. It makes no sense, to cite one recent example, to hold up construction of a needed hospital in San Bernardino in order to pamper the Delhi Sands flower-loving fly. A permit for the hospital finally was granted, but the delay cost the builders a bundle.

More to the point, I question the constitutional contortions required to justify the position of the government in this case. The Endangered Species Act hangs on the power vested in Congress “to regulate commerce among the several states.” Manifestly, the toad itself is not in commerce. It does not buy, neither does it sell. It does not cross state lines. The courts’ theory is that (1) the builders are in commerce, (2) their soil transfer would affect the toad, (3) therefore the toad is an element of commerce and may be protected. But that is a non sequitur. It harnesses the cart before the horse. Everything under moon or sun is affected by interstate commerce.

In a statement urging en banc review, Judge David B. Sentelle renewed his standing argument against the regulation of an activity “that is neither interstate nor commerce.” This particular toad, he said, is “a purely local toad.”

“The arroyo toad is not a channel of commerce, nor is it in one. It is not an instrumentality of commerce, nor is it a person or thing in interstate commerce. The ‘taking’ of that toad (especially by land preparation) does not have any substantial relationship to interstate commerce.”

Amen to that! I hope — probably vainly — that the Supreme Court will take this one. The circuit court’s opinion stretched the commerce clause beyond the limits laid down by the Founding Fathers. I would shrink it back.