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Protected Shrimp Nets a Victory

Environment: The Supreme Court rejects a challenge to the freshwater species' endangered status.


WASHINGTON — The tiny fairy shrimp, which lives in rainwater ponds in California's Central Valley, won a victory of sorts Monday at the Supreme Court, as the justices turned away a challenge to its federal protection as an endangered species.

It marked the third time in recent years that the high court has refused to limit the federal government's power to protect wildlife. Property rights advocates have been eager for the court's conservative justices to reconsider the reach of the Endangered Species Act.

The Constitution gives Congress the power to "regulate commerce . . . among the several states," and lawmakers relied on this power in passing the federal environmental laws.

But the Supreme Court, led by Chief Justice William H. Rehnquist, has moved to put limits on this power. In 1995, the court struck down on a 5-4 vote a federal law that made it illegal to have a gun near a school. Two years ago, the court struck down a second law that gave rape victims a right to sue their attackers in federal court. In both instances, Rehnquist said that because gun possession and sexual assault do not involve interstate commerce, Congress had no power to make them federal offenses.

A coalition of Central Valley ranchers and builders said the same logic should apply to the fairy shrimp.

The "tiny, fly-sized freshwater crustaceans are found only in California," they said, and "they have no commercial purpose." Therefore, the builders argued, federal wildlife regulators should not have the authority to protect these shrimp and their habitat from being destroyed.

Under the Endangered Species Act, those who kill a threatened animal or destroy its environment are subject to fines and criminal penalties.

But so far, this argument has failed to win the votes of at least four Supreme Court justices, the minimum needed to take up an appeal.

Justice Department lawyers and most lower-court judges have taken a broad view of the environment. They say Congress has the power to protect endangered wildlife in general, and this includes insects, rodents and crustaceans as well as the majestic bald eagle.

Four years ago, the Supreme Court turned away a similar challenge that focused on the Delhi Sands flower-loving fly, a short and fat insect that spends most of its life buried in the sand dunes of San Bernardino County.

More recently, Washington lawyer Theodore B. Olson, representing some North Carolina farmers, urged the court to reconsider the broad federal protection for the endangered red wolf. The justices turned away that appeal as well, and probably spared Olson a headache. Shortly afterward, he became President Bush's solicitor general, whose job involves defending federal laws and agencies before the high court.

Had the court taken up the red wolf case, Olson's government office would have been charged with defending the federal red wolf protection program.

Olson recused himself in the case of the fairy shrimp, and his deputy, Paul D. Clements, filed a brief urging the justices to reject the appeal. The court did so in a one-line order in the case of Building Industry Assn. of Superior California vs. Norton, 01-620.

It was not the only wildlife drama at the court Monday.

A court police officer on duty Sunday reported seeing a red fox scoot down the driveway into the underground garage. And a security camera recorded the sighting.

No one could figure out why a fox was loose in the Capitol Hill area, or why the animal chose to run into the building. Animal control officers for the District of Columbia were called, and members of a Virginia fox-hunting club joined in, to no avail.

"It's possible that it slipped out undetected, but we're still checking," said court spokeswoman Kathleen Arberg.

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