ELR Citation: 50 ELR 20134
No(s). 19-50321 (5th Cir. May 29, 2020)

The Fifth Circuit dismissed a challenge to FWS' constitutional authority to regulate activities affecting the Bone Cave harvestman, a small arachnid known to live only in caves in central Texas that is currently listed as endangered under the ESA. A county and an individual, intervening plaintiffs in a challenge to FWS' negative 90-day finding to delist the arachnid, argued that federal regulation of the intrastate species exceeded Congress' power under the Commerce and Necessary and Proper Clauses. The district court rejected these constitutional arguments, but vacated and remanded FWS' negative 90-day finding. The intervening plaintiffs appealed denial of their motion for summary judgment, arguing that the appellate court had jurisdiction to hear their separate constitutional arguments for delisting the species. The appellate court found that if the appeal was construed as a challenge to the denial of the delisting petition, it was moot because the denial had already been vacated and thus could no longer be the cause of their alleged injuries; or that if the appeal was construed as a challenge to FWS' original listing of the species in 1988, it was barred by sovereign immunity because it was not brought within the six-year statute of limitations. It therefore dismissed the appeal for lack of jurisdiction.