John H. SHIELDS; Hunter Schuehle, Plaintiffs-Appellants,
v.
Gale NORTON, Secretary, United States Department of Interior; Jamie Rappaport Clark, Director, United States Fish & Wildlife Service; Sierra Club, Defendants-Appellees.
United States Court of Appeals, Fifth Circuit.https://leagle.com/images/logo.png
April 26, 2002.
April 26, 2002.
Attorney(s) appearing for the Case
Paul M. Terrill (argued), Vincent Leroy Hazen, Hazen & Terrill, Austin, TX, for Plaintiffs-Appellants.
James C. Kilbourne (argued), David C. Shilton, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for Gale and Rappaport.
David O'Brien Frederick (argued), Frederick Law, Stuart Nelson Henry, Henry, Loweree & Frederick, Renea Hicks, Austin, TX, Kelly Leigh Haragan, Public Citizen, Austin, TX, for Sierra Club.
Roger James Magnuson, Dorsey & Whitney, Minneapolis, MN, for Texas Wildlife Ass'n, Amicus Curiae.
Gregory Scott Coleman (argued), Weil, Gotshal & Manges, Austin, TX, for State of Texas, Amicus Curiae.
Sydney W. Falk, Jr., Emily Willms Rogers, Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX, for Texas Farm Bureau, Amicus Curiae.
Anne Miyako Hayes, Malcolm Reed Hopper, Pacific Legal Foundation, Sacramento, CA, for Pacific Legal Foundation, Amicus Curiae.
Thomas Charles Jackson, Kelley, Drye & Warren, Washington, DC, for National Ass'n of Home Builders, Amicus Curiae.
E. Lee Parsley, Locke, Liddell & Sapp, Austin, TX, for American Land Foundation Coalition, Inc. and Riverside & Landowners Protection Coalition, Inc., Amici Curiae.
Myron Joseph Hess, National Wildlife Federation, Austin, TX, James B. Dougherty, Washington, DC, for National Wildlife Federation, Amicus Curiae.
Melinda E. Taylor, Environmental Defense, Austin, TX, Michael J. Bean, Environmental Defense, Washington, DC, for Environmental Defense and Defenders of Wildlife, Amicus Curiae.
Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.
United States Court of Appeals, Fifth Circuit.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Hunter Schuehle pumps water from the Edwards Aquifer in Texas. He challenges the constitutionality of the Take Provision of the Endangered Species Act, 16 U.S.C. § 1538(a)(1)(B), as applied to the endangered and threatened species living at San Marcos and Comal Springs. Schuehle seeks a declaration that the Take Provision exceeds Congress' power under the Commerce Clause. The district...
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