- The Washington Times - Thursday, February 8, 2001

You're a North Carolina farmer, and one day you happen to notice on your property a large, skulking animal of the kind that would have made Little Red Riding Hood go for her gun in an instant. Not only are you concerned about what the beast could do to your livestock, it might even pose a threat to your family. Question: Do you (A) go for your own gun, or (B) do you say in the severest of tones, "Shoo, wolf, shoo"?
When it comes to allegedly endangered species like the red wolf, the answer, according to government regulators and the courts, is B: the "shoo defense." Any more serious measure may be illegal. It's against the law to "take," shoot, punt, pass or kick such animals because, advocates argue, it might lead to their extinction. Not that the farmer is completely defenseless. The U.S. Fish and Wildlife Service, which actually introduced dozens of Red Wolves into North Carolina, has generously agreed to allow someone to shoot one of the animals for reasons of self-protection. (Just remember that if someone shoots the wolf 50 yards away rather than, say, 20 yards away, the feds may decide the wolf was too far away to pose a threat.) Likewise, it is legal to "harass" the wolf put it in "timeout" perhaps? if it appears to be threatening livestock and to shoot it if it actually attacks.
The U.S. Supreme Court is now trying to decide whether it wants to hear arguments in a case over whether the federal government actually has the authority to impose the "shoo defense" on those facing the red wolf. Two North Carolina men, arguing the government did not have the authority, originally brought the case. One of them shot a red wolf on grounds that it threatened his livestock. For his trouble he was fined and compelled to build red wolf lodgings as part of his government re-education plan.
The plaintiffs do not dispute the power of the federal government to manage wild animals as it chooses on its own land, where the wolves were originally released. The problem in North Carolina was that several dozen of those wolves promptly fled to the private sector in this case the farms of the plaintiffs and other North Carolinians. Where does the Constitution give the feds the power to apply the same rules to private lands?
The answer, argued the Justice Department in a last-minute January filing (and courts below have agreed), is in Congress' constitutional authority to regulate interstate commerce. In its most obvious application, the commerce clause keeps states from shutting off highways or rivers and blocking the flow of goods across the country. So what do wolves have to do with commerce? Well, said the 4th U.S. Circuit Court of Appeals last fall, "The red wolves are part of a $29.2 billion national wildlife-related recreational industry that involves tourism and interstate travel … Many tourists travel to North Carolina from throughout the country for 'howling events' evenings of listening to wolf howls accompanied by educational programs." Tourists cross state lines. Ergo, interstate commerce.
There are other reasons too. Scientific research associated with the red wolf introduction plan serves expanded interstate commerce. Further, said the court, "The anti-taking regulation is also connected to a third market the possibility of a renewed trade in fur pelts. Wolves have historically been hunted for their pelts." Put another way, turning North Carolina livestock into lunches with wolves may help revive a forgotten trade. That could mean more interstate commerce. The majority acknowledged that it has been more than a century since trade in wolf pelts took place but that this "temporal difference" was beside the point.
It would not be the first time the U.S. Supreme Court has heard such exaggerated claims for the Commerce Clause. Last year, the U.S. Army Corps of Engineers argued that it had the authority to regulate isolated ponds and wetlands (and so to block a small landfill that Illinois cities wanted to build) because migrating waterfowl might glance down, see the ponds and decide to pass the afternoon there. In this "Case of the Glancing Geese," the migrating waterfowl abruptly became interstate commerce and the basis for federal regulation. Writing for the majority in January, Chief Justice William Rehnquist argued that the court could find nothing to suggest that Congress intended the feds authority to regulate "an abandoned sand and gravel pit such as we have here."
If glancing geese aren't sufficient to justify federal intrusion into land and wildlife management areas traditionally reserved to the states it's hard to understand how glancing scientists (glancing geeks, one wag put it), glancing tourists or fur traders would. As Judge Michael Luttig of the 4th Circuit wrote in his dissent, "[W]e are confronted here with an administrative agency regulation of an activity that implicates but a handful of animals, if even that, in one small region of one state. An activity that not only has no current economic character, but one that concededly has had no economic character for well over a century now. An activity that has no foreseeable economic character at all, except upon the baldest (though admittedly most humorous) of speculation that the red wolf pelt trade will once again emerge as a centerpiece of our Nation's economy."
Actually, it does have some economic impact, even if it is intra- rather than interstate. Just ask the farmers in North Carolina who have lost or could lose livestock if the federal government doesn't allow them to do anything more to protect themselves against wolves than to say, "Shoo."
E-mail:smithk@twtmail.com

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