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Click here for the full text of this decision FACTS:The petition for rehearing and the petition for rehearing en banc is denied. DISSENT:Edith H. Jones, J.; Jolly, Smith, DeMoss, Clement and Pickering, JJ., join. “A majority of the court has refused to rehear this significant Endangered Species Act case en banc. I respectfully dissent. For the sake of species of 1/8-inch-long cave bugs, which lack any known value in commerce, much less interstate commerce, the panel crafted a constitutionally limitless theory of federal protection. Their opinion lends new meaning to the term reductio ad absurdum. “The panel holds that because ‘takes’ of the Cave Species ultimately threaten the ‘interdependent web’ of all species, their habitat is subject to federal regulation by the Endangered Species Act. Such unsubstantiated reasoning offers but a remote, speculative, attenuated, indeed more than improbable connection to interstate commerce. Chief Justice Marshall stated in Cohens v. Virginia, 19 U.S. 264 (1821), that Congress has no general right to punish murder or felonies generally. Surely, though, there is more force to an”interdependence’ analysis concerning humans, and thus a more obvious series of links to interstate commerce, than there is to”species.’ Yet the panel’s”interdependent web’ analysis of the Endangered Species Act gives these subterranean bugs federal protection that was denied the school children in Lopez and the rape victim in Morrison. The panel’s commerce clause analysis is in error.”

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