The Commerce Clause Meets the Delhi Sands Flower-Loving Fly

The protagonist in our story has six legs, is one inch long, and dies two weeks after it emerges from the ground. To the untrained eye, the Delhi Sands Flower-Loving Fly looks like, well, a big fly. Entomologists know better. This particular fly can hover like a hummingbird as it uses its long tubular nose to extract nectar from flowers. It can only live in particular fine soils – the Delhi sands – that appear in patches over a forty square mile stretch from Colton to Ontario, California. Today only a few hundred Delhi Sands Flower-Loving Flies survive in less than a dozen such patches located in an eight-mile radius split by I-10 and the Southern Pacific railroad tracks. Therein lies the Fly’s claim to fame. Of the 80,000 known species of flies, the Delhi Sands Flower-Loving Fly is the only one to be listed as endangered under the Endangered Species Act, and it is the only fly to divide the D.C. Circuit three ways concerning the meaning of the Commerce Clause. The Fly ended up in court because people wanted to use its habitat for other purposes. That anyone would want this land, home to a notorious hazardous waste site as well as the interstate and the railroad, is rather surprising. But the Fly earned the status of endangered under the Endangered Species Act (BSA) on the day before San Bernardino County planned to begin construction of a state-of-the-art hospital in the middle of the Fly’s dwindling habitat. The BSA prohibits the “tak[ing]” of any endangered species, which has been interpreted to include “significant habitat modification or degradation where it actually kills or injures” a member of the species. The county responded to the ESA’s takings provision by modifying its building plans, creating an eight-acre Fly refuge, and establishing a corridor of land connecting one Fly colony to another. The county made further concessions in exchange for permission to build an electrical power station for the hospital. But when the county learned that the Fly stood in the way of its plans to redesign an intersection used by emergency vehicles traveling to the hospital, the county filed suit challenging the application of the ESA to the habitat of the Fly. The county was joined by the National Association of Home Builders (NAHB) and several other trade groups that wished to build in the Fly’s habitat, and by several municipalities that complained about the Fly’s interference with their financial stability, land use planning, and projects of their own.