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GDF REALTY INVESTMENTS, LTD. v. NORTON

No. 01-51099.

326 F.3d 622 (2003)

GDF REALTY INVESTMENTS, LTD.; Parke Properties I, L.P.; Parke Properties II, L.P., Plaintiffs-Appellants, v. Gale A. NORTON, Secretary, U.S. Department of the Interior; Marshall P. Jones, Director, U.S. Fish and Wildlife Service, Defendants-Appellees.

United States Court of Appeals, Fifth Circuit.

March 26, 2003.

Attorney(s) appearing for the Case

Paul M. Terrill (argued), Vincent Leroy Hazen, Hazen & Terrill, Austin, TX, for Plaintiffs-Appellees.

Stephanie Tai (argued), U.S. Dept. of Justice, David C. Shilton, Andrew C. Mergen, U.S. Dept. of Justice, ENR Div., Washington, DC, for Defendants-Appellees.

Sydney W. Falk, Jr., Bickerstaff, Heath, Smiley, Pollan, Kever & McDaniel, Austin, TX, for Texas Farm Bureau, Amicus Curiae.

David E. Haddock, Malcolm Reed Hopper, Pacific Legal Foundation, Sacramento, CA, for Pacific Legal Foundation, Amicus Curiae.

Gregory Scott Coleman (argued), Weil, Gotshal & Manges, John Cornyn, Atty. Gen., Austin, TX, for State of Texas, Amicus Curiae.

James B. Dougherty, Washington, DC, for National Wildlife Federation, Amicus Curiae.

Melinda E. Taylor, Environmental Defense, Austin, TX, Michael P. Senatore, Defenders of Wildlife, Washingtin, DC, for Environmental Defense and Defenders of Wildlife, Amici Curiae.

Michael J. Bean, Environmental Defense, Washington, DC, for Environmental Defense, Amicus Curiae.

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The Endangered Species Act of 1973, 16 U.S.C. § 1531, et seq. (ESA), contains a "take" provision, 16 U.S.C. § 1538(a)(1)(B). For this challenge to Congress' Commerce Clause power, U.S. CONST. art. I, § 8, cl. 3, at issue is whether ESA's take provision is unconstitutional as applied to six species of subterranean invertebrates found only within two counties in Texas (Cave Species). Central to this...

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