Endangered Species Law & Policy

On November 4th, the U.S. District Court for the District of Utah invalidated the special rule issued by the U.S. Fish and Wildlife Service (Service) regulating take of the threatened Utah prairie dog, a species that only inhabits the state of Utah.  See People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Serv., Case No. 2:13-cv-00278 (pdf).  In 2012, the Service issued a revised special rule pursuant to section 4(d) of the Endangered Species Act (ESA) that authorized take of the species by permit only on agricultural lands, [private property] within [.5] miles of conservation lands, and areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites.

A group known as People for the Ethical Treatment of Property Owners (PETPO) sued the Service under the Administrative Procedures Act, alleging that the federal government lacks the authority to regulate a purely intrastate species on non-federal land. The Service argued that the Commerce Clause and the Necessary and Proper Clause of the United States Constitution allow Congress to regulate the prairie dog on non-federal land for three reasons: (1) many of the proposed activities that are prohibited by the special rule such as commercial development are economic in nature; (2) because the prairie dog has biological and commercial value, any take of the species substantially affects interstate commerce; and (3) regulation of take of the prairie dog is essential to the economic scheme of the ESA.

As to the first of the Service’s arguments, the court noted that the question is not whether the special rule substantially affects commercial activity, but whether take of prairie dogs substantially affects interstate commerce. Thus, the Service could not rely on the fact that the rule prohibits property owners from engaging in commercial activities; instead, it needed to show that take of prairie dogs substantially affects interstate commerce.

The court then turned to the Service’s second argument, that because the prairie dog has biological and commercial value, take of the species substantially affects interstate commerce. While the court acknowledged that the species affects the ecosystem by providing food for other species and has some commercial value for scientific research, the court found these connections too attenuated to support a finding that the species substantially affects interstate commerce. Notably, the court stated that [i]f Congress could use the Commerce Clause to regulate anything that might affect the ecosystem . . . there would be no logical stopping point to congressional power under the Commerce Clause.

Finally, the court rejected the Service’s third argument, that the special prairie dog rule is essential to the economic scheme of the ESA, because it found that take of the species would not substantially affect the national market for any commodity regulated by the ESA. The court distinguished the special rule for prairie dogs from the Service’s special rule for the take of bald eagles by noting that there is a national market for bald eagle products. Consequently, even purely intrastate take of bald eagles substantially affects the interstate market for the species.

The Service also argued that PETPO lacked standing to challenge the prairie dog special rule because Utah law and the ESA’s general regulations prohibit take of the species, and a court decision striking down the special prairie dog rule would therefore not redress the property owners’ alleged injuries. The court rejected this argument, holding that PETPO had standing because the presence of an additional barrier to PETPO’s ultimate desired result does not prevent the court from removing an initial barrier.