States Tell USA to Butt Out on Prairie Dogs

SALT LAKE CITY (CN) - Utah and eight other states filed an amicus brief supporting private property owners who want to get prairie dogs off their land, no matter what the federal government says.

People for the Ethical Treatment of Property Owners (PETPO) sued the U.S. Fish & Wildlife Service in April 2013, challenging the constitutionality of a rule protecting the Utah prairie dog.

The animal was listed as endangered under the Endangered Species Act in 1973, but has prospered since then, to a population of more than 40,000, PETPO says. Nonetheless, Uncle Sam permits the "take" of only 6,000 of the critters per year, and only with permits. The property owners call the rodent "destructive and deleterious."

"Far from endangered, and perhaps no longer even threatened, the economies of Utah's rural counties and communities face myriad, adverse effects from the reproduction and uncontrolled proliferation of the UPD," Utah et al. say in the May 26 amicus brief.

"The amici states have a vital interest in the recognition and preservation of the rights reserved to them and their individual citizens under the Tenth Amendment," the states say. "The management of wildlife has always been the province of the sovereign states, according to which Utah has implemented its own prairie dog management plan for nonfederal lands within the state."

In its 2013 lawsuit, PETPO said prairie dogs burrow beneath athletic fields and golf courses, endangering athletes and interfering with business. They also infest cemeteries, bark during funeral services and destroy memorials left on graves, PETPO said.

The property owners prevailed in Federal Court in November 2014, in a ruling that the Commerce Clause "'does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce. Congress similarly lacks authority through the Necessary and Proper Clause because the regulation of takes of Utah prairie dogs is not essential or necessary to the ESA's economic scheme,'" according to the states' brief.

Fish and Wildlife appealed.

The states say this is the first time a federal appellate court will be asked to rule "how far the federal government may reach under the Commerce Clause to regulate a purely intrastate interest that has no effect on interstate commerce."

The state says that since there is no market for prairie dogs, the Commerce Clause does not apply, and the fact that most of the rodents are on private lands puts them outside the scope of the Endangered Species Act.

Utah implemented its own plan for dealing with prairie dogs in May this year.

"The plan seeks to supplement and establish self-sustaining prairie dog populations on federal and state lands away from human conflict by capturing problem animals on private lands and relocating them to preserve areas. This will gradually transition prairie dogs from human conflict areas that will never secure their future to preserve areas where they are unconditionally protected from take and can flourish without human interference," the brief states. Utah says it has set aside $400,000 for it.

Joining Utah were South Dakota, Alaska, Arizona, Colorado, Idaho, Kansas, Montana, and Wyoming.

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