Utah Prairie Dogs Get Federal Protection, Circuit Rules

(CN) – The federal government has the right to protect the prairie dog population on nonfederal land in Utah, even though locals consider the animal to be a nuisance, the 10th Circuit ruled.

People for the Ethical Treatment of Property Owners sued the Fish and Wildlife Service in April of 2013, claiming that it overstepped its bounds under the Endangered Species Act by protecting the Utah prairie dog, which is only found within the state.

“We’ve never had any issue with the Utah prairie dogs,” Derek Morton, a spokesman for PETPO, said in an interview. “We have issue with hindering private property rights.”

Although the species was listed as “endangered” in 1973 and “threatened” in 1984, PETPO claims it has prospered since then and reached nuisance proportions, burrowing under golf courses and athletic fields and endangering athletes. It also takes up camp in cemeteries, where the animals destroy memorials and bark during funerals. Nonetheless, the ESA forbids the unauthorized “take” of the Utah prairie dog, which includes trapping, harassing or killing it. Locals may only trap or kill 6,000 prairie dogs a year, and a permit is required to do so.

U.S. District Judge Dee Benson found in favor of PETPO in the District of Utah in November 2014, ruling that because the Utah prairie dog was only found within the state, the Commerce Clause did not allow the federal government to interfere with Utah’s own management efforts.

But a three-judge panel for the 10th Circuit Court of Appeals disagreed, and on Wednesday it overturned Judge Benson’s ruling.

“The prohibition at issue is an instance of Congress’s broad authorization to use regulations to extend the take protections that endangered species enjoy to those listed as threatened,” U.S. Circuit Judge Jerome Holmes wrote for the three-judge panel, which included Circuit Judges Carolyn McHugh and Nancy Moritz.

The panel reasoned that the presence of the prairie dogs in Utah need not directly affect interstate commerce to authorize the federal government’s involvement through the Commerce Clause because overseeing the prairie dog population is part of “a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.”

“Yesterday’s disappointing decision is a significant blow to the Constitution’s design of limited, enumerated federal powers,” Jonathon Wood, an attorney representing PETPO through the Pacific Legal Foundation, said in an email. “The 10th Circuit held that, under the Commerce Clause, the federal government can regulate anything for any reason so long as it does so as part of a large, burdensome ‘comprehensive scheme’ that has some tangential effect on interstate commerce. That theory, which goes far beyond anything the Supreme Court has ever endorsed, has no limiting principle.”

But part of the purpose behind the ESA is to act as a “brake on economic activity” that could harm threatened or endangered species, Judge Holmes wrote in a 35-page opinion. Because of this, the “regulation of take of endangered and threatened species is directly related to—indeed, arguably inversely correlated with—economic development and commercial activity.”

In addition, the law is meant to focus on the potential for long-term economic development, even at the expense of short-term growth.

The fact that the Utah prairie dog population exists in only one state is irrelevant, the panel added, because the same is true for almost 70 percent of animal populations regulated by the ESA.

“Piecemeal excision of purely intrastate species would severely undercut the ESA’s conservation purposes,” Judge Holmes wrote.

But Wood says the ruling actually damages the Utah prairie dog population because it interferes with the state’s own conservation efforts.

“Since the federal regulation was struck down three years ago, Utah has developed and implemented a collaborative conservation program focused on relocating prairie dogs from backyards, playgrounds, airports, and cemeteries—which can’t possibly provide a long-term home for them—to conservation areas where they can be permanently protected,” he said. “The federal regulation, if restored, would forbid Utah from continuing to implement that program, since it makes it a crime for the state to move a prairie dog.”

Morton added that in 18 months, the state’s own efforts were able to increase the Utah prairie dog population by 3,000.

Morton said that the 10th Circuit was aware of the state’s conservation efforts, but that they ultimately didn’t “matter” in the court’s decision. “It comes down to whether they feel like the government has the power to regulate, and they said ‘yeah, the government has the power to regulate anything and everything,’” he said.

Despite the recent loss, Morton remains optimistic about continuing the fight. He says they are considering appealing for a full-court review of the decision or even taking it to the Supreme Court.

“We were just a small little town in southern Utah that felt like we had no control, but we banded together, and we stood together every step of the way,” he said. “Even with this loss, it hasn’t dissuaded us from this fight, because so many people from around the country have come forward with support.”

“Amazing things can happen when people band together and stand up for their rights,” he added.

In June 2015, the state of Utah and eight others filed an amicus brief in support of PETPO. Many of the amici states are also home to prairie dog populations.

Attorneys from the U.S. Department of Justice did not respond to an emailed request for comment.

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