Legal fight over prairie dog could chew hole in ESA

By Jeremy P. Jacobs | 06/08/2015 01:09 PM EDT

CEDAR CITY, Utah — The Utah prairie dog — tawny-furred, with black eyebrows and white-tipped tails — looks like it hopped out of a Disney cartoon. But the little burrowing rodent is seen as a monster in southwest Utah.

Residents of Cedar City in southwest Utah say the status of the threatened Utah prairie dog, shown here in a residential neighborhood, has stifled the local economy.

Residents of Cedar City in southwest Utah say the status of the threatened Utah prairie dog, shown here in a residential neighborhood, has stifled the local economy. Photo by Jeremy P. Jacobs.

Article updated at 6:16 p.m. EDT.

CEDAR CITY, Utah — The Utah prairie dog — tawny-furred, with black eyebrows and white-tipped tails — looks like it hopped out of a Disney cartoon.

But the little burrowing rodent is seen as a monster in southwest Utah.


"Go talk to five people who live here and ask about the prairie dogs, and you’re going to get an earful," said Matt Munson, a lawyer leading opposition here to federal efforts to protect the prairie dog under the Endangered Species Act. "Everyone has been impacted. People have lost businesses, people have lost their homes. People have been bitten. Their dogs have died. You name it, there have been all types of issues."

Munson and a group of property owners took the Fish and Wildlife Service to court over species law’s "take" provision, which bars killing or harassing prairie dogs. And last November, a federal district judge in Utah sided with the Cedar City group, striking down the prohibition because it violated the Constitution’s Commerce Clause. The law, the court held, cannot regulate the activity of a species that exists in just one state and has no impact on interstate economic activity.

The ruling shocked environmentalists and emboldened conservatives who had long questioned the take provision’s constitutionality.

But multiple courts had rejected other challenges to the take provision, and environmentalists considered the question settled law. Then came the Utah case, which was argued by an ideological legal foundation with a successful record at the Supreme Court challenging environmental laws and presided over by one of the country’s most conservative judges.

Suddenly, the government’s appeal of the prairie dog decision has become one of the country’s most important environmental cases. Late last month, nine states intervened in the case on behalf of the property owners, along with the U.S. Chamber of Commerce and several U.S. senators, including Senate Environment and Public Works Chairman James Inhofe of Oklahoma.

While the Endangered Species Act is best known for marquee species like grizzly bears and bald eagles, nearly 70 percent of all threatened or endangered species are small plants or animals that live only in one state — like the Utah prairie dog. If federal regulators can’t protect the prairie dog on private property, it could undermine protections for countless other species. And Utah’s senators have introduced legislation that would extend the principles of the ruling across the country.

"Courts have been generally convinced that the take prohibition in the Endangered Species Act must be constitutional, but they haven’t been able to figure out why," said Jonathan Adler, a professor at the Case Western Reserve University School of Law, who has written extensively on the issue and is now supporting the Utah property owners.

"This opinion could force reconsideration of that question," he said. "If courts conclude that the take prohibition presents constitutional problems, it could force the FWS to think about other ways to conserve species."

The Utah prairie dog, the most western of any prairie dog species, saw its population plummet in the 1960s as a result of an eradication push by farmers, disease, grazing and drought. By the 1970s, just 3,300 remained, and the species was listed as endangered in 1973.

The recovery plan for the prairie dog, like most endangered species, included a take prohibition under ESA’s Section 9. The law defines a "take" as killing, harassing, harming, pursuing, shooting, wounding, trapping or capturing a protected species. Violations carry stiff financial penalties and in some cases jail time.

By 1984, the prairie dog was downlisted to "threatened" as the population began booming. Less than 10 years later, FWS revised its estimates and allowed 6,000 prairie dogs to be taken every year, a concession to property owners.

FWS’s criteria for delisting the species seems straightforward: It requires a count of at least 2,000 prairie dogs on federal land in each of three Utah counties for five consecutive years. That’s 6,000 total prairie dogs.

Currently, there is an average of more than 34,000 prairie dogs in Utah, where about 70 percent of the land is public property.

The local collaborative effort to manage the species is called the Utah Prairie Dog Recovery Implementation Program, also known — with great disdain — by its acronym, UPDRIP, or "up drip."

UPDRIP, made up of FWS and a bevy of state regulators, has struggled and endured many setbacks.

A big problem: A prairie dog on private land generally doesn’t count toward the federal delisting process. So FWS and its partners must move — or "translocate" — the animals to federal tracts. That sounds simple since prairie dogs are not very difficult to trap. But when UPDRIP and FWS moved the prairie dogs, they usually died. In their first attempts, up to 90 percent of relocated prairie dogs died within a year on federal land.

FWS said its more recent translocations have been more successful. It’s also working on rehabilitating the species on some private tracts with cooperating landowners.

"There was a lot of trial and error to get these prairie dogs to stick in areas," said Laura Romin, the deputy field supervisor of FWS’s Utah office. "We think it’s a very recoverable species."

The unsuccessful recovery efforts have sparked stinging criticism from locals. A common joke here: The prairie dog will be delisted "as soon as a drip flows up."

In particular, they contend that the prairie dog protections — in particular, the take prohibition — have created new habitat on private land where the prairie dog thrives.

In Cedar City, the prairie dogs have in the last 10 years infiltrated the golf course, cemetery and airport — untraditional habitat where the animals are shielded from predators and allowed to breed unchecked and move about freely.

It’s not unusual for prairie dogs to strut to within 2 feet of a person, sit back on their haunches, and strike up a conversation of chirps and barks.

‘Am I in a dream?’

Bruce Hughes is a white-haired, self-described "mild-mannered accountant." But his full-throated fight against the prairie dog began eight years ago with a dispute over property taxes.

Hughes, 68, owns about 3.4 acres on the western outskirts of this city of 30,000 that he wanted to develop into an industrial complex. Flooding that year led regulators to dig a drainage ditch that forced nearly 60 prairie dogs onto his parcel.

Bruce Hughes
Bruce Hughes began the local fight against the prairie dog protections when he tried to remove them from land he hoped to develop. | Photo by Jeremy P. Jacobs.

Removing the rodents, he learned, would require permits in a process that would take many years. Yet when he received his property tax bill that year, he was assessed the full value of the property even though, he said, the prairie dogs prevented it from being developed or sold.

Hughes appealed the assessment, eventually to the state. He won on two occasions, securing steep discounts on his property taxes and drilling a hole through the state’s assessment processes.

Through the process, he claims he was frequently threatened by state and federal officials.

"The end result of my involvement in this thing was highlighting the fact of how ludicrous, how stupid, how far from common sense this entire thing has gotten," said Hughes, who is deeply skeptical of federal government action.

In 2011, FWS came out with a new plan to recover species and, about the same time, Munson began attending the UPDRIP meetings.

The meetings, he said, at that point were attended only by bureaucrats representing "every acronym you can think of."

When they asked him who he was, he said he blurted out: "People for the Ethical Treatment of Property Owners," or PETPO, a riff on People for the Ethical Treatment of Animals that everyone involved in the effort seems to find funny.

Munson, 37, began bringing more people to the UPDRIP meetings, and PETPO was born. The meetings grew increasingly contentious.

"I kept thinking to myself, ‘Am I in a dream?’" Munson said. "If they are really trying to save prairie dogs, and relocate them, they would do a lot of things differently. … These guys couldn’t keep any of them alive, and these are the experts."

Munson insisted PETPO doesn’t just want to kill prairie dogs, as some environmentalists say. The group, he said, wants to keep its land from being overrun by the rodents.

PETPO’s crusade caught the attention of the Pacific Legal Foundation, or PLF, a conservative nonprofit based in Sacramento, Calif.

The foundation takes cases it believes could set important legal precedents for property rights. It has had some success at the Supreme Court, representing Idaho property owners challenging an EPA Clean Water Act compliance order that prevented them from developing their land. PLF’s client won that case, Sackett v. EPA, at the high court in 2012, complicating EPA’s Clean Water Act oversight (Greenwire, March 21, 2012).

‘Forgone conclusion’

Using the Commerce Clause to challenge endangered species protections was another issue PLF has identified and has tried for a decade to get to the Supreme Court.

In addition to the Utah case, PLF has another in a Louisiana federal district court involving the critical habitat designation for the endangered dusky gopher frog. That case challenged FWS’s rules on Commerce Clause grounds because the habitat includes an island in Louisiana, even though the frog is found only in Mississippi.

PLF lost the Louisiana case last August but has appealed to the 5th U.S. Circuit Court of Appeals, which is generally viewed as among the most conservative appellate courts in the country.

"We think this constitutional issue is important and needs to be resolved," said Jonathan Wood, the PLF attorney on the Utah case. "Until we get the Supreme Court to resolve it, we are going to keep finding interesting cases and interesting facts like the prairie dogs."

To be sure, there is nothing unusual about lawyers seeking to file cases in certain circuits, or before judges they believe will be sympathetic to their arguments. But PLF struck pay dirt when the prairie dog case went to Utah federal District Judge Dee Benson.

Benson, a George H.W. Bush appointee, had presided over the trial of environmental activist Tim DeChristopher after he sought to disrupt oil and gas leases in Utah in 2008 by fraudulently taking part in the Bureau of Land Management’s auction. DeChristopher, then 27 years old, believed the process was a sham for the oil industry. Ultimately, he obtained leases for about 22,000 acres of land valued at $1.8 million but didn’t intend to actually pay for them.

Then just out of college, DeChristopher was tried for two counts of violating a federal oil law. Benson limited what evidence his lawyers could present to the jury, including arguments about federal energy policies and climate change — his motivations for the gambit. DeChristopher was convicted in 2011, and Benson sentenced him to two years in prison, which many critics viewed as harsh for a relatively ineffective and half-baked attempt at civil disobedience.

Michael Harris, the legal director of Friends of Animals, one of the few environmental groups involved in the prairie dog case from the beginning, said it was clear that Benson was sympathetic to the landowners from the moment oral arguments began.

"They couldn’t have found a better judge," Harris said. "Conservative is one thing, but he fits the anti-federal-law profile."

According to a transcript of the hearing in September, Benson immediately asked all the lawyers whether any of them were from Utah. (None were.) When PLF’s Wood began arguing for striking down the federal take regulation as unconstitutional under the Commerce Clause, Benson stopped him and asked whether he should argue more broadly.

"Do you have a position on whether the Endangered Species Act itself is beyond the Commerce Clause power?" Benson asked. He later added that it would be "easier" if Wood argued that the entire law is "beyond the power of Congress."

"There has got to be a line drawn somewhere for exercising the Commerce Clause," Benson said, seeming willing to go beyond what Wood was pressing for.

When he ruled in November, Benson followed through, though he did limit his ruling to the issue before him: FWS’s take regulation for the prairie dog.

"Although the Commerce Clause authorizes Congress to do many things," Benson wrote, "it does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce."

Said Harris, "It was a foregone conclusion from the moment we walked in there."

‘Really strong’ ruling for property rights

Fish and Wildlife Service, along with Friends of Animals, quickly appealed to the Denver-based 10th U.S. Circuit Court of Appeals.

The appeal is in its early stages and will be argued either later this year or next, but it appears likely that FWS will make similar arguments to what it presented in Benson’s court. In court documents in that case, the agency argued that five circuits across the country have addressed this question in varying degrees, and all of them upheld the endangered species protections from a Commerce Clause challenge.

Their primary argument, however, rests on a controversial 2005 Supreme Court decision involving a 1996 California ballot measure that legalized medical marijuana.

That case, Gonzales v. Raich, arose after the Drug Enforcement Administration arrested a group of medical marijuana users, citing the Controlled Substances Act, which was passed using Congress’ Commerce Clause authority. The smokers sued, arguing that Congress could not regulate a purely intrastate activity — local medical marijuana.

In a 6-3 ruling, the Supreme Court upheld the federal law, holding that the Commerce Clause allowed Congress to regulate intrastate activity that was part of a "class of activities" that have an effect on interstate commerce. Medical marijuana, the court reasoned, affects supply and demand of marijuana between states and, thus, the law was justified.

FWS, in its earlier court documents, reads that ruling to mean the court endorsed local regulation if it is part of a comprehensive regime that reaches interstate commerce.

The Endangered Species Act is "entitled to a presumption of validity," the government wrote. "Every court to have reached the issue has concluded that the ESA is a comprehensive scheme that has a substantial relation to interstate commerce."

Put another way: "Because preventing Congress from using [ESA] … to protect intrastate species, which account for a majority of all listed species, would undercut the ESA, the rule may also be upheld as an essential part of the ESA."

Prairie dog
The Fish and Wildlife Service listed the Utah prairie dog, which exists only in this Southwestern state, as endangered in 1973. After its population rebounded, it was downgraded to threatened status in 1984, but local officials continue to struggle to manage the species. | Photo by Jeremy P. Jacobs.

The government also argues prairie dogs, like other endangered species, are part of a broad ecosystem that does ultimately have an effect on interstate commerce in a variety of ways, including tourism. There is, FWS points out, a "Utah Prairie Dog Day" at Bryce Canyon National Park every year.

Since Benson’s ruling, the appeal has drawn considerable attention. Nine states — Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, Wyoming and Utah — have all intervened on the landowners’ behalf. Groups of law professors have also filed briefs, some supporting FWS and others backing the property owners. Environmental groups, including Sierra Club and Defenders of Wildlife, are lining up behind FWS.

The problem for FWS may be that there has been another, more high-profile, Supreme Court precedent that could cut against it: the 2012 decision upholding the individual mandate of the Affordable Care Act, or Obamacare.

In his majority opinion, Chief Justice John Roberts said the mandate, which requires citizens to obtain health insurance, may be upheld when the penalties for not enrolling in a plan are construed a tax. But Roberts and the court explicitly struck down the government’s argument that the individual mandate should be upheld because it is integral to a "comprehensive scheme of economic regulation" established under the Constitution’s Commerce and Necessary and Proper clauses.

Specifically, the court said penalties for failing to have insurance could not be justified by the Commerce Clause because the law was regulating economic inactivity, meaning the individual’s decision not to spend money on health care and, therefore, in commerce.

PLF’s Wood highlighted that ruling as "really strong for us."

And Adler, the law professor who has also filed a brief in support of the property owners, said the Obamacare decision draws an important contrast with the Raich ruling.

"The court made clear that you have to look at what it is that is actually being regulated," Adler said. "You need to have an activity being regulated that is within Congress’ reach. Here, the taking of a species. There is nothing inherently economic about that. There is nothing that necessarily connects that to economic activity."

Roberts factor

If the government prevails at the 10th Circuit, there seems to be little question that PETPO will seek to take the case to the Supreme Court.

And they have good reason to believe they would have a receptive audience in Roberts.

Before he was the chief justice, Roberts addressed a very similar case when he was on the bench at the U.S. Court of Appeals for the District of Columbia Circuit in 2003. In his first opinion on that bench, Roberts weighed in on a dispute over FWS prohibiting a California developer from building on the San Diego habitat of the endangered Southwestern arroyo toad.

The court sided with FWS, but the developer sought rehearing before all of the D.C. Circuit judges. The court rejected that request, but Roberts dissented, saying he would have granted rehearing.

Roberts wrote that he didn’t completely disagree with the ruling, which also hinged on Commerce Clause grounds, but said it should be reconsidered because it "conflicts with the opinion of a sister circuit."

The opinion became controversial when Roberts was nominated to the Supreme Court two years later. Liberals argued that it showed Roberts was willing to re-examine or question precedents.

For environmentalists, one line stood out.

Roberts wrote that the ruling leads to "regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California" and "constitutes regulating" interstate commerce.

If the government loses at the 10th Circuit, it’s unclear whether it would want to take the case to the Supreme Court for fear of Roberts and the conservative majority setting a more far-reaching precedent.

State takes over management

So, what does this all mean for Cedar City and its prairie dogs?

Since Benson’s ruling, prairie dog management has been taken from FWS and turned over to the state — although FWS will still ultimately decide whether and when to delist the species. Munson, other members of PETPO and state regulators are adamant that there hasn’t been any mass killing of the animals.

At the end of last month, the Utah Division of Wildlife Resources finalized its own recovery plan, and, remarkably, it’s similar to the federal plan.

"Frankly, I don’t see much change in our management strategy," said Bill Branham, a former U.S. Forest Service official who leads UPDRIP. "We are continuing to do pretty much what we’ve done before."

Branham added, though, that UPDRIP is going to be "rebranded" because of the hostility within the community toward its previous efforts.

Kevin Bunnell, the state agency’s regional supervisor, said the plan allows private citizens to remove a prairie dog within 50 feet of a business, home or building as long as they report it.

"We don’t want it to get out of hand," Bunnell said. "But it does allow them to take care of those issues on their own."

But FWS confirmed the original federal plan had a similar provision.

Bunnell said a major difference is that the state has implemented a compensation plan for landowners who don’t kill the prairie dogs. In those instances, if you allow state officials to come and trap the prairie dogs, the state will pay that owner for the lost value of his or her property, such as reduced crop yield.

Otherwise, Bunnell said his agency is busy responding to complaints, trapping prairie dogs at every opportunity and preparing them to be moved to federal lands.

"I suspect we will be accelerating the recovery process," he said, adding that the prairie dogs have represented the most contentious issue he has ever worked on.

Federal officials point out a couple of other differences with the state plan. First, the state plan authorizes 6,000 prairie dogs to be taken every year, regardless of the size of the entire population. FWS’s most recent plan allowed a similar number, but it set the limit every year at 10 percent of the total population. The state plan is permanently set at 6,000.

Second, the plans differ in how they approach habitat conservation. Under the federal plan, if you killed a prairie dog, you were required to mitigate, typically by translocating another one or paying a fee. The state’s plan does not contain a similar mitigation requirement.

Bunnell, however, is optimistic and sounded relieved to have the state plan in place. In Cedar City, he said, there is little conservation value for the prairie dog — since most don’t live in their natural habitat — but they are a nuisance.

"They cause a lot of headaches and make it difficult for us to deal with prairie dogs in a larger sense because of the perception issues," he said, before pausing. "There are some places where prairie dogs belong, and some places where they just don’t."