Unprecedented ruling strikes ESA protections on private land

A federal judge this week struck down a government prohibition on harming the threatened Utah prairie dog on private property, setting up a potential constitutional showdown on the reach of the Endangered Species Act.

The ruling from Judge Dee Benson for the U.S. District Court for the District of Utah held that the regulation violated the Constitution's Commerce Clause because the prairie dog only lives within Utah and does not affect interstate economic activity.

"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."

The Fish and Wildlife Service in August 2012 prohibited "takes" of the prairie dog, which resides in southwestern Utah, without a permit. The species had a population of 100,000 in the 1920s but plummeted to 3,300 in the 1970s. Recent estimates put the population at about 40,000.

The activist group People for the Ethical Treatment of Property Owners, or PETPO, challenged the regulation about a year later. They argued that Congress did not authorize FWS to regulate takes of the prairie dog on private lands, and the dogs do not qualify as having an effect on interstate commerce and thus do not clear the Commerce Clause hurdle.


Benson, a conservative appointed by former President George H.W. Bush, agreed. His opinion marks the first time a federal court has held that an Endangered Species Act regulation of private land use exceeds Congress' Commerce Clause powers.

The ruling was immediately praised by conservatives and property rights activists.

Utah Republican Sen. Orrin Hatch said in a statement that he is "glad the court stepped in to protect the property rights of Utahns."

"The court's decision confirms what we have said all along: the federal government has no business interfering with property rights where the allegedly endangered species has no connection to, or effect on, interstate commerce," Hatch said.

However, the ruling directly conflicts with a spate of other cases in federal appellate courts from other circuits that have upheld FWS regulations for species that reside entirely within one state, including the Delhi Sands flower-loving fly, which is found only in California, and a group of six invertebrate cave dwellers in Texas, among others.

"This [question] has been litigated for years," said Vermont Law School professor Pat Parenteau. "It fell off the radar because every single court [that dealt with it] looked at the question and found it constitutional."

That could boost the odds of FWS appealing the ruling to the 10th U.S. Circuit Court of Appeals in Denver.

Such an appeal would not be an open-and-shut case, however. Even though the previous cases have been resolved in FWS' favor, the rationale for upholding its regulations has varied significantly and has previously caught the attention of Supreme Court Chief Justice John Roberts.

"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.

"This opinion could force reconsideration of that question," Adler said.

In fact, Adler noted, the various appellate court rulings on the issue haven't just differed in their reasoning, but they have gone so far as to explicitly reject other circuit's rationales.

Roberts addressed the issue in his first opinion as a judge on the U.S. Court of Appeals for the District of Columbia Circuit in 2003. The case involved FWS prohibiting a California developer from building on the San Diego habitat of the endangered arroyo Southwestern toad.

The court sided with the agency, but the developer sought a rehearing before all of the circuit's judges.

That request was denied, but Roberts voted to grant the rehearing and wrote a dissent. He didn't completely disagree with the ruling but said its reasoning "conflicts with the opinion of a sister circuit."

The dissent became a liberal talking point when Roberts was nominated to the Supreme Court two years later. They claimed it showed Roberts was willing to question precedents. They also highlighted his reference to regulating "the taking of a hapless toad."

Should the government appeal the prairie dog case and lose, a circuit split would be established that could make the case attractive to the Supreme Court.

"The Supreme Court doesn't always resolve conflicts," Parenteau said, "but it very well could."

Click here for the ruling.

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