ENDANGERED SPECIES

Court hears arguments in high-stakes prairie dog case

DENVER -- A federal plan prohibiting "take" of Utah prairie dogs did not run afoul of the U.S. Constitution, an attorney for the Fish and Wildlife Service told the 10th U.S. Circuit Court of Appeals yesterday in a case that could have major consequences for the nation's threatened and endangered wildlife.

But landowners in southern Utah argued that the federal government exceeded its constitutional powers when it barred landowners from killing or disturbing the prairie dogs, which are seen as a nuisance. The critters live only within the Beehive State's borders and are not used in any economic activity, so they can't be regulated by the federal government, they argued.

The outcome of the closely watched case could dictate how the government manages numerous other imperiled species that also reside within a single state.

Dozens came to watch yesterday's oral argument, including officials from Fish and Wildlife, the Justice Department and Utah's Division of Wildlife Resources. David Miller, a commissioner from Iron County, Utah, and Derek Morton, director of People for the Ethical Treatment of Property Owners (PETPO), the plaintiff in the case, also attended.

Landowners in Iron County, which is home to roughly 70 percent of the prairie dogs, said the animals have run roughshod over parks, gardens, vacant lots, golf courses and the local cemetery and have prevented people from starting businesses and building homes.

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The U.S. District Court for the District of Utah ruled in their favor in November, breaking with other federal courts in finding that the Endangered Species Act does not allow FWS to regulate the take of a species that lives in just one state and has no "substantial effect" on interstate commerce (Greenwire, June 8).

The ruling by Judge Dee Benson, a George H.W. Bush appointee, shocked environmentalists and emboldened conservatives who had long questioned the constitutionality of ESA's take prohibition.

But Benson's ruling "went far afield" of other courts, Anna Katselas, an attorney for the government, argued yesterday before a three-judge circuit panel.

The 4th, 5th, 9th, 11th and D.C. circuit courts have all rejected constitutional challenges to ESA similar to those being brought by the Utah landowners, federal attorneys have argued in the case.

Katselas said that it was "immaterial" whether prairie dogs cross state lines and that ESA is a "limited and rational extension" of Congress' powers under the Commerce Clause.

Prairie dogs are a "keystone" species of the Western grassland ecosystem that affects the local ecosystem and the economy, the government argued in its opening brief. For example, national parks have advertised prairie dogs to attract visitors, and the tawny-furred critters are of interest to scientists, photographers and wildlife enthusiasts.

In a broad sense, ESA promotes commerce in the pharmaceutical, agriculture, science, hunting, fishing and tourism sectors because it preserves the biodiversity that these sectors depend on, the government argued.

"Even if a particular species could have no independent commercial value, the interrelationships of species mean that the loss of one species can have significant impacts on other species and interstate commerce," the government argued.

But Jonathan Wood, an attorney for the Pacific Legal Foundation, which is representing PETPO, argued that the government's position would allow it to regulate essentially anything.

If the Commerce Clause allows regulation of any species that affects the environment, and thus commerce, Wood asked what's to stop the government from applying that same regulation to people, who have a much larger impact on the environment than prairie dogs.

"Can the federal government regulate any activity -- regardless of whether it's economic -- with only attenuated and insignificant effects on interstate commerce because it harms a member of a non-commercial species found in only one state?" PLF argued in its brief.

The judges offered little indication where they may be leaning on the case.

The panel consists of a George W. Bush appointee, Jerome Holmes, and two appointees of President Obama, Carolyn McHugh and Nancy Moritz.

Wood said the outcome of the case is "impossible to predict."

But the judges did appear at least somewhat concerned over the broader implications of the case, given that 68 percent of threatened and endangered species reside within the borders of one state.

Michael Harris, an attorney who argued yesterday on behalf of Friends of Animals, an intervenor backing the government, said he does not believe the panel will depart from how other circuit courts have interpreted ESA.

"We got a good panel," he said. "We got a panel that will look at the issues fairly."

But if the 10th Circuit rules in the landowners' favor, it could be a "total game changer" for ESA, he said. "It would be absolutely devastating."

Government attorneys made a similar argument in their written brief, warning that "[e]xcising individual species from the act because they do not currently cross state lines or have a current demonstrated commercial value could lead to piecemeal extinctions and undercut the regulatory scheme."

Morton of PETPO said the case is simply about the protection of property owners against excessive and unjust government restrictions. The judges, he said, asked fair questions of both sides.

"We felt they very much understood the gravity of the questions being asked," he said. "We feel like we got a fair shot."

The panel did not indicate when it would issue a ruling.

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