Utah District Court Strikes Down Regulation of Species Under the Endangered Species Act

U.S. District Judge Dee Benson issued a significant ruling in the District of Utah finding that prohibiting the take of Utah prairie dogs on private lands is unconstitutional under the Commerce Clause.  The case is People for the Ethical Treatment of Property Owners v. USFWS, 13-278-DBD, D. Utah and the decision can be found here (http://www.realestatelanduseandenvironmentallaw.com/wp-content/uploads/sites/92/2014/11/PETPO-ruling.pdf).  

The prairie dog at issue was designated as threatened under the Endangered Species Act (ESA), thus not subject to the automatic “take” prohibition that protects species designated as endangered.  Relying on Section 4(d) of the ESA, the U.S. Fish & Wildlife Service (the Service) issued a special rule for the Utah prairie dog allowing a “take” by permit only.  Further, permitted takes would only be allowed on “agricultural lands, [private property] within [.5] miles of conservation lands, and areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites.”

Under the ESA, “take” means “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.”  The Service has defined the “harm” portion of the “take” definition to include “significant habitat modification” resulting in killing or injuring wildlife.  Therefore, the requirement of a permit to “take” wildlife on private land, especially with the limitations set forth by the special rule, could be applied to a broad spectrum of activities and serve as an outright prohibition in many areas.

The People for the Ethical Treatment of Property Owners (PETPO) brought suit against the Service under the Administrative Procedures Act and alleged that the Service lacked authority to regulate a purely intrastate species on non-federal land.  The court agreed.  In rejecting the Service’s arguments, the court explained that:

[a]lthough the Commerce Clause authorizes Congress to do many things, it 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 the Utah prairie dogs is not essential or necessary to the ESA’s economic scheme.

This ruling is significant because, if upheld by the 10th Circuit, it goes against the historical trend of other circuits upholding Congress’ authority to regulate the take of purely intrastate species.  See San Luis & Delta-Mendota Water Authority v. Salazar, 638 F.3d 1163 (9th Cir. 2011); Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007); GDF Realty Investments, LTD. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); Nat’l Ass’n of Home Builders v. Babbit, 130 F.3d 1041 (D.C. Cir. 1997).  Should the 10th Circuit uphold the PETPO ruling, the split could lead to a Supreme Court review of this issue.

Although this ruling and the potential for a split in circuits should give advocates for private property rights hope, that hope should be tempered.  Not only are there numerous circuits which have upheld the government’s rights to regulate similar intrastate species on non-federal land, but the PETPO decision failed to substantively discuss any of those cases and distinguish the facts of the case at issue or provide a rationale for ruling differently.  Therefore, while this is a significant victory for those opposed to the ever-expanding reach of the federal government through the ESA, it may well be a temporary victory.

Laura Patterson Hoffman focuses her practice in the areas of environmental and regulatory law, energy, tort and business litigation. Hoffman regularly assists energy producers with compliance issues and litigation relating to the Clean Water Act and other environmental permitting issues. She has practiced in federal and state courts and before the Kentucky Office of Administrative Hearings. Hoffman has also engaged in extended negotiations with the Kentucky Cabinet for Energy and Environmental Protection and various environmentalist groups. She also has experience in groundwater contamination litigation and contractual disputes.
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