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A lawsuit has been launched by the Pacific Legal Foundation on behalf of property owners in Cedar City, Utah, whose private land effectively is being confiscated by the federal government for the use of a species of rodent that has been determined to have "no commercial value."
The action by the PLF, which has taken on federal government environmental regulations in several high-profile cases in recent months, is on behalf of members of the People for the Ethical Treatment of Property Owners – or residents of the Cedar City area.
It names as defendants the U.S. Fish and Wildlife Service, Director Daniel M. Ashe, Regional Director Noreen Walsh and others.
The case focuses on the mandated protections for the Utah prairie dog, a type of ground squirrel, or rodent, established by the federal government for owners of private property in the Utah region.
A new rule that was imposed just last fall demands that property owners are not allowed to "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" the animals – including when they are blocking construction, development or the protection of private property.
The agency declined to comment on the conflict, but did offer to provide promotional information about its prairie dog recovery program.
One man, Bruce Hughes, tells how he bought a 3.4-acre parcel of land to develop and use for retirement income.
But he was prevented from "obtaining a building permit because the prairie dog was on their property."
The legal action contends that the federal government has overstepped its powers by issuing regulations to block prairie dog controls. Because the Utah prairie dog is a single-state species without any use or value in commerce, it isn't covered under the federal government's Commerce Clause authority, the case challenges.
"Cedar City is a community under siege, by a proliferation of prairie dogs and by federal regulations that prohibit reasonable measures to control the prairie dog population," said PLF attorney Jonathan Wood.
"The town has been inundated with prairie dogs that are leaving parks, gardens, vacant lots, the golf course, and even the local cemetery, pockmarked with burrows and tunnels. Development projects are blocked by federal prairie dog protections. And public health is imperiled because prairie dogs – which are rodents, after all – can be carriers of disease."
He continued, "No one wants the species to go extinct, but there are tens of thousands of Utah prairie dogs in the area. The people affected by the animal deserve consideration also. The federal government should protect and preserve the species on its own land, and leave the citizens of Cedar City and other towns free to take commonsense measures to control the prairie dog population in their midst. Residents of Cedar City should be free to live their lives without being held hostage to a species that has become an out-of-control pest, and a threat to their economy and their well-being."
The donor-supported PFL is a public interest watchdog organization that litigates nationwide for limited government, property rights, and a balanced approach to environmental regulations. This case was filed today in U.S.. District Court in Salt Lake City.
"The federal prohibition against prairie dog controls isn't just an assault on common sense," said Wood. "Our lawsuit contends that the federal prairie dog policies are unconstitutional. The federal government is pushing beyond its authority under the Commerce Clause by imposing onerous burdens on people who have been overrun by this rodent.
"While the Commerce Clause (Article I, Section 8) permits federal regulation of "Commerce ... among the several States," Wood said, "This species of prairie dog exists only within Utah, has no commercial value, and isn't used for any economic purpose.
"So it isn’t covered by the Commerce Clause. Federal officials can't regulate or restrict what people can or can't do, on non-federal lands, for a purely single-state species that has no role in commerce. Indeed, last June, in its Obamacare ruling, the U.S. Supreme Court re-emphasized that the Constitution imposes clear limits to national power, and permits no federal regulatory control over matters that aren't related to commerce."
He said there already has been degradation of grave sites at the Cedar City Cemetery, the local airport has spent thousands trying to maintain its property, construction has been blocked on both commercial and residential projects, and the public health is at risk.
"In 2009, the take prohibition for the Utah prairie dog frustrated the sale of two lots, worth over $100,000 each," the complaint explains. "The potential purchasers did not complete the transaction because they could not take the risk that the prairie dog would invade their lots before they were able to construct their homes."
WND previously reported that the legal team currently has one case pending before the U.S. Supreme Court – that alleging that the Environmental Protection Agency broke the rules in 2009 to describe carbon dioxide, which is essential for life, as a danger and through rules and regulations take control of the nation's economy.
It is this claim, that CO2 poses a health threat, that is the foundation for most of the "green" energy projects today, the alternative wind, solar and battery projects, the increasing mileage requirements for vehicles and the billions of dollars in government spending that has been designated for this issue.
Attorneys with the PLF asked the justices to accept the case for review, arguing that the agency adopted the new standard describing CO2 as a danger without allow the decision to undergo a mandatory review by scientists expert on the question.
"Because carbon dioxide is everywhere, the Endangerment Finding empowers EPA to regulate the nation's physical, economic and social infrastructure," the pleading explains. "It bears repeating: This court in Massachusetts v. EPA, which also involved carbon dioxide, determined that the writ of certiorari should be granted because of 'the unusual importance of the underlying issue.'
"If ever there were an issue of exceptional importance to the nation, it is to be found in the Endangerment Finding. The possibility that a finding of such great moment was made illegally provides ample justification for granting the writ."
"We are asking the Supreme Court to hear this case because EPA cannot be allowed to place itself above the law," said PLF Staff Attorney Ted Hadzi-Antich. "In issuing its CO2 finding, EPA illegally shielded its work product from peer review. That's unacceptable as a matter of science, impermissible as a matter of law – and should be downright offensive for anyone concerned about openness, accountability, and integrity in the public sector."
The dispute is over the EPA's announcement in December 2009 that carbon dioxide emissions from automobiles pose a danger to public health. With that announcement, the Clean Air Act kicked in, and required the EPA to create regulations that control the emissions.
However, before those rules are allowed, the Clean Air Act itself "requires that such regulations must first be submitted to EPA's Science Advisory Board..."
That, the foundation explains, never was done, even though it was mandatory.
The impact of the feds' rule-making is not slight, with estimates of the paperwork costs of the system reaching $22.5 billion alone.
WND reported several years ago on the complicated fight, revealing that according to a study at the time, the regulations, if applied to reduce the overall earth's temperature by a single degree, would cost consumers around the globe $700 trillion, seven times the world's gross production.
The organization also won a New Mexico battle over land use, where the government had classified some dry desert land as wetlands, prohibiting the owners from using them.
It also won a Supreme Court fight over the EPA's ban on development of a parcel of residential land in Priest Lake, Idaho. The federal agents had ordered the landowners, who already had obtained all the necessary permissions to build a home, to restore the piece of subdivision land to its natural state and leave it for years.
The high court ruled the EPA must provide a process that such decisions can be challenged "in a meaningful way."