For years, a dispute has raged over federal regulations that protect threatened Utah prairie dogs.
The Pacific Legal Foundation sued because the restrictions were preventing residents of Cedar City, Utah, from building homes on their property, starting businesses and maintaining playgrounds, their airport and cemetery.
Property owners formed People for the Ethical Treatment of Property Owners and, represented by PLF, successfully challenged the constitutionality of the regulation.
“We argued that the Commerce Clause could not be stretched this far: the activity forbidden by the regulation isn’t commerce, the Utah prairie dog isn’t tied to commerce, and there is no other connection between this regulation and commerce,” the foundation said.
It was the first time a federal court had ever struck down an Endangered Species Act regulation for exceeding the Commerce Clause, PLF said. Utah immediately implemented a prairie dog preservation plan that actually doubled the population of the animal to more than 80,000 by improving natural habitat on state lands and working with property owners to move the rodents.
PLF said: “This was a win-win. Property owners no longer bore unnecessary burdens and the species finally began making progress toward a sustainable, long-term recovery. It took nearly thirty years for the species to double from 20,000 in the early eighties to 40,000 in 2012. But, under state management, it doubled again in a mere 5 years, reaching 84,000 in 2017. The reason is simple: whereas the federal regulation had needlessly pitted property owners against the species, the state plan enlisted property owners as partners in conservation—and both the state and property owners responded to those incentives.”
Then the 10th U.S. Circuit Court of Appeals in Denver overturned the district court’s decision and re-imposed the federal regulations. That included “criminalizing” any use of the state’s conservation plan.
The foundation, however, says that while that normally would have been the end of the case, the Trump administration simply issued permits to “every affected county,” so that the state plan could be implemented again.
“Although it’s not the judicial precedent we sought, this is nonetheless a big win for the people of Utah and the Utah prairie dog,” PLF explained.
The U.S. Fish and Wildlife Service announced the special permits a week ago.
The agency said: “Utah prairie dogs are protected from harmful impacts that constitute ‘take’ under the Endangered Species Act (ESA), including incidental take that may result from activities such as residential, commercial and industrial development. However, the service can issue permits that would authorize incidental take of Utah prairie dogs as long as there is a conservation plan in place that minimizes and/or mitigates impacts to the species. ”
The agency said the new general conservation plan will be in effect for parts of Iron, Garfield, Beaver, Wayne, Piute, Sevier and Kane counties.
It incorporates elements of the 2015 UDWR Utah Prairie Dog Management Plan for non-federal lands. Several partners will help implement the GCP, including the Utah Department of Natural Resources, Utah Division of Wildlife Resources, Bureau of Land Management, U.S. Forest Service, and Iron, Garfield and Beaver counties, the agency said.
The plan now includes prairie dog translocations, habitat and plague management at translocation sites, and the protection of occupied Utah prairie dog habitats through conservation banks, conservation easements and land acquisitions from willing sellers, the agency said.
Last year, when the case was submitted to the U.S. Supreme Court, lawyers were critical of the 10th Circuit for finding that the Commerce Clause allowed “federal bureaucrats to regulate activity that isn’t interstate commerce, doesn’t affect interstate commerce, and is not necessary to regulate commerce.”
It was U.S. District Judge Dee Benson who threw out the federal agency’s claim that it could impose its rules and restrictions on private land at the trial court.
She found: “Although 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 takes of Utah prairie dogs is not essential or necessary to the [Endangered Species Act’s] economic scheme.
“The federal government may take whatever measures it likes on its own property, in order to protect the prairie dog,” Wood continued. “But it can’t violate the U.S. Constitution by taking away the property rights of private citizens or local governments,” she said.