Federal Protections Upheld for Utah Prairie Dog

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By Alan Kovski

An attempt to sharply reduce the scope of the Endangered Species Act by limiting it to species affecting interstate commerce was rejected March 29 by a federal appeals court ( People for the Ethical Treatment of Property Owners v. Zinke, 10th Cir., No. 14-4165, 3/29/17 ).

The decision overturned a U.S. District Court decision that had found federal protections for the Utah prairie dog unlawful.

Had the U.S. Court of Appeals for the Tenth Circuit upheld the district court, the ruling would have created a circuit court split on the subject and could have left many species protected only by state laws and regulations on non-federal land.

About 68 percent of plants and animals protected by the Endangered Species Act are unique to a state, the U.S. Fish and Wildlife Service told the appeals court.

“We’re tremendously relieved by this decision,” Noah Greenwald, endangered species director at the Center for Biological Diversity, said in a news release. “Given that a majority of America’s more than 1,600 endangered species occur in only one state, a bad ruling would have almost certainly committed hundreds of species across the country to extinction.”

Damien Schiff, a Pacific Legal Foundation attorney who helped represent property owners in the Utah prairie dog case, told Bloomberg BNA the legal team wanted to petition the Supreme Court to review the case. The attorneys would need to discuss the matter with their clients before a definite decision, he said.

Regulatory System Implicated

Protections for species with tiny territories have been conflicting with development projects of all kinds since construction of the Tennessee Valley Authority’s Tellico dam was temporarily halted in 1978 to protect a minnow called the snail darter.

The appeals court in the Utah prairie dog case based its decision on the idea that the Endangered Species Act created an interstate regulatory system with great scope under the federal government’s constitutional authority over interstate commerce.

“In short, the Commerce Clause authorizes regulation of noncommercial, purely intrastate activity that is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce,” the three-judge panel ruled.

The particular case of the Utah prairie dog could not be separated from the broader regulatory scheme, in the court’s view.

The appeals court especially cited the Supreme Court case Gonzales v. Raich, 545 U.S. 1 (2005), which allowed the federal government to prohibit the local cultivation and use of marijuana in compliance with California law.

Commerce Clause Argued

In effect, the court said it does not matter that the Utah prairie dog is not an article in interstate commerce and that the animal does not, in itself, affect interstate commerce, Schiff said.

“It is a considerable expansion from what we think the Commerce Clause was meant to authorize,” Schiff said.

The vast majority of protected species have no commercial value, Schiff said, arguing that the Endangered Species Act is not really a market regulatory system.

The court’s interpretation of the Commerce Clause could allow federal regulation of areas traditionally left to states, such as divorce law, by embedding the particular subject in a larger interstate regulatory system capable of having an impact on commerce, Schiff said.

To contact the reporter on this story: Alan Kovski in Washington at akovski@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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