PETPO v. USFWS: Utah Prairie Dog Litigation

Background

Utah prairie dogs, a Southern Utah species, are concentrated in Beaver, Garfield, and Iron counties. Prairie dog burrows on private land are often harmful and usually not in line with preferred land uses. As burrowing rodents, they make underground tunnels that terminate in ground level access holes commonly referred to a prairie dog mounds. Utah prairie dogs forage on herbaceous plants including native grasses, lawns, and hay. Prairie dog activities adversely affect golf courses, cemeteries, home lawns, building lots, and farmland in their Southern Utah range. Besides the mechanical problems caused by burrows and mounds, the foraging habits of prairie dogs are considered harmful when private land uses, like farming or running a golf course, involve maintaining herbaceous plants or when the burrows knock down headstones in cemeteries.

The Endangered Species Act (ESA) is a federal statute aimed at protecting species from extinction. The Utah prairie dog was listed as “endangered” under the ESA in 1973 but was reclassified as “threatened ” in 1984. The Fish and Wildlife Service’s (FWS) criteria for removing the Utah prairie dog from the endangered list is dependent on prairie dog counts on federal public land. However, the majority of Utah prairie dogs live on private land. When counts are taken, prairie dogs living on private land are not included, thus the increased population of Utah prairie dogs goes unrecognized.

A local citizen’s group called People for the Ethical Treatment of Property Owners (PETPO) challenged the use of the ESA, a federal statute that relies on Congress’s Commerce Clause authority, to regulate the Utah prairie dog. In order to regulate private actions, Congress must rely on some grant of constitutional authority. That grant of authority is found in the Commerce Clause, which allows Congress to regulate interstate commerce.

In Utah’s federal district court, Judge Benson held that prairie dogs on private land within the state of Utah have no effect in interstate commerce. The prairie dogs do not cross state lines and their economic impact is wholly contained within the state. Without an effect on interstate commerce, Congress’s commerce clause authority does not extend to Utah prairie dogs. Without commerce clause authority, the ESA cannot be used to regulate Utah prairie dogs.

The Challenge

Judge Benson’s decision is being challenged at the 10th Circuit Court of Appeals. The United States has argued that it may regulate prairie dogs found on private lands because it is regulating activities that have a substantial effect on interstate commerce and are a valid exercise of Congress’ power under the Commerce Clause. The State of Utah, along with several other western states, filed an amicus brief, arguing that the Commerce Clause does not justify federal interference with a purely intrastate species residing on state, local, and private land.

Moving Forward

Until a decision comes down from the 10th Circuit, the State of Utah is managing Utah prairie dog populations. Utah Prairie Dog Recovery Implementation Program (UPDRIP), a local organization, is taking the lead on prairie dog issues for Utah. Interested parties formed UPDRIP to grapple with prairie dog issues in 2008. UPDRIP is composed of land management agencies, state universities, concerned locals, and organizations with an interest in prairie dogs, as well as government entities at the local, county, and state levels.

Current prairie dog management is very similar to management before Judge Benson’s decision. No drastic changes have been to Utah prairie dog management while the 10th Circuit appeal is pending.

The appeal is still in the early stages. Updates will be posted here as the litigation progresses.

Litigation Timeline

April 2013 PETPO files suit against the FWS claiming that official prairie dog policies on private land are unconstitutional as an exercise of federal power outside of the authority of the federal government to regulate interstate commerce.
November 2014 Judge Benson holds that the Utah prairie dog is a purely intrastate species that has no substantial effect on interstate commerce, and therefore, the ESA does not provide the FWS with authority to regulate the Utah prairie dog.
April 2015 FWS appeals to the 10th Circuit Court of Appeals
 May 2015  State of Utah, alongside nine sister states, files amicus brief arguing that the ESA does not allow the federal government to regulate a purely intrastate species residing on state or private land.

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