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People for the Ethical Treatment of Property Owners v. United States Fish & Wildlife Service

ELR Citation: 44 ELR 20241
Nos. 2:13-cv-00278-DB, (D. Utah, 11/05/2014) (Benson, J.)

A district court held that the federal government may not regulate the take of the Utah prairie dog, a threatened species, on nonfederal lands under the ESA. In 2012, FWS issued a rule authorizing the take of the Utah prairie dog, via permit, 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." The rule does not permit take of the Utah prairie dog on federal land. A property rights group challenged the rule, arguing that the Commerce Clause and the Necessary and Proper Clause fail to authorize such regulation because the Utah prairie dog is located exclusively within the state of Utah. The court agreed. The Commerce Clause does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce, and FWS' arguments purporting to establish such a link in this case were simply too attenuated. Here, the rule is noneconomic because FWS is regulating every activity, regardless of its nature, if it causes harm to a Utah prairie dog. Additionally, the rule does not contain any jurisdictional element that would limit its reach to takes that have an explicit connection to interstate commerce. Nor are there any express congressional findings regarding the effects upon interstate commerce of taking a Utah prairie dog. 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 ESA’s economic scheme. The rule, therefore, is unconstitutional.