April 29, 2013

Bureaucrat dismisses the adverse effects of the Service's Utah prairie dog regulations on the people of Utah

By Jonathan Wood Attorney

The Deseret News has dueling op-eds from Dave Miller, an Iron County Commissioner, and Noreen Walsh, a Regional Director at Fish and Wildlife Service, on the impacts of the federal Utah prairie dog regulations on the people of Utah.  As readers know, PLF is representing People for the Ethical Treatment of Property Owners (PETPO), a group of Utah residents and property owners, who are suffering under these ill-considered, and unconstitutional, regulations.

Ms. Walsh argues that the threat to this community and private property rights are overstated.  She also argues that all the Service wants to do is work with the community to ensure that the Utah prairie dog is protected.

We have provided mechanisms that allow flexibility in management of listed species so that the impacts to private property owners are minimized. As an example, we published revisions to a special rule, called a 4(d) rule, that allows landowners to “take,” meaning translocate or kill, up to 10 percent of the rangewide population annually. This rule, which allows lethal take on agricultural lands throughout the species range, has been in place since 1984.

But, Ms. Walsh’s argument obscures how the 4(d) rule operates.  Prior to the 2012 revisions, all private property owners were eligible to apply for a take permit, allowing them to build their dream home, a small business, or protect the family farm, notwithstanding the incidental effects on the prairie dog.  But, the Service’s amended rule denies most private property owners any recourse.  Now, permits can only be granted for agricultural lands, lands within half a mile of a conservation area, or lands where the prairie dog threatens human safety or sacred sites.  Those property owners who remain eligible for a permit cannot receive a permit unless they first satisfy the government that they have no other options and then buy back their rights from the agency.  Rather than minimizing the regulatory burden, the revised rule is even less accommodating of the interests of the community and constitutionally protected property rights.

Perhaps Ms. Walsh should ask some of her experts for more information about the prairie dog issue.  According to recent press accounts, these experts have forthrightly acknowledged the legitimacy of PETPO’s concerns.  For example, Nathan Brown, a Service biologist that has worked on the prairie dog issue for over a decade, recently declared that PETPO has “real concerns” and “[t]here isn’t a legal framework to remove [prairie dogs] from [private property].”  Laura Romin, a Deputy Field Supervisor at the Service, was quoted saying: “We probably have sufficient numbers of prairie dogs.”  Ms. Romin went on to explain that the Service does not count the 30,000 prairie dogs on private property towards the animal’s recovery.  Unless the animals are moved from private lands to federal and state lands, which PETPO supports, the restrictions on private property owners will never be lifted, no matter how abundant the varmint becomes.

As Commissioner Miller explains, the effects of the regulations on the people of Iron County are real, and cannot be dismissed by characterizing the regulation as mere “collaboration.”

But the proposals to shift the cost of recovery onto private property owners of Iron County who have found themselves in the crosshairs of this mess are repulsive and unacceptable. To place innocent property owners in jeopardy to rightfully use their own private property undermines every institution of freedom and justice for which our forefathers, in many cases, gave the ultimate sacrifice. Let us not forget that injustice anywhere is a threat to justice everywhere. This issue affects all of us.

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People for the Ethical Treatment of Property Owners v. Fish and Wildlife Service

For decades, the federal Endangered Species Act has simultaneously stifled responsible conservation of the Utah prairie dog, while barring property owners from using their own land as they wish. So PLF asked the United States Supreme Court to step in, to protect both the prairie dog and property rights of the people who share the same land. Representing a group of landowners called the People for the Ethical Treatment of Property Owners, PLF challenged the constitutionality of the federal prohibitions. Our initial victory in federal district court allowed the state to adopt a conservation program that benefitted both people and the prairie dog. It has relocated prairie dogs from backyards, playgrounds, and other residential areas to improved state conservation lands. However, that successful conservation program ground to a halt when the Tenth Circuit restored the federal regulation. Our petition asked to restore both the state conservation program and constitutional limits on federal power, which the Supreme Court denied.

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