February 2, 2015

Can the federal government make a city pass a leash law? [Updated]

By Jonathan Wood Attorney

The obvious answer must be no, right? Setting aside the absurdity of a town’s leash law being a federal issue, the Constitution forbids the federal government from commandeering state and local governments. In New York v. United States and Printz v. United States, the Supreme Court explained that this anti-commandeering principle forbids the federal government from impressing the states into its service, meaning that it can’t order other governments to regulate people on its behalf.

In 2013, a resident of Scarborough, Maine was walking on a public beach with her unleashed dog. The city had no ordinance requiring dogs to be leashed. The dog spied a bird and gave chase, ignoring the commands of its owner. Sadly, it caught and killed the bird. So far, this is an unfortunate but all too common event. Why is the federal government involved?

The bird turned out to be a piping plover, a species listed as threatened under the Endangered Species Act. When the federal government learned of the bird’s death, it decided not to enforce the act’s harsh “take” provisions against the dog owner. Instead, it sent the city a Notice of Violation demanding $12,000 in fines for violating the statute’s prohibition against harming listed species. The sole basis of liability was that the city didn’t require dogs to be leashed. Ultimately, the city entered into a settlement, adopting a leash law in exchange for a lesser fine.

Now, the case is being used as precedent to browbeat other dog friendly towns into adopting leash laws. According to the Kennebunk Post, Maine Audubon is pressuring Kennebunkport to follow Scarborough’s lead or face similar threatened fines.

Any interpretation of the Endangered Species Act that would require a state or local government to pass a law or face federal fines would be unconstitutional. The federal government might be able to adopt a federal leash law–it’s difficult to imagine which enumerated power that could be adopted under–but it can’t force state or local governments to do its bidding.

UPDATE: PLF sent this letter to Kennebunkport’s City Manager explaining why the ESA’s take prohibition doesn’t require cities to adopt regulations like the leash law and would be unconstitutional if it did.

What to read next