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.
People for the Ethical Treatment of Property Owners (PETPO) is a nonprofit organization of more than 200 Utah landowners who are subject to federal regulations preventing them from using their property or doing anything that might affect any one of 40,000 Utah prairie dogs that live in the area. Prior to a federal court striking down the regulation as unconstitutional, property owners were forbidden from building homes in residential subdivisions, starting small businesses—the local government could not even protect playgrounds, an airport, or the local cemetery from the disruptive rodent.
PLF filed a lawsuit on PETPO’s behalf, arguing that this federal regulation exceeds the federal government’s constitutional power under the Commerce Clause. It regulates noneconomic activity; there is no interstate market for the Utah prairie dog, which is only found in Utah; and the regulation is unnecessary to the regulation of any interstate commerce. A federal district court struck down the regulation, holding that if the federal government could get away with this “there would be no logical stopping point to congressional power,” contrary to the Constitution’s text and history.
In the wake of that victory, Utah worked with property owners to implement a conservation plan for the species. Under it, state biologists would move prairie dogs from backyards, playgrounds, and other residential areas to government-owned conservation lands, where they could be permanently protected. The difference between federal regulation and state management is stark. The federal regulation pits property owners against prairie dogs, whereas the state enlisted property owners as partners in conservation. Conflict has given way to real conservation.
Unfortunately, the U.S. Court of Appeals for the Tenth Circuit brought an end to Utah’s successful conservation program when it reversed the district court and restored the federal regulation. PLF asked the Supreme Court to hear PETPO’s case and preserve Utah’s successful conservation program, but our petition was denied.