May 27, 2015

It's good to have friends

By Jonathan Wood Attorney

Many friend-of-the-court briefs have been filed supporting People for the Ethical Treatment of Property Ownerschallenge to the federal government’s unconstitutional Utah prairie dog regulation. These briefs are a reminder of how important the issue is and how unnecessary the federal regulation — and its immense burdens on individuals — is.

One of the briefs was filed on behalf of the state of Utah, joined by Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, and Wyoming. It highlights the significant federalism concerns that the Utah prairie dog regulation raises. It also explains that enforcing the Constitution’s limits against the federal government does not threaten protection of the species. Utah, like all states, has primary responsiblity for protecting wildlife within its borders and will continue to protect the Utah prairie dog.

[Utah’s prairie dog conservation] plan seeks to supplement and establish self-sustaining prairie dog populations on federal and state lands away from human conflict by capturing problem animals on private lands and relocating them to preserve areas. This will gradually transition prairie dogs from human conflict areas that will never secure their future to preserve areas where they are unconditionally protected from take and can flourish without human interference.

Another brief was filed on behalf of Senators Mike Lee, James Inhofe, Mike Enzi, David Vitter, Ted Cruz, and Orrin Hatch and Congressmen Jason Chaffetz, Chris Stewart, Mia Love, and Rob Bishop.

It is no doubt true that Congress, in enacting the Endangered Species Act, wished to protect biodiversity and, in so doing, preserve whatever hidden value may lie within protected species. But these legislative aims cannot transform the Act into a market regulatory scheme. As the Supreme Court has emphasized, regulation cannot be upheld under the Commerce Clause using attenuated causal reasoning to reach the desired interstate market result. To hold otherwise would convert the Commerce Clause into the “‘[h]ey, you-can-do-whatever-you-feel-like Clause.’”

The Cato Institute, joined by Professors Jonathan H. Adler, James L. Huffman, and Josh Blackman, and the Claremont Institute’s Center for Constitutional Jurisprudence filed briefs arguing that the Utah prairie dog regulation can’t be squared with the founders’ vision for the balance between state and federal power.

If Congress has power over a non-commercial, wholly intrastate activity, such as private land use that may incidentally harm a creature like the Utah prairie dog, then it is worth asking what sorts of activities are outside Congress’s commerce power. After all, every human activity has some environmental effect, and if identifiable environmental consequences are all that is necessary to justify commerce power regulation, then the power asserted is actually a power over the entire ecosystem and all of its components. Were the federal government given the broad power to regulate any activity that can harm any species of wildlife or the entire ecosystem, that power would have been enumerated separately, not embedded in the Commerce and Necessary and Proper Clauses.

People for the Ethical Treatment of Property Owners also drew support from friends at the U.S. Chamber of Commerce and National Federation of Independent Businesses. Their brief explains how the heavy hand of federal regulation harms not only property owners but species.

As part of a 2011 settlement with several environmental groups and resulting consent decrees, FWS has committed to reviewing 757 candidate species for listing as endangered or threatened, and to make a final decision on more than 251 pending species by 2018. … If the history recounted above is any guide, the resulting economic impact on private landowners will be measured in billions of dollars. This looming threat to people, their land, and their livelihoods requires that courts enforce, rather than ignore, the clear constitutional limits on FWS’s authority to list intrastate species. …

[T]here is good reason to question whether FWS’s no-costs-barred approach is even effective at protecting listed species. The ESA has a paper-thin record of success: only 59 species have been removed from the threatened and endangered list (which now includes more than 1,500 domestic animal and plant species), and of even that small number, 10 were removed due to extinction and another 19 were removed due to data errors, as opposed to successful recovery.

Additional briefs were filed on behalf of conservation districts and agricultural interests, the National Association of Home Builders, and Mountain States Legal Foundation. These briefs add yet more perspective and highlight the national importance of the challenge.

Also, don’t forget that PLF and the Competitive Enterprise Institute will be hosting an event in D.C. next Tuesday to discuss the case. We have an exciting group of speakers, including the aforementioned Senator Lee and Congressman Bishop. You can RSVP by emailing Kate Pomeroy at KAP@pacificlegal.org.

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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 is asking 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 asks the Supreme Court to restore both the state conservation program and constitutional limits on federal power.

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