November 19, 2013

PLF asks court to rule on the constitutionality of Utah prairie dog regulation

By Jonathan Wood Attorney

Yesterday, PLF filed a motion for summary judgment on behalf of our clients, People for the Ethical Treatment of Property Owners (PETPO), in their case challenging federal regulation of the Utah prairie dog. As our motion explains, Congress, and the federal agencies to which it delegates power, is subject to judicially enforceable limits on its powers. At their core, these limits serve to deny to the federal government the power to regulate local issues having nothing to do with the national economy.

But that’s precisely what the Utah prairie dog regulation does. This regulation criminalizes any activity that has a deleterious effect on a Utah prairie dog regardless of whether the activity is economic or somehow related to interstate commerce. The result of this regulation is that communities are under siege from this rodent and private property owners lose their right to use their property once the varmint invades. Yet the constitutional power that the federal government relied on to promulgate this regulation is the Commerce Clause—the federal government’s power to regulate interstate and international commerce.

Because the 40,000 Utah prairie dogs are found only in a few counties in southwestern Utah, this regulation has only the most tenuous impact on the nation’s $15 trillion economy. But the regulation’s burden on the communities within these counties is anything but slight. PETPO’s motion is supported by declarations signed by its members documenting the impacts of this regulation on communities and private property owners. Cedar City, one of the affected communities, explains that the regulation prevents it from maintaining safety at the municipal airport and preserving the sanctity of the local cemetery. Brenda Webster, whose late husband is buried in this cemetery, highlights the human costs of allowing the prairie dogs to have the run of this sacred place. Dean Lamoreaux, a local farmer, notes that the regulation also makes it more difficult for him to provide for his family. PETPO also represents many private property owners who cannot use their property because of the prairie dog’s occupation, including Bruce Hughes—whose story was covered on Stossel.

The Supreme Court has construed the Constitution to prohibit federal regulation of noneconomic activities having only coincidental or attenuated connections to the national economy. The breadth of the Utah prairie dog regulation is sweeping—it not only criminalizes the development of private property and the protection of cemeteries, but a whole host of recreational activities like riding ATVs.

Because this regulation ensnares uneconomic activities, it can only be sustained if it is a comprehensive scheme to regulate a commercial market. The Utah prairie dog regulation isn’t that. The U.S. Fish and Wildlife Service has never identified commercial use of the Utah prairie dog as a threat to the species.This is because the species isn’t the subject of any commerce, it is simply a common pest. Therefore, its regulation cannot be sustained without violating the judicially recognized limits on the federal government’s powers.

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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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