April 18, 2013

PLF fights crippling, and unconstitutional, regulations that put a rodent above the constitutional rights of people

By Jonathan Wood Attorney

Today, PLF filed a complaint on behalf of People for the Ethical Treatment of Property Owners (PETPO) challenging a federal regulation that prevents the residents of Cedar City, UT from protecting their community, and their private property, from a rodent.  The rodent in question is the Utah prairie dog, which the federal government lists as a threatened species.  But, the agencies that adopted and enforce this regulation overstepped their constitutional authority.  The rodent exists only in Utah, and is not involved in commerce.  It is simply a pest, which has no effect on the national economy, though it is devastating to the local residents.  For that reason, it is a local issue, beyond the power of the federal government.

The burden of the challenged regulation cannot be overstated.  For example, Brenda Webster, a PETPO member and resident of Cedar City, buried her late husband in the local cemetery.  The cemetery is now threatened by the Utah prairie dog.  The animal burrows throughout the cemetery, threatening to desecrate graves.  It also destroys flowers, and other remembrances, that loved ones leave at gravestones.  The ever disrespectful prairie dog does not wait until mourners leave to disturb the cemetery.  A recent funeral was interrupted by one of a prairie dog’s loud, high pitched barking.  Finally, the ruts and uneven ground that the varmint creates cause gravesites to be less accessible, particularly for elderly or disabled visitors.  Seeing this creature spoil what should be a peaceful resting place causes mourners understandable distress.  The cemetery, though theoretically capable of qualifying for an exemption from the regulation, must jump through many time consuming, and expensive, hoops before it has any hope of addressing the problem.

Private property owners, too, suffer under this regulation.  Bruce Hughes, also a member of PETPO and a local resident, purchased land in Cedar City that he hoped to develop for a small business or rental property to provide for his retirement.  But, when prairie dogs suddenly showed up on the property, his hopes were shattered.  The regulation prohibits him from harming any of  the animals, making any development impossible.  When he tried to work with the federal agency in charge, he was told that if he gave the agency $34,000 they would let him remove the prairie dogs, but if harmed even a single prairie dog without the agency’s permission he would be fined $10,000 and could be sentenced to five years in federal prison.  Mr. Hughes couldn’t accept the agency’s demands.  “I didn’t have the money,” he said.  “ I could rob my local convenience market and get off easier than that.”

PETPO’s case challenges the federal government’s authority to regulate activity and development on private property because of the prairie dog.  The Constitution gives the federal government limited, and enumerated, powers.  For instance, under the Property Clause, the federal government could regulate those prairie dogs that occur on its own land.  But, the Constitution doesn’t give the government the authority to regulate this community’s efforts to both protect, and control, this local pest.  The Endangered Species Act was adopted pursuant to the Commerce Clause.  However, the Supreme Court, in United States v. Morrison, held that this clause doesn’t extend to purely local activities that do not substantially affect interstate commerce.

The Court, in Gonzales v. Raich, allowed the federal government to reach non-economic activities, but only if regulating the local non-economic activities are necessary to a comprehensive regulation of interstate commerce.  In that case, the Court accepted that the federal government must have the authority to regulate the intrastate use of medical marijuana, otherwise it could not effectively regulate the illicit market for marijuana.  But that standard is not satisfied here.  The Utah prairie dog exists only in Utah.  Unlike the marijuana in Raich, there are simply no interstate commercial activities involving the prairie dog with which to aggregate.

The case was filed in the District Court of Utah.  More information can be found here, here, and here.

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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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