PLF petitions for rehearing in Utah prairie dog case

May 15, 2017 | By JONATHAN WOOD

This morning, we filed a petition for rehearing en banc in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Serviceour challenge to the federal government’s constitutional authority to regulate take of the Utah prairie dog. Three years ago, the District Court for the District of Utah ruled the regulation unconstitutional. But in March, a panel of judges from the Tenth Circuit overturned that decision.

To uphold the federal regulation, the court stretched the Constitution’s Commerce and Necessary and Proper Clauses beyond recognition. The panel hung its hat on the Supreme Court’s decision in Gonzales v. Raich. That case held that Congress can regulate the possession of a commodity (marijuana) as a necessary and proper means of comprehensively regulating the market for a commodity. Without this power, the federal government’s ability to regulate the market would be frustrated.

The panel interprets that case to allow federal regulation of anything for any reason, so long as the regulation is placed in a larger comprehensive scheme. As we explain in the petition, that interpretation is inconsistent with Supreme Court precedent and—more troublingly—antithetical to the notion of limited and enumerated powers.

The panel’s decision significantly expands beyond the holding of Raich and cannot be reconciled with Lopez and Morrison. The panel’s theory has no logical stopping point; it would allow the federal government to regulate any activity for any purpose, so long as it placed the regulation in a larger scheme. Paradoxically, it also encourages Congress to regulate as broadly as possible, by reducing the constitutional scrutiny a regulation receives under the enumerated powers as the government regulates more. Finally, the panel’s decision raises significant federalism concerns, by allowing Congress to intrude on an area of traditional state authority and, in this very case, undermine a state program to protect wildlife without unduly burdening residents.

By authorizing federal regulation of anything for any reason, so long as Congress places it in a larger scheme, the panel’s theory places no real limit on federal power.

The panel’s theory undermines the doctrine of enumerated powers by encouraging Congress to regulate as broadly as possible. It does so by insulating regulations from constitutional scrutiny as Congress regulates more. In effect, the panel encourages Congress to engage in bootstrapping.

The petition also points out that the panel’s decision undermines federalism, by derailing Utah’s program to protect prairie dogs by working with property owners.

Utah works with property owners to move prairie dogs from backyards, airports, cemeteries, and other developed areas and relocate them to public conservation areas where they can be permanently protected. Id. By restoring the federal regulation, the panel’s decision would frustrate this state conservation program by restoring the criminal prohibition on catching a Utah prairie dog. States do not retain their traditional authority to manage wildlife if the federal government can make it a crime for them to engage in any activity related to that wildlife.

The entire Tenth Circuit should step in to overrule this overreaching decision. If it doesn’t the Supreme Court will have to.