PLF sues feds for giving prairie dogs the run of a small Utah town

Cedar City, Utah, April 18, 2013: — Attorneys with Pacific Legal Foundation today filed a lawsuit challenging federal regulations that block the people of Cedar City, in Southwest Utah, from fighting a prairie dog infestation that is damaging property, harming the economy, and putting public health at risk.

Donor-supported PLF is a nonprofit, public interest watchdog organization that litigates nationwide for limited government, property rights, and a balanced approach to environmental regulations. In the suit filed today in U.S. District Court in Salt Lake City, PLF attorneys represent a coalition of Cedar City residents who have joined together as “PETPO” — People for the Ethical Treatment of Property Owners. As with all its clients, PLF represents PETPO without charging any attorneys’ fees.

The Utah prairie dog: tens of thousands in number but still labeled “threatened” by the feds

The Utah prairie dog is one of five prairie dog species in North America. Found only in Utah, it feeds on plants and insects, lives in colonies, and digs burrows and networks of tunnels. The U.S. Fish and Wildlife Service (FWS) estimates its population at more than 40,000. Nevertheless, the agency lists it as “threatened” on the Endangered Species Act list (ESA).

Today’s lawsuit challenges the FWS action last September that applied the ESA’s anti-“take” rules to the Utah prairie dog in most areas and circumstances where the species is found. To “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect. 16 U.S.C. Section 1532 (19). Violators can be fined or even imprisoned. So, except in limited areas and situations, the federal anti-“take” decree blocks people in and around Cedar City from taking measures to control the burgeoning population of prairie dogs in their midst.

The lawsuit filed today contends that the federal government has overstepped its powers by issuing regulations to block prairie dog controls. Because the Utah prairie dog is a single-state species without any use or value in commerce, it isn’t covered under the federal government’s Commerce Clause authority.

Cedar City is under siege — from rodents and overreaching federal regulations

“Cedar City is a community under siege, by a proliferation of prairie dogs and by federal regulations that prohibit reasonable measures to control the prairie dog population,” said PLF attorney Jonathan Wood. “The town has been inundated with prairie dogs that are leaving parks, gardens, vacant lots, the golf course, and even the local cemetery, pockmarked with burrows and tunnels. Development projects are blocked by federal prairie dog protections. And public health is imperiled because prairie dogs – which are rodents, after all – can be carriers of disease.

“No one wants the species to go extinct, but there are tens of thousands of Utah prairie dogs in the area,” Wood continued. “The people affected by the animal deserve consideration also. The federal government should protect and preserve the species on its own land, and leave the citizens of Cedar City and other towns free to take commonsense measures to control the prairie dog population in their midst. Residents of Cedar City should be free to live their lives without being held hostage to a species that has become an out-of-control pest, and a threat to their economy and their well-being.”

PLF lawsuit: Feds’ regulations violate common sense – and the U.S. Constitution

“The federal prohibition against prairie dog controls isn’t just an assault on common sense,” said Wood. “Our lawsuit contends that the federal prairie dog policies are unconstitutional. The federal government is pushing beyond its authority under the Commerce Clause by imposing onerous burdens on people who have been overrun by this rodent.”

The Commerce Clause (Article I, Section 8) permits federal regulation of “Commerce … among the several States.”

“This species of prairie dog exists only within Utah, has no commercial value, and isn’t used for any economic purpose,” Wood continued. “So it isn’t covered by the Commerce Clause. Federal officials can’t regulate or restrict what people can or can’t do, on non-federal lands, for a purely single-state species that has no role in commerce. Indeed, last June, in its Obamacare ruling, the U.S. Supreme Court re-emphasized that the Constitution imposes clear limits to national power, and permits no federal regulatory control over matters that aren’t related to commerce.”

A community threatened with going “to the dogs”

PETPO members and family

Some of the problems that plague Cedar City as a result of the federal prairie dog regulations:

• Degradation of lawns and grave sites at Cedar City Cemetery;
• Costly safety and maintenance problems at the local airport;
• Construction blocked on commercial and residential projects;
• Public health at risk because of the potential for rodent-carried disease.

PETPO members seek the right not to be overrun

People for the Ethical Treatment of Property Owners (PETPO) is a nonprofit organization that represents Utah residents who are suffering under the federal regulation of the Utah prairie dog.

A few of the members of PETPO, and how the prairie dog infestation harms them:

• Cedar City Corporation. As the municipal government, Cedar City Corporation is confronted with the prairie dog infestation on a number of fronts:
  • The town’s sports fields suffer expensive and dangerous damage;
  • Costs for maintaining the golf course have increased by more than $10,000 per year;
  • At the Cedar City Regional Airport, prairie dog mounds create a severe hazard in the runway and taxiway safety zones, and compliance with a federal habitat plan cost more than $300,000 and prevented needed improvements;
  • At Cedar City Cemetery, prairie dogs tunnel among graves, destroy flowers and remembrances left by mourners, and interrupt funerals with barking. (For details, see the Complaint, pp 8-10.)
• Brenda and Daniel Webster. Dan Webster — Brenda’s late husband and Daniel’s father — is buried in the Cedar City Cemetery. Prairie dogs occupy an area near the grave site, digging up the earth, leaving ruts and mounds, and making it more difficult for the Websters to walk to the grave site. The tranquil final resting place for their loved one has been transformed into an unsightly and noisy area. (See the Complaint, p. 10.)
• Dean and Kathy Lamoreaux. Owners of a farm in Cedar City, they have suffered costly damage to their agricultural equipment from prairie dog mounds and from cave-ins caused by prairie dog tunnels. (See the Complaint, p. 11.)
• Bruce Hughes. This Cedar City small business owner purchased a 3.4-acre lot that he planned to develop as an investment for retirement. “But then the prairie dogs moved onto it,” he recounts. “Federal officials said I would have to go through a regulatory process that would have taken 42 years, before I could hope to do anything on the property. Later, I was told that if I paid $34,000, I could do away with the prairie dogs. But if I didn’t pay, and I killed one prairie dog, it would be a $10,000 fine and five years in federal prison.“I didn’t have the money,” Hughes says. “I could rob my local convenience market and get off easier than that.” (See the Complaint, pp. 11-12.)
• Mark Bradshaw. Owner of property in Cedar City that he wants to develop into a car dealership. But the influx of prairie dogs has blocked his plans. (See the Complaint, pp. 12-13.)
• Les Childs. Owner and developer of the Equestrian Pointe Subdivision in Cedar City. The Utah prairie dog interferes with his ability to sell lots in the subdivision. When prairie dogs invade an unbuilt lot, it loses all value because it cannot be improved. In 2009, federal prohibitions on removing prairie dogs frustrated the sale of two lots, worth over $100,000 each. Although he has spent more than $10,000 on special fences, they haven’t succeeded in keeping prairie dogs from invading the parcels, and they add to the general unsightly blight attributable to the prairie dog infestation. (See the Complaint, pp. 13-14.)
• Boyd Hall. Owner of several subdivision lots in Cedar Valley. He wants to develop them, but can’t do so because they’ve been overrun by Utah prairie dogs. Although he could theoretically move forward by paying a “take” fee, demonstrating the futility of nonlethal methods on his property, and waiting for a permission to commit a lethal take, as a practical matter these requirements make development financially infeasible. (See the Complaint, pp. 14-15.)

The lawsuit filed today is People for the Ethical Treatment of Property Owners v. United States Department of the Interior.

About Pacific Legal Foundation

Donor-supported Pacific Legal Foundation (pacificlegal.org) is the leading legal watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulations, in courts across the country. Among its noteworthy species regulation cases, PLF won the federal court ruling that removed the bald eagle from the federal ESA list.