September 30, 2015

Recording of 10th Circuit argument in Utah prairie dog case

By Jonathan Wood Attorney

The Endangered Species & Wetlands Report has obtained the recording of the Monday’s oral argument in the Utah prairie dog case. As you’ll recall, this is the constitutional challenge to the federal government’s authority to regulate any activity that affects any living thing under the Commerce Clause. As we argue, the Commerce Clause isn’t an open-ended grant for the federal government to regulate whatever it wants. Late last year, the district court agreed, holding that the regulation exceeds the federal government’s constitutional power.

As the Supreme Court has held, the Commerce Clause authorizes the federal government to regulate economic activities that substantially affect interstate commerce. That’s not what the government is doing in the Utah prairie dog case. Instead, its asserting the power to regulate any human activity — regardless of its nature — if it affects a single prairie dog, a species found only in Utah with no appreciable tie to interstate commerce.

The government claims that it can regulate this activity because, as a species, the Utah prairie dog affects the environment, which in turn affects the economy. True though that may be, this argument would be a shocking expansion of the Commerce Clause power. For instance, humans obviously have significant impacts on the environment too. Under the government’s theory, it could regulate any activity that affects a single person, contrary to several Supreme Court decisions.

You can listen to the full argument 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 asked 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 asked to restore both the state conservation program and constitutional limits on federal power, which the Supreme Court denied.

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