December 19, 2017

Supreme Court to consider whether Utah can continue to recover the Utah prairie dog

By Jonathan Wood Attorney

This week, we filed our final brief urging the Supreme Court to hear People for the Ethical Treatment of Property Owners’ challenge to an unconstitutional federal regulation that imposes significant harms on Utah property owners and blocks the state’s efforts to recover a rare species of rodent.

As we previously reported, 23 states have joined us in calling for the Supreme Court to review this important case. Our final brief explains why this case—challenging the federal government’s outrageous argument that Congress’ power interstate commerce includes the power to regulate noneconomic activity affecting species for which there is no interstate market—is so important to preserving the balance of power between the states and the federal government:

The Tenth Circuit’s decision upsets the balance between state and federal authority by inviting federal intrusion into areas of traditional state authority. Twenty-three States urge the Court to review this case for precisely that reason. As the States explain, “[b]y reading Congress’s Commerce Clause power to be virtually limitless, the decision vitiates the proper federal-state balance established in the Constitution’s dual-sovereign, limited-government design.” This federal intrusion into the States’ traditional authority to manage wildlife and land-use “forecloses the States from experimenting and exercising their own judgment in an area to which [they] lay claim by

right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term.”
Although the constitutional and federalism questions should be at the forefront when the Supreme Court considers the case on January 5th, the case also could dramatically improve how we recover endangered species. The Property and Environment Research Center (for which I’m an adjunct fellow) has recently published my article explaining why overturning the federal regulation would be good for conservation.

Instead of pitting property owners and prairie dogs against each other, as the federal regulation did, Utah sought to partner with property owners to develop long-term solutions. That was “a win-win for everyone,” according to Greg Sheehan, the former director of the Utah Division of Wildlife Resources and now Acting Director of the U.S. Fish and Wildlife Service. “Prairie dogs were placed in the best suitable habitat, and private landowners who had conflicts with prairie dogs could ask that the animals be relocated to more suitable habitat.” The state had a lot to gain too, as this was its opportunity to show that it was up to the challenge of protecting species without federal interference.

The next two years would see the two highest counts for the species since surveys began in the 1970s. It took nearly 30 years for the population to double from 20,000 in 1983 to 40,000 in 2010. But it had doubled again by 2016, when the population reached 84,000. . .

The reason for the shift in attitudes is simple: incentives. . . Unfortunately, Endangered Species Act regulations consistently create bad incentives that undermine conservation. They impose significant burdens on property owners who allow dwindling species to remain on their properties, punishing the very people responsible for a species still being around. That, in turn, gives property owners an incentive to preemptively destroy habitat and a disincentive against maintaining or improving habitat. Consequently, less than 2 percent of listed species have recovered and been delisted. Conservationists should seek to ensure that rare species are considered valuable assets, rather than liabilities, so that property rights and market incentives would encourage and reward recovery efforts.

learn more about

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.

Read more

What to read next