Tenth Circuit overturns Utah prairie dog decision

March 30, 2017 | By JONATHAN WOOD

We got some disappointing news yesterday when the Tenth Circuit overturned the federal district court’s decision that federal regulations prohibiting the take of Utah prairie dogs exceed the federal government’s constitutional powers.

As you may not recall, since more than 18 months passed between oral argument and the decision, PLF is challenging the federal regulation on behalf of People for the Ethical Treatment of Property Owners, a group of property owners and local governments in southwestern Utah who have suffered for decades under its burdensome restrictions. We argue that the regulation exceeds Congress’ powers under the Commerce Clause, which authorizes it to regulate economic activity that substantially affects interstate commerce, and the Necessary and Proper Clause, which authorizes it to regulate anything else if necessary to effectively regulate commerce.

The Tenth Circuit’s decision discards those limits, ruling that the federal government can regulate anything for any reason so long as it also regulates a lot of other stuff as part of one big “comprehensive regulatory scheme.” This view would shock the Founding Fathers, who carefully limited federal power under the Constitution. It may also come as a surprise to the Supreme Court since it goes far beyond anything that Court has ever ok’d.

The ostensible precedent for the decision is Raich v. Gonzalez, which held that the federal government can regulate the growth and home-consumption of marijuana as part of a comprehensive scheme to regulate the market for that commodity. Although that ruling went far beyond the original understanding of the Constitution, it at least has some limits. It only applies where Congress is comprehensively regulating a market for a commodity and only justifies regulations necessary for Congress to regulate that market. Both of those limits make Raich inapplicable to Utah prairie dog take. To reach a contrary result, the Tenth Circuit eliminated both of these important limitations.

That is a serious blow to constitutionally limited government. But the Tenth Circuit’s decision won’t be the final word. As we’ve said since all along, we think this important issue must ultimately be resolved by the Supreme Court.