November 5, 2014

Victory: PLF and People for the Ethical Treatment of Property Owners defeat unconstitutional Endangered Species Act regulation

By Jonathan Wood Attorney

For the first time, a federal court has struck down federal regulation of a species under the Endangered Species Act, holding that the Constitution doesn’t give the federal government limitless powers. People for the Ethical Treatment of Property Owners members are property owners and local government in southwestern Utah who have suffered for decades under federal regulations forbidding them from protecting their property, their airport, and their cemetery from the Utah prairie dog. The problem, for the federal government, is that the species is only found in this small area of Utah and has nothing to do with the nation’s $15 trillion economy. Yet, the government attempted to justify its intrusion into this local matter based on the Constitution’s Commerce Clause.

This is not only a big win for them, but for all Americans who believe in limited government. From the court’s decision:

Although the Commerce Clause authorizes Congress to do many things, it does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce. Congress similarly lacks authority through the Necessary and Proper Clause because the regulation of takes of Utah prairie dogs is not essential or necessary to the ESA’s economic scheme.

One of the most important issues in the case was how far the government could stretch its Commerce Clause power to reach anything that could conceivably have some attenuated affect on interstate commerce. The government and the environmentalists argued that all species necessarily have this effect or any species that has been studied by scientists or might encourage tourism does. According to the court, the government’s theory has “no logical stopping point to congressional power under the Commerce Clause.”

More information about the case can be found 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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