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SALT LAKE CITY — A federal judge ruled the government cannot extend protections for the Utah prairie dog to private property, reasoning that it is a state-specific species with little bearing on the economic "scheme" of the Endangered Species Act.
The Wednesday decision by U.S District Court of Utah's Judge Dee Benson invalidates a controversial and widely, locally disparaged 2012 administrative action that forbade any "taking" of the animal or harm to its habitat, even if that action occurred on non-federal land such as farms or residences.
Jonathan Wood, who argued the case on behalf of impacted Iron County area residents, said the ruling is a huge victory.
"Under the ruling, they are going to be able to proceed with building their dream homes, they can start their small businesses, and most importantly, the city can protect the fields where the residents' children play, the airport and the cemetery from this rodent that has basically taken over this town," he said "These are things that most Americans just take for granted, but for 40 years, the residents of Cedar City have not been able to do this."
Wood, with the nonprofit legal watchdog group for property rights called the Pacific Legal Foundation, represented the group People for the Ethical Treatment of Property Owners, which brought suit against the federal government in April 2013.
In arguments before Benson in September, the U.S. Fish and Wildlife Service argued it had authority under the Commerce Clause to regulate the animal because the prohibited activities that could harm it are commercial in nature — such as farming — and the animal's role in the ecosystem has commercial and biological value.
Joined by the group Friends of Animals, the government also argued that the prairie dog's status of only being found in one portion of Utah should not negate Endangered Species Act protections.
Under the ruling, they are going to be able to proceed with building their dream homes, they can start their small businesses, and most importantly, the city can protect the fields where the residents' children play, the airport and the cemetery from this rodent that has basically taken over this town. These are things that most Americans just take for granted, but for 40 years, the residents of Cedar City have not been able to do this.
–Jonathan Wood
"Excluding from protection all intrastate species — 68 percent of all listed species — or even all species with no current commercial or economic value, would substantially frustrate the ESA's comprehensive scheme to protect listed species," the government argued.
But Benson didn't see it that way.
In his ruling, he said the Commerce Cause does not give the government carte blanche authority to regulate everything, and referencing another federal judge's words, said it is no longer the "hey-you-can-do-everything-you-feel-like clause."
Benson said the issue of killing or harassing prairie dogs has to be weighed for its impacts on interstate commerce — not whether the rule prohibiting the killing has such an effect.
The distinction, he added, makes the argument irrelevant to the Commerce Clause, as well as the asserted value of the animal in the ecosystem.
"If Congress could use the Commerce Clause to regulate anything that might affect the ecosystem (to say nothing of its effect on commerce), there would be no logical stopping point to the congressional power under the Commerce Clause," Benson wrote.
He added that there is no evidence that shows a decrease in prairie dog populations would significantly impact the "supply or quality" of animals for which a national market does exist, and any action taken against the animal on non-federal ground would not cause another animal to lose its value or go extinct.
"Although Congress might be authorized to unlimitedly regulate takes of intrastate non-commercial species whose extinction would subsequently cause the extinction of other species (especially the extinction of commercial species), that is simply not the case before the court," he said.
Benson concluded the government went beyond its constitutional reach with its restrictions extended to non-federal lands.
"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," he ruled.
Utah Attorney General Sean Reyes said Thursday the prairie dog ruling will likely be challenged at the 10th Circuit Court of Appeals in Denver because of its conflict with other appellate court decisions and its national implications to the Endangered Species Act.
Wood is hopeful the ruling will stand.
"The court, we think, applied straightforward precedent faithfully, saying that you have to look at what the activity is being regulated," he said. "Here, it was to take a species that exists only in a small part of southwest Utah and look at whether that affects the nation's $15 trillion economy. To ask the question is to answer it. Obviously, that is not true."
