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Iron County property owners want U.S. Supreme Court to hear prairie dog case

By Amy Joi O'Donoghue, KSL  |  Posted Sep 27th, 2017 @ 7:02am


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SALT LAKE CITY — A contentious legal fight over the Utah prairie dog on its face may seem centered on a burrowing rodent that weighs less than 3 pounds and is protected by the Endangered Species Act.

Attorneys for a group of private property owners in southern Utah, however, say the fight is a classic states' rights case about whether the federal government can extend its regulations of a single species found in just one state to private property.

The Pacific Legal Foundation, in a petition to the U.S. Supreme Court on Tuesday, said the federal government overstepped its legal authority when it began regulating the species on private land in a swath of southern Utah.

The organization, representing the People for the Ethical Treatment of Property Owners, wants the high court to toss a 10th Circuit Court of Appeals ruling that it argues is flawed.

"This court's review is urgent because, contrary to the repeated admonishment of this court, the 10th Circuit's decision recognizes no limit on Congress' power," the petition states. "The 10th Circuit's broad interpretation of federal power also diminishes the role of states by inviting federal intrusion into traditional areas of state authority."

The 10th Circuit's March decision overturned a lower court ruling that said the federal government had no authority under the Commerce Clause to regulate the "taking" of the Utah prairie dog on private property because the species exists only in one state and has no significant connection to interstate commerce.

The petition argues that without disagreeing with any of those conclusions, the 10th Circuit turned to a 2005 case to justify authorization of "any regulation of any activity for any purpose."

That case involved the intrastate regulation of marijuana, while another case the 10th Circuit cited involved wheat — both commercial activities that fall under the purview of the Commerce Clause.

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"Both concerned classic economic activity," said the foundation's Jonathan Wood. "The federal government has the power to regulate commerce, but that is not this. … This went beyond anything the Supreme Court has ever accepted in interpreting federal power."

Utah developed a state prairie dog management plan that was since upended in the aftermath of the 10th Circuit Court's decision.

"The Utah prairie dog regulation intrudes not on one but two areas of traditional state concern: managing wildlife and regulating land use," the petition argues.

Environmental organizations say the 10th Circuit Court ruling was right, arguing that it would undercut the Endangered Species Act if the U.S. Fish & Wildlife Service was restricted to regulating only those species that occur in multiple states.

About 70 percent of the Utah prairie dog population is found on private property. Under the state management program, wildlife biologists removed the animals from private property and relocated them to government-owned conservation lands. That program has since ceased.

According to the Utah Prairie Dog Oversight Group, the species occupies less than 10 percent of its historic range. About 82,000 of the animals exist in Utah today, according to state officials.

The species was originally listed as endangered in 1973 but recovered enough that it was downgraded to "threatened" in 1984.

Property owners fought back against federal regulations that prevented them from protecting their land from being impacted by burrowing prairie dogs. The animals have been blamed for causing costly damage at properties that include airports, cemeteries, golf courses and subdivisions.

Also Tuesday, Sens. Orrin Hatch and Mike Lee, both R-Utah, introduced the Native Species Protection Act, which would allow states to manage species that occur entirely within their borders.

"There are real environmental benefits to protecting endangered species from extinction, but the federal law intended to establish such protections — the Endangered Species Act — is in serious need of reform,” Lee said.

Hatch said states are better equipped to manage animal populations than "beltway bureaucrats."

“Time and again we have witnessed federal mismanagement of numerous species, especially in my home state of Utah," he said.

Wood said he expects to know in January if the court will hear the case.

Email: amyjoi@deseretnews.com Twitter: amyjoi16

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