Government wants protection restored for Utah prairie dogs

SALT LAKE CITY — The 10th Circuit Court of Appeals in Denver heard arguments Monday involving the threatened Utah prairie dog in a legal battle that could have far-reaching implications for Endangered Species Act protections.

At issue is the November 2014 ruling by Utah's U.S. District Judge Dee Benson that invalidated a 2012 administrative rule extending protections to the animal on nonfederal property. The ruling returned management of the species on nonfederal land back to the state, a significant legal development regarding state authority over wildlife management.

Benson said the U.S. Fish and Wildlife Service was barred from using the commerce clause to regulate a species that is found in only one state and with no bearing on commerce.

The case was brought on behalf of a group called People for the Ethical Treatment of Property Owners that represents entities like Cedar City — which owns an airport, golf course and cemetery — as well as private property owners or developers and the widow and son of a man whose gravesite was damaged by the burrowing animals.

Jonathan Wood, with the nonprofit legal watchdog group for property rights called Pacific Legal Foundation, said the federal government can't use the regulation of commerce like a blank check to regulate anything it wants.

"(That) would mean the commerce clause allows the federal government to regulate activity that affects any living thing or the environment in some way," he argued in a brief filed before the appellate court.

"But this would stretch the substantial effects test too far," he said.

Wood said the court asked tough questions of both sides and was thorough in its review of the case.

"Both sides had a chance to make their main points come across," he said.

Utah prairie dogs are a keystone species that plays an essential role in the function of the ecosystem. Numbering close to 100,000 about 100 years ago, the species dwindled to 3,300 in the 1970s due to predation, disease and extermination. It was added to the Endangered Species list in 1973 and has since rebounded to more than 40,000 as of 2014. About 71 percent of the species live on private or nonfederal land, setting up extensive conflicts among land owners hamstrung by their lack of ability to protect their property from prairie dogs' intrusion.

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In upscale subdivisions and across rural pastures in southern Utah, they use it to help trap prairie dogs and move them away from residents who have been under siege from the small burrowing rodents for years.

"Because of the Utah prairie dog regulation's sweeping breadth, some economic activity is regulated by it, as are many noneconomic activities," Wood wrote. "It forbids, for example, exterminators from harming Utah prairie dogs for a fee. But it also applies to a rowdy child throwing a rock at a Utah prairie dog, a driver whose car strikes one scampering across a street, a homeowner moving one that had been run over in front of her house, and someone who catches one to relocate it to a conservation area."

Wood added that the application of the Endangered Species Act to the Utah prairie dog is based on reasoning that constitutes unchecked, unlimited exercise of federal power.

"If you accept their arguments, the federal government could regulate any activity that affects a single person," he said.

The U.S. Fish and Wildlife Service, joined by the group Friends of Animals, appealed Benson's decision, arguing the ruling severely gutted the Endangered Species Act. Nearly 70 percent of all species covered by the act occur only in one state, the agency said.

"Excising individual species from the act because they do not currently cross state lines or have a current demonstrated commercial value could lead to piecemeal extinctions and undercut the regulatory scheme," the government argued. "Excising nonfederal land from the ESA's scope would remove a powerful form of protection that was an important driver of the act and similarly undercut the scheme."

The wildlife agency added that it is not necessary for a species to demonstrate independent commercial value because of how species are interrelated via their environment.

"Conserving endangered and threatened species facilitates commerce in a number of industries, including pharmaceuticals, agriculture, aquaculture, scientific study, hunting, fishing, and tourism, because it preserves individual species and biodiversity which are important resources for these industries, either now or potentially in the future," the agency wrote. "Even if a particular species could have no independent commercial value, the interrelationships of species mean that the loss of one species can have significant impacts on other species and interstate commerce."

But Wood and Iron County property owners — using language from another judge — say such reasoning transforms the commerce clause into a "hey-you-can-do-whatever-you-feel-like clause."

"That the Utah prairie dog could become the subject of substantial commerce at some indefinite time in the future — if, for example, it's discovered to hold the cure for cancer — can't justify federal authority under the Commerce Clause without eviscerating any limit on that power," Wood argued. "Literally anything could conceivably become an object of commerce at some point in the future."

Utah and nine other states filed a friend of the court brief urging Benson's ruling be upheld. Another filing in support of Benson's decision was made by about a dozen senators and congressional representatives, including all of Utah's delegation.

The court hearing comes a day in advance of a briefing before the Senate Committee on Environment and the Public Works Subcommittee on Fisheries, Water and Wildlife on an initiative to reform the Endangered Species Act.

That initiative is being led by Wyoming Gov. Matt Mead.

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