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Know the West

Prairie dog case challenges ESA

District judge rules ESA has no say over species that don't have multi-state presence or economic impact.


Surrounded by red rock, an hour’s drive north of iconic Zion National Park, Cedar City, Utah, has more than doubled its population since 1990. The town transformed from a quiet ranching community to an up-and-coming hotspot for retirees and outdoors enthusiasts. But the growth hasn’t just been for people. Utah prairie dogs, which live only in this region, numbered just a few thousand animals in the early 1970s due to trapping, poisoning and disease, which earned them full protection under the Endangered Species Act in 1973. Today, there are roughly 40,000 prairie dogs, and the rodents have been upgraded to threatened status.

Colonies of burrows and tunnels have spread not just across natural habitat and public lands but also onto lawns and backyards, golf courses, cemeteries and the local airport, causing problems for private landowners. Locals say the ESA prevents them from controlling colonies by killing – or “taking” in ESA parlance – prairie dogs in problem areas.

Landowners observe Utah prairie dog burrow
The battle over the prairie dogs is the latest in a decades-old movement to gut the ESA and federal species recovery. The issue might even be headed to the Supreme Court. After a federal district judge ruled that the prairie dog and other listed species should be excluded from federal protection on private lands last year, the government is now appealing that decision to the Tenth Circuit Court of Appeals in Denver. Attorneys general from nine states, including Utah, Wyoming, Idaho, Montana, Colorado, Arizona and Alaska, signed onto a brief supporting Cedar City and Pacific Legal. Several environmental groups penned their own brief backing the federal government. A hearing will likely occur later this year or in 2016.

In the lead-up to recent events, Cedar City locals organized as the People for the Ethical Treatment of Property Owners (PETPO, a play on PETA), and sued the federal government in April 2013, represented by the conservative Pacific Legal Foundation. The local group argues that the Utah prairie dog listing is unconstitutional because it goes against the Commerce Clause, which grants Congress the power to regulate interstate trade, but leaves intrastate trade to the states. Since the species only exists in one state and has no commercial or trade value, the ESA, a law founded in Commerce Clause logic, doesn't apply. In other words, if a species or the species' economic impact doesn't cross state lines, PETPO argues, the ESA shouldn't have jurisdiction to protect it.

"This is a prime example of the type of species the Constitution entrusts to the states to protect,” says Jonathan Wood, the Pacific Legal attorney who argued the case for PETPO. “It’s found only in a small region of southwestern Utah, it’s locally abundant, and it has absolutely no serious connection to the nation’s economy.”

James Marvin Phelps/CC Flickr

Federal district Judge Dee Benson agreed with PETPO's interpretation in a ruling last November. Utah wildlife managers relocated from private lands or killed about 6,000 prairie dogs after the decision.

If applied to other species located in a single state and without commercial value, Benson’s ruling would roll back ESA protections for up to 70 percent of the plants and animals covered by the law.

Jason Rylander, senior attorney with Defenders of Wildlife, says Benson’s decision is out of step with previous outcomes. Five other appeals courts have upheld the constitutionality of the ESA for species whether they’re in a single state or lack economic value. “The district court’s decision is an aberration and goes against, not only those other circuits, but also Supreme Court precedent” related to applications of the Commerce Clause, Rylander says.

For those reasons, Rylander is “pretty confident” the Tenth Circuit will reverse Benson’s ruling. But if it does affirm Benson’s view, the prairie dog could end up before the Supreme Court, with the fate of the ESA on the line.

That’s because the high court is more likely to hear a case when circuit courts have issued conflicting decisions, says Eric Biber, an environmental law professor at University of California, Berkeley.

The courtroom drama, however, is only “part of a much bigger campaign of people who really want to rein in the federal government’s powers and environmental laws,” adds Rylander. Defenders has catalogued more than 50 proposals introduced in Congress, just this session, meant to “cripple endangered species conservation” and weaken the ESA.

For instance, the Native Species Protection Act, introduced by Senator Mike Lee, R-Utah, and others, would revise the ESA to reflect Benson’s ruling. Other efforts, all penned by Republicans, would automatically remove species from the ESA after five years, require governors or Congress to approve new listings, and elevate the role of local and state governments and research in listing decisions. Currently proposed bills are also trying to postpone listing decisions or withhold recovery funding for specific species, including the West-wide greater sage grouse, which could be added to the ESA later this year.

The Obama administration produced its own ESA reform rule this May, a preemptive strike to head off fiercer assaults on the law. Environmentalists were tepid toward that proposed change, too.

Meanwhile, should the case make it to the Supreme Court, all eyes will likely be on Justice Anthony Kennedy, Biber says. Appointed by President Ronald Reagan, Kennedy has broken ranks with other conservative justices and been a swing vote on several key environmental decisions.

Joshua Zaffos is an HCN contributing editor. He tweets at @jzaffos.