WASHINGTON, March 29, 2017 - Landowners seeking to curb federal protections for species that exist solely within one state have lost their constitutional challenge in a case involving the Utah prairie dog.

People for the Ethical Treatment of Property Owners won the first round in November 2014 when U.S. District Judge Dee Benson in Utah determined that Endangered Species Act (ESA) prohibitions against “taking” the threatened prairie dog on non-federal land – including harm or harassment of the rodent – violated the Constitution’s Commerce Clause. Benson said the Commerce Clause "does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce.”

The Fish and Wildlife Service and Friends of Animals appealed to the 10th Circuit, which heard arguments in September 2015.

That led to today’s 3-0 decision, in which the court said, “Regulation of take of endangered and threatened species is directly related to . . . economic development and commercial activity.”

“We conclude that Congress had a rational basis to believe that providing for the regulation of take of purely intrastate species like the Utah prairie dog is essential to the ESA’s comprehensive regulatory scheme,” Circuit Judge Jerome A. Holmes said, writing for the court. “Approximately sixty-eight percent of species that the ESA protects exist purely intrastate; thus, piecemeal excision of purely intrastate species would severely undercut the ESA’s conservation purposes.”

The case attracted interest from dozens of groups on both sides of the question. Some of the federal government’s “friends of the court” were Defenders of Wildlife, Animal Welfare Institute, Center for Biological Diversity, Humane Society of the United States, Sierra Club, and WildEarth Guardians.

Backing PETPO were – among others – the Wyoming Association of Conservation Districts, Wyoming Farm Bureau Federation, Wyoming Stock Growers Association, Wyoming Wool Growers Association, and Utah Farm Bureau Federation.

The states of Utah, Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, and Wyoming also supported PETPO, as did Republican lawmakers – senators Mike Lee and Orrin Hatch of Utah, James Inhofe of Oklahoma, Mike Enzi of Wyoming, David Vitter of Louisiana, and Ted Cruz of Texas, and Reps. Jason Chaffetz, Chris Stewart, Mia Love and Rob Bishop of Utah. Bishop is chairman of the House Natural Resources Committee.

The decision dealt a blow to the hopes of property rights advocates, who saw the case as a potential candidate for the Supreme Court. A 10th Circuit ruling for PETPO would have created a split in the appeals courts, a key factor for the high court when it decides whether to take on a case.

Instead, the 10th Circuit became the sixth appellate court to uphold the constitutionality of the Endangered Species Act’s take prohibition. Similar decisions have been issued in cases involving the arroyo toad and delta smelt in California, the Alabama sturgeon, the red wolf in North Carolina, and a collection of “cave bugs” in Texas. As the 10th Circuit noted, “Every one of our sister circuits that has addressed this issue has agreed that regulation of purely intrastate species is an essential part of the ESA’s regulatory scheme.”

The court said that “Congress’s purposes in enacting the ESA were to conserve species by restricting commerce and to promote long-term commerce by conserving species.”  

In addition, the ESA’s prohibitions “help fuel an illegal wildlife trade that generates $5-$8 billion annually – an illegal market second in size only to the illegal narcotics market,” the court said. It doesn’t matter whether the market is legal or illegal, the court said – the result is a substantial effect on interstate commerce.

Jason Rylander, senior staff attorney at Defenders of Wildlife, said that the court’s “well reasoned decision should lay to rest any lingering question about the constitutionality of endangered species protection. As six circuits have now held, protection of America's wildlife heritage for present and future generations is well within the federal government's power.”


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