Issues and Cases

Harmful prairie dog regs bore holes in the Constitution

People for the Ethical Treatment of Property Owners (PETPO) v. U.S. Fish and Wildlife Service

Contact: Jonathan Wood 
 
Status: Appellants' opening briefs were filed on April 14, 2015. Briefing on appeal was completed on June 18, 2015. Oral argument held on September 28, 2015. Awaiting decision.
 
Summary:

Does the Constitution give the federal government the power to impose criminal penalties on anyone who “takes” – does anything that affects – a Utah prairie dog under the Endangered Species Act? Representing the nonprofit People for the Ethical Treatment of Property Owners, PLF attorneys say no. Because the Utah prairie dog has no connection to interstate commerce or any existing interstate market, this regulation can’t be justified under the Constitution’s Commerce Clause.

People for the Ethical Treatment of Property Owners was formed by residents of southwestern Utah who have suffered for decades under the extremely burdensome Utah prairie dog regulation. They have been prevented from building homes, starting businesses, and protecting their property from the rodent. The local government – Cedar City – has been unable to protect recreational fields, the local airport, and the cemetery from the barking, tunneling, burrowing creature. Like all of us, the organization doesn’t want to see the species go extinct. It would like the prairie dogs to be moved from residential and developed neighborhoods to natural areas on public lands. Under the regulation, doing so would be a crime.

The impacts of the regulation are so severe because there are approximately 40,000 prairie dogs in this small region – a near doubling from where the population was a few decades ago. Three quarters of these are on private property. If a prairie dog moves onto your property, you essentially lose your right to use and enjoy it, with no recourse.


The federal government contends that the regulation is constitutional under a theory that would encompass unlimited federal authority. It contends that the Necessary and Proper Clause gives it whatever power it wants to accomplish its goals pursuant to any “comprehensive” scheme. This is not the Constitution our founders envisioned and conflicts with Supreme Court precedent. Under the Constitution, states are charged with regulating local environmental issues like this. Interestingly, since the district court struck down the unconstitutional regulation, the state of Utah has set out to show that it can protect the animal without imposing such severe burdens on individuals.

 

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