For the first time, a federal court has struck down a regulation under the Endangered Species Act of 1973 for exceeding the government’s constitutional power.
The Endangered Species Act has long been known as a property owners’ curse and the most invincible law on the books. It is primarily a land-use control law that gives agencies absolute regulatory power over “critical habitat” regardless of who owns the habitat.
The landmark case centered on the Utah prairie dog, a rodent found only in southwestern Utah and protected as “threatened” under the ESA despite its population of more than 40,000. Prairie dogs had completely overrun the area surrounding Cedar City, Utah, tearing up farmlands, eating crops, gouging burrows and tunnels in parks, gardens and building sites—and even buckling a local airport runway.
Last fall, the U.S. Fish & Wildlife Service sparked a rebellion with a special rule against “takes” of the prairie dogs. It demanded property owners not “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” the rodents, which curtailed pest-control measures in the region.
Outraged citizens formed a group called People for the Ethical Treatment of Property Owners, or PETPO, to fight the Fish and Wildlife Service for the right to control the rodents.
Derek Morton, PETPO’s point man, told The Daily Signal, “We would find them in sacred spaces such as our cemeteries, burrowing underneath headstones and barking during funerals. We found them in built-out neighborhoods, which put our children at risk.” Utah prairie dog colonies suffer outbreaks of sylvatic plague, which can cause plague in humans.
“These animals undermined the whole community’s psyche,” Morton said. “When we would recruit new businesses for new jobs, the cost of prairie dog removal was always a deal killer. We couldn’t build a home on our own land. We couldn’t protect ourselves at all. A rodent was running our lives.”
Nathan Brown, a U.S. Fish and Wildlife Services biologist who has worked on the prairie dog issue for more than a decade, told CBS reporters that PETPO had “real concerns” and “there isn’t a legal framework to remove [prairie dogs] from private property.”
That missing framework is a seldom-noted flaw in the Constitution. Unlike state constitutions, the nation’s fundamental law contains no enumerated right to property.
From the beginning, state constitutions specifically guaranteed that right. Typical examples include the Massachusetts constitution, which provides citizens “the right of enjoying and defending their lives and liberties; that of acquiring, possessing and protecting property; in fine, that of seeking and obtaining their safety and happiness,” and Virginia’s, which asserts the “inherent right” to “the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
The Fourth and Fifth Amendments to the U.S. Constitution assert only the police power to take anything from anyone at any time so long as the government follows due process and pays for it. Property owners can’t challenge the government’s taking and must pay attorney’s fees to pry “just” compensation from the U.S. Treasury for something that wasn’t for sale. That’s not a protection of property rights; it’s an assertion of government power.
Property owners always have had to fight our government for what’s theirs, and that’s what People for the Ethical Treatment of Property Owners had to do. PETPO retained the nonprofit Pacific Legal Foundation to sue the U.S. Fish and Wildlife Service for violating its members’ property rights.
Jonathan Wood, the Pacific Legal Foundation attorney who handled the case in federal court at no cost to the plaintiffs, told the Daily Signal, “A balanced approach to environmental protection considers both the animals and the people. No one was protecting the rights of the people who were being affected by the prairie dogs, and that’s why PLF came to their aid. Our big win was not just for them but for all Americans who believe in limited government.”
PLF had found a constitutional approach that worked. Wood argued before Judge Dee Benson of the U.S. District Court for Utah that the Constitution’s commerce clause (Article 1, Section 8, Clause 3) does not authorize Congress to regulate a purely one-state species that has no substantial effect on interstate commerce in the nation’s $15 trillion economy.
The Fish and Wildlife Service justified its intrusion into this local matter by asserting that the “necessary and proper” clause (Article 1, Section 8, Clause 17) gives Congress unlimited power to enforce the commerce clause.
On Nov. 5, Benson gave his milestone ruling against the government, putting an end to the decades-long court practice of deferring to agency decisions and perhaps beginning an era of respect for constitutional rights. He capped his meticulously reasoned decision with this summary and conclusion:
Although the Commerce Clause authorizes Congress to do many things, it does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce. Congress similarly lacks authority through the Necessary and Proper Clause because the regulation of takes of Utah prairie dogs is not essential or necessary to the ESA’s economic scheme.
Benson’s decision returns prairie dog management authority back to the state under the Utah Division of Wildlife Resources, which has a strong track record of conservation and cooperation with local officials and property owners. The Utah prairie dog remains fully protected, said DWR Director Greg Sheehan, and a certificate of registration is required to kill or remove the rodents.
Sheehan said the Division of Wildlife Resources’ strategy includes “safeguarding the health, safety, welfare and property of communities in areas where Utah prairie dogs live,” as well as “ensuring the viability and continued persistence of Utah prairie dogs into the future.” The state will “complement the conservation work that the U.S. Forest Service, the Bureau of Land Management and the U.S. Fish and Wildlife Service are doing on federal lands.”
A sidelight to the case is the animal rights group that Judge Benson accepted as intervenor. Friends of Animals, a Connecticut-based group with a $4.9 million budget, insists “humans do not have the right to displace or restrict animal populations” and opposes eating meat, milk, eggs, honey or any animal food.
Although of no legal significance, Friends of Animals received payments of more than $115,000 from the U.S. Fish and Wildlife Service in 2001 and 2003, according to USASpending.gov. Such long-term “buddy links” between green groups and federal agencies are widespread, something only recently recognized as federal grants went online.
Friends of Animals has announced it will appeal Benson’s ruling to the 10th Circuit Court of Appeals in Denver, but the Fish and Wildlife Service is still deliberating.
The case is expected to go to the Supreme Court.