July 22, 2017

Tenth Circuit: Commerce Clause Authorizes Regulation of Take of Utah Prairie Dog

The Tenth Circuit Court of Appeals published its opinion in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service on Wednesday, March 29, 2017.

People for the Ethical Treatment of Property Owners (PETPO), representing over 200 property owners and entities, challenged a regulation promulgated by the Fish and Wildlife Service (FWS) pursuant to the Endangered Species Act (ESA). The challenged regulation restricts, but does not prohibit, the take of Utah prairie dogs, a listed threatened species, on non-federal land. The U.S. District Court of Utah granted PETPO’s request for summary judgment on the basis that neither the Commerce Clause nor the Necessary and Proper Clauses authorizes Congress to regulate the take. The FWS and Friends of Animals (FoA), as intervenors, appealed. Together they argue, that PETPO lacks standing and the challenged regulation is Constitutional. The Tenth Circuit agreed with the district court on the issue of standing, but concluded that the district court erred in its conclusion that the regulation was not authorized by the Commerce Clause. The court did not address whether the regulation was not authorized by Necessary and Proper Clause.

The Tenth Circuit first considered the issue of standing de novo. The parties disagreed whether the PETPO had sufficient standing for the summary judgment stage. The parties agreed that PETPO suffered an injury in fact that was traceable to the actions of defendant, but disagreed about whether PETPO’s injury would be redressable. PETPO claimed that the regulation was unduly burdensome and requested declaratory and injunctive relief, which “pertain to any federal prohibition on the take of Utah prairie dogs on nonfederal land.” The Tenth Circuit found that PETPO had standing, since the Necessary and Proper and Commerce clauses allow Congress to regulate the take.

The Tenth Circuit found that the district court erred in holding that the challenged regulation was not permissible under the Commerce Clause. The court held that “[R]egulation on nonfederal land of take of a purely intrastate species, like the Utah prairie dog, under the ESA is a constitutional exercise of congressional authority under the Commerce Clause.” The court applied the framework established by the Supreme Court in Gonzales v. Raich and found (1) the ESA to be a comprehensive regulatory scheme substantially affecting commerce; and (2) Congress had a rational basis to believe that the regulation at issue is an essential part of that scheme.

Here, the “[R]egulation of take of endangered and threatened species is directly related to—indeed, arguably inversely correlated with—economic development and commercial activity.” This is because Congress intended the ESA to conserve species, restrict commerce, and thereby promote long-term commerce. Further, the Commerce Clause authorizes Congress to regulate commerce, which includes “the power to prohibit commerce.”

Remaining was the question of whether regulation of a purely intrastate species, such as the Utah prairie dog, is authorized within the Raich framework. Here, the court reasoned that the majority of species protected by the ESA are intrastate. If this particular regulation is viewed in isolation as PETPO proposed, the “[p]iecemeal excision of purely intrastate species would severely undercut the ESA’s conservation purposes.” Further, this approach was foreclosed by Raich because it “[w]ould lead to just such a lingering death for the ESA—and likely for other regulatory schemes—insofar as every individual regulation passed within a larger regulatory scheme would be subject to a narrowly applied substantial effects test.” Therefore, “[C]ongress had a rational basis to conclude that providing for the protection of purely intrastate species is essential to the ESA’s comprehensive regulatory scheme.”

The court REVERSED and REMANDED with instructions to enter judgment in favor FWS and FoA.