Nov 072014

Opinion by U.S District Judge Dee Benson

In a significant ruling, a federal judge found that prohibiting take of Utah prairie dogs on private land is unconstitutional under the Commerce Clause (People for the Ethical Treatment of Property Owners v. USFWS, 13-278-DBD, D. Utah).

If the U.S. decides to appeal (a likely possibility), the Tenth Circuit would be forced to decide an ESA Commerce Clause challenge for the first time. Every other appeals court that has addressed the matter has ruled for the government.

Sen. Orrin Hatch (R-Utah) was pleased with the ruling.

Here's a telling excerpt, in which the judge distinguishes the case from the Supreme Court's decision in Gonzales v. Raich545 U.S. 1 (2005) which found that the federal government's regulation of marijuana was constitutional.

The present case ... differs significantly from Raich in one important way that makes any appeal to the Necessary and Proper Clause futile: takes of Utah prairie dogs on non-federal land–even to the point of extinction–would not substantially affect the national market for any commodity regulated by the ESA. The only evidence that suggests that the prairie dog’s extinction would substantially affect such a national market is Defendants’ assertion that golden eagles, hawks, and bobcats are “known to prey on prairie dogs.” (FWS’ Mot. for Summ. J. at 29.) However, Defendants do not claim that the Utah prairie dog is a major food source for those animals, and those animals are known to prey on many other rodents, birds, and fish. In other words, there is no evidence that the diminution of the Utah prairie dog on private lands in Utah would significantly alter the supply or quality of animals for which a national market exists. Therefore, congressional protection of the Utah prairie dog is not necessary to the ESA’s economic scheme.

. . .

The fact that scientific research has been conducted and books have been published about the Utah prairie dog is similarly too attenuated to establish a substantial relation between the take of the Utah prairie dog and interstate commerce. After all, scientific research has also been conducted and books have also been published about both guns and women. Nevertheless, the Supreme Court ruled that federal regulation of gun possession and violence against women is beyond Congress’ Commerce Clause power. See Morrison, 529 U.S. at 601-02, 613-17; Lopez, 514 U.S. at 560-66.

. . .

Defendants assert that every United States circuit court of appeals that has heard a similar case has upheld Congress’ authority to regulate the take of purely intrastate species. See San Luis & Delta-Mendota Water Authority v. Salazar, 638 F.3d 1163 (9th Cir. 2011); Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007); GDF Realty Investments, Ltd. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997).

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