ESA Unconstitutional? Maybe, maybe not

Posted on November 11, 2014 by Margaret (Peggy) N. Strand

Bucking the trend of five Circuit Courts of Appeal, the U.S. District Court for Utah decided the Endangered Species Act (ESA) cannot be applied on private property for a wholly intrastate species.  The threatened Utah prairie dog, found exclusively in Southwestern Utah, apparently has insufficient connection to interstate commerce to support federal protection when found on privately owned land.

In the aptly named People for the Ethical Treatment of Property Owners (PETPO) v. US Fish and Wildlife Service, PETPO sued the government when it modified its regulations establishing limitations on “take” (death, injury) of the Utah prairie dog, a species found only within Utah.  Because the species was not found interstate and finding no other relationship between the species and interstate commerce, the court looked at and rejected all of the government’s arguments that the ESA take limitations on the Utah prairie dog were authorized by the Congressional power to regulate activities having a substantial relation to interstate commerce.

The government’s arguments were the same as have been made in multiple court decisions, each of which finding regulation of wholly intrastate species under the ESA supported by the Commerce Clause, including in the 9th, 11th, 5th, 4th and DC Circuits (respectively, see San Luis & Delta-Mendota Water Authority v. Salazar; Alabama-Tombigbee Rivers Coalition v. Kempthorne; GDF Realty Investments, LTD. v. Norton; Gibbs v. Babbitt; Nat’l Ass’n of Home Builders v. Babbitt.)  The PETPO decision is contrary to this precedent, which, if upheld by the Tenth Circuit, may lead to a split in the Circuits and a shot at Supreme Court review.

Constitutional law groupies will recall the Supreme Court seemed to establish more strict limitations on the federal Commerce Clause power when it struck down the “Gun-Free School Zones” law in United States v. Lopez and overturned parts of the Violence Against Women Act in United States v. Morrison.  At that time, folks questioned whether the ESA would survive a constitutional challenge involving a wholly intrastate species.  For a number of years in a number of courts, the government has prevailed.  Now there is a decision to the contrary to be watched as it makes its way through appeals.

The court soundly rejected all of the government’s arguments supporting the regulation.  The government argued the “activities” prohibited by the rule are commercial or economic in nature; for example, limitations on farming and construction.  This position was rejected because the regulation applied whether or not linked to an economic activity.  More significantly, the court said the government was looking at the wrong thing for a nexus to commerce: the proper focus of the “substantial effect” test is the “regulated activity.” “In other words, the question in the present case is whether take of the Utah prairie dog has a substantial effect on interstate commerce, not whether the regulation preventing the take has such an effect.”  The fact that property owners would have to stop farming or otherwise engage in some commercial activities did not, on its own, provide sufficient nexus to interstate commerce to support species protection.

The government also argued the Utah prairie dog has biological and commercial value, so that any takes of the animal have a substantial effect on interstate commerce.  The Utah prairie dog is not a commercial species, and the court concluded, “any 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.”

As far as biological value, Defendants argue prairie dogs perform many functions contributing to the ecosystem.  This point was also rejected in strong language:

If Congress could use the Commerce Clause to regulate anything that might affect the ecosystem (to say nothing about its effect on commerce), there would be no logical stopping point to congressional power under the Commerce Clause. Accordingly, the asserted biological value of the Utah prairie dog is inconsequential in this case.

Finally, intervenor Friends of the Earth argued an interstate commerce connection based on the fact the prairie dog has been the subject of scientific studies and commercially published books.  The court said lots of books had been published about both guns and women, but that was not sufficient under Lopez or Morrison.

Although no Clean Water Act decisions are cited, the PETPO opinion may be of interest to those following the constitutionality of federal regulation over wetlands.  Pending proposed regulations defining waters of the United States for Clean Water Act jurisdiction rely in part on the connectivity of ecosystems dependent on clean water. (See here, here and here.)  Rejecting the argument that the Utah prairie dog warranted federal protection as part of an integrated ecosystem, the Utah decision quotes Chief Judge Sentelle, in dissent in National Ass’n of Home Builders v. Babbitt, “The Commerce Clause empowers Congress ‘to regulate commerce’ not ‘ecosystems.’”

Stay tuned.