The United States Court of Appeals for the Tenth Circuit has reversed a lower court decision and held that the Endangered Species Act is applicable to the Utah prairie dog, despite the animal being found only within the State of Utah.  Obviously, this decision is disappointing for landowners and private property advocates.

The Endangered Species Act

Passed in 1973, the ESA seeks to conserve endangered and threatened species of plants and animals and the ecosystems on which they depend.  Under the Act, species may be listed as either “endangered” or “threatened.”  The Act, Section 4(d), prohibits a “take” of any endangered or threatened species unless a permit is obtained.  [For more info on the ESA, click here.]  In certain instances, the US Fish and Wildlife Service can create a “special rule” with regard to the take of a threatened species, which relaxes the prohibition on takes as provided by the rule.

Congress may act only within its enumerated powers.  This means that in order for Congress to act, it must point to a specific power under which its laws are authorized.  For the Endangered Species Act, Congress relied upon the Commerce Clause and the Necessary and Proper Clause.

Background

The Utah prairie dog is a threatened species, which lives only in Utah.  About 70% of the population resides on non-federal land.  The US Fish and Wildlife Service have passed a special rule with regard to the Utah prairie dog, which allows takes of the animal on agricultural lands, properties within .5 miles of conservation lands, and areas where they create serious human safety hazards or disturb human cultural or burial sites.  The rule also allows an incidental take of the animal if it occurs as part of a standard agricultural practice.

In 2014, a group of about 200 private property owners, who organized under the name “People for the Ethical Treatment of Property Owners” (“PETPO”) filed suit against the Fish and Wildlife Service related to the Utah prairie dog.

Procedural History

In November 2014, the trial court judge sided with PETPO.  [Read prior blog here.]  In that opinion, the court granted a summary judgment motion in favor of PETPO, finding that neither the Commerce Clause, nor the Necessary and Proper Clause of the Constitution authorize Congress to regulate the Utah prairie dog.  Specifically, the court held that the Commerce Clause does not authorize Congress to regulate the take of a purely interstate species that has no substantial effect on interstate commerce and the Necessary and Proper Clause does not allow Congress to regulate the prairie dog because it is not essential to the ESA’s economic scheme.

The US Fish and Wildlife Service appealed this decision to the Tenth Circuit Court of Appeals.

Tenth Circuit Opinion

The Tenth Circuit made two holdings in this case:  (1) PETPO has standing to bring its claim and (2) the Commerce Clause authorizes the application of the ESA to the Utah prairie dog.  Because these findings were dispositive, it did not reach the issue of whether the Necessary and Proper Clause authorized the listing.  [Read full opinion here.]

Standing

The US Fish and Wildlife Service argued that PETPO lacked standing to bring the case at all because even if successful, a court ruling would not redress PETPO’s claimed injury.  Redressability is one element required by law in order for a person/group to bring a lawsuit.  The Fish and Wildlife Service argued that even if PETPO successfully got the “special rule” repealed, the general rule under Section 4(d) would apply–and actually be worse–meaning that all takes of the prairie dog would be prohibited.  The Court rejected this argument, explaining that PETPO was not simply challenging the “special rule,” but was challenging Congress’ ability to impose rules on the Utah prairie dog at all.  If PETPO were to succeed, a court would find that Congress could not regulate the prairie dog at all, whether that be under a “special rule” or the general rule under Section 4(d).

Commerce Clause

The Commerce Clause grants Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  This power allows Congress to regulate three categories:  (1) use of channels of interstate commerce; (2) instrumentalities of interstate commerce or persons or things in interstate commerce; and (3) activities that substantially affect interstate commerce.  Anyone who has taken a Constitutional Law class knows that this is Congress’ broadest, most oft used power when passing legislation.  In this case, the government argued only that the third category–an activity that substantially affected interstate commerce–was at issue.

According to the Opinion, the proper test to determine if an activity “substantially affects” interstate commerce asks if Congress had a “rational basis” to find that the regulated activity, in the aggregate, would substantially affect interstate commerce.  The question is not whether substantial affects really occur–merely whether a rational basis exists for concluding they could.  Further, cases have made clear that Congress may regulate purely local activities if they are part of an economic class of activities that have a substantial effect on interstate commerce.

As explained by the court, “to uphold the challenged regulation here, we need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.”  This standard, the court found, was satisfied in the current case.

The ESA’s broader regulatory scheme, when considered in the aggregate, does have a substantial impact on interstate commerce, held the court.  The court rejected PETPO’s request to only consider the impact of the prairie dog and held, instead, that it was the impact of the entire ESA on interstate commerce that should properly be considered.  “Every federal appellate court that has addressed whether the ESA is a comprehensive scheme substantially affecting commerce has aggregated its effects on all threatened and endangered species.”

The court also rejected PETPO’s argument that the ESA is a comprehensive scheme to provide environmental conservation, not to regulate a market.  Citing a holding from the Ninth Circuit, the court stated that “the Supreme Court has never required that a statute be a ‘comprehensive economic regulatory scheme’ or a ‘comprehensive regulatory scheme for economic activity‘ in order to pass muster under the Commerce Clause.”  The court found that regardless of whether the Act is an economic scheme or not, it does have a substantial impact on interstate commerce.  The court explained that the regulation of endangered and threatened species is directly related to (and arguably inversely correlated with) economic development and commercial activity.  Further, the court stated that “Congress’s purposes in enacting the ESA were to conserve species by restricting commerce and to promote long-term commerce by conserving species.”  Finally, the court noted that the ESA prohibitions help “fuel an illegal wildlife trade that generates $5-8 billion annually.”  (I didn’t say it, I just write the blog folks!)

Lastly, the court held that Congress had a rational basis to believe that regulating a purely intrastate species like the Utah prairie dog is essential to the ESA’s overall, comprehensive regulatory scheme.  According to the court, approximately 68% of the species listed under the ESA are purely intrastate.  The court then sited to numerous other decisions from its sister circuits reaching the same result.

In light of this, the court held that Congress did have the authority to regulate a purely intrastate species on non-federal land under its Commerce Clause power.  And, because Congress had the power to regulate, it also has the power to authorize the US Fish and Wildlife Service to do the same.

According to the Pacific Legal Foundation, counsel for PETPO, they intend to seek review of this decision by the United States Supreme Court.

Why Do We Care?

Most legal scholars would probably say that this result, while disappointing for landowners given the favorable verdict for PETPO in the trial court, was not surprising.  Numerous other courts across the country had reached this same result when considering similar arguments.

Nevertheless, the decision offers a good reminder of the extreme breadth with which Congress can act pursuant to its Commerce Clause power, and provides a good overview of the Endangered Species Act.

Additionally, this decision will likely serve as persuasive authority for similar cases pending across the country, including one right here in Texas where a Williamson County landowner argued that the ESA did not have the authority to regulate the   Bone Cave harvestman, found only in Travis and Williamson Counties in Texas.