Court smacks fed claim rodents impact 'interstate commerce'
A federal judge has rejected Washington’s claim that prairie dogs have a “substantial” impact on “interstate commerce,” throwing out a special rule protecting their burrows on private land in Utah and thus allowing property owners there to resume use of their own lands.
The decision was praised by officials with the Pacific Legal Foundation, which argued the case against the U.S. Fish and Wildlife Service, and others, on behalf of the People for the Ethical Treatment of Property Owners.
“This ruling frees the people of Cedar City from unconstitutional regulations that made it impossible for them to build their dream homes, defend their airport, and protect the sanctity of their loved ones’ final resting places,” said PLF staff attorney Jonathan Wood.
“Now, these property owners, and the local governments, needn’t fear the heavy hand of the federal government when they use and maintain their property, and do what most of us take for granted,” he said in a statement released Thursday.
The issue was that federal bureaucrats had designated the Utah prairie dog, a rodent that lives only in Utah but has a population there of tens of thousands of animals, as protected.
That meant that nothing could be done that could “harm” the rodents without special federal permission, such as removing their burrows from cemeteries or airport runways, or building homes where they occupied the land.
Specifically the lawsuit challenged the federal action in applying the Endangered Species Act’s anti-”take” rules to the Utah prairie dog in most areas and circumstances where the species is found. “Take” is defined broadly to include: to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect a member of a protected species.
Fines and prison time are the penalties.
The result was that landowners were prevented from building homes they planned, groups was prevented from doing maintenance on cemeteries, and local governments were even prevented from doing repairs and making other changes to local airports, because of the potential “harm” that could befall an individual Utah prairie dog.
U.S. District Judge Dee Benson, however, threw out the federal agency’s claims that it could impose its rules and restrictions on private land.
“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 [Endangered Species Act's] economic scheme,” the judge wrote.
“The federal government may take whatever measures it likes on its own property, in order to protect the prairie dog,” Wood continued. “But it can’t violate the U.S. Constitution by taking away the property rights of private citizens or local governments.”
Pacific Legal explained the Utah prairie dog is one of five prairie dog species in North America. Found only in Utah, it feeds on plants and insects, lives in colonies, and digs burrows and networks of tunnels. The U.S. Fish and Wildlife Service estimates its population at more than 40,000. Nevertheless, the agency lists it as “threatened” on the Endangered Species Act list.
The judge warned of the consequences of deciding any other way.
“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.”
The federal government argued there is an impact on interstate commerce – the fact that the animal was protected actually prevented economic development. And the government said the Utah prairie dog “has biological and commercial value” since they “contribute to the ecosystem” and, in fact, are food for eagles and bobcats.
And, the federal government asserted, the prairie dog attracts some interstate tourism.
But the judge said the Supreme Court has limited Commerce Clause arguments to only a few scenarios, none of which was present in this case.
“It is clear that the Commerce Clause does not authorize Congress to regulate takes of Utah prairie dogs on non-federal land,” the judge said.
And, the judge said, claims “purporting to establish a link between Utah prairie dog takes and a substantial effect on interstate commerce are attenuated.”
“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,” the judge wrote. “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.”
And the judge said government arguments that the rule is authorized under the Necessary and Proper Clause also failed.
“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.’
“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,” the judge wrote.
Read more at
http://www.wnd.com/2014/11/court-smacks-fed-claim-rodents-impact-interstate-commerce/#SpA5RzeMkfMIvFJL.99In accordance with Title 17 U.S.C. section 107, any copyrighted material herein is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only. For more information go to:
http://www.law.cornell.edu/uscode/17/107.shtml
