Court Rules That Constitution Does Not Empower Federal Government To Regulate A Threatened Species Living Only Within One State
A federal district court in Utah has ruled in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service that Congress’s constitutional power to regulate interstate commerce does not enable the federal government to regulate under the Endangered Species Act a species that lives entirely in one state and that has no substantial effect on interstate commerce. Five appellate courts, the Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits, have previously ruled otherwise with respect to other intrastate species, but the law has remained uncertain since those decisions have not been without dissent and they have offered differing rationales. If the latest ruling is appealed, it will give the Tenth Circuit, and perhaps ultimately the Supreme Court, an opportunity to weigh in.
In the Endangered Species Act, Congress prohibited the “take” of species listed as endangered and authorized the Fish and Wildlife Service to issue regulations governing the take of species listed as threatened. Congress defined “take” in the Act to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The Service, in turn, defined “harm” by regulation to include “significant habitat modification where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” Under these provisions, the Service has sometimes identified areas as habitat of listed species and has characterized some habitat-modifying activities as a “taking” of the species.
The Utah prairie dog lives only in southwestern Utah. The Service listed it as threatened in 1984 and issued a regulation governing its take. In 2012, the Service revised that regulation to allow take only by permit and only in certain types of areas not on federal lands, severely restricting landowners’ ability to use and develop their lands.
A landowners group, People for the Ethical Treatment of Property Owners (“PETPO”), represented by the Pacific Legal Foundation, sued, claiming that the Constitution does not empower Congress or the Service to regulate a species that exists entirely within Utah and does not substantially affect interstate commerce. The Service contended that its regulation was supported by the Constitution’s delegation of the powers to regulate interstate commerce and to make all laws “necessary and proper” to carry out that power.
Rejecting the Service’s arguments, the court agreed with PETPO. While the commerce power once seemed to afford Congress almost unlimited power, the court noted, that changed with the Supreme Court’s decisions in United States v. Lopez in 1995 and United States v. Morrison in 2000, which held, respectively, that Congress had no power under the commerce power to regulate possession of guns near schools or to create a civil remedy for victims of gender-based crimes. The Service first argued that the regulation has a substantial effect on interstate commerce because many of the activities that would be prohibited by it are commercial or economic in nature. Explaining that the real issue 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 court concluded that the fact that landowners are prohibited from engaging in commercial activities as a result of the Service’s regulation is irrelevant.
The Service next argued that the regulation has a substantial effect on interstate commerce because the prairie dog has biological value in that it performs ecological functions like improving soil and serving as prey, and has commercial value in that it attracts tourism. The Constitution, though, said the court, empowers Congress to regulate commerce, not ecosystems. Pointing out that if Congress could regulate anything that might affect the ecosystem, “there would be no logical stopping point to congressional power,” the court found the asserted biological value of the species to be “inconsequential” to its analysis. Finding no evidence that tourism would be negatively affected by takes of the prairie dog on non-federal land, the court concluded that the asserted commercial value of the species “is too attenuated to support the premise that take of the prairie dog would have a substantial effect on interstate commerce.”
Pointing to the Supreme Court’s ruling in Gonzales v. Raich that a regulation may be upheld when it is an essential part of a larger regulation of economic activity that would be undercut unless certain intrastate activity is regulated, the Service also argued that regulation of take of the prairie dog is essential to the economic scheme of the Endangered Species Act and therefore authorized under the necessary and proper clause. Noting that Raich upheld regulation of local growth and consumption of marijuana because of its effect on the national market for marijuana, the court found that takes of Utah prairie dogs would not affect the national market of any commodity and concluded that “congressional protection of the Utah prairie dog is not necessary to the [Act’s] economic scheme.” The court also rejected the Service’s argument that regulation of prairie dogs should be “aggregated” with similar regulation of other intrastate species and their effect on interstate commerce analyzed together. The court found no evidence that the extinction of the Utah prairie dog would cause any other species to lose value or otherwise become extinct and saw no reason to consider such aggregation.
The court concluded that “[a]lthough 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.” Similarly, said the court, Congress “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.”
While merely a district court decision that, moreover, conflicts with five appellate court decisions, the PETPO ruling could lead other courts, including perhaps the Supreme Court, to consider anew whether the Constitution allows federal endangered species regulations to reach intrastate species with no substantial effect on interstate commerce. As many listed species live only within one state, resolution of that question may broadly affect those species and many landowners. It may as well influence other aspects of the Endangered Species Act, including the listing of wholly intrastate species and the designation of critical habitat within only one state. As the PETPO ruling rests on facts specific to the Utah prairie dog, it is also possible that other courts may assess particular intrastate species and perhaps reach varying results depending on the connections each species may have with interstate commerce. PETPO bears watching.
David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630
