Utah rodent in middle of ideological tug of war

Against the backdrop of the Trump Administration’s determined deregulatory efforts, the Tenth Circuit Court of Appeals (which covers Colorado) recently affirmed substantial federal authority to regulate activity on private lands.  While the court delivered its opinion in the context of the Endangered Species Act, the case has broader implications for environmental regulation in general. Congress passed the modern day ESA in 1973, with barely a dissenting vote.  The Act’s main goal is to conserve threatened and endangered species, along with their supporting ecosystems.  The ESA quickly gained a reputation as one of the most powerful environmental laws ever enacted when it stopped a massive and nearly completed federal water project in its tracks to save a newly discovered diminutive fish (snail darter) that is unsuitable for rod and reel.  (Congress eventually had to pass special legislation to allow completion of that project — the Tellico Dam.) The Act likewise can affect private actions.  Once a species is “listed,” the Act’s keystone provision prohibits the “take” of that species without a permit or other authorization.  While “take” includes killing, the prohibition encompasses a much broader range of actions, such as harassing, harming, pursuing or capturing.  It can even include significant habitat modification or degradation.  With respect to some species, this broad prohibition can complicate routine land-management activities.  Such was the case with the Utah prairie dog, a listed species that lives only in Utah, and mostly on non-federal land.  People for the Ethical Treatment of Property Owners is a group of more than 200 private landowners and other entities who say that regulation of the Utah prairie dog has prevented them from building homes and starting small businesses.  PETPO challenged the authority of the U.S. government to regulate the take of the prairie dogs on private land. The U.S. Constitution delineates Congress’ powers.  Those not granted to Congress are reserved to the states or the people. The Constitution’s Commerce Clause authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”  Congress relied on this authority to pass the ESA and other environmental laws.  PETPO argued that the Commerce Clause does not authorize Congress to regulate the take on non-federal land of a purely intrastate species that does not itself substantially affect interstate commerce.  The Circuit Court, however, declined PETPO’s invitation to evaluate the prohibited activity in isolation, and instead considered its place in the ESA as a whole.  The court determined that Congress had a rational basis to believe that regulating the take of the Utah prairie dog is essential to the Act’s broader regulatory scheme.  The court found that this broader scheme to substantially affect interstate commerce, and therefore upheld the federal government’s authority to protect the Utah prairie dog. To hold otherwise, the court said, would leave a “gaping hole” in the ESA, because almost 70 percent of species listed under the Act exist solely within one state.  The court further explained that excising a specific activity governed within a larger … Continue reading Utah rodent in middle of ideological tug of war