In Utah, the Federal Government Puts Prairie Dogs Over People

The question for the U.S. Supreme Court is whether protecting rodents counts as ‘interstate commerce.’

November 6, 2017

In southwestern Utah, federal regulations are artificially pitting people against prairie dogs—to neither’s benefit. There are about 80,000 Utah prairie dogs in the region, and the species is listed as threatened. State biologists would like to move the creatures from backyards and playgrounds to public conservation lands, but that’s forbidden under federal rules. The result of the regulations has been conflict but little progress toward lasting recovery for the species.

For years, towns like Cedar City have been stuck in what Greg Sheehan, principal deputy director of the Fish and Wildlife Service, has called “a quagmire of federal bureaucracy.” Washington’s heavy-handed regulations make it a crime for these Utahns to do things that the rest of us take for granted, like building homes in residential neighborhoods or starting small businesses. Cedar City can’t even protect its playgrounds, airport and cemetery from the disruptive, tunneling rodent.

Tired of being ignored, local residents banded together to form People for the Ethical Treatment of Property Owners. The group, represented by the Pacific Legal Foundation, filed a lawsuit in 2013 arguing that the federal regulations were unconstitutional. Where did Congress get the power to pass such intrusive rules? Whenever this kind of question arises, the stock answer is the Constitution’s Commerce Clause, which allows lawmakers to regulate commerce “among the several States.” But this species of prairie dog is found only in Utah, and it has no conceivable connection to interstate commerce.

In 2014 a federal district court agreed, striking down the regulations as unconstitutional. “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,” wrote Judge Dee Benson.

As the residents of Cedar City cheered, the state of Utah began work on a plan that would be better for people and prairie dogs alike. The central component was for biologists to relocate the rodents to lands where they could be permanently protected.

Conflict gave way to real conservation. In 2010 the prairie dog population had been estimated at 40,000, but the figure has since doubled, providing the highest count since surveys began in the 1970s. “It was a win-win for everyone,” Mr. Sheehan said this summer, when he was still head of the Utah Division of Wildlife Resources. “Local communities, local governments, and private landowners were happy. And Utah prairie dogs have never done better.”

Sadly, this proved to be only the beginning of the story. The federal government appealed Judge Benson’s ruling, arguing that the Commerce Clause could be stretched to reach noneconomic activities that affect any species. This summer, the 10th U.S. Circuit Court of Appeals overturned Judge Benson, putting the restriction on moving prairie dogs back into place. Once again it is a crime for state biologists to do what is best for the species.

In its ruling, the appeals court embraced a theory of federal power beyond any the Supreme Court has ever accepted. It held that if Congress adopts a “comprehensive scheme” to address some issue, then any regulation that furthers that purpose is constitutional under the Commerce Clause, even if it is unrelated to commerce. Were that theory to prevail, there would be no limit to what Washington could regulate.

But People for the Ethical Treatment of Property Owners did not give up. In September, the organization filed a petition asking the Supreme Court to hear their case. We urge the justices to do so, not only to restore the state conservation plan but also to vindicate constitutional limits on federal power. This week, 23 states, led by Utah, filed a friend-of-the-court brief calling for the justices to take the case.

Utah’s two senators— Mike Lee (one of the authors here) and Orrin Hatch —have introduced a bill called the Native Species Protection Act. It would reform the Endangered Species Act and return to states the responsibility of protecting animals found in only one state and having nothing to do with interstate commerce. The bill calls on Congress to respect and abide by the Constitution’s limits, to restore Utah’s ability to pursue real recovery of its prairie dogs, and to give other states the same opportunity. 

As Utah has shown, states are well equipped to protect threatened species. State biologists and officials have more local knowledge and are more accountable than far-off regulators. The Supreme Court and Congress should restore federalism to its rightful place and enforce the Commerce Clause’s intended limits. Utah’s prairie dogs and countless other species depend on it.

Op-ed originally published in the Wall Street Journal