Court Smacks Fed Claim Rodents Impact Interstate Commerce
Clears way for Utah property owners to use their own land by
Bob Unruh
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 then 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 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/#hhDt5J1zacJY2et0.99
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