In Recent Prairie Dog Case, the
Federal Government Admits Something it Tries to Cover-Up Posted
on December 1, 2014 Written by reason.org
Little noticed in the recent court decision about the Utah
prairie dog, which struck down for the first time the listing of a species
under the Endangered Species Act, is the federal government admitted something
that it and other proponents of the Act have long tried to conceal: the Act
restricts and prevents otherwise normal and legal forms of land and
resource use, such as agriculture and construction. The case, argued successfully
by Jonathan Wood of the Pacific Legal Foundation, elicited some telling
responses from the government.
Proponents of the Endangered Species Act have long
claimed that the Act does not restrict or prevent normal and legal land and
resource use, in an effort to shield the Act from legal challenge that it violates
the Constitution’s Taking’s Clause, which states “nor shall private property
be taken for public use, without just compensation.” Despite this plain
language, and that landowners, such as those in southern Utah with prairie
dogs on their land, have had significant portions of their property converted
into de facto federal wildlife refuges for endangered species, proponents
of the Endangered Species Act maintain otherwise.
In 2013, John Platt, in his widely read Scientific American
blog, Extinction Countdown, addressed “The
Five Biggest Myths about the Endangered Species Act.” Platt’s “Myth # 2: It will take away your land” is substantiated
by an
excerpt from a U.S. Fish and Wildlife Service website:
“Presence of a listed species on your land does not preclude
projects or activities from happening on your land and does not grant
access to your land by Federal employees.”
“This is so misleading it is hard to know where to
begin. We get calls all the time from landowners reporting that federal
employees have ‘accessed’ private land to observe activities that may
affect listed species. These landowners often receive a follow-up letter
from the Fish and Wildlife Service ‘suggesting’ that ongoing land use activities,
like ordinary farming, building, or timber activity, ‘may’ harm protected
species and that continuing such activities ‘may’ subject the landowner to
severe civil penalties or even criminal prosecution. The practical
effect of such a ‘warning letter’ is to preclude such activities on the
land. If the landowner seeks a permit for the activity, the application
usually runs in the tens of thousands of dollars or the mitigation is so
expensive that the landowner can’t afford to implement it and must abandon
the activity. In addition, when an area is designated ‘critical
habitat’ for a listed species the federal government effectively gains a
veto power over any use of the land. We currently represent a
landowner in Louisiana whose property (over 1500 acres) was designated critical
habitat which the service itself reports could cost the landowner $30 million
in lost revenue. But that’s not all. The ESA has a citizen suit
provision which allows anyone to sue a landowner over any activity which
may harm a listed species. The truth is that the ESA does something far
worse than ‘take away your land.’ It often converts your land into a
defacto federal preserve while sticking you with the bill.”
While the assertions by Platt and the Fish and Wildlife Service
do not pass the laugh test, they are reminiscent of a similar claim made
twenty years ago by John Kostyack of the National Wildlife Federation in a
letter to the editor of the Wall Street Journal (May 12, 1994) about
the Endangered Species Act: “In fact, the Act has never prevented property
owners from developing their land.”
These claims by Endangered Species Act proponents are not
only demonstrably false, they are embarrassing and symptomatic examples
of a cynical race-to-the-bottom mentality that is contemptuous of the
rural, blue collar and middle class Americans who often have to bear the
brunt of the Act’s costly land use control regulations. At the same time,
proponents like to claim that protecting endangered species is a public
good because it benefits the entire nation. If this is the case, then the
entire nation should shoulder the financial burden of protecting these
species, not just the relatively few landowners whose property contains
endangered species and the habitat necessary to support them.
While the Utah prairie dog case disproves the patently
false claim that the Endangered Species Act does not restrict land and
resource use, the government ironically put itself in the position of having
to admit this. The crux of the government’s case is that federal protection
of the prairie dog is legally justified because the rodent is involved in
interstate commerce. According to this line of thought, this triggers protection
under the Act because the Commerce Clause of the Constitution gives Congress
the power “to regulate commerce with foreign nations, and among the several
states, and with the Indian tribes.” Over the years, and especially since the
New Deal era, the scope of the Commerce Clause has been expanded so massively
that the federal government feels it can regulate just about anything,
however tenuous or even nonexistent its links to interstate commerce.
The problem with the government’s Commerce Clause claim in the case of the
Utah prairie dog is that the rodent lives entirely within Utah and is not
involved in, or has any effect on, interstate commerce.
Yet because the federal government put itself in the
untenable position that protection of the prairie dog under the Endangered
Species Act is legally justified due to the Commerce Clause, the feds had to
admit the Act prevented otherwise normal and legal forms of land use in
order to try to create a “nexus,” or link, to interstate commerce.
Consider the following examples
from the government’s brief in the case
(all the case documents are available on the Pacific Legal Foundation’s website,
here). On p.8 the government states:
“Some agricultural fields became so densely populated by
prairie dogs that they were ruined for agricultural use.
“FWS also wanted to find more effective methods for balancing
the conservation of the species with the interests of private landowners
other than agricultural producers whose land has become prairie dog habitat
during the last few decades.”
Then on p.32 of the brief, the government admits the
following:
“…the Court need only look at the history of the rule
described in detail in the Background section to see that one of the primary
purposes of the original rule was to find a balanced approach to protecting
the prairie dog through the regulation of agricultural lands. See 49 Fed.
Reg. at 22330 (previous regulation of take was affecting the agricultural
community, costing farmers about $1.5 million annually).”
And also on p.32, the government had this to say in reference
to People for the Ethical Treatment of Property Owners (PETPO), an organization
consisting of land and business owners in southern Utah that was formed to
shine a light on problems created by federal protections for the Utah prairie
dog and that was the plaintiff in the case:
“PETPO’s standing declarations make clear that this case
is about commercial activity. PETPO members assert that the rule prevents
them from: (1) developing property into a car dealership or otherwise
selling the property, ECF No. 55–2; (2) improving the golf course grounds
for patrons, ECF No. 55–3; (3) selling lots in a residential subdivision,
ECF No. 55–4; and (5) developing or selling property so that the member
may ‘profit from [his] investment,’ ECF No. 55–5. Consideration of PETPO
members’ land use and activities is relevant here…”
On p.33, the government addresses the Endangered Species
Act’s prohibition on “take” of listed species:
“[T]he prohibition on take includes significant habitat
modification or degradation resulting in take, see id. § 17.3 (definition
of harm). Although this provision only applies when an actual take occurs,
the rule may regulate activity on property that is considered habitat
for the prairie dog, which itself has commercial value, regardless of how
the owner intends to use the property at issue.”
The judge’s
ruling on the Utah prairie dog case
also makes note of the government’s admission that the Endangered Species Act
has been used as a land use control tool. On pp.11–12 the ruling states:
“Defendants’ argument that the rule has a substantial
effect on interstate commerce because it has frustrated several proposed
agricultural and commercial activities misses the mark… In other words,
the question in the present case 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. Consequently, the fact that PETPO
members or other persons are prohibited from engaging in commercial
activities as a result of special rule 4(d) is irrelevant to the Commerce
Clause analysis.”
The federal government is surely going to appeal the Utah
prairie dog decision, and when it does it will likely have to admit again that
the Endangered Species Act restricts normal and legal forms of land use. As
more of the country is subjected to the Endangered Species Act’s unjust and
unconstitutional taking of private property, there are going to be more
examples like the Utah prairie dog in which the Act’s supporters are put in
the untenable position of claiming the Commerce Clause applies to the many
hundreds of species that live entirely within the borders of one state and
are simply not involved in interstate commerce.
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Filed Under: Agriculturehttp://agenda21news.com/2014/12/recent-prairie-dog-case-federal-government-admits-something-tries-cover/
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