In Recent Prairie Dog Case, the Federal Government Admits Something it Tries to Cover-Up

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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.”

In response, Reed Hop­per of the Pacif­ic Legal Foun­da­tion stat­ed:

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.