Endangered Species Law & Policy

On March 29, 2017, the U.S. Court of Appeals for the Tenth Circuit held (PDF) that Congress has authority under the Commerce Clause to regulate the take of the Utah prairie dog (Cynomys parvidens).  Because Congress has this authority, it could authorize the U.S. Fish and Wildlife Service (Service) to do the same.

The Utah prairie dog lives only in Utah.  Approximately 70 percent of the species’ population is on nonfederal land.  It was originally listed as an endangered species under the Endangered Species Act (ESA) in 1973, but was reclassified as threatened in 1984.  At the time it was reclassified, the Service issued a special rule to regulate its take (Special Rule 4(d)).  See 50 C.F.R. § 17.40(g).  Today, Special Rule 4(d) regulates the take of Utah prairie dog by limiting: (1) permissible locations of such take to agricultural lands, properties within 0.5 miles of conservation lands, and areas where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or burial sites[;] (2) the permissible amount of such take; and (3) the permissible methods of such take.  People for the Ethical Treatment of Property Owners (PETPO) filed an action alleging that neither the Commerce Clause nor the Necessary and Proper Clause authorizes Congress to regulate take of the Utah prairie dog (an intrastate species) on nonfederal land.

As an initial matter, the Tenth Circuit affirmed the district court’s holding that PETPO had standing to challenge Special Rule 4(d) because its alleged injuries were redressable.  PETPO’s challenge implicated the ESA’s grant of authority to the Secretaries of the Interior and of Commerce to issue regulations extending take prohibitions to threatened species.  If Congress lacked such authority under the Commerce Clause or the Necessary and Proper Clause, then the ESA could not authorize any regulation of prairie dog take.

On the merits of PETPO’s challenge, the Tenth Circuit concluded that the district court erred in holding that Special Rule 4(d) is not authorized by the Commerce Clause.  The district court held that the Commerce Clause did not authorize the regulation because it did not have a substantial effect on interstate commerce.  The Tenth Circuit disagreed.  It noted that the Commerce Clause authorizes regulation of noncommercial, purely interstate activity where it is an essential part of a broader regulatory scheme that, as a whole, substantially affects interstate commerce.  Therefore, to uphold the challenged regulation . . . [the court] need only conclude that Congress had a rational basis to believe that such a regulation constituted an essential part of a comprehensive regulatory scheme that, in the aggregate, substantially affects interstate commerce.

The Tenth Circuit held that Special Rule 4(d) was within the broader regulatory scheme of the ESA’s protections, including Congress’ broad authorization to use regulations to extend the take protections to threatened species.  Because the court concluded that the ESA has a substantial relationship with interstate commerce, and because Congress had a rational basis to believe that regulating take of purely intrastate species like the Utah prairie dog is essential to the ESA’s comprehensive regulatory scheme, the Tenth Circuit held that the regulation on nonfederal land of take of a purely intrastate species, like the Utah prairie dog, under the ESA is a constitutional exercise of authority under the Commerce Clause.  Because Congress had the authority to implement the challenged regulation, it could delegate that authority to the Secretary of Interior to promulgate regulations to achieve that end.