by Jason Rylander, Senior Staff Attorney, Defenders of Wildlife
On September 28, the U.S. Court of Appeals for the Tenth Circuit will hear arguments in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, a case that will test whether the Federal government can protect the Utah prairie dog under the Endangered Species Act (ESA). This case is not just about one species – it is a test of federalism itself – and its outcome could have broad implications for wildlife and environmental protection.
Representing PETPO, the Pacific Legal Foundation has argued that the Constitution’s Commerce Clause does not give the federal government the authority to protect Utah prairie dogs. They say that because the species lives in just one state and arguably has no commercial value only the state government has the right to manage it.
These are radical ideas. Every single court to consider the question – including the Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits – has upheld the federal government’s constitutional authority to protect wildlife through the ESA. But last year, District Court Judge Dee Benson of Utah disagreed, and so the Tenth Circuit will weigh in on what had, until now, been settled law. As I argued in an amicus brief for Defenders of Wildlife and five other national conservation groups, the Tenth Circuit should reverse.