by David Driesen, University Professor at the Syracuse University College of Law.
In November of last year, a federal district court judge in Utah declared a rule protecting the Utah prairie dog under the Endangered Species Act (“ESA”) invalid as beyond Congress’ Commerce Clause power in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service. The district court applied Lopez-scrutiny in finding that the Commerce Clause could not regulate takings of the Utah prairie dog, a purely intrastate species, because there was no substantial relation to interstate commerce. The district court also rejected every argument posited by the Fish & Wildlife Service (“FWS”) in holding that takings of the prairie dog to the point of extinction, and the impacts of the takings on the food-chain and ecosystem writ large, did not affect interstate commerce, thus making the regulations protecting the animal unconstitutional. The FWS has appealed this ruling to the United States Court of Appeals for the Tenth Circuit, which will likely hear argument in the fall.
This is not the first case to challenge the ESA’s application to so-called “intrastate species,” and the Courts of Appeal have uniformly rejected such challenges in the past. However, this ruling is important for several reasons. First of all, most species protected by the ESA are located exclusively in one state; an appellate ruling calling into question the constitutionality of intrastate species protection in a circuit with numerous protected species could significantly undermine the ESA. Second, although the judge ostensibly addressed a single rule issued under the ESA, his reasoning constitutes an attack on the Act’s take prohibition, which limits activities harming all protected species. The court’s ruling treats all activities regulated under the ESA as if they were non-economic because this provision does not expressly limit itself to economic activities. If this approach to evaluation of actions implementing the ESA survives, it would imply that the survival of species protected under the Act would depend on inexpert federal judges’ review of science linking a single species to economic impacts, as viewed through the skeptical lens of Lopez. And finally, a ruling upholding the District Court might be interpreted as creating a circuit split leading to Supreme Court review.