Contrary to every federal court of appeal decision that has addressed the issue, a federal court in Utah has held that the broad authority of the U.S. Fish and Wildlife Service (Service) to regulate "take" of threatened species under the Endangered Species Act (ESA) does not extend to an intrastate species. People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Serv., No. 2:13-cv-00278, Doc. No. 68 (Utah D.C., Nov. 4, 2014). Given the strong likelihood of an appeal and the substantial contrary authority, which includes decisions by the Fourth Circuit, Fifth Circuit, Ninth Circuit, Eleventh Circuit, and D.C. Circuit Courts of Appeal, the long-term impact of the Utah court's decision is still very much up in the air. However, for the time being, private property owners in Utah have scored an unprecedented victory.
When a species is classified as "endangered" under the ESA, the "take" prohibition set forth in section 9 of the ESA is automatically triggered. However, the same is not true when a species is listed as "threatened" under the ESA. Instead, section 4(d) of the ESA authorizes the Service to issue such regulations "deem[ed] necessary and advisable to provide for the conservation of such species." The Service also has the discretion to extend the "take" prohibition set forth in section 9 of the ESA to the threatened species.
In 2012, relying on section 4(d) of the ESA, the Service issued a special rule for the threatened Utah prairie dog, a species that only inhabits Utah. The rule authorized "take" of the species by permit only on "agricultural lands, [private property] within [.5] miles of conservation lands, and areas where prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites." Thus, if a private land development project would result in the "take" of a prairie dog, the rule would prohibit that development if the property owner was unable to obtain a permit from the Service.
A group known as People for the Ethical Treatment of Property Owners (PETPO) sued the Service under the federal Administrative Procedures Act, alleging that the Service lacked the authority to regulate a purely intrastate species on non-federal land. In defense of the special rule, the Service argued that the Commerce Clause and the Necessary and Proper Clause of the U.S. Constitution allow Congress to regulate the prairie dog on private land because such regulation has a...
