U.S. Tenth Circuit - The FindLaw 10th Circuit Court of Appeals Opinion Summaries Blog

Utah Prairie Dogs Win Appeal

Saved by a federal appeals court, the Utah prairie dog has re-emerged as a protected species after private landowners had won a case that would have allowed them to kill the animal.

The U.S. Tenth Circuit Court of Appeals said the landowners cannot harm the creatures under the Endangered Species Act, reversing a trial judge who said the federal law was invalid under the Commerce Clause. In a controversial decision in 2014, the judge said the prairie dog was not protected under the federal law because it lives only in Utah.

"Approximately sixty-eight percent of species that the ESA protects exist purely intrastate," the appellate panel said in reversing and remanding People for the Ethical Treatment of Property Owners v. United States Fish and Wildlife Service. "Thus, piecemeal excision of purely intrastate species would severely undercut the ESA's conservation."

PETPO Problems

People for the Ethical Treatment of Property Owners (PETPO), a group of more than 200 private property owners and others, challenged the regulation as "overly burdensome." It prohibits the "take," meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect" the prairie dog.

While there were about 3,000 before the species were listed as endangered, but now there are about 40,000 prairie dogs living in Utah. Matt Munson, a lawyer who sprearheaded the legal fight against the animals, said they caused many people to lose money and more.

"Everyone has been impacted," he said at the time. "People have lost businesses, people have lost their homes. People have been bitten. Their dogs have died. You name it, there have been all types of issues."

Part of a Larger Economy

The trial court heard their complaints and said the prairie dog was not entitled to protection on private lands. On appeal, the U.S. Tenth Circuit disagreed.

Judge Jerome Holmes, joined by Judges Carolyn McHugh and Nancy Moritz, said Congress has the power to regulate "purely local activities" when they are part of a larger economy that affects interstate commerce. Holmes said the Utah regulation is part of the larger protections under the ESA.

"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 congressional authority under the Commerce Clause," Holmes wrote.

The court followed three other circuits that have said the ESA applies to single-state species. PETCO did not comment on the ruling immediately, but reportedly will appeal.

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