A Utah federal court has determined that federal protections for an intrastate endangered species found on private property violate the U.S. Constitution. The decision is important to everyone with interests in the scope of the federal Endangered Species Act (ESA) and the limits on federal regulatory power under the Commerce Clause of the U.S. Constitution. Another court has now said that the government cannot over-regulate private property.
In People for the Ethical Treatment of Property Owners (PETPO) v. U.S. Fish and Wildlife Service (D. Utah No. 2:13-cv-00278-DB, Nov. 5, 2014 Order), PETPO sued the government when it modified its regulations that established limitations on "take" (death, injury) of the Utah prairie dog, a species found only within Utah. Because the species was not interstate and finding no relationship between the species and interstate commerce, the Court looked at and rejected the government's arguments that the ESA take limitations on the Utah prairie dog were authorized by the Congressional power to regulate those activities having a substantial relation to interstate commerce.
What Does This Mean?
This is one court decision dealing with one intra-state species, which may not have a broad application to other protected species. This decision does not mean that the ESA is unconstitutional; however, the constitutionality of the ESA is once again "in play" in the courts. More broadly, the Commerce Clause limits federal regulatory action, and it has now been construed fairly strictly, which may have application to other programs such as wetlands regulation under the Clean Water Act. The take-away message is "stand by"; for business, when the law is subject to change, great care in planning is required.
The PETPO decision illustrates the complicated analysis of federal authority when tested at its Constitutional limits. The Utah court relied upon Supreme Court cases that had imposed limits on federal regulatory authority. Finding insufficient relationship to interstate commerce, the Supreme Court struck down the "Gun-Free School Zones" law in United States v. Lopez, 514 U.S. 549 (1995) and overturned parts of the Violence Against Women act in United States v. Morrison, 529 U.S. 598 (2000). These were significant decisions limiting federal power. As the Utah decision recites:
At one point in time, Congress' Commerce Clause power seemed to be virtually unlimited, leading one scholar to "wonder why anyone would make the mistake of calling it the Commerce Clause instead of the 'hey-you-can-do-whatever-you-feel-like clause.'" Judge Alex Kozinski, Introduction to Volume 19, 19 HARV. J. L. PUB. POL., 1, 5 (1995).
In contrast, when the Supreme Court decided Lopez and Morrison, it seemed to be setting stricter standards for Commerce Clause authority, imposing controls on the breadth of federal power. At that time, under those standards, many folks raise the questions about whether the ESA would survive a Constitutional Challenge.
In fact, the constitutionality of the ESA has been upheld in several court decisions, each of which found that regulation of wholly intrastate species was supported by the Commerce Clause. The government pointed out that every United States circuit court of appeals that has heard a similar case has upheld Congress' authority to regulate the take of purely intrastate species. See San Luis & Delta-Mendota Water Authority v. Salazar, 638 F.3d 1163 (9th Cir. 2011); Alabama-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (11th Cir. 2007); GDF Realty Investments, LTD. v. Norton, 326 F.3d 622 (5th Cir. 2003); Gibbs v. Babbitt, 214 F.3d 483 (4th Cir. 2000); Nat'l Ass'n of Home Builders v. Babbit, 130 F.3d 1041 (D.C. Cir. 1997). The PETPO decision is contrary to this precedent, which may lead to a split among the appellate courts if PETPO is appealed.
Notwithstanding this precedent, the Utah court rejected the government's position that the ESA regulatory program effects commerce: "In other words, the question in the present case is whether take of the Utah prairie dog has a substantial effect on interstate commerce, not whether the regulation preventing the take has such an effect." In language that could apply to other regulatory programs, such as the wetlands program under the Clean Water Act, the court rejected the claim that interrelationships within ecosystems was a sufficient justification under the Constitution:
The Court acknowledges that the Utah prairie dog may have an effect on the ecosystem. Nevertheless, as aptly observed by Chief Judge Sentelle, "[T]he Commerce Clause empowers Congress 'to regulate commerce' not 'ecosystems.'" National Ass'n of Home Builders v. Babbitt, 327 U.S. App. D.C. 248, 272 (D.C. Cir. 1997) (Sentelle, J., dissenting). If Congress could use the Commerce Clause to regulate anything that might affect the ecosystem (to say nothing about its effect on commerce), there would be no logical stopping point to congressional power under the Commerce Clause. Accordingly, the asserted biological value of the Utah prairie dog is inconsequential in this case.
The government also defended the Utah prairie dog regulation under the Necessary and Proper Clause of the Constitution, which allows exercise of federal authority as necessary and proper to implement a statutory scheme. Under this clause, the government argued that the regulation was essential to the "economic scheme" created by the ESA. Under the leading decision on this provision, Gonzales v. Raich, 545 U.S. 1, 23 (2005), the Supreme Court had upheld federal regulation of local growth and use of marijuana because of its relationship to the national market and its role in an overall economic industry. In contrast, the Utah court found that purely interstate take of the Utah prairie dog had no impact on an economic scheme: "The present case, on the other hand, differs significantly from Raich in one important way that makes any appeal to the Necessary and Proper Clause futile: takes of Utah prairie dogs on non-federal land–even to the point of extinction–would not substantially affect the national market for any commodity regulated by the ESA." The court also rejected the government's argument that take of Utah prairie dogs can be aggregated with regulation of takes of all other intrastate species to support the regulation. "Although Congress might be authorized to unlimitedly regulate takes of intrastate non-commercial species whose extinction would subsequently cause the extinction of other species (especially the extinction of commercial species), that is simply not the case before the court."
A few cautions are warranted. Constitutional jurisprudence can be confusing and important principles may be applied based on unique facts. Unlike the District Court in PETPO, five Circuit courts of appeal have determined that the ESA can apply to wholly intrastate species. Final resolution of this important question of federal power may need to await a decision by the Supreme Court.
If you have any questions about this alert or species protection laws like the ESA, please contact the authors.