CEDAR CITY – Utah prairie dogs will once again enjoy the protections of the federal government following a ruling this week by an appeals court that found a federal judge erred in his 2014 decision.
Attorneys for Iron County residents argued that the Commerce Clause of the U.S. Constitution doesn’t allow the federal government to regulate animals found on private land in only one state as is the case with Utah prairie dogs. The group requested relief from the federal protections provided under the Endangered Species Act.
U.S. District Judge Dee Benson from Utah ruled in the group’s favor in 2014 finding that the Commerce Clause does not apply. Benson’s ruling removed ESA protections and turned the management of the rodent population over to the state.
The U.S. Fish and Wildlife Service appealed the decision to a three-judge panel on the 10th Circuit Court of Appeals arguing that the federal protections should be restored.
The three justices, two of whom are Obama appointees, unanimously overturned Benson’s 2014 decision.
In Wednesday’s ruling, the Denver-based appeals court said that the ESA is tied to interstate commerce, and if the act’s protections were only applied to species living in multiple states, it would “leave a gaping hole” in the law.
“Congress had a rational basis to believe that regulation of the take of the Utah prairie dog on nonfederal land is an essential part of the ESA’s broader regulatory scheme, which, in the aggregate, substantially affects interstate commerce,” wrote U.S. Circuit Judge Jerome Holmes.
The Republican appointee noted that 68 percent of species protected under the ESA have habitats in only one state. Therefore, he argued, that if the federal government was only allowed to provide protection to those animals whose habitats cross state borders, it could “severely undercut” those protections.
Matt Munson, an attorney for Iron County residents and local governments, called the court’s decision a “tortured interpretation of the Commerce Clause” that gives the federal government a license to “regulate anything.”
“I believe that this decision further erodes the Constitution’s design – one of limited enumerated federal powers,” Munson said. “… Under this theory, there is no limiting principle and the Supreme Court of the United States has never, that I am aware, endorsed such a theory.”
Several environmental groups filed amicus briefs as friends of the court in support of the appeal arguing that Benson’s ruling undermines the ESA.
In speaking with Cedar City News, Noah Greenwald, endangered species director at the Center for Biological Diversity, applauded the ruling.
Greenwald pointed to four similar cases where the same issue was previously debated – “everyone,” he said, “lost on appeal.”
“We hope this decision finally puts these preposterous lawsuits to bed. This lawsuit is the work of a group of people who are on the fringe,” Greenwald said. “They’re the extreme who thinks that you can do whatever you want and however you want if it’s your private property and it doesn’t matter how it affects your neighbors. They believe we should be able to drive species to extinction regardless of how it harms future generations or the ecosystem around them or their fellow citizens.”
State and local officials argue, however, that the prairie dogs have thrived under a new state plan put into place by the Utah Division of Wildlife Resources after Benson’s ruling allowing biologists to remove the species off private property and put them on public lands within their own habitat.
State wildlife teams trapped and moved the prairie dogs before under federal regulations but the state plan streamlined the process, Greg Sheehan, director of DWR, told Cedar City News Friday.
“It was a win-win for everyone. Local communities, local governments and private property owners were all happy and the Utah prairie dogs were also thriving in their own habitat,” Sheehan said.
According to information released by DWR Friday, Utah prairie dogs under state management reached the highest numbers counted since surveys started in 1976. DWR numbers show that in spring 2015 biologists estimated the prairie dog population at 92,894.
The numbers decreased to 82,685 in 2016 due to disease within the prairie dog population but, even then, that number reflected the second highest count on record.
“DWR biologists took the animals to public land where they thrived,” Sheehan said. “The prairie dogs have done really well in those areas and are increasing in population numbers because they’re in their own habitat rather than in the urban centers where they don’t belong.”
For now, however, the counties will have to revert back to the previous habitat conservation plans they were following prior to Benson’s 2014 ruling. Those plans allow for only a number of take permits per year.
“We would have 75 take permits and 400 applicants,” Iron County Commissioner Alma Adams said. “We never had enough to go around.”
The federal government also required payment for the permits.
“We had industrial businesses come in that could have produced several thousand jobs that ended up leaving because they weren’t willing to pay the take permits for their property to build the complex,” Adams said. “They felt like they were having to pay double for their property. The cost was prohibitive for some people.”
Anticipating that the courts would overturn Benson’s ruling, U.S. Fish and Wildlife recently drew up a general conservation plan that Sheehan said the counties can adopt or choose to use their own HCPs.
It is more restrictive and cumbersome, he added, than the state plan the counties have been operating under since 2014.
Sheehan is hopeful however, that the federal government will be open to working with DWR and implementing some of the strategies they used in the state plan to streamline the process.
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