Circuit Court refuses to hear prairie dog appeal forcing Iron County to return to old plan

Prairie dog, stock photo | St. George News / Cedar City News

CEDAR CITY – The issue of Utah prairie dogs may be on their way to the U.S. Supreme Court after an appeals court refused to hear arguments this week regarding an earlier ruling that found a federal judge had erred in his 2014 decision.

In 2013, attorneys for People for the Ethical Treatment of Property Owners filed a lawsuit against the federal government challenging its regulation of the Utah prairie dog and its impact on property rights. Members of PETPO include private property owners as well as entities such as Cedar City Corporation, who claim the burrow-dwelling rodents are damaging property and causing economic harm.

This 2015 file image shows the historic range and current management units of the Utah prairie dog | Image courtesy of Utah Division of Wildlife Resources, St. George News

The lawsuit 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 unanimously overturned Benson’s 2014 decision. The Denver-based appeals court ruled 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 broad regulatory scheme, which, in the aggregate, substantially affects interstate commerce,” wrote U.S. Circuit Judge Jerome Holmes.

The Republican appointee noted then that 68 percent of species protected under the ESA have habitats in only one state. Therefore, he argued,  if the federal government is only allowed to provide protection to those animals whose habitats cross state borders it could “severely undercut” those protections.

Following the ruling, attorneys requested the full circuit court hear the case but the 18-member panel, comprised of 11 Democratic appointees, denied hearing the case this week forcing the group to either surrender the case entirely or appeal to the U.S. Supreme Court.

Matt Munson, an attorney for Iron County residents and local government, said the group plans to appeal the decision but knows it’s a long haul to get in front of the nine justices who make up the highest court of the land.

“It’s really hard to get a case in front of the Supreme Court,” Munson said. “It’s not an automatic thing that happens. So, we have a long way to go before we get there, but I think if we can get our case heard we have some allies in that court. I believe we will have a majority there that will rule in our favor.”

Munson has 90 days to file a petition asking the Supreme Court to hear the case.

In the meantime, Munson plans to ask the circuit court to stay Benson’s ruling, which would allow the county to continue operating the same way it has since 2014.

If the circuit court refuses to stay Benson’s ruling, Iron County will be forced to return to the old habitat conservation plan it was following prior to Benson’s 2014 ruling. The plan only allows for about 70 take permits per year while the county takes in more than 400 applicants in the same time, County Commissioner Alma Adams said.

This June 2017 file photo shows former Utah Division of Wildlife Resources Director Greg Sheehan fly fishing on the Provo River in Utah. U.S. Secretary of the Interior Ryan Zinke announced June 5 his appointment of Sheehan to the then newly-created position of deputy director of the U.S. Fish and Wildlife Service.  Photo date not specified. | Photo courtesy of the Utah Division of Wildlife Resources, St. George News

“It will affect growth,” Adams said. “We just don’t have enough take permits to go around; and it was so costly under the federal government – because property owners had to pay for the permits – that it often stopped people from even going after the permit. First, they (property owners) have to apply then wait to find out if they get a permit and then pay a fee for the permit to remove the dogs from their own property. It’s just ridiculous.”

The group is also working through some other options that, if successful, may avert the petition to the high court.

Munson is also hopeful for the first time in working with the Fish and Wildlife Service, believing the group may have an “understanding and knowledgeable ally” in the newly appointed deputy director Greg Sheehan.

Sheehan was the former director of the Utah Division of Wildlife Resources and assisted in creating the state plan the county has operated under for three years. He remained in that position until Interior Secretary Ryan Zinke appointed him to the country’s Fish and Wildlife Service in June.

Read more: Utahn appointed to US Fish and Wildlife Service

Last April, Sheehan called the state plan a success pointing to information released that same month by the state’s Division of Wildlife Resources that showed the population of prairie dogs under state management had reached the highest numbers counted since surveys started in 1976. He said:

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 …. 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.

The U.S. Fish and Wildlife Service drew up a general conservation plan this last year prior to Sheehan’s appointment that the county can choose to adopt or they can use their own habitat conservation plans that were created before Benson’s ruling.

In this 2015 AP photo, a technician with the Utah Division of Wildlife Resources releases a prairie dog at its new colony after it was trucked some 25 miles away from Cedar City. State biologists were out that summer rounding up prairie dogs that had overrun the city. The prairie dogs were moved to new habitats where could not wreak havoc. Near Cedar City, Utah, Aug. 6, 2015 | AP Photo by Rick Bowmer, St. George News

Adams, however, said Iron County’s old habitat conservation plan is set to expire and he isn’t interested in going through the same process again.

“It took so long,” Adams said. “We worked on that thing for years and now we have a choice to use it again or adopt the GCP (general conservation plan) but our HCP (habitat conservation plan) is set to expire so we would have to go through the process all over again to create a new one and it’s just too much and too big of a process to do again.”

Sheehan previously called the GCP more “restrictive and cumbersome” than the state plan but said he was hopeful the federal government would be open to working with the Division of Wildlife Resources and implementing some of the strategies they used in the state plan to streamline the process.

Munson is hopeful Sheehan’s statement in April is indicative of how he will move forward in his new role.

“There is absolutely no one who denies, nor can they deny because the facts speak for themselves, that the prairie dog thrived under the state plan,” Munson said. “I’m hoping we can work something out with the Fish and Wildlife Service to be able to create a plan that will resemble the state plan that has been so successful.”

Email: [email protected]

Twitter: @tracie_sullivan

Copyright St. George News, LLC, 2017, all rights reserved.

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