The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This afternoon a district court in Utah held that the federal prohibition against "taking" Utah prairie dogs—listed as "threatened" under the Endangered Species Act—exceeds the scope of federal power under the Commerce and Necessary and Proper clauses. Here is how Judge Dee Benson summarized his conclusion in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service:
Although the Commerce Clause authorizes Congress to do many things, it does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce. Congress similarly lacks authority through the Necessary and Proper Clause because the regulation of takes of Utah prairie dogs is not essential or necessary to the ESA's economic scheme.
This decision is significant if for no other reason that it is the first time that a federal court has held that the regulation of private land use [under the ESA] exceeds the scope of Congress's enumerated powers. Judge Benson is not the first judge to have reached this conclusion, however, as the question has split several Circuit courts. Commerce Clause challenges to ESA regulation have produced divided panels on the Fourth, Fifth and D.C. Circuits. Moreover, although these circuits all reached the same conclusion, they adopted conflicting rationales, a point noted by then-judge John Roberts in his first opinion on the D.C. Circuit. For those interested, I discussed these cases and their conflicting rationales in this article in the Iowa Law Review (pp. 406-417).
At issue in PETPO v FWS, as in the prior Commerce Clause challenges to the ESA, is whether regulations limiting the taking of a listed species is a proper exercise of the federal commerce power. This turns on whether the taking of such species can be said to "substantially affect" interstate commerce. The federal government notes that many activities regulated by this prohibition are economic in nature. Yet the prohibition is not limited to economic or commercial activity. The landowner who wishes to modify Utah prairie dog habitat to plant a garden is regulated just the same as a real estate developer. Moreover, the prohibition applies whether or not the species in question has any economic value. As a consequence (and as I discuss in the article linked above) it is not at all clear that the take prohibition can be sustained under the relatively formalist analysis adopted by the Supreme Court in cases like Lopez and Morrison (and now NFIB). Thus, PETPO argued, the federal government lacks the authority to regulate the taking of an intrastate, non-economically valuable species like the Utah prairie dog. Judge Benson agreed.
Here are some more excerpts from Judge Benson's opinion:
The court agrees with PETPO's claim that the rule is non-economic because "the Service is regulating every activity, regardless of its nature, if it causes harm to a Utah prairie dog." (PETPO's Mot. for Summ. J. at 24.) Additionally, it is undisputed that the rule in question does not contain any jurisdictional element that would limit its reach to takes that have an explicit connection to interstate commerce. (FWS' Mot. for Summ. J. at 12.) It is also undisputed that there are no express congressional findings regarding the effects upon interstate commerce of taking a Utah prairie dog. Id. Finally, as will be demonstrated below, all of Defendants' arguments purporting to establish a link between Utah prairie dog takes and a substantial effect on interstate commerce are attenuated.
Defendants' argument that the rule has a substantial effect on interstate commerce because it has frustrated several proposed agricultural and commercial activities misses the mark. The proper focus of the "substantial effect" test is the "regulated activity." See Gonzales v. Raich, 545 U.S. 1, 23 (2005). Illustratively, the Supreme Court ruled that Congress could regulate the purely local growth and consumption of wheat or marijuana because those activities altered the national market for those commodities. Raich, 545 U.S. 1; Wickard v. Filburn, 317 U.S. 111 (1942). However, the Court ruled that Congress could not regulate the possession of a gun in a known school zone, even though the regulation of that activity affected commerce in a variety of ways (e.g. people could not sell guns in a school zone). Lopez 514 U.S. 549 (1995); see also Morrison 529 U.S. 598 (2000). 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. Consequently, the fact that PETPO members or other persons are prohibited from engaging in commercial activities as a result of special rule 4(d) is irrelevant to the Commerce Clause analysis.
Furthermore, Defendants' argument concerning the biological value of the Utah prairie dog is insufficient to demonstrate that take of the prairie dog has a substantial effect on interstate commerce. 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. . . .
Defendants' final argument, that the Necessary and Proper Clause authorizes special rule 4(d) because the rule is essential to the economic scheme created by the ESA, also fails upon close examination. This argument is based on the Supreme Court's ruling in Raich that a regulation may be upheld when it is an "essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." 545 U.S. at 24-25.
Although the ESA itself regulates some economic activity, the rule in question is not necessary to the statute's economic scheme. Defendants emphasize that the Supreme Court cited the federal regulation of the take of bald and golden eagles as an example of congressional power that is clearly authorized by the Commerce Clause. (FWS' Mot. for Summ. J. at 21 (citing Raich, 545 U.S. at 26 n.36).) The Court's bald eagle example is not surprising because it is consistent with the Court's ruling in Raich. 545 U.S. 1. . . .
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 only evidence that suggests that the prairie dog's extinction would substantially affect such a national market is Defendants' assertion that golden eagles, hawks, and bobcats are "known to prey on prairie dogs." (FWS' Mot. for Summ. J. at 29.) However, Defendants do not claim that the Utah prairie dog is a major food source for those animals, and those animals are known to prey on many other rodents, birds, and fish. In other words, there is no evidence that the diminution of the Utah prairie dog on private lands in Utah would significantly alter the supply or quality of animals for which a national market exists. Therefore, congressional protection of the Utah prairie dog is not necessary to the ESA's economic scheme.
The folks at the Pacific Legal Foundation, who litigated the case, have more on today's decision here.
[Post updated as indicated above.]