Endangered species

Prairie Dog Protections Exceed Scope of Federal Power, Says Court

Commerce Clause doesn't authorize regulation of species with no effect on interstate commerce


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 exceeds the scope of Congress's enumerated powers.