By Andrea Hogan, Mark Campopiano, Sara Orr, and Daniel Brunton

On May 26, nine western states filed an amicus brief in People for the Ethical Treatment of Property Owners  (PETPO) v. United States Fish and Wildlife Service urging the 10th Circuit Court of Appeals to limit the reach of the Endangered Species Act.

At issue in the case is a special regulation that the Fish and Wildlife Service adopted under section 4(d) of the Endangered Species Act to protect the Utah prairie dog, a threatened species living only in Utah. At the District Court, PETPO argued that no constitutionally enumerated powers allow the Federal Government to regulate the Utah prairie dog.  Specifically, PETPO argued that the Commerce Clause does not provide the essential federal authority, because the Utah prairie dog is a purely intra-state animal with little or no commercial value. The District Court was persuaded by this argument, holding that “[a]lthough 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.”

In the subsequent appeal of the case, the nine western states’ recently filed amicus brief emphasizes the states’ traditional authority to regulate wildlife within their borders and the states’ responsibility to manage their own wildlife populations. Specifically, the brief notes that the State of Utah already has regulations that strictly control the take of Utah prairie dogs and that the Utah Legislature has recently appropriated an additional $400,000 to fund its management plan.

The appeal comes as some in Congress have called for amending the Endangered Species Act and the wildlife agencies have taken partial steps to address local concerns over the sweep of the Endangered Species Act by seeking additional input from states on listing decisions. While there is bi-partisan recognition that federal permitting needs to be streamlined to encourage important projects, including renewable energy and water projects, the scope of the Endangered Species Act remains controversial. Land owners, developers, and project proponents of all kinds should continue to monitor the PETPO case, which could significantly affect the range of species that the wildlife agencies can regulate under the Endangered Species Act.