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July 09, 2020

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Utah District Court Strikes Down Regulation of Purely Intrastate Species on Private Land

People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service; et. al., (11/05/14, 2:13-cv-00278-DB)

In a significant Endangered Species Act case, the Utah District Court has ruled that Congress may not regulate take of the threatened Utah prairie dog, a purely intrastate species, on non-federal land. The court found that the challenged regulation went beyond the scope of the Commerce Clause because it was a non-economic regulation and the take of prairie dog does not have a substantial effect on interstate commerce.

The court rejected the government’s argument that the prairie dog affects interstate commerce because it has biological value to the ecosystem, commercial value for tourism, and scientific and research value. According to the court, these links to interstate commerce were too hypothetical and attenuated to support the regulation. The court also rejected the government’s argument that the regulation has a significant effect on interstate commerce because it serves to limit agricultural and commercial activities on land occupied by the prairie dog. The proper focus of the Commerce Clause analysis is the regulated activity (in this case, take of the species), not the regulation itself.

The court also found that the regulation went beyond the scope of the Necessary and Proper Clause because protection of the prairie dog is not essential to the Endangered Species Act’s economic scheme. It reasoned that take of the prairie dog on non-federal land—even to the point of extinction—would not substantially affect the national market for any regulated species or commodity.

The decision is significant because the Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits have already upheld the regulation of purely intrastate species against similar constitutional challenges. If the decision is appealed to the Tenth Circuit and upheld, it will create a split of authority among the circuits, perhaps increasing the likelihood of Supreme Court review of the issue.

Copyright © 2020, Sheppard Mullin Richter & Hampton LLP.National Law Review, Volume IV, Number 315

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About this Author

Alexander L. Merritt, Real Estate Attorney, Sheppard Mullin
Associate

Alex Merritt is an associate in the Real Estate, Environmental, and Land Use and Natural Resources practice group in the firm's San Francisco office.

Areas of Practice

Mr. Merritt’s practice focuses on land use matters and real estate litigation. He assists developers and property owners in complying with CEQA and planning and zoning regulations; obtaining development entitlements and regulatory approvals; drafting transactional real estate documents and conservation easements; and litigating...

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