The Curious Case of the Prairie Dog that Stopped Barking

Posted on August 31, 2017 by Allan Gates

In 2015 a district court enjoined enforcement of an Endangered Species Act 4(d) rule on the ground the federal government lacked authority under the Commerce Clause to regulate the take of a purely intrastate species, the Utah Prairie Dog, on nonfederal land.  The decision flew in the face of four prior court of appeals decisions in other circuits and attracted substantial commentary, including a blog post by a fellow member of ACOEL. In late March the Tenth Circuit unanimously reversed the district court decision. The Tenth Circuit’s opinion expressly embraced the prior decisions in the Fourth, Fifth, Ninth, and Eleventh Circuits that the district court had rejected.

Standing alone, the Tenth Circuit’s decision would be notable only for the fact that it restored Endangered Species Act case law to a more orthodox state of consensus.  But four procedural details add interesting contextual background.

First, the Tenth Circuit took an unusually long time deciding the case.  The court heard oral argument and took the appeal under submission on September 29, 2015.  The court did not issue its decision until March 29, 2017, exactly eighteen months later.  It is not apparent why the Tenth Circuit took so long to issue its opinion, but the length of the wait was definitely a source of nervous contemplation among the parties.

Second, Friends of Animals intervened as a party in the district court and participated vigorously throughout the trial court proceedings and appeal.  At the time the Friends intervened, October of 2013, there was little reason to think the Fish & Wildlife Service would not vigorously defend its authority under the ESA.  By the time the appeal was decided, however, the picture was different.  The Trump administration had taken office, and there was significant doubt about its interest in vigorously defending the scope of Endangered Species Act jurisdiction.  The presence of Friends of Animals as a party, and not merely as an amicus, assured there would be vigorous party opposition to the plaintiff’s petition for rehearing and potentially its petition for certiorari.

Third, after the Tenth Circuit’s opinion was issued and before the deadline for responding to the plaintiff’s petition for rehearing en banc, the Fish & Wildlife Service ordered an internal review of the 4(d) rule in dispute, to be completed in 120 days.  The review is to consider, among other things, the effectiveness of the state’s Utah Prairie Dog Management Plan in protecting the species.  The Service asked the court for a 135 day stay of proceedings to allow completion of the internal review before requiring any other action in the appeal.  The Service argued the internal review could result in changes to the 4(d) rule that might render the plaintiff’s claims moot.  The court denied the Service’s request for stay and subsequently denied the plaintiff’s petition for rehearing en banc.

The Service’s decision to initiate internal review of the 4(d) rule may wind up frustrating both the anti-ESA property rights advocates and the environmental groups.  The Service’s statement that its internal review might moot the plaintiff’s claims will likely be advanced as a reason for denying any petition for certiorari the plaintiff may file.  And the Service’s explicit focus on examining the effectiveness of the state’s Utah Prairie Dog Management Plan may foreshadow an inclination on the part of the new administration to reduce federal protection of the species despite the success in beating back the assault on ESA jurisdiction.

ESA Unconstitutional? Maybe, maybe not

Posted on November 11, 2014 by Margaret (Peggy) N. Strand

Bucking the trend of five Circuit Courts of Appeal, the U.S. District Court for Utah decided the Endangered Species Act (ESA) cannot be applied on private property for a wholly intrastate species.  The threatened Utah prairie dog, found exclusively in Southwestern Utah, apparently has insufficient connection to interstate commerce to support federal protection when found on privately owned land.

In the aptly named People for the Ethical Treatment of Property Owners (PETPO) v. US Fish and Wildlife Service, PETPO sued the government when it modified its regulations establishing limitations on “take” (death, injury) of the Utah prairie dog, a species found only within Utah.  Because the species was not found interstate and finding no other relationship between the species and interstate commerce, the court looked at and rejected all of the government’s arguments that the ESA take limitations on the Utah prairie dog were authorized by the Congressional power to regulate activities having a substantial relation to interstate commerce.

The government’s arguments were the same as have been made in multiple court decisions, each of which finding regulation of wholly intrastate species under the ESA supported by the Commerce Clause, including in the 9th, 11th, 5th, 4th and DC Circuits (respectively, see San Luis & Delta-Mendota Water Authority v. Salazar; Alabama-Tombigbee Rivers Coalition v. Kempthorne; GDF Realty Investments, LTD. v. Norton; Gibbs v. Babbitt; Nat’l Ass’n of Home Builders v. Babbitt.)  The PETPO decision is contrary to this precedent, which, if upheld by the Tenth Circuit, may lead to a split in the Circuits and a shot at Supreme Court review.

Constitutional law groupies will recall the Supreme Court seemed to establish more strict limitations on the federal Commerce Clause power when it struck down the “Gun-Free School Zones” law in United States v. Lopez and overturned parts of the Violence Against Women Act in United States v. Morrison.  At that time, folks questioned whether the ESA would survive a constitutional challenge involving a wholly intrastate species.  For a number of years in a number of courts, the government has prevailed.  Now there is a decision to the contrary to be watched as it makes its way through appeals.

The court soundly rejected all of the government’s arguments supporting the regulation.  The government argued the “activities” prohibited by the rule are commercial or economic in nature; for example, limitations on farming and construction.  This position was rejected because the regulation applied whether or not linked to an economic activity.  More significantly, the court said the government was looking at the wrong thing for a nexus to commerce: the proper focus of the “substantial effect” test is the “regulated activity.” “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.”  The fact that property owners would have to stop farming or otherwise engage in some commercial activities did not, on its own, provide sufficient nexus to interstate commerce to support species protection.

The government also argued the Utah prairie dog has biological and commercial value, so that any takes of the animal have a substantial effect on interstate commerce.  The Utah prairie dog is not a commercial species, and the court concluded, “any 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.”

As far as biological value, Defendants argue prairie dogs perform many functions contributing to the ecosystem.  This point was also rejected in strong language:

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.

Finally, intervenor Friends of the Earth argued an interstate commerce connection based on the fact the prairie dog has been the subject of scientific studies and commercially published books.  The court said lots of books had been published about both guns and women, but that was not sufficient under Lopez or Morrison.

Although no Clean Water Act decisions are cited, the PETPO opinion may be of interest to those following the constitutionality of federal regulation over wetlands.  Pending proposed regulations defining waters of the United States for Clean Water Act jurisdiction rely in part on the connectivity of ecosystems dependent on clean water. (See here, here and here.)  Rejecting the argument that the Utah prairie dog warranted federal protection as part of an integrated ecosystem, the Utah decision quotes Chief Judge Sentelle, in dissent in National Ass’n of Home Builders v. Babbitt, “The Commerce Clause empowers Congress ‘to regulate commerce’ not ‘ecosystems.’”

Stay tuned.

National Federation of Independent Business v. Sebelius: What’s In It for Environmental Law?

Posted on July 23, 2012 by Jonathan Z. Cannon

The Supreme Court’s recent decision on the Patient Protection and Affordable Care Act (Act) caused equal parts celebration and outrage by upholding the constitutionality of the individual mandate as a tax.  Environmental lawyers, however, are focusing on other, less prominent aspects of the decision, which could have implications for the constitutionality of environmental laws.  These aspects are: (1) the conclusion of a bare majority of the Court that the Act’s individual mandate was not within Congress’ Commerce Power; (2) the holding -- concurred in by seven justices -- that the withholding of all Medicaid funds from states refusing to expand their coverage as required by the Act exceeded Congress’ power under the Spending Clause and ran afoul of the anti-commandeering principle of the Tenth Amendment. 

The Court’s Commerce Clause ruling addressed the individual mandate’s requirement that those not participating in the health insurance market purchase health insurance unless covered by an exclusion.   In their opinions on this issue, Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito agreed that failure to participate in the health insurance market did not warrant regulation under the Commerce Clause simply because that inactivity had an effect on the premiums charged to others buying health insurance.  As Chief Justice Roberts put it: “The Framers gave Congress the power to regulate commerce, not to compel it.”  Slip op. at 24 (emphasis in original).  This feature of the Court’s ruling may have no precise analogue in environmental statutes: typically environmental statutes prohibit or restrict activity with an arguable relation to interstate commerce rather than compelling such activity.  But certainly environmental lawyers will be searching for one. 

More generally, the five justices in the majority on this issue made clear their resolve to extend the restrictive view of the Commerce Power announced in cases such as U.S. v. Lopez and U.S. v. Morrison and to cabin decisions suggesting a more generous view of that power, such as Wickard v. Filburn and Gonzales v. Raich.  This resolve could affect future Commerce Clause rulings on the permissible scope of the Endangered Species Act, the Clean Water Act, and other environmental statutes: interpretations of the Clean Water Act influenced by restrictive commerce clause decisions have already narrowed its scope. 

The Court’s holding on the Medicaid expansion provision could have more direct implications for environmental statutes, particularly for cooperative federalism arrangements under statutes such as the Clean Air Act that threaten to withhold federal funds if states do not agree to implement prescribed programs.  The expansion provision required states to expand coverage to low income individuals as well as make other changes; states that failed to undertake this expansion were threatened with loss of all federal Medicaid funds.  Seven justices agreed that the choice the Act offered to the states – expand or forfeit all Medicaid funds – was not a choice at all, but coercion and therefore impermissible.  Their views appear in two opinions, one by Chief Justice Roberts, joined by Justices Breyer and Kagan, and another by Justices Scalia, Kennedy, Thomas, and Alito. 

While coming to the same conclusion on this issue, the two opinions were not entirely aligned on the features of the case that justified this conclusion, and neither drew clear lines for application in future cases.  Both opinions stressed the relative size of the forfeiture – all of Medicaid funds, which equaled nearly 22% of all state expenditures.  Both noted that the penalty upheld in South Dakota v. Dole -- withholding of 5% of federal-aid highway funds from states that failed to raise their drinking age to 21 – amounted to less than half of one percent of South Dakota’s budget.  But neither offered to fix the outermost line: too much is somewhere between 0.5 and 22%.  In a theme not picked up by the others, Justice Roberts’ opinion also argued that the expansion represented a new program, which impermissibly used the funds provided through an existing program (pre-expansion Medicaid) to leverage its acceptance by the states.  How the courts develop these different strains of analysis in future cases and what lines of demarcation emerge will determine the significance of threats to existing or future environmental law provisions that rely on the Spending Power.