In Recent Prairie Dog Case, the Federal Government Admits Something it Tries to Cover-Up

Little noticed in the recent court decision about the Utah prairie dog, which struck down for the first time the listing of a species under the Endangered Species Act, is the federal government admitted something that it and other proponents of the Act have long tried to conceal: the Act restricts and prevents otherwise normal and legal forms of land and resource use, such as agriculture and construction. The case, argued successfully by Jonathan Wood of the Pacific Legal Foundation, elicited some telling responses from the government. Proponents of the Endangered Species Act have long claimed that the Act does not restrict or prevent normal and legal land and resource use, in an effort to shield the Act from legal challenge that it violates the Constitution’s Taking’s Clause, which states “nor shall private property be taken for public use, without just compensation.” Despite this plain language, and that landowners, such as those in southern Utah with prairie dogs on their land, have had significant portions of their property converted into de facto federal wildlife refuges for endangered species, proponents of the Endangered Species Act maintain otherwise. While the Utah prairie dog case disproves the patently false claim that the Endangered Species Act does not restrict land and resource use, the government ironically put itself in the position of having to admit this. The crux of the government’s case is that federal protection of the prairie dog is legally justified because the rodent is involved in interstate commerce. According to this line of thought, this triggers protection under the Act because the Commerce Clause of the Constitution gives Congress the power “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Over the years, and especially since the New Deal era, the scope of the Commerce Clause has been expanded so massively that the federal government feels it can regulate just about anything, however tenuous or even nonexistent its links to interstate commerce. The problem with the government’s Commerce Clause claim in the case of the Utah prairie dog is that the rodent lives entirely within Utah and is not involved in, or has any effect on, interstate commerce. Yet because the federal government put itself in the untenable position that protection of the prairie dog under the Endangered Species Act is legally justified due to the Commerce Clause, the feds had to admit the Act prevented otherwise normal and legal forms of land use in order to try to create a “nexus,” or link, to interstate commerce...more