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Archived: Limited and Ethical Government Legal Cases

Since its creation in 1977, MSLF has been one of the Nation's leading legal centers fighting to ensure that the federal government remains a limited government and a government of laws and not men and women. MSLF recognizes that the Constitution was written, not to protect the various units or levels of government, but to preserve the liberty of the American people. MSLF is committed to ensuring that they continue to have that freedom and opportunity.

People for Ethical Treatment Of Property Owners v. U.S. Fish & Wildlife Service

Why We Fight:

When the federal government bars use of private property to protect species that are found only in a local area and not throughout the country, it violates the Constitution’s Commerce Clause.

Summary:

Although the Commerce Clause grants Congress the power to regulate interstate commerce, the U.S. Fish & Wildlife Service prohibits the use of private property to protect a prairie dog species found only within the State of Utah.

Legal Question:

Whether the federal government may prevent private property owners from using and developing their properties under the auspices of protecting listed species?

Plaintiff:

People for the Ethical Treatment of Property Owners

Defendants:

U.S. Fish and Wildlife Service (FWS), Daniel M. Ashe, in his official capacity as Director of the FWS, Noreen Walsh, in her official capacity as Regional Director of the FWS’s Mountain Prairie Region, the U.S. Department of the Interior, and Sally Jewell, in her official capacity as Secretary of the Interior

Intervenor:

Friends of Animals

Amicus Curiae:

Mountain States Legal Foundation

Court:

Supreme Court of the United States
None - the Supreme Court of the United States denied the petition

The Utah prairie dog, a species found exclusively in three counties in Utah, was listed as endangered in 1974.  The ESA prohibits the unauthorized take, possession, delivery, transportation, receipt, or sale, of any protected species and defines “take” to include, “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.”  In 1984, the FWS reclassified the Utah prairie dog as a “threatened” species and issued a special “Section 4(d) rule” authorizing a “take” of 5,000 prairie dogs annually in Iron County, Utah.  In 1991, the rule was amended to increase the take authorized to 6,000 prairie dogs and include all private lands within the three counties where the Utah prairie dog resides (Iron, Garfield, and Wayne).

In 2012, the FWS revised the special 4(d) rule and thus sharply limited the take of prairie dogs and reduced the total annual take from 6,000 to 10 percent of the estimated population—about 4,000 based on 2010 figures.  The penalties for unauthorized take of the Utah prairie dog or harm to its habitat include fines of $50,000 and up to one year in prison. 

Some 75 percent of Utah prairie dogs are found on private property and its population has almost doubled since 1985, to over 40,000.  According to Friends of Animals, a wide range of activities cause the take of Utah prairie dogs, including oil and gas exploration, recreational use of all-terrain vehicles (ATV), and maintenance occurring on a Boy Scout camp. 

In April of 2013, Pacific Legal Foundation, on behalf of People for the Ethical Treatment of Property Owners, whose membership includes property owners who are not permitted to use their private property due to the presence of prairie dogs, sued the U.S. Fish and Wildlife Service (FWS).  On November 5, 2014, the Utah district court held that the FWS’s rule regarding the prairie dog exceeded the agency’s Commerce Clause authority.

On May 26, 2015, MSLF filed a motion to file a friend of the court brief in support of the Utah landowners.  On May 27, 2015, that motion was granted and the brief filed.  Oral arguments were conducted on September 28, 2015.   On March 29, 2017, the Tenth Circuit reversed the ruling of the Utah federal district court. On May 17, 2017, People for the Ethical Treatment of Property Owners filed a petition for rehearing en banc.  On August 8, 2017, the Tenth Circuit denied the petition.  On September 26, 2017, People for the Ethical Treatment of Property Owners filed a petition for writ of certiorari with the Supreme Court.  The Supreme Court denied the petition on January 8, 2018.

No Status Updates
  • Western Legal Foundation Greatly Disappointed by Latest Ruling against Utah Landowners

    Aug 8, 2017
    A western nonprofit, public-interest legal foundation with decades of experience challenging application of the Endangered Species Act (ESA) today expressed its great disappointment with the refusal of the U.S. Court of Appeals for the Tenth Circuit in Denver to rehear an adverse ruling by a three-judge panel in March of 2017 against Utah landowners.
  • Western Legal Foundation Dismayed by Ruling Against Utah Landowners

    Mar 29, 2017
    A western nonprofit, public-interest legal foundation with decades of experience challenging application of the Endangered Species Act (ESA) today expressed its disappointment with a ruling by a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit in Denver in an appeal filed by Utah landowners.
  • Western Legal Foundation Defends Utah Landowners

    May 27, 2015
    A western nonprofit, public-interest legal foundation with decades of experience challenging application of the Endangered Species Act (ESA) today had its friend of the court brief in support of Utah landowners accepted by the U.S. Court of Appeals for the Tenth Circuit.


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