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.