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.
In 2013, John Platt, in his widely read Scientific American blog, Extinction Countdown, addressed “The Five Biggest Myths about the Endangered Species Act.” Platt’s “Myth # 2: It will take away your land” is substantiated by an excerpt from a U.S. Fish and Wildlife Service website:
“Presence of a listed species on your land does not preclude projects or activities from happening on your land and does not grant access to your land by Federal employees.”
In response, Reed Hopper of the Pacific Legal Foundation stated:
“This is so misleading it is hard to know where to begin. We get calls all the time from landowners reporting that federal employees have ‘accessed’ private land to observe activities that may affect listed species. These landowners often receive a follow-up letter from the Fish and Wildlife Service ‘suggesting’ that ongoing land use activities, like ordinary farming, building, or timber activity, ‘may’ harm protected species and that continuing such activities ‘may’ subject the landowner to severe civil penalties or even criminal prosecution. The practical effect of such a ‘warning letter’ is to preclude such activities on the land. If the landowner seeks a permit for the activity, the application usually runs in the tens of thousands of dollars or the mitigation is so expensive that the landowner can’t afford to implement it and must abandon the activity. In addition, when an area is designated ‘critical habitat’ for a listed species the federal government effectively gains a veto power over any use of the land. We currently represent a landowner in Louisiana whose property (over 1500 acres) was designated critical habitat which the service itself reports could cost the landowner $30 million in lost revenue. But that’s not all. The ESA has a citizen suit provision which allows anyone to sue a landowner over any activity which may harm a listed species. The truth is that the ESA does something far worse than ‘take away your land.’ It often converts your land into a defacto federal preserve while sticking you with the bill.”
While the assertions by Platt and the Fish and Wildlife Service do not pass the laugh test, they are reminiscent of a similar claim made twenty years ago by John Kostyack of the National Wildlife Federation in a letter to the editor of the Wall Street Journal (May 12, 1994) about the Endangered Species Act: “In fact, the Act has never prevented property owners from developing their land.”
These claims by Endangered Species Act proponents are not only demonstrably false, they are embarrassing and symptomatic examples of a cynical race-to-the-bottom mentality that is contemptuous of the rural, blue collar and middle class Americans who often have to bear the brunt of the Act’s costly land use control regulations. At the same time, proponents like to claim that protecting endangered species is a public good because it benefits the entire nation. If this is the case, then the entire nation should shoulder the financial burden of protecting these species, not just the relatively few landowners whose property contains endangered species and the habitat necessary to support them.
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.
Consider the following examples from the government’s brief in the case (all the case documents are available on the Pacific Legal Foundation’s website, here). On p.8 the government states:
“Some agricultural fields became so densely populated by prairie dogs that they were ruined for agricultural use.
“FWS also wanted to find more effective methods for balancing the conservation of the species with the interests of private landowners other than agricultural producers whose land has become prairie dog habitat during the last few decades.”
Then on p.32 of the brief, the government admits the following:
“…the Court need only look at the history of the rule described in detail in the Background section to see that one of the primary purposes of the original rule was to find a balanced approach to protecting the prairie dog through the regulation of agricultural lands. See 49 Fed. Reg. at 22330 (previous regulation of take was affecting the agricultural community, costing farmers about $1.5 million annually).”
And also on p.32, the government had this to say in reference to People for the Ethical Treatment of Property Owners (PETPO), an organization consisting of land and business owners in southern Utah that was formed to shine a light on problems created by federal protections for the Utah prairie dog and that was the plaintiff in the case:
“PETPO’s standing declarations make clear that this case is about commercial activity. PETPO members assert that the rule prevents them from: (1) developing property into a car dealership or otherwise selling the property, ECF No. 55-2; (2) improving the golf course grounds for patrons, ECF No. 55-3; (3) selling lots in a residential subdivision, ECF No. 55-4; and (5) developing or selling property so that the member may ‘profit from [his] investment,’ ECF No. 55-5. Consideration of PETPO members’ land use and activities is relevant here…”
On p.33, the government addresses the Endangered Species Act’s prohibition on “take” of listed species:
“[T]he prohibition on take includes significant habitat modification or degradation resulting in take, see id. § 17.3 (definition of harm). Although this provision only applies when an actual take occurs, the rule may regulate activity on property that is considered habitat for the prairie dog, which itself has commercial value, regardless of how the owner intends to use the property at issue.”
The judge’s ruling on the Utah prairie dog case also makes note of the government’s admission that the Endangered Species Act has been used as a land use control tool. On pp.11-12 the ruling states:
“Defendants’ argument that the rule has a substantial effect on interstate commerce because it has frustrated several proposed agricultural and commercial activities misses the mark… 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. Consequently, the fact that PETPO members or other persons are prohibited from engaging in commercial activities as a result of special rule 4(d) is irrelevant to the Commerce Clause analysis.”
The federal government is surely going to appeal the Utah prairie dog decision, and when it does it will likely have to admit again that the Endangered Species Act restricts normal and legal forms of land use. As more of the country is subjected to the Endangered Species Act’s unjust and unconstitutional taking of private property, there are going to be more examples like the Utah prairie dog in which the Act’s supporters are put in the untenable position of claiming the Commerce Clause applies to the many hundreds of species that live entirely within the borders of one state and are simply not involved in interstate commerce.