Another Endangered Species Act Legal Victory for Landowners and Conservation

Commentary

Another Endangered Species Act Legal Victory for Landowners and Conservation

Yesterday, proponents of balancing the mandates of the Endangered Species Act with human needs scored a major victory. The U.S. District Court in Utah struck down the federal government’s protection of the Utah prairie dog by ruling in favor of People for the Ethical Treatment of Property Owners, represented by Jonathan Wood of the Pacific Legal Foundation, in a lawsuit challenging the constitutional ability of the federal government to regulate the prairie dog on non-federal land. This decision may also lead to more successful endangered species conservation.

This victory comes on the heels of another legal victory a month ago in which the Federal District Court in D.C. found in favor of the 2012 decision by the U.S. Fish and Wildlife Service not to list the dunes sagebrush lizard under the Endangered Species Act. The judge in the case based much of his ruling on a conservation plan for the lizard that is successful due in no small part to its protection of participating landowners’ confidentiality. This encourages landowners to participate without fear that data about their property could be used by the Fish and Wildlife Service to invoke the Endangered Species Act’s much-feared regulations. The Texas Comptroller, Susan Combs, who led the effort on the conservation plan, was granted lead intervenor status in the case. The conservation plan involves a wide range of stakeholders, including various oil and gas trade associations, which were also granted intervenor status. More broadly, the court’s decision is a vindication of the approach taken by the Texas Comptroller’s office over the past several years to find creative, state-based solutions to endangered species issues, which are often complex, conflict-ridden, and involve a dizzying array of public and private sector interests-all of which are trying to cope with the country’s most powerful environmental law.

The Utah prairie dog case is different than the dunes sagebrush lizard case but equally as important. The crux of the lawsuit brought by People for the Ethical Treatment of Property Owners and the Pacific Legal Foundation is that the federal government’s use of the Constitution’s Commerce Clause as justification for protecting the prairie dog-because the rodents are somehow involved in interstate commerce, which creates a “nexus” for federal regulation-is invalid because, quite simply, the prairie dog lives entirely within Utah and is not involved any interstate commerce. “The problem, for the federal government, is that the species is only found in this small area of Utah and has nothing to do with the nation’s $15 trillion economy,” according to Jonathan Wood. “Yet, the government attempted to justify its intrusion into this local matter based on the Constitution’s Commerce Clause.”

The court found:

“Although the Commerce Clause authorizes Congress to do many things, it does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce. Congress similarly lacks authority through the Necessary and Proper Clause because the regulation of takes of Utah prairie dogs is not essential or necessary to the ESA’s economic scheme.”

The court also found:

“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.”

Also figuring in the court’s decision is the Necessary and Proper Clause of Constitution, which states:

“The Congress shall have Power…To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

While this case has to do with Constitutional law, the reason why residents of southern Utah are so upset-in particular those in Iron County because it contains most of the prairie dog’s population-is that for decades they have been forced to bear the costs, often substantial, of living with prairie dogs. The examples are legion, but a few of them are:

  • Children have been prevented from playing in the field owned by and adjacent to Grace Christian Church in the town of Parowan because prairie dogs pockmarked the field with burrow holes, which could easily cause injury to a running child.
  • In the town of Paragonah, prairie dogs reside in the cemetery where their burrows undermine headstones and cause them to lean and even tip over.
  • Prairie dog burrows undermine the runway of the Parowan airport, causing it to sink and buckle in places, which poses a serious safety hazard.
  • Farmers have long suffered from machinery and irrigation infrastructure damaged by prairie dog burrows, as well as prairie dogs eating crops. In 1984, the U.S. Fish and Wildlife Service estimated the Utah prairie dog was costing farmers $1.5 million annually due to crop loss and equipment damage.
  • In Cedar City, the seat of Iron County, “The town has been inundated with prairie dogs that are leaving parks, gardens, vacant lots, the golf course and even the local cemetery pockmarked with burrows and tunnels,” Jonathan Wood of the Pacific Legal Foundation told the Deseret News.

The desecration of cemeteries in Paragonah and Cedar City by prairie dogs is in many ways the issue that most angered residents of Iron County. According to the lawsuit filed by the Pacific Legal Foundation:

“The city wishes to operate a cemetery that is a pleasant and peaceful place of reflection for people visiting the remains of their deceased loved ones. But the Utah prairie dogs are a safety hazard for visitors to the cemetery. Their burrowing creates an uneven ground on which it is more difficult to safely traverse, particularly for the elderly and disabled.

“The Utah prairie dog threatens the peaceful operation of the cemetery and the sanctity of the grave sites. Recently, a funeral service was interrupted by a prairie dog that scampered around the service and began barking loudly and incessantly. This disturbance caused great stress to the unfortunate widow. The prairie dogs also destroy remembrances left at grave sites. For example, the prairie dogs eat flowers and other plants that visitors place near tombstones. Also, the city wishes to expand the cemetery to provide much needed space for additional grave sites. This expansion, however, has been prevented because the prairie dog has infested the area.”

In response to these problems, the Fish and Wildlife Service in 1984 reclassified the prairie dog from endangered to the less-imperiled status of threatened and promulgated a 4(d) rule that allows “take” of prairie dogs through translocation and lethal means. But this has done little to solve the problem of prairie dogs occupying and damaging private land. According to the Service’s 2012 recovery plan, private lands contain 78% of the Utah prairie dog’s population. The reason for this is private lands have higher quality forage due to mowing and irrigation. This is especially true of private lands in Iron County, which contain 67% of the population.

Since 1984, as it has become increasingly clear that even with the Fish and Wildlife Service’s permitted “take”, property damage caused by prairie dogs and resentment by people forced to bear the costs of harboring the rodents without any compensation has been getting worse. This is vividly illustrated by a survey, published in 2007 in a scholarly journal (the results of which I discuss in detail in my ESA study). Responses to the survey reveal:

  • 33% of landowners take actions to discourage prairie dogs from inhabiting their property.
  • Very few landowners are willing to have prairie dogs translocated to their land, a management strategy promoted by the federal government.
  • The above-two responses are likely due to landowners’ fear of ESA regulations.
  • Landowners involved in agriculture have a strong preference for compensation and relief from the Endangered Species Act’s regulations.
  • While landowners do also favor lethal control of prairie dogs, this is less popular when compared compensation and regulatory relief.
  • Farmers in southern Utah are very unwilling to enroll all or a portion of their land in a conservation easement for the purpose of conserving the Utah prairie dog. The likely reason for this response, as revealed by surveys of landowners in other parts of the country, is Utah landowners highly value their autonomy and do not like to encumber their land for the long, or even indefinite, periods of time common in conservation easements.
  • Another revealing question is about farmers’ preferences for working with various groups to address conflicts caused by Utah prairie dogs. The responses provide confirmation of aspects of other landowner surveys, most notably that landowners fear the Endangered Species Act and as a result do not trust organizations they perceive as being involved with implementing and enforcing the Act. The likely reason for the unwillingness of 74% of farmers to work with the Environmental Defense Fund and 68% with the Nature Conservancy is that at the time of the survey in 2005 these groups had been heavily involved in Utah prairie dog conservation efforts that did little to help landowners. The Environmental Defense Fund was heavily promoting the Safe Harbors Program as a solution to human-prairie dog conflicts. Clearly, farmers in southern Utah were not buying it, and the likely reason is that Safe Harbors does nothing to alleviate problems, including lost income and lowered property values, due to regulations on existing endangered species. Safe Harbors only protects property owners against additional (i.e., above the “baseline” number of species at the time the agreement is signed) endangered species taking up residence.
  • Farmers in the Utah prairie dog’s range trust the Utah Farm Bureau and the Utah State University Extension because they use non-regulatory approaches to gain landowners’ willing cooperation for conservation initiatives.
  • The Utah prairie dog survey also queried three groups of people-farmers in the prairie dog’s range, rural landowners in the prairie dog’s range who are not in agriculture, and urban residents in the Salt Lake City region-about their view on compensation for property lost and damaged by the Endangered Species Act’s restrictions for prairie dogs. These three groups were asked that if compensation is provided, then who should be responsible for providing it. Interestingly, all three groups thought environmental groups were most responsible, followed by the federal government and then state government. It is also striking that all three groups thought private insurers were least responsible, an indication respondents were aware that government should bear the burden of compensating landowners for conserving wildlife protected under a public law.

As a result of the survey’s findings about the opinions and preferences of landowners, especially those forced to bear the costs of conserving the Utah prairie dog, the authors conclude:

“The fear generated by ESA regulation is a poor motivator for species conservation on private lands. Rather, incentive based approaches that consider the needs of landowners are more likely to result in species conservation over the long term.”

This survey is based largely on the PhD research of Dwayne Elmore, who is currently a professor in the Department of Natural Resource Ecology and Management at Oklahoma State University. According to Elmore, state universities’ cooperative extension services, which typically include education and natural resource management advice for landowners, are a good model for organizing endangered species conservation efforts:

“Cooperative Extension is an ideal facilitator for volatile wildlife issues such as endangered species management on private lands. Often, lack of trust in government agencies or fear of Endangered Species Act regulations hinders conservation efforts on these private lands. Extension personnel have close ties to local affected communities and thus can be instrumental in educating landowners regarding options that may be available to them in regards to sensitive, candidate, threatened, or endangered species.”

Unfortunately, the Fish and Wildlife Service and environmental pressure groups have failed to respond substantively to landowners’ and communities’ growing anger over costs imposed by federal protection of the Utah prairie dog, as well as many other species. This is not surprising because those in the federal government and non-governmental groups who work to implement, enforce and advocate for the Endangered Species Act are self-selecting. They tend to believe strongly in the Act’s penalty-based approach to conservation, and as a result they are relatively insensitive to the concerns of landowners and others who are forced to bear the costs of harboring endangered species.

Due to the failure of the Fish and Wildlife Service and pressure groups to address substantively and seriously problems caused by the Utah prairie dog, many residents of Iron County felt they had no option but to file a lawsuit to regain use of their land and control of their communities. Yet this would have been unnecessary but for the counterproductive way the Endangered Species Act goes about achieving its goal of conserving species.

There are a couple take home points from yesterday’s court decision about the Utah prairie dog. First, the court’s ruling is going to be challenged, but if it stands up on appeal it could have broad ramifications. There are many other species like the prairie dog for which there is no nexus with which the federal government can reasonably invoke the Commerce Clause as the basis for protection under the Endangered Species act.

Second, while proponents of the Endangered Species Act are portraying yesterday’s court decision as a mortal threat to the Act, the opposite is true. If the federal government was prohibited from using the Act’s much-feared regulations to threaten landowners and force them to harbor species, this would compel the federal government to adopt a much friendlier and open approach to gain landowners’ trust and willing cooperation. After all, as the survey for the Utah prairie dog shows (as well as other landowner surveys discussed in my ESA study), landowners are very willing to conserve endangered species so long as they are not threatened, their autonomy and property rights are respected, and they are provided some modest compensation. One of the ultimate results of yesterday’s court decision may be more successful endangered species conservation.

Brian Seasholes is a former research fellow with Reason Foundation.