The Tenth Circuit Court of Appeals overturned a Utah Judge and granted Utah Prairie Dogs protection under the Endangered Species Act (ESA).
The Utah Prairie Dog is a unique species of prairie dog differentiated by the black markings around their eyes. While they once boasted a population of over 95,000 in the 1920's, there are estimated to be less than 10,000 left in Utah today.
The US Fish and Wildlife Service (FWS) officially considers the Utah Prairie Dog to be a “threatened species” and the IUCN Red List formally classifies the species as “endangered.”
In 2014, U.S. District Judge Dee Benson struck down the Federal government’s attempt protect the Utah Prairie Dog. The Judge ruled that because the Utah Prairie Dog is exclusive found in the State of Utah, the Federal government did not have the authority to regulate or protect them under the Endangered Species Act. The ESA specifically points to the threat interstate commerce has on species as reason for the Federal government to intervene to protect threatened and endangered species.
The Federal government receives much of its power from its constitutional authority under the Interstate Commerce Clause. It dictates that the United States Government has the authority to regulate economic issues that transcend state boundaries. Since the Utah Prairie Dog is only present in one state, Judge Benson ruled that not be covered by the Endangered Species Act because the Federal government has no valid interstate commerce interest.
On Thursday, a three-judge panel for Tenth Circuit Court of Appeals – based in Denver – disagreed and overruled this Utah judge’s ruling. The Court decided that the Federal government’s power under the Endangered Species Act does not simply apply to species that span multiple states.
“Piecemeal excision of purely intrastate species would severely undercut the ESA’s conservation purposes,” Judge Holmes wrote in the panel’s opinion. The “regulation of take of endangered and threatened species is directly related to—indeed, arguably inversely correlated with—economic development and commercial activity.”
Animal activists and conservationists rejoiced when the ruling was read. “This is huge, not only for the prairie dog but for the Endangered Species Act,” said Michael Harris, legal director for Friends of Animals, a conservation group that was involved in the case.
Jonathan Wood, the attorney for the Utah residents bringing the suit, said that the ruling was disappointing, arguing that to give the Federal government this power would be to allow them to “regulate activity that affects any living thing or the environment in some way.”
Utah landowners will still be able to shoot prairie dogs, however the practice will now be strictly regulated. Endangered Species Act regulations will only allow Utah Prairie Dogs to be killed on agricultural fields, property within a half-mile of conservation land and "areas where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or burial sites."
The Utah Prairie Dog is currently the only species of prairie dog listed as vulnerable, threatened, or endangered by FWS. In 1999, Colorado Parks and Wildlife issued a conservation plan for the state’s Black Tailed Prairie Dog. However, aerial surveys taken between 2002-2008 showed that Colorado’s prairie dog colonies expanded their territories by at least 29% during that six-year period.
Even with all the residential and commercial development along the Front Range, it is unlikely that Colorado’s Black Tailed Prairie Dogs will reach threatened or endangered status any time soon.