Endangered Species Act Prohibitions On Private Property Held Unconstitutional

A Utah federal court has determined that federal protections for an intrastate endangered species found on private property violate the U.S. Constitution. The decision is important to everyone with interests in the scope of the federal Endangered Species Act (ESA) and the limits on federal regulatory power under the Commerce Clause of the U.S. Constitution. Another court has now said that the government cannot over-regulate private property.

In People for the Ethical Treatment of Property Owners (PETPO) v. U.S. Fish and Wildlife Service (D. Utah No. 2:13-cv-00278-DB, Nov. 5, 2014 Order), PETPO sued the government when it modified its regulations that established limitations on "take" (death, injury) of the Utah prairie dog, a species found only within Utah. Because the species was not interstate and finding no relationship between the species and interstate commerce, the Court looked at and rejected the government's arguments that the ESA take limitations on the Utah prairie dog were authorized by the Congressional power to regulate those activities having a substantial relation to interstate commerce.

What Does This Mean?

This is one court decision dealing with one intra-state species, which may not have a broad application to other protected species. This decision does not mean that the ESA is unconstitutional; however, the constitutionality of the ESA is once again "in play" in the courts. More broadly, the Commerce Clause limits federal regulatory action, and it has now been construed fairly strictly, which may have application to other programs such as wetlands regulation under the Clean Water Act. The take-away message is "stand by"; for business, when the law is subject to change, great care in planning is required.

Additional Information

The PETPO decision illustrates the complicated analysis of federal authority when tested at its Constitutional limits. The Utah court relied upon Supreme Court cases that had imposed limits on federal regulatory authority. Finding insufficient relationship to interstate commerce, the Supreme Court struck down the "Gun-Free School Zones" law in United States v. Lopez, 514 U.S. 549 (1995) and overturned parts of the Violence Against Women act in United States v. Morrison, 529 U.S. 598 (2000). These were significant decisions limiting federal power. As the Utah decision recites:

At one point in time, Congress' Commerce Clause power seemed to be virtually unlimited, leading one scholar to "wonder why...