CEDAR CITY – Last week the People for the Ethical Treatment of Property Owners and Pacific Legal Foundation announced they have filed a lawsuit against the federal government challenging its regulation of the Utah prairie dog and its impact on property rights.

The Utah prairie dog, wholly native to the state as its name suggests, covers a range, or habitat area, that crosses across eight counties, among which are Iron and Kane counties. Members of PETPO include private property owners as well as entities such as Cedar City Corporation, who claim the burrow-dwelling rodents are damaging property and causing economic harm.

It seems that wherever the prairie dog makes its home, the area becomes pot-marked mounds and hopes for future development are stalled, leaving property owners frustrated.

The lawsuit

“Cedar City is a community under siege,” Pacific Legal Foundation attorney Jonathan Wood said, “by a proliferation of prairie dogs and by federal regulations that prohibit reasonable measures to control the prairie dog population.”

The PLF is a donor-supported nonprofit that has represented individuals and institutions against the federal government. Some of PLF’s cases have also been argued in the Supreme Court and won. After reviewing the situation in Cedar City and Iron County, the PLF has taken up the case and is representing PETPO for free.

Anyone who harasses, harms, or kills a threatened or endangered species faces up to tens of thousands of dollars in fines, and may also serve time in prison depending upon the severity of the violation. Some offenses can reach the felony level.

“No one wants the species to go extinct, but there are tens of thousands of Utah prairie dogs in the area,” Wood said. “The people affected by the animal deserve consideration also. “

The lawsuit filed Thursday contends that the federal government has overstepped its authority by restricted “take” on the prairie dogs. As defined by the Endangered Species Act, to “take” is to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” in connection with threatened or endangered species.

There are an estimated 40,000 Utah prairie dogs that live within their designation range. However, up to 75 percent of that population currently exists on private land.

“The federal government should protect and preserve the species on its own land, and leave the citizens of Cedar City and other towns free to take common-sense measures to control the prairie dog population in their midst,” Wood said. “Residents of Cedar City should be free to live their lives without being held hostage to a species that has become an out-of-control pest, and a threat to their economy and their well-being.”

According to the PLF, the lawsuit contends that the federal government has overstepped its bounds by “issuing regulations to block prairie dog controls.” And, it argues that “because the Utah prairie dog is a single-state species without any use or value in commerce, it isn’t covered under the federal government’s Commerce Clause authority.”

“Our lawsuit contends that the federal prairie dog policies are unconstitutional,” Wood said. “The federal government is pushing beyond its authority under the Commerce Clause by imposing onerous burdens on people who have been overrun by this rodent.”

Those affected

“Just compare (the prairie dogs) to the desert tortoise,” said Derek Morton, a PETPO representative. Anywhere the prairie dogs go becomes “useless land,” he said.

PETPO was organized by a coalition of people and entities affected by the prairie dog-issue about two years ago in order to have an “organized effort to protect property rights.” Morton said.

Places like the Cedar City Region Airport, Cedar City Cemetery, public sporting fields and golf course are among those impacted by the animals.

The runway and taxi zones at the airport are riddled with prairie dog mounds. According to PLF, “compliance with a federal habitat plan cost more than $300,000 and prevented needed improvements.”

The animals have also settled in the city cemetery. They destroy flowers at the site and disrupt funerals with their barking.

“It’s offensive,” Morton said.

As for the sporting fields and golf course, they have suffered “expensive and dangerous damage.” Maintenance for the golf course has increased more than $10,000 per year due to the problem.

Referenced by the PLF is also the experience of Cedar City businessman Bruce Hughes. Hughes purchased a 3.4-acre lot he planned to develop as an investment property when he retired

“But then the prairie dogs moved onto it,” Hughes said. “Federal officials said I would have to go through a regulatory process that would have taken 42 years, before I could hope to do anything on the property. Later, I was told that if I paid $34,000, I could do away with the prairie dogs. But if I didn’t pay, and I killed one prairie dog, it would be a $10,000 fine and five years in federal prison.”

Iron County commissioner Dave Miller said economic opportunities to the county have also been lost due to the prairie dog.

“We’ve lost several economic advantages,” he said, and gave the example of a manufacturing company already based in the county that wanted to invest in a $10 million expansion. The expansion would have created between 30 and 40 new jobs, Miller said, but because of regulations surrounding the prairie dogs, it never happened.

Private property owners are treated by the federal government as if they aren’t trusted, Miller said. He also said the problem wasn’t as much the animals as it was the process people have to go through in order to deal with the prairie dog.

Miller said he wants more local control over the situation, not oversight from an out-of-state bureaucracy.

“Our rights do mean something,” he said.

Miller’s call for more local control has been backed by a resolution passed this year by the Utah Legislature and Gov. Gary Herbert supporting “Iron County’s management of the Utah Prairie Dog population.”

U.S. Fish and Wildlife

The fact that up to 75 percent of the Utah prairie dog population is on private land doesn’t just frustrate property owners; it’s also a concern for the federal agents who help manage and protect the species.

“We probably have sufficient numbers of prairie dogs,” said Laura Romin, deputy field supervisor for the U.S. Fish and Wildlife’s Utah Field Office. However, just because there are “sufficient numbers,” it doesn’t mean the animals aren’t threatened, she said.

The segment of the prairie dog population that sits on private land is not counted toward the recovery of the species and its eventual delisting from the “threatened species.” This is due to the threats the animal faces on private property – namely development.

Romin said plans were in the works to expand the range the prairie dogs currently cover. This would allow them to move the animals to public lands. A program has even been put in place that allows for private property owners to sell land for the purpose of creating prairie dog habitat.

There is also the Utah Prairie Dog Habitat Credit Exchange Program that started in October 2012. The program allows developers and private property owners to buy “habitat credits.” The credits allow the buyer to develop on land currently inhabited by prairie dogs. The current cost of the credits is $800 per acre, though the cost can fluctuate depending on the size of the population within any given acre.

Roman also pointed to the Utah Prairie Dog Recovery Implantation Program managed through Southern Utah University.  “Updrip” as it is also known, is described on its website as a “public-private, multi-agency partnership focused on recovering the Utah prairie dog in balance with existing land uses and continued development.”

Though she was unable to comment on the lawsuit, Romin said, “We would rather work outside of the courts.” 

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Twitter: @MoriKessler

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