Court stops federal agency interference in Utah prairie dog issues on state, private lands

CEDAR CITY – A federal judge has ruled against the federal government, invalidating protections for Utah prairie dogs on state and private lands. To many Iron County officials, business and private property owners, the Utah prairie dog is a nuisance that has plagued them for decades.

The Nov. 4 decision by U.S. District Judge Dee Benson found against a 2012 administrative rule issued under the Endangered Species Act that prevented interference with the animal or its habitat on nonfederal lands.

Despite the ruling, the prairie dogs are still protected by Utah state law; and they are still protected by federal law on federal lands.

“Unless you have a certificate of registration from the Utah Division of Wildlife Resources,” the DWR said in a statement issued Friday, “you may not kill or remove a Utah prairie dog.”

Background of federal regulation

The Utah prairie dog was first federally listed as an endangered species in 1973 and was reclassified as a threatened species in 1984, and special rules were issued for the animal’s protection. According to the Memorandum Decision in the lawsuit, the special rules authorized the “take” of 5,000 prairie dogs annually on certain lands in Iron County, as long as the takes were consistent with Utah state law.

To “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” in connection with a threatened or endangered species under the ESA. Further, under the Code of Federal Regulations, the term “harm” within the definition of “take” includes any “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.”

In 1991, the rules were amended, and the limit of authorized take was increased to 6,000 prairie dogs annually and the scope of authority was expanded to all private lands in the region.

In 2012, the rules were further amended, requiring a permit to take a prairie dog and then only on agricultural lands, and private property within a half-mile of conservation lands, as well as areas where the animals create serious human safety hazards or disturb the sanctity of significant human cultural or human burial sites.

No takes are permitted on federal lands.

The lawsuit

Jonathan Wood, an attorney with Pacific Legal Foundation, a nonprofit group that deals with property rights, represented the People for the Ethical Treatment of Property Owners, which brought a lawsuit in April 2013 against the U.S. Fish and Wildlife Service and the Interior Department, among others. The plaintiffs claimed that Congress does not have authority to regulate takes of the Utah prairie dog on non-federal lands.

See problems cited by property owners and local officials: Property owners sue federal government over prairie dogs

The U.S. Fish and Wildlife Service argued it can act under the authority of the Commerce Clause and the Necessary and Proper Clause, stating that the prohibited activities that could harm the animal are commercial activities, such as farming, and that the animals have some commercial value – attracting tourists – and biological value.

“If Congress could use the commerce clause to regulate anything that might affect the ecosystem (to say nothing of its effect on commerce), there would be no logical stopping point to the congressional power under the commerce clause,” Benson said.

The judge also found any appeal to the Necessary and Proper Clause futile.

“Takes of Utah prairie dogs on non-federal land–even to the point of extinction–would not substantially affect the national market for any commodity regulated by the ESA,” Benson wrote in the decision, noting that tourists interested in the prairie dog would see them on federal land. As to the biological concerns, Benson found there to be no evidence that the extinction of the Utah prairie dog would cause any other species to lose value or likewise become extinct.

In his ruling, Benson found that Congress has no authority to regulate takes of Utah prairie dogs on nonfederal land and granted PETPO’s motion for summary judgment.

See the order here: PETPO v FWS on Utah Prairie Dogs – Memorandum Decision and Order 20141104

Response to the ruling

According to Deseret News, Wood said people are now able to build their dream homes and start their small businesses, and the city can protect the fields where residents’ children play, as well as the airport and the cemetery, from this rodent that has basically taken over the town. These are things Cedar City residents haven’t been able to do for 40 years, he said.

The Division of Wildlife Resources said in its statement that DWR Director Greg Sheehan is happy about the ruling but made it clear that the Utah prairie dog is still protected under state law.

“We have a strong history of successfully protecting and conserving sensitive wildlife species,” Sheehan said. “We’ll continue to use our resources and the expertise of our biologists to manage Utah prairie dogs. Our goal is to work cooperatively, with local officials and property owners in southern Utah, to ensure that the species continues to be an important part of the landscape.”

The director also said the DWR is committed to working with Fish and Wildlife and local government to collaboratively develop a balanced and responsible management strategy. While conservation actions have helped Utah prairie dogs immensely, he said, the species still needs protection.

There are Utah state laws that still protect prairie dogs,” DWR Relations with the Public Specialist Mark Hadley said. “So even though there might not be as much federal protection at the moment, there’s still state protection of the animal. People can come to us and get what’s called a certificate of registration, and we’ll look at each individual situation and determine whether or not a prairie dog should be taken or not. But

The DWR strategy will focus on three things, Sheehan said, including:

  • Ensuring the viability and continued persistence of Utah prairie dogs into the future
  • Safeguarding the health, safety, welfare and property of communities in areas where Utah prairie dogs live
  • Complimenting the conservation work the U.S. Forest Service, the Bureau of Land Management and the U.S. Fish and Wildlife Service are performing on federal lands

St. George News Editor-in-Chief Joyce Kuzmanic contributed to this report.

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  • My Evil Twin November 9, 2014 at 1:17 pm

    A federal judge actually made a logical ruling? Is the sun going to rise tomorrow?

  • Mark Vinclio November 9, 2014 at 1:57 pm

    there goes a brick of 22 shells

  • dancing infidel November 10, 2014 at 9:20 am

    Back in the 90’s I lived out in Cedar Valley on twenty acres. My nearest neighbor was at least 1/2 mile away. From my back porch I would easily burn through2-3 bricks of .22 rounds per day shooting these critters. Granted, as a property owner of agricultural land, I was required to obtain a “take” permit that was valid for 30 days. If I wanted to shoot more, I simply had to renew the permit, again valid for an additional 30 days. Of course, I could then buy a brick of .22lr for about 6 bucks back then. WalMart would sometimes have the bricks on sale for $4.99 each. Back then you could buy 2k rounds for about 20 bucks….those were the good ‘ole days.

    • Koolaid November 10, 2014 at 11:24 am

      Thanks now to the hoarders who buy up every round of .22 as soon as it appears on the shelf and then complains about the ammunition shortage they created, you can’t find it anywhere.

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