People for the Ethical Treatment of Property Owners v. United States Fish & Wildlife Service
852 F.3d 990
| 10th Cir. | 2017Background
- PETPO, a nonprofit of Utah private landowners, sued under the APA seeking to enjoin federal regulation that prohibits "take" of the Utah prairie dog on nonfederal land.
- The Utah prairie dog is a threatened species found only in Utah; ~70% of its population lives on nonfederal land.
- FWS enacted a species-specific 4(d) "Special Rule" that limits permissible locations, amounts, and methods of take; a broader General Rule would prohibit take absent a permit.
- PETPO challenged Congress’s (and thus the Service’s) authority to regulate take of a purely intrastate, noncommercial species under the Commerce Clause and the Necessary and Proper Clause.
- The district court granted summary judgment to PETPO, holding the Commerce Clause (and the Necessary and Proper Clause) did not authorize regulation of Utah prairie dog take on nonfederal land; FWS and intervenor Friends of Animals appealed.
- The Tenth Circuit affirmed standing for PETPO but reversed on the Commerce Clause, holding Congress had a rational basis to regulate intrastate species-taking as part of the ESA’s comprehensive scheme and remanding with judgment for FWS and FoA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (redressability) | Striking Special Rule would not help because General Rule could be stricter; relief won’t redress harms. | Vacating congressional authority to regulate would invalidate both Special and General Rule enforcement; relief is redressable. | PETPO has standing; requested relief would redress injuries by preventing federal prohibition/enforcement of take on nonfederal land. |
| Commerce Clause power to regulate take of a purely intrastate species | Regulation of intrastate Utah prairie dog take does not substantially affect interstate commerce; activity is noncommercial and attenuated. | ESA is a comprehensive regulatory scheme that substantially affects interstate commerce; Congress rationally could conclude protecting intrastate species is essential to the scheme. | Reversed district court: Commerce Clause authorizes regulation because regulation of intrastate species is an essential part of the ESA’s comprehensive scheme with a rational basis to affect interstate commerce in the aggregate. |
| Proper scope of aggregation analysis | Must analyze the challenged provision (Utah prairie dog take) alone, like Lopez or Morrison. | Raich permits aggregation within a comprehensive regulatory scheme; effects of the ESA are considered in the aggregate. | Aggregation within the ESA is appropriate under Raich; analyzing only the single provision would risk ‘‘death by a thousand cuts’’ to the statute. |
| Necessary and Proper Clause | Regulation is not necessary/proper to the ESA’s economic scheme. | (Defendants) Clause supports implementing measures to effectuate Commerce Clause power. | Court did not decide Necessary and Proper after resolving Commerce Clause in defendants’ favor. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements for injury and proof)
- United States v. Lopez, 514 U.S. 549 (Commerce Clause three-category framework)
- Gonzales v. Raich, 545 U.S. 1 (aggregation within a comprehensive regulatory scheme)
- Wickard v. Filburn, 317 U.S. 111 (aggregation/aggregate effect principle)
- San Luis & Delta-Mendota Water Authority v. Salazar, 638 F.3d 1163 (ESA as affecting interstate commerce; aggregation)
- Ala.-Tombigbee Rivers Coalition v. Kempthorne, 477 F.3d 1250 (upholding ESA regulation of intrastate species)
- GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622 (ESA protections implicate economic concerns; aggregation)
- Gibbs v. Babbitt, 214 F.3d 483 (upholding take prohibition as part of larger economic regulatory scheme)
- Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (aggregating effects of endangered species protections)