District court strikes down endangered species protections for exceeding the scope of federal power

The Volokh Conspiracy ^ | November 5, 2014 | Jonathan H. Adler

[right-wing agnostic]

This afternoon a district court in Utah held that the federal prohibition against “taking” Utah prairie dogs — listed as “threatened” under the Endangered Species Act — exceeds the scope of federal power under the Commerce and Necessary and Proper clauses. Here is how Judge Dee Benson summarized his conclusion in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service:

Although the Commerce Clause authorizes Congress to do many things, it does not authorize Congress to regulate takes of a purely intrastate species that has no substantial effect on interstate commerce. Congress similarly lacks authority through the Necessary and Proper Clause because the regulation of takes of Utah prairie dogs is not essential or necessary to the ESA’s economic scheme.

This decision is significant if for no other reason that it is the first time that a federal court has held that the regulation of private land use exceeds the scope of Congress’s enumerated powers. Judge Benson is not the first judge to have reached this conclusion, however, as the question has split several Circuit courts. Commerce Clause challenges to ESA regulation have produced divided panels on the Fourth, Fifth and D.C. Circuits. Moreover, although these circuits all reached the same conclusion, they adopted conflicting rationales, a point noted by then-judge John Roberts in his first opinion on the D.C. Circuit. For those interested, I discussed these cases and their conflicting rationales in this article in the Iowa Law Review (pp. 406-417).

[kosciusko51]

This is a good start.

[MeganC]

Prairie dogs are cute and I like how they stand up on their hind quarters which allows for a good shot as much as 500 yards away.

[dennisw]

The Federale Gov’t a huge jobs program for lo-IQ liberal drones and affirmative action babies. They are out of a job if they aren’t out there over regulating the private sector producers

This is a war of parasite vs producer

[Amendment10]

It’s incredible to see a judge reference the Constitution’s “necessary and proper” clause, Clause 18 of Section 8 of Article I.

judge: "Although the Commerce Clause authorizes Congress to do many things, ..."

However, I respectfully disagree with the judge that the Commerce Clause authorizes Congress to do many things, a PC interpretation of that clause established by FDR’s activist justices. This is because the Supreme Court has historically clarified that the states have never delegated to Congress the specific power to regulate intrastate commerce.

”State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress [emphases added].” —Gibbons v. Ogden, 1824.

[dirtymac]

TO ALL!

It is time we take this country back to our basic principles

[spokeshave]

I read that a guy in Texas was sucking them up with a giant vacuum cleaner...(formerly used to suck out drains)....and was exporting the live cute little dogs to Japan as pets.

[Glennb51]

I just got a Savage 22 WMR for prairie dogs. Cheaper to shoot it than to relead for my 22-250. Can’t wait to try it this spring.

[SunkenCiv]

Alas, the Michigan proposals for expanded hunting both failed at 55 percent.