End of the Road for the Utah Prairie Dog’s Iconic Commerce Clause Status

Last March, the U.S. Court of Appeals for the Tenth Circuit revered the District Court’s ruling that the U.S. Fish and Wildlife Service (Service) could not subject the Utah Prairie Dog to Endangered Species Act-protected status because it was an intrastate species found only in Utah and not on federal land, and thus the Commerce Clause in the U.S. Constitution did not empower the Service to regulate its “take.” The Court of Appeals reasoned that extending protection to the Utah prairie dog was only part of the ESA’s broader regulatory scheme regulating takings of protected species, which, in the aggregate, affects interstate commerce. The case is People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service. The Solicitor General advised the U.S. Supreme Court against taking review, and on January 8, 2018, the Court agreed.