Appeals court restores federal protections for prairie dog

(U.S. Fish and Wildlife Service photo)

SALT LAKE CITY — An appeals court has ruled that a federal judge in Utah erred in a 2014 decision striking down protections for a kind of prairie dog found only in that state, a decision environmentalists said would have undermined the Endangered Species Act.

A three-judge panel on the Denver-based 10th Circuit Court of Appeals appeared to agree in its decision, ruling that the U.S. government can regulate and protect the Utah prairie dog.

Attorneys for residents in Cedar City, Utah, who challenged the prairie dog rules had argued that prairie dogs were so numerous they over overrunning parts of town. They asked for relief from federal protections and argued that the Commerce Clause of the U.S. Constitution doesn’t allow the federal government to regulate animals found on private land in only one state.

In 2014, U.S. District Judge Dee Benson in Utah agreed with the residents, removing the protections.

The U.S. Fish and Wildlife Service appealed that decision, and argued before the Denver appeals court in late 2015 that federal protections should be restored.

In the ruling, the appeals court justices said that the Endangered Species Act is tied to interstate commerce, and if the act’s protections could only be applied to a species that lives in multiple states, it would “leave a gaping hole” in the law.

About 68 percent of species protected under the Endangered Species Act have habitats that do not cross state borders, the justices said. Therefore, they said that if the U.S. government was only allowed to offer piecemeal protections for those animals whose habitats span multiple states, it could severely undercut protections.

Jonathan Wood, an attorney for residents of Cedar City and local governments, said that the ruling is disappointing and gives the federal government license to create more regulations.

Wood, of the Pacific Legal Foundation, said Utah officials had adapted a state plan to allow the prairie dogs to be trapped on private land and moved out of town. Those roundups had been too difficult and complicated under the federal protections. The Utah plan also let residents shoot animals if they got too close to homes.

Wood said he doesn’t know if his clients will appeal the decision to the U.S. Supreme Court or ask that the full 10th Circuit review the case again.

It’s unclear if President Donald Trump’s administration will take a different stance than the previous administration did on the protections, but Wood said he hopes the U.S. government would let Utah’s management plan stay in place.

A message seeking comment from the U.S. Fish and Wildlife Service was not immediately returned.

The federal government and animal rights groups said Benson’s 2014 decision was a radical departure from past court rulings. Activists said it could weaken animal protections around the country.

On the other side, 10 states stepped in to support the decision: Utah, Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, Wyoming and Michigan.

The Utah prairie dog is the smallest of five species of the burrowing rodents.

Their numbers dwindled to about 2,000 as land was cleared to make room for farming, ranching and housing. Considered key to the ecosystem, they were listed as endangered in 1973. With federal protections, they rebounded to about 26,000 in spring of 2015, according to the state tallies. Kevin Bunnell, a southern Utah supervisor for the state Division of Wildlife Resources, said Wednesday that number fell to about 23,000 in spring 2016.

Bunnell said the wildlife resources division hopes the federal government will adapt a protection plan similar to the one Utah has been using, but he did not know the immediate impacts of Wednesday’s ruling.

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