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People for Ethical Treatment of Property Owners v. United States Fish and Wildlife Service

United States Court of Appeals, Tenth Circuit

March 29, 2017

PEOPLE FOR THE ETHICAL TREATMENT OF PROPERTY OWNERS, Plaintiff-Appellee,
v.
UNITED STATES FISH AND WILDLIFE SERVICE; DANIEL M. ASHE, acting in his official capacity as Director of the United States Fish and Wildlife Service; NOREEN WALSH, acting in her official capacity as Regional Director of the United States Fish and Wildlife Service's Mountain-Prairie Region; UNITED STATES DEPARTMENT OF THE INTERIOR; RYAN ZINKE, [*] Defendants-Appellants, and FRIENDS OF ANIMALS, Intervenor Defendant-Appellant. DEFENDERS OF WILDLIFE; DAVID S. COHEN; ERIC M. FREEDMAN; STEPHEN GARDBAUM; STEPHEN GOTTLIEB; M. ISABEL MEDINA; STEVEN D. SCHWINN; ENVIRONMENTAL LAW PROFESSORS; WILLIAM C. BANKS; NATIONAL ASSOCIATION OF HOME BUILDERS; ANIMAL WELFARE INSTITUTE; WYOMING ASSOCIATION OF CONSERVATION DISTRICTS; CENTER FOR BIOLOGICAL DIVERSITY; WYOMING FARM BUREAU FEDERATION; HUMANE SOCIETY OF THE UNITED STATES; SIERRA CLUB; WYOMING STOCK GROWERS ASSOCIATION; WILDEARTH GUARDIANS; WYOMING WOOL GROWERS ASSOCIATION; UTAH FARM BUREAU FEDERATION; CATO INSTITUTE AND PROFESSORS OF CONSTITUTIONAL LAW; STATE OF UTAH; STATE OF ALASKA; STATE OF ARIZONA; STATE OF COLORADO; STATE OF IDAHO; STATE OF KANSAS; STATE OF MONTANA; STATE OF SOUTH DAKOTA; STATE OF WYOMING; STATE OF MICHIGAN; CHAMBER OF COMMERCE OF THE UNITED STATES AND THE NATIONAL FEDERATION OF INDEPENDENT BUSINESS; MOUNTAIN STATES LEGAL FOUNDATION;UNITED STATES SENATORS MIKE LEE, JAMES INHOFE, MIKE ENZI, DAVID VITTER, TED CRUZ, AND ORRIN HATCH AND CONGRESSMEN JASON CHAFFETZ, CHRIS STEWART, MIA LOVE, AND ROB BISHOP; CENTER FOR CONSTITUTIONAL JURISPRUDENCE, Amici Curiae.

         Appeals from the United States District Court for the District of Utah (D.C. No. 2:13-CV-00278-DB)

          Anna T. Katselas, Attorney (John C. Cruden, Assistant Attorney General, David C. Shilton, and Mary Hollingsworth, Attorneys, of the U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., with her on the briefs), for Defendants-Appellants.

          Michael Ray Harris, of Friends of Animals, Wildlife Law Program, Centennial, Colorado, for Intervenor Defendant-Appellant.

          Jonathan Wood (M. Reed Hopper, with him on the brief), of Pacific Legal Foundation, Sacramento, California, for Plaintiff-Appellee.

          Jason C. Rylander and Karimah Schoenhut of Defenders of Wildlife, Washington, D.C., filed an amici curiae brief for Defenders of Wildlife, Animal Welfare Institute, Center for Biological Diversity, Humane Society of the United States, Sierra Club, and Wildearth Guardians, in support of Defendants-Appellants.

          David M. Driesen, Unversity Professor, of Syracuse University College of Law, Syracuse, New York, filed an amici curiae brief for Constitutional Law Professors William C. Banks, David S. Cohen, Eric M. Freedman, Stephen Gardbaum, Stephen E. Gottlieb, M. Isabel Medina, and Steven D. Schwinn, in support of Defendants-Appellants.

          Daniel H. Lutz and Hope M. Babcock of Institute for Public Representation, Georgetown University Law Center, Washington, D.C., filed an amicus curiae brief for Environmental Law Professors in support of Defendants-Appellants.

          Thomas J. Ward and Jeffrey B. Augello of National Association of Home Builders, Washington, D.C., and Norman D. James, Fennemore Craig, P.C., Phoenix, Arizona, filed an amicus curiae brief in support of Plaintiff-Appellee.

          Karen Budd-Falen of Budd-Falen Law Offices, LLC, Cheyenne, Wyoming, filed an amici curiae brief for Wyoming Association of Conservation Districts, Wyoming Farm Bureau Federation, Wyoming Stock Growers Association, Wyoming Wool Growers Association, and Utah Farm Bureau Federation, in support of Plaintiff-Appellee.

          Ilya Shapiro and Julio Colomba, of Cato Institute, Washington, D.C., filed an amici curiae brief for Cato Institute and Professors of Constitutional Law, in support of Plaintiff-Appellee.

          Damien M. Schiff of Alston & Bird LLP, Sacramento, California, filed an amici curiae brief for United States Senators Mike Lee, James Inhofe, Mike Enzi, David Vitter, Ted Cruz, and Orrin Hatch and Congressmen Jason Chaffetz, Chris Stewart, Mia Love, and Rob Bishop in support of Plaintiff-Appellee.

          Sean D. Reyes, Utah Attorney General, and Bridget K. Romano, Utah Solicitor General, Anthony L. Rampton and Kathy A.F. Davis, Assistant Utah Attorneys General, Salt Lake City, Utah, Craig W. Richards, Attorney General, Juneau, Alaska, Mark Brnovich, Attorney General, Phoenix, Arizona, Cynthia Coffman, Attorney General, Denver, Colorado, Lawrence G. Wasden, Attorney General, Boise, Idaho, Derek Schmidt, Attorney General, Topeka, Kansas, Tim Fox, Attorney General, Helena, Montana, Marty Jackley, Attorney General, Pierre, South Dakota, and Peter K. Michael, Attorney General, Cheyenne, Wyoming, filed an amici curiae brief for the States of Utah, Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, and Wyoming in support of Plaintiff-Appellee.

          Steven J. Lechner of Moutain States Legal Foundation, Lakewood, Colorado, filed an amicus curiae brief for Mountain States Legal Foundation in support of Plaintiff-Appellee.

          John C. Eastment, Anthony T. Caso, and Cristen Wohlgemuth of Center for Constitutional Jurisprudence, Orange, California, filed an amicus curiae brief for Center for Constitutional Jurisprudence in support of Plaintiff-Appellee.

          William S. Consovoy and J. Michael Connolly of Consovoy McCarthy PLLC, Arlington, Virginia; Patrick Strawbridge of Consovoy McCarthy PLLC, Boston, Massachusetts; Kate Comerford Todd and Sheldon Gilbert of U.S. Chamber Litigation Center, Inc., Washington, D.C.; and Karen R. Harned and Luke A. Wake of NFIB Small Business Legal Center, Washington, D.C., filed an amici curiae brief for the Chamber of Commerce of the United States and the National Federation of Independent Business in support of Plaintiff-Appellee.

          Before HOLMES, McHUGH, and MORITZ, Circuit Judges.

          HOLMES, Circuit Judge.

         People for the Ethical Treatment of Property Owners ("PETPO") challenges a regulation promulgated by the United States Fish and Wildlife Service ("FWS" or "Service") pursuant to the Endangered Species Act ("ESA"). The challenged regulation prohibits the "take" of the Utah prairie dog, a purely intrastate species, on nonfederal land. The ESA defines "take" as meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect." 16 U.S.C. § 1532(19).

         The district court granted summary judgment for PETPO on the ground that neither the Commerce Clause nor the Necessary and Proper Clause of the Constitution authorizes Congress to regulate take of the Utah prairie dog on nonfederal land. FWS and intervenor-defendant Friends of Animals ("FoA") appeal from that grant of summary judgment, arguing that the challenged regulation is authorized by both the Commerce Clause and the Necessary and Proper Clause, and that PETPO lacks standing. We hold that the district court correctly concluded that PETPO has standing, but erred in concluding that Congress lacked authority under the Commerce Clause to regulate (and authorize the Service to regulate) the take of the Utah prairie dog.

         I

         A

         The purpose of the ESA is to conserve endangered and threatened species and the ecosystems on which they depend. See 16 U.S.C. § 1531(b). In order to effectuate this purpose, Congress tasked two executive officers with jointly implementing the Act: the Secretary of the Interior and the Secretary of Commerce. Id. § 1532(15). They, in turn, delegated their implementation responsibilities to, respectively, FWS and the National Marine Fisheries Service.

         The ESA expressly defines the objects of its protections, that is, both "endangered species" and "threatened species." An endangered species "is in danger of extinction throughout all or a significant portion of its range, " except for insect species determined to be pests "present[ing] an overwhelming and overriding risk to man." Id. § 1532(6). A threatened species is one "which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range." Id. § 1532(20).

         To protect these categories of species, the ESA "authorizes the Secretary of the Interior to list domestic or foreign species as endangered or threatened." Wyo. Farm Bureau Fed'n v. Babbitt, 199 F.3d 1224, 1231 (10th Cir. 2000) (citing 16 U.S.C. § 1533(a)-(b)). At least five factors are to be considered in listing a species as endangered or threatened: "(A) the present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence." 16 U.S.C. § 1533(a)(1). "Once a species is so listed, it is afforded certain protections, and federal agencies assume special obligations to conserve, recover and protect that species." Wyo. Farm Bureau Fed'n, 199 F.3d at 1231.

         The "cornerstone" of the ESA's protections is a section prohibiting the take of any endangered species without a permit or other authorization. Gibbs v. Babbitt, 214 F.3d 483, 487 (4th Cir. 2000) (citing 16 U.S.C. § 1538(a)(1)(B)). Pursuant to 16 U.S.C. § 1533(d), the Secretary of the Interior is authorized to extend the statutory prohibitions on take of endangered species to threatened species. See 16 U.S.C. § 1533(d) ("The Secretary may by regulation prohibit with respect to any threatened species any act prohibited under section 1538(a)(1) of this title, in the case of fish or wildlife . . . ."). FWS extended that cornerstone take prohibition to protect all threatened species. See 50 C.F.R. § 17.31 ("General Rule 4(d)" or "General Rule"). More specifically, FWS's General Rule 4(d) prohibits the take of all species listed as threatened by incorporating as to those species the prohibitions applicable to endangered species under 50 C.F.R. § 17.21, except when FWS issues a specific rule for a particular threatened species. See id.; see also 50 C.F.R. § 17.21 (setting forth take and other prohibitions with respect to endangered species). In such cases, the specific rule, or "special rule, " regarding the particular species takes precedence over General Rule 4(d), such that the General Rule's blanket prohibition on take of threatened species no longer applies to that species and the special rule governs instead. See id. § 17.31(c).

         The Utah prairie dog is a threatened species whose take is regulated by a special rule. The Utah prairie dog lives only in Utah and approximately seventy percent of the population is on nonfederal land. Originally listed as an endangered species under the ESA, Amendments to Lists of Endangered Fish and Wildlife, 38 Fed. Reg. 14678-01, 14678 (June 4, 1973) (codified as amended at 50 C.F.R. § 17.11), the species was reclassified as threatened in 1984; at that time, the FWS issued a special rule to regulate its take, Final Rule to Reclassify the Utah Prairie Dog as Threatened, With Special Rule To Allow Regulated Taking, 49 Fed. Reg. 22330-01, 22330 (May 29, 1984) (codified as amended at 50 C.F.R. § 17.40(g)). The special rule ("Special Rule 4(d)" or "Special Rule") was amended in 1991, Final Rule to Amend Special Rule Allowing Regulated Taking of the Utah Prairie Dog, 56 Fed. Reg. 27438-01, 27438 (June 14, 1991) (codified as amended at 50 C.F.R. § 17.40(g)), and again in 2012, Revising the Special Rule for the Utah Prairie Dog, 77 Fed. Reg. 46158-01, 46158 (Aug. 2, 2012) (codified at 50 C.F.R. § 17.40(g)).

         Today, Special Rule 4(d) regulates the take of Utah prairie dog by limiting: (1) the permissible locations of such take to agricultural lands, properties within 0.5 miles of conservation lands, and "areas where Utah prairie dogs create serious human safety hazards or disturb the sanctity of significant human cultural or burial sites[;]" (2) the permissible amount of such take; and (3) the permissible methods of such take. 50 C.F.R. § 17.40(g). In addition, the Special Rule authorizes incidental take that occurs as part of standard agricultural practices. See id. § 17.40(g)(5).

         PETPO, a nonprofit organization, was founded by Utah "residents who suffer as a result of the regulation of Utah prairie dog take." J.A. at 160 (Decl. of Derek Morton, filed Nov. 18, 2013). PETPO is comprised of more than 200 "private property owners and other persons and entities subject to overly burdensome regulations, " id., who allege that they "have been prevented from building homes, starting small businesses, and, in the case of the local government, from protecting recreational facilities, a municipal ...


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