https://ecf.utd.uscourts.gov/cgi-bin/show_public_doc?213cv0278-68
The Judge took the position that Prairie Dogs are like Guns in School Zones and Abused women, that any Federal Law that covers any of them, is beyond the federal jurisdiction set in the US Constitution to what laws Congress can pass.
The Commerce Clause gives Congress the power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Art. 1, § 8. At one point in time, Congress’ Commerce Clause power seemed to be virtually unlimited, leading one scholar to “wonder why anyone would make the mistake of calling it the Commerce Clause instead of the ‘hey-you-can-do-whatever-you-feel-like clause.’” Judge Alex Kozinski, Introduction to Volume 19, 19 HARV. J. L. PUB. POL., 1, 5 (1995). This changed with the United States Supreme Court’s rulings in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000).
In Lopez, the Court clarified that, although the categories are broad, there are only three “categories of activity that Congress may regulate under its commerce power.” 514 U.S. at 558-59.
First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce.Id.
After articulating these categories, the Court examined whether the Commerce Clause authorized Congress to enact the Gun-Free School Zones Act of 1990–which forbade an individual from knowingly possessing a gun in a place that the individual knew, or had reason to believe, was a school zone. Id. Finding that the regulated activity (possessing a gun in a school zone) did not fit into any of the three categories, the Court ruled that the Act was
unconstitutional. Id. 9
In Morrison, the Court clarified what it did in Lopez. Morrison, 529 U.S. 598, 609-612. Focusing its analysis purely on the third Lopez category, the Court stated that it had relied on four considerations when determining that the Commerce Clause could not authorize the gun possession law. Id. First, the gun possession law was non-economic and criminal in nature. Id. at 610. Second, “the statute contained ‘no express jurisdictional element which might limit its reach to a discrete set of firearm possessions that additionally have an explicit connection with or effect on interstate commerce.’” Id. at 611 (quoting Lopez, 514 U.S. at 562). Third, the act’s legislative history did not contain any “express congressional findings regarding the effects upon interstate commerce of gun possession in a school zone.” Id. at 611-12. The Court clarified that “the existence of congressional findings is not sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.” Id. at 614. Fourth, “our decision in Lopez rested in part on the fact that the link between gun possession and a substantial effect on interstate commerce was attenuated.” Id. at 612. Relying on these same considerations, the Court ruled that the Commerce Clause did not authorize Congress to create a civil remedy for victims of gender motivated crimes. Consequently, the relevant parts of the Violence Against Women Act of 1994 were declared unconstitutional.
The Judge later goes on and says:
Furthermore, Defendants’ argument concerning the biological value of the Utah prairie dog is insufficient to demonstrate that take of the prairie dog has a substantial effect on interstate commerce. The Court acknowledges that the Utah prairie dog may have an effect on the ecosystem. Nevertheless, as aptly observed by Chief Judge Sentelle, “[T]he Commerce Clause empowers Congress ‘to regulate commerce’ not ‘ecosystems.’” National Ass’n of Home Builders v. Babbitt, 327 U.S. App. D.C. 248, 272 (D.C. Cir. 1997) (Sentelle, J., dissenting). If Congress could use the Commerce Clause to regulate anything that might affect the ecosystem (to say nothing about its effect on commerce), there would be no logical stopping point to Congressional power under the Commerce Clause. Accordingly, the asserted biological value of the Utah prairie dog is inconsequential in this case.
Defendants’ arguments concerning the commercial value of the Utah prairie dog is also insufficient because the purported value is too attenuated to support the premise that take of the prairie dog would have a substantial effect on interstate commerce. Even if Defendants’ presumption that “tourism websites would not feature a species that was of no interest to visitors” is true, there is no evidence that tourism in southern Utah would be negatively affected by takes of the Utah prairie dog on non-federal land. In fact, all of the websites cited by Defendants specifically refer to the animals’ presence in national parks of forests.
The fact that scientific research has been conducted and books have been published about
the Utah prairie dog is similarly too attenuated to establish a substantial relation between the take of the Utah prairie dog and interstate commerce. After all, scientific research has also been conducted and books have also been published about both guns and women. Nevertheless, the Supreme Court ruled that federal regulation of gun possession and violence against women is beyond Congress’ Commerce Clause power. See Morrison, 529 U.S. at 601-02, 613-17; Lopez, 514 U.S. at 560-66
At issue in Raich was whether Congress was authorized to regulate the purely local
growth and consumption of marijuana. Because it was clear that a national market for marijuana already exists, the Court found that Congress has the power to regulate activities that have a substantial effect on that market. Id. at 17-22. Such activities obviously include growing marijuana, which leads to a greater national supply of the product, as well as consuming it, which affects the national demand for the product. Congress was consequently authorized to regulate any growth or consumption of marijuana in the United States, including any such activity that occurs exclusively within one state. Id. If Congress was not able to regulate those local activities, its ability to regulate the national market would be frustrated. Id. The same is true with regulating takes of bald eagles because there is a national market for bald eagles and bald eagle products. If Congress is not authorized to regulate purely intrastate takes of bald eagles, its attempt to regulate the market for bald eagles will be frustrated.
The present case, on the other hand, differs significantly from Raich in one important
way that makes any appeal to the Necessary and Proper Clause futile: takes of Utah prairie dogs on non-federal land–even to the point of extinction–would not substantially affect the national market for any commodity regulated by the ESA. The only evidence that suggests that the prairie dog’s extinction would substantially affect such a national market is Defendants’ assertion that golden eagles, hawks, and bobcats are “known to prey on prairie dogs.” (FWS’ Mot. for Summ. J. at 29.) However, Defendants do not claim that the Utah prairie dog is a major food source for those animals, and those animals are known to prey on many other rodents, birds and fish. In other words, there is no evidence that the diminution of the Utah prairie dog on private lands in Utah would significantly alter the supply or quality of animals for which a national market exists. Therefore, congressional protection of the Utah prairie dog is not necessary to the ESA’s economic scheme.
The court also rejects Defendant’s argument that the regulation of takes of Utah prairie dogs can be aggregated with the regulation of takes of every other intrastate non-commercial species to satisfy the Necessary and Proper Clause. The court sees no reason to consider such aggregation. PETPO is not asking the court to invalidate the regulation of takes of all intrastate non-commercial species on all lands, but just the regulation of takes of Utah prairie dogs on nonfederal ground. Moreover, there is no evidence that the extinction of the Utah prairie dog would cause any other species to lose value or likewise become extinct. Although Congress might be authorized to unlimitedly regulate takes of intrastate non-commercial species whose extinction would subsequently cause the extinction of other species (especially the extinction of commercial species), that is simply not the case before the court. Instead, Defendants essentially ask the court to find that takes of Utah prairie dogs substantially affect interstate commerce solely because the prairie dog has been grouped with a number of other species, whose extinction also may or may not substantially affect interstate commerce. Such effect is far too attenuated to suggest that regulating takes of Utah prairie dogs is a necessary part of the ESA’s economic scheme. Consequently, the court in this case declines to aggregate the regulation of takes of all intrastate non-commercial species.
For these reasons, the court finds that Congress has no authority to regulate takes of Utah prairie dogs on non-federal land.
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