People for the Ethical Treatment of Property Owners, a group composed of more than 200 owners and “other persons and entities subject to overly burdensome regulations,” asked the 10th U.S. Circuit Court of Appeals for a rehearing in front of the full court.
In March, a three-judge panel of the court ruled against PETPO, upholding Fish and Wildlife Service’s 2012 rule barring the “take” of the Utah prairie dog without a permit.
The panel overturned a lower-court decision that the rule violated the Constitution’s Commerce Clause because the prairie dog lives only in Utah — mostly on private land — and does not affect interstate economic activity.
Judge Jerome Holmes, a Republican appointee, wrote in the opinion that the Utah rule is part of the larger Endangered Species Act regulatory system that, in aggregate, has a “substantial” effect on interstate commerce (Greenwire, March 29).
In their petition for rehearing, the landowners today argued that the panel erred because the Commerce Clause was never meant to authorize Congress to regulate “noneconomic activity” involving a single species found in a single state.
The panel’s decision raises “significant federalism concerns,” undermining Utah’s effort to protect its wildlife “without unduly burdening its residents,” the property group also argued.
“These questions go to the fundamental issue of whether the Constitution imposes meaningful limits on federal power and, thus, the entire Court should decide them,” the petition says.
Appeals courts rarely grant requests to rehear cases en banc, or in front of the full court.
Circuit courts have roundly rejected Commerce Clause challenges to Endangered Species Act rules. Including the prairie dog ruling, appeals courts have knocked down eight such challenges; the Supreme Court has declined to take up the issue six times.