The Tenth Circuit U. S. Court of Appeals dashed the hopes of property rights activists by overturning a district court decision that the Fish and Wildlife Service (FWS) had no jurisdiction under the Endangered Species Act (ESA) over intra-state species located on non-federal lands. In People for the Ethical Treatment of Property Owners v. USFWS, plaintiffs challenged a special FWS rule to protect the Utah prairie dog, which mostly occurs on private lands. The rule had the effect of limiting where development could occur.

The case is an illustration of how unpredictable environmental litigation can be. In oral argument before the court of appeals, the plaintiffs apparently characterized their case as just a challenge to the special FWS rule. However, the Tenth Circuit concluded that plaintiffs attacked the ESA more generally. The court got there in the course of rejecting the Government’s assertion that plaintiffs lacked standing based on the absence of “redressability” — the fact that simply eliminating the special regulation aimed at the prairie dog would have had the effect of greater regulation, not less. Having found standing by characterizing the suit as a challenge to a comprehensive statutory scheme, the court then easily concluded that the comprehensive scheme under the ESA had a substantial relation to commerce and is therefore within the Interstate Commerce Clause.

It won’t be good news to the new Administration to have another Circuit Court ruling that protective action under the ESA is constitutional, particularly from the same mostly conservative court on which the president’s Supreme Court nominee, Neil Gorsuch, currently sits. This case was briefed and argued under the prior Administration, so it will be interesting to see what course the case now follows as the plaintiffs, amply supported by amici curiae, consider whether to seek Supreme Court review, and how the new Administration reacts.