## Facts

- The Utah prairie dog is a federally listed threatened species found only in Utah and largely on nonfederal land.
- A federal regulation issued under the Endangered Species Act (ESA), 50 C.F.R. § 17.40(g), restricted when and how Utah prairie dogs could be “taken,” including on private property.
- A nonprofit association representing affected landowners alleged the rule limited land use and development and imposed regulatory burdens.
- The association argued Congress lacked constitutional authority to regulate take of a purely intrastate, noncommercial species on nonfederal land.
- The district court granted summary judgment to the association, holding the rule exceeded Congress’s enumerated powers.
- Federal defendants and an intervenor appealed.

## Issues

1. Whether the association had Article III standing to challenge the regulation.
2. Whether Congress may, under the Commerce Clause and the Necessary and Proper Clause, regulate take of a purely intrastate, noncommercial species on nonfederal land through the ESA and its implementing 4(d) rule.

## Decision

- The court held the association had standing because at least one member showed concrete land-use injuries fairly traceable to the rule and redressable by invalidation of the restrictions.
- The court reversed the district court and upheld the challenged 4(d) rule.
- The court remanded with instructions to enter judgment for the federal defendants and the intervenor.

## Legal Principles

- Article III standing exists where at least one member suffers a concrete injury from regulatory restrictions, the injury is fairly traceable to the challenged rule, and a favorable judgment would likely redress it.
- For Commerce Clause review, the focus is whether the regulated conduct is part of an economic “class of activities” that, in the aggregate, substantially relates to interstate commerce, and whether regulation is integral to a broader statutory scheme.
- Congress may regulate intrastate, even noneconomic, conduct when exclusion would undercut the effectiveness of a comprehensive regulatory program that substantially affects interstate commerce.
- The ESA was treated as a comprehensive regulatory scheme with substantial interstate commercial connections (including markets and activities linked to wildlife, research, tourism, and related economic effects), permitting application to intrastate species as necessary to the scheme.

## Conclusion

The Tenth Circuit sustained federal restrictions on taking the Utah prairie dog on nonfederal land, concluding that the ESA’s protections for an intrastate threatened species fall within Congress’s commerce power as part of a comprehensive regulatory program, and that the plaintiffs had standing to bring the challenge.


People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Serv., 852 F.3d 990 (10th Cir. 2017)