This West Is OUR West

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

Defending property rights and prairie dog conservation from overreaching federal bureaucrats


The Utah prairie dog is a rare species of rodent found in Southwestern Utah. For decades, federal Endangered Species Act regulations have forbidden state biologists from doing what is best for the species and local residents from doing things that most of us take for granted in our own communities. Representing People for the Ethical Treatment of Proper Owners, Utah residents who have borne the worst burdens of the federal regulations, PLF challenged the constitutionality of the federal prohibitions. Our victory in federal district court allowed the state to adopt a conservation program for the species that benefits both people and the prairie dog. It has relocated prairie dogs from backyards, playgrounds, and other residential areas to improved state conservation lands. However, that successful conservation program ground to a halt when the Tenth Circuit restored the federal regulation. We are asking the Supreme Court of the United States to hear this important case and restore both the state conservation program and constitutional limits on federal power.

What’s at stake?

  • After decades of the federal regulations generating lots of conflict but little conservation, the state has made real progress in working with property owners to promote the long term protection of the Utah prairie dog
  • A federal regulation forbids Utah residents from doing things that the rest of us take for granted in our own communities, and even forbids state biologists from taking steps to protect the species
  • The Supreme Court must reverse the Tenth Circuit’s opinion that effectively ends all limits on the regulatory power of the federal government.

Case Overview

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

People for the Ethical Treatment of Property Owners (PETPO) is a nonprofit organization of more than 200 Utah landowners who are subject to federal regulations preventing them from using their property or doing anything that might affect any one of 40,000 Utah prairie dogs that live in the area. Prior to a federal court striking down the regulation as unconstitutional, property owners were forbidden from building homes in residential subdivisions, starting small businesses—the local government could not even protect playgrounds, an airport, or the local cemetery from the disruptive rodent.

PLF filed a lawsuit on PETPO’s behalf, arguing that this federal regulation exceeds the federal government’s constitutional power under the Commerce Clause. It regulates noneconomic activity; there is no interstate market for the Utah prairie dog, which is only found in Utah; and the regulation is unnecessary to the regulation of any interstate commerce. A federal district court struck down the regulation, holding that if the federal government could get away with this “there would be no logical stopping point to congressional power,” contrary to the Constitution’s text and history.

In the wake of that victory, Utah worked with property owners to implement a conservation plan for the species. Under it, state biologists would move prairie dogs from backyards, playgrounds, and other residential areas to government-owned conservation lands, where they could be permanently protected. The difference between federal regulation and state management is stark. The federal regulation pits property owners against prairie dogs, whereas the state enlisted property owners as partners in conservation. Conflict has given way to real conservation.

Unfortunately, the U.S. Court of Appeals for the Tenth Circuit brought an end to Utah’s successful conservation program when it reversed the district court and restored the federal regulation. PLF will be asking the Supreme Court to hear PETPO’s case and, ultimately, to preserve Utah’s successful conservation program and restore constitutional limits on federal power.

Case Attorneys

M. Reed Hopper

Senior Attorney

Jonathan Wood