The U.S. District Court for the District of Utah attracted national attention with its November decision in People for the Ethical Treatment of Property Owners v. United States Fish and Wildlife Service, in which it ruled unconstitutional the federal regulation of a purely intrastate species on nonfederal land under the Endangered Species Act.
The decision has renewed interest by some in challenging the federal government’s authority to prohibit “take” of listed species existing in only one state. The ruling, however, is set in the context of several mostly contrary decisions from other circuits. In fact, five other U.S. circuit courts have previously addressed this type of constitutional challenge to the scope of federal regulatory authority under the ESA—including the Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits—and each has upheld Congress’ authority to regulate the “take” of intrastate species, though the circuit courts’ reasoning in reaching that common conclusion has not always been aligned. The Utah District Court’s apparently outlying opinion has the potential to create a circuit split if the U.S. Fish and Wildlife Service appeals the decision and the Tenth Circuit affirms the lower court’s decision.
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