ST. GEORGE — The issue surrounding the management of the Utah prairie dog populations saw new developments this week on both the legislative and judicial fronts.
U.S. Sens. Mike Lee (R-Utah) and Orrin Hatch (R-Utah), announced Tuesday the introduction of a bill that would allow a state to manage native species that exist solely within its borders.
According to a news release issued by Lee’s office, the proposed bill, known as the Native Species Protection Act, would exempt noncommercial species found entirely within the borders of a single state from regulation by the Endangered Species Act of 1973 and/or other federal laws related to interstate commerce.
Hatch and Lee co-sponsored essentially the same bill in 2015, but that version never made it out of congressional committees. This time around, the sponsoring senators said they are more hopeful about its chances.
“We believe that with a different president there is a much better chance the legislation can advance,” Conn Carroll, Lee’s communications director, told the St. George News.
“There are real environmental benefits to protecting endangered species from extinction, but the federal law intended to establish such protections – the Endangered Species Act – is in serious need of reform,” Lee said.
Hatch, in his statement, said, “Time and again, we have witnessed federal mismanagement of numerous species, especially in my home state of Utah. In my view, state officials — not Beltway bureaucrats — are best equipped to manage animal populations in a responsible manner, especially those populations that fall exclusively within their borders.”
Although the Utah prairie dog is not mentioned in the proposed bill, its management would be directly affected by the legislation. The Utah prairie dog, one of five species of prairie dog found in North America, lives in central and southwestern Utah.
Although the U.S. Fish and Wildlife Service estimates the Utah prairie dog’s current population to be more than 40,000, it is listed as a threatened species. As such, it has a level of federal protection known as an anti-“take” restriction, which essentially prohibits any human activity that might affect Utah prairie dogs, even relocating them to other lands for conservation.
In Iron County and six nearby counties, the rodent is viewed by some as an invasive and proliferating pest that damages property by burrowing extensive networks of tunnels.
Iron County planner Reed Erickson said the proposed legislation would be “huge” in allowing state to oversee management of the prairie dogs, something it had been doing for more than two years, from the spring of 2015 until mid-August 2017.
“We’ve shown a good track record in being able to manage the species,” Erickson said. “The state has done a good job of that over the past two-and-a-half years.”
“We need to be able to get rid of the prairie dogs where they don’t belong,” he added, noting that the critters have invaded such areas as airport runways, cemeteries and other areas, including developed and undeveloped private property.
The state had assumed control of Utah prairie dog populations on non-federal lands in April 2015, a few months after U.S. District Judge Dee Benson handed down a ruling to that effect in November 2014.
However, last month, on Aug. 17, the U.S. Court of Appeals for 10th Circuit in Denver overturned Benson’s decision and issued a mandate that reinstated ESA regulation of the Utah prairie dog on non-federal lands.
That 10th Circuit decision has not gone unchallenged however, as the group that filed the original suit is now appealing the case to the U.S. Supreme Court.
Tuesday, a petition to the U.S. Supreme Court was filed by the nonprofit group People for the Ethical Treatment of Property Owners, which represents several property owners and local governments from southwestern Utah. PETPO’s pro bono legal representation is a group called Pacific Legal Foundation.
“For decades, the federal government’s harmful Utah prairie dog regulation has prohibited residents of Cedar City from doing things that most of us take for granted in our own communities,” PLF attorney Jonathan Wood said in a statement. “They have been blocked from building homes, starting small businesses, even protecting playgrounds, an airport and the local cemetery from the disruptive, tunneling rodent.”
“Our initial victory in federal district court allowed the state to adopt a conservation program that benefited both people and the prairie dog,” said an announcement on PLF’s website dedicated to the case. “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 10th Circuit restored the federal regulation.”
“PLF is asking the United States Supreme Court to step in, to protect both the prairie dog and property rights of the people who share the same land,” the statement added.
Ryan Moehring, public affairs representative for the U.S. Fish and Wildlife Service, said the FWS had no comment on the bill introduced this week, nor could it comment on the pending litigation.
However, Moerhing did say the FWS was looking forward to working with the state of Utah, counties and other partners to develop an integrated general conservation plan that would integrate the state’s management plan, meet ESA legal requirements, and provide a streamlined process for developers or landowners to obtain “take” permits for Utah prairie dogs.
“While the [general conservation plan] is designed to meet near-term needs, the overall long-term goal is to replace the [plan] with a locally driven conservation strategy for the Utah prairie dog,” Moehring said, citing a FWS press release issued Aug. 18.
Larry Crist, field supervisor for the U.S. Fish and Wildlife Service’s Utah Ecological Services Field Office, said in the release, “Our focus now is to work cooperatively with our partners at the Utah Division of Wildlife Resources, local counties and landowners to continue conservation of the Utah prairie dog in a flexible and collaborative manner.”
Added Kevin Bunnell, Southern Region supervisor for the Utah Division of Wildlife Resources: “We are working collaboratively with the U.S. Fish and Wildlife Service to carry forward many of the successful principles in the state’s management plan as we transition to federal management. We will also continue working closely with the service to conserve and manage Utah prairie dog populations, while striving to minimize their impacts on residents and business owners.”
FWS officials said pre-existing management tools that have been recently reinstated include the 1998 Habitat Conservation Plan (HCP) for Iron County, which was designed to authorize take of Utah prairie dogs in certain circumstances. In addition, the FWS is also reinstating a directive called the 4(d) rule, which allows the lethal take of Utah prairie dogs in certain situations, such as when they cause conflicts with agricultural uses or interfere with human health and safety.
Resources
U.S. Fish and Wildlife Service’s revised recovery plan for Utah Prairie Dog (2012)
News release from Sen. Mike Lee (R-Utah) about Native Species Protection Act
Pacific Legal Foundation’s website about PETPO vs. USFWS litigation
Q&A from FWS about the 10th Circuit Court of Appeals decision
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