Academic journal article The William and Mary Bill of Rights Journal

Of Prairie Dogs and Congressmen: Defining the Regulated Activity and Why It Matters for the Commerce Clause Substantial Effect Test

Academic journal article The William and Mary Bill of Rights Journal

Of Prairie Dogs and Congressmen: Defining the Regulated Activity and Why It Matters for the Commerce Clause Substantial Effect Test

Article excerpt


I. People for the Ethical Treatment of Property Owners v. United States Fish & Wildlife Service.1124

A. The Prairie Dog Invasion.1124

B. Current Litigation.1125

II. Commerce Clause Development.1127

A. Development of Interstate Versus Intrastate Commerce.1127

B. The Substantial Effect Test.1128

C. Searching for Limits.1129

III. Applying the Commerce Clause to Environmental Regulation THROUGH THE ESA.1131

A. Legal Foundation for the ESA.1131

B. Application of the Act to Various Species.1132

C. Connecting the Endangered Species Act to Other Commerce Clause Decisions.1133

IV. Three Methods of Applying the Substantial Effect Test to Intrastate Species.1134

A. The Regulation Itself as the Activity in Question.1134

1. NAHB v. Babbitt.1134

2. Alabama-Tombigbee Rivers Coalition v. Kempthorne.1136

3. San Luis & Delta-Mendota Water Authority v. Salazar.1137

4. Questioning the ESA as a Whole in the Prairie Dog Case.1138

B. The Specific Regulated Act as the Activity in Question.1138

1. GDFRealty Investments, Ltd. v. Norton.1139

2. Rancho Viejo, LLC v. Norton.1140

3. Focusing on the Taking of Prairie Dogs as the Activity in Question.1141

4.Focusing on the Damage Caused by the Prairie Dogs that Continues to Occur Because of the Regulation Against Taking the Rodents ... 1143

C.The Regulated Animal as an Article of Commerce.1145

1. Gibbs v. Babbit.1145

2. Utah Prairie Dogs as Articles of Commerce.1146

V. Setting a Clear Standard for the Substantial Effect Test in Order to Preserve Legitimate Federal and State Regulatory Power. .. 1147

A. Using the Specific Regulated Act as the Standard for the Substantial Effect Test Defines a Logical Stopping Point.1148

B. Implications of a Clear Standard and Related Environmental Concerns.1149



The Commerce Clause is one of the most cited constitutional provisions and has been applied to a myriad of state activities to justify federal government regulation.1 it seems nearly impossible to locate a practical limit to the definition of interstate commerce,2 especially with the interconnectedness of our modern economy. One application of Commerce Clause regulatory power, the Endangered Species Act (ESA or the Act), has been the subject of great controversy.3 Opponents of the Act's far-reaching applications have introduced various bills and amendments to counteract the federal regulation, including the ESA Settlement Reform Act being considered by Senate and House subcommittees as of November 2016.4 Continuing the struggle between the federal government and private property owners, an organization representing private property owners in the state of utah is making a strong argument for limiting federal regulation when it comes to prairie dogs that reside only within the state.5 An intrastate species challenge has yet to make its way to the Supreme Court, but previous cases challenging the constitutionality of the ESA have paved the way for such a challenge to occur.6 A few pesky prairie rodents provide the perfect opportunity for a Supreme Court clarification of the limits of the ESA and to create a logical stopping point for interstate commerce regulatory power.

The Utah prairie rodent problem provides an opportunity to define a stopping point by clarifying the appropriate target of the Substantial Effect Test. This test is used to determine whether the activity in question has a strong enough connection to interstate commerce to make federal regulation constitutionally valid.7 This seemingly simple determination often becomes complex and highly controversial when the federal regulation in question involves a "non-commercial" focus such as the protection of endangered species.8 When the regulation under judicial review involves prohibitions stemming from the ESA, the Substantial Effect Test could focus on the regulatory scheme as a whole, the specific regulated act, or the animal itself as an object in commerce. …

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