Residents in southern Utah asked the U.S. Supreme Court on Tuesday to hear their case claiming federal safeguards for Utah prairie dogs have prevented them from doing what they want with their private property.
The rules block residents from building homes, starting businesses and even protecting playgrounds, the People for the Ethical Treatment of Property Owners argue in their case.
“Some own lots in residential subdivisions where they planned to build homes, but prairie dogs moved in first and the regulation forbids permits for their property,” attorneys wrote.
The group wants the high court to review a March decision by the Denver-based 10th Circuit Court of Appeals that sided with the U.S. Fish and Wildlife Service on the issue.
The agency referred questions to the U.S. Department of Justice, where spokesman Mark Abueg declined to comment due to the pending litigation.
The request by the People for the Ethical Treatment of Property Owners faces long odds.
In recent years the U.S. Supreme Court has heard no more than 1 percent of the roughly 7,500-plus cases appealed annually.
Still, the Supreme Court should hear the case to “preserve the delicate balance between state and federal authority,” lawyers for the Cedar City group wrote.
Considered key to the ecosystem, the Utah prairie dogs were initially listed as endangered in 1973.
With federal protections, they rebounded to about 26,000 in 2015 before falling to 23,000 a year later, according to Utah state tallies.
Residents with permission from state authorities killed about 3,500 Utah prairie dogs in 2015 and 2016 before the appeals court ruling this year, according to state officials.
Another 6,000 were eliminated on agriculture lands — kills permitted under federal rules.
The Utah prairie dog is now a threatened species. Environmentalists argue that stripping away that federal protection would undermine the Endangered Species Act.
In their lawsuit filed in 2013, property owners said the critters were overrunning parts of Cedar City and nearby towns.
At a cemetery, they said, prairie dogs burrowed under fences meant to keep them out then got into coffins and toppled headstones.
The residents argued that the Commerce Clause of the U.S. Constitution doesn’t allow the federal government to regulate animals found on private land in only one state.
The appeals court justices disagreed in their March decision, saying it would “leave a gaping hole” in the law if the Endangered Species Act could be applied only to a species that lives in multiple states.
Noah Greenwald, endangered species director at the Center for Biological Diversity, said the appeals court got it right.
“It’s not just prairie dogs. The majority of species listed as threatened or endangered live in only one state,” Greenwald said. “It’s hundreds of species. It would fundamentally rewrite how the federal government works.”
The Utah prairie dog is the smallest of five species of the burrowing rodents.
Their numbers once dwindled to about 2,000 as land was cleared to make room for farming, ranching and housing.
