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

HOLMES, Circuit Judge.

People for the Ethical Treatment of Property Owners (“PETPO”) challenges a regulation promulgated by the United States Fish and Wildlife Service (“FWS” or “Service”) pursuant to the Endangered Species Act (“ESA”). The challenged regulation prohibits the “take” of the Utah prairie dog, a purely intrastate species, on nonfederal land. The ESA defines “take” as meaning “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect.” 16 U.S.C. § 1532(19).

The district court granted summary judgment for PETPO on the ground that neither the Commerce Clause nor…