The Tenth Circuit Court of Appeals has scheduled oral argument in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service for the morning of Sept. 28th in Denver. This is the challenge to the federal government’s constitutional authority to regulate any and all human activity that affects a single Utah prairie dog — a species found only in Utah with no appreciable connection to commerce — under the Commerce Clause.
Last November, the District Court held that the regulation exceeds the government’s powers, the first time that a federal court has ever held an Endangered Species Act regulation unconstitutional. On appeal, the government essentially argues that there are no limits on its power. But, as we’ve previously explained, that is clearly wrong and contrary to the constitution’s text and over 200 years of precedent. The appeal is also noteworthy because of the substantial number of amicus briefs filed in support of People for the Ethical Treatment of Property Owners, including briefs on behalf of 10 states, a dozen congressmen, several law professors and nonprofit organizations.
The quick turnaround between briefing the appeal and the oral argument was a welcome surprise, which may suggest that the court recognizes the importance of the case.