September 21, 2015

Oral argument in PLF's prairie dog case Sept. 28

By Jonathan Wood Attorney

Next week, I’ll be arguing People for the Ethical Treatment of Property Owners’ case against the unconstitutional Utah prairie dog regulation in the Tenth Circuit Court of Appeals in Denver, Colorado. The argument will be at 9 am mountain time at the Byron White Courthouse at 1823 Stout Street.

As you’ll recall, this is the federal government’s appeal of a decision issued late last year, ruling that the Commerce Clause does not give it the authority to forbid the “take” of — any type of activity that has some effect on — a Utah prairie dog, a species found in only one state with no appreciable connection to interstate commerce. This was the first time that a federal court had struck down an Endangered Species Act regulation like this as unconstitutional. On appeal, we defend the trial court’s recognition that the government’s argument — the Commerce Clause allows it to regulate any activity that could affect anything that, in turn, could affect the environment in some way — would mean unlimited federal power.

You can find our brief in the case here. We were received supportive briefs from 10 states, a dozen congressmen, and several of our friends in the nonprofit and public interest sector.

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People for the Ethical Treatment of Property Owners v. Fish and Wildlife Service

For decades, the federal Endangered Species Act has simultaneously stifled responsible conservation of the Utah prairie dog, while barring property owners from using their own land as they wish. So PLF asked 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. Representing a group of landowners called the People for the Ethical Treatment of Property Owners, PLF challenged the constitutionality of the federal prohibitions. Our initial victory in federal district court allowed the state to adopt a conservation program that benefitted both people and the prairie dog. 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 Tenth Circuit restored the federal regulation. Our petition asked to restore both the state conservation program and constitutional limits on federal power, which the Supreme Court denied.

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