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.