Appendix — Richard P. Christy v. Manuel Lujan, Jr., Secretary of the Interior and United States Department of the Interior

88-1461 + —

| FILED

MAR 4 909

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

RICHARD P. CHRISTY, THOMAS B.

- GUTHRIE and IRA PERKINS,

Petitioners,

vs.

DONALD P. HODEL, Secretary

of the Interior and

THE UNITED STATES DEPARTMENT OF INTERIOR,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1988

RICHARD P. CHRISTY, THOMAS B.

GUTHRIE and IRA PERKINS,

Petitioners,

vs.

DONALD P. HODEL, Secretary

of the Interior and

THE UNITED STATES DEPARTMENT OF INTERIOR,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

United States District Court Judgment .............. p.la

United States District Court Memorandum & Order . p.2a

Ninth Circuit Court Opinion .....................5565 p.6a

Ninth Circuit Order Denying Petition for Rehearing . p.33a

Ninth Circuit Order Denying Motion to Reconsider .. p.34a

Affidavit of Richard P. Christy ..................... p.35a

Affidavit of Sue Ann Love ................-..-055055. p.38a

United States Department of Interior Decision ...... p.4la

United States Department of Interior Erratum ...... p.55a

United States Constitution

Amendment V. Due Process of Law ................. p.56a

United States Constitution

Amendment V. Just Compensation .................. p.56a

eT Eee ee p.57a

bl oc errs p.57a

UEC, CHMOD ............0c0000500c0n nee p.58a

00 UBC. TIMED... ce cccevvccevnsccesveevesenue p.58a

“1 ere ee .... p.59a

50 C.F.R. §17.40 Special rules--mammals ............ p.60a

Boyd, Grizzlies, Sheep & People .................+5. p.62a

High Country News, Residents Learn the Grizzly

ie Not en Easy Netghbor ..... «2... .cceccccccscccepees p.64a

Robbins, A Town Divided by the Grizzly ............. p.67a

Robbins, Grizzly and Man When Species Colhde ..... p.69a

Turbak, Grizzly on the Ropes ..... .........0000005 p.7la

L.A. Times, No Right to Shoot Marauding ~

Grizzly Bears, Ranchers Told ...............6660005 p.72a

Utah Herald, Opinion: Grizzly Kill Means

Congress Needs to Bear Down and Work ............ p.74a

Brown, Return of the Natives ..................0005 p.76a

errr p.80a

8” Eee p.84a

Robbins, Wolves Across the Border ................. p.86a

—_ a” —.

UNITED STATES DISTRICT COURT

GREAT FALLS DIVISION DISTRICT OF MONTANA

Richard P. Christy,

Thomas B. Guthrie &

Ira Perkins

JUDGMENT IN A CIVIL CASE

Vv.

Dondal [SIC] P. Hodel, Secretary

of the Interior and The United

States Department of Interior

CASE NUMBER: CV-86-024-GF

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

i

__XX__ Decision by Court. This action came to trial or hear-

ing before the Court. The issues have been tried or

heard and decision has been rendered.

IT IS ORDERED AND ADJUDGED Court concludes no

issues of material fact exit [SIC] in the presnet [SIC] case and,

furthermore, defendants are entitled to judgment as a mat-

ter of law. Therefore, defendants’ motion for summary judg-

ment is hereby GRANTED. Court hereby affirms the $2,500.00

fine assessed Christy by the Administrative law judge. Defen-

dants have judgment against plaintiff Richard P. Christy in

the amount of $2,500.00.

la

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

GREAT FALLS DIVISION

RICHARD P. CHRISTY, THOMAS )

B. GUTHRIE and IRA PERKINS,

Plaintiffs, —) NO. CV-86-024-GF

vs. )

DONALD P. HODEL, Secretary )

of the Interior and THE MEMORANDUM

UNITED STATES AND ORDER

DEPARTMENT OF INTERIOR )

Defendants. )

The above-entitled action arises out of the Endangered

Species Act (the ““ESA’’), codified at 16 U.S.C. §§1531, et seq.

Plaintiffs Richard Christy, Thomas Guthrie and Ira Perkins

filed suit against the United States Department of the Interior

and its Secretary, Donald Hodel, seeking a declaration that

the ESA and the grizzly bear regulations promulgated

thereunder, 50 C.F.R. 17.40(b), violate rights guaranteed the

plaintiffs under the United States Constitution. Jurisdiction

vests with this court pursuant to 16 U.S.C. §1540(c), 5 U.S.C.

§702 and 28 U.S.C. §1331.

The matter is before the court on defendants’ motion for

summary judgment pursuant to Rule 56, Federal Rules of Civil

Procedure.' The motion is now ripe for disposition. The

material facts preceding and arising from this lawsuit are not

in dispute. Both plaintiffs and defendants admit to the follow-

ing facts:

1. In the summer of 198? Grizzly bears (ESA designation

1. The defendants have aiso, moved the court to dismiss the complaint of piain-

tiffs Perkins and Guthrie for lack of jurisdiction under Artile [sic] Il!, §2 of the

Constitution of the United States, upon the basis that no actual case or con-

troversy exists between plaintiffs Perkins and Guthrie and the defendants. The

court declines to address this motion in that it finds the summary judgment

motion to be dispositive.

‘Threatened Species’’) began killing sheep on plaintiff Chris-

ty’s leased land. Initially, plaintiff lost approximately 20 sheep

to-the bears. Christy notified the United States Fish and

Wildlife Service which made a futile attempt to capture and

relocate the problem bears.

2. Subsequently, on the evening of July 9, 1982, Christy

observed two Grizzly bears approaching his flock of sheep.

Fearful that the bears were intent on attacking his sheep

Christy shot and killed one of the bears. The other bear fled.

3. Following the above attack, Christy lost an additional

64 sheep to bears before moving his flock from the leased land

to prevent future losses. Christy stated he had no other suitable

place to graze his flock, and therefore was forced to sell the

remainder of his flock at slaughter value, absorbing a loss in

excess of $10,000.00.

4. Subsequent to the killing of the Grizzly on July 9, 1982,

the United States Department of Interior held Christy in viola-

tion of the ESA and applicable regulations, 16 U.S.C. §1540 (a) ;

50 C.F.R. 17.40(b). Following a hearing for relief, an ad-

ministrative law judge ruled that Christy had knowingly taken

a Grizzly bear in violation of the ESA, and ordered Christy to

pay a fine of $2,500.00.

Plaintiffs Guthrie and Perkins have not been charged in

violation of the ESA, but have allegedly lost sheep to attack-

ing Grizzly bears. Accordingly, plaintiffs Guthrie and Perkins

have joined plaintiff Christy in filing this lawsuit, contending

the ESA and the Grizzly bear regulations promulgated

thereunder, as applied to them by the defendants, are violative

of their rights guaranteed under the United States Constitution.

Specifically, plaintiffs contend the ESA impinges upon

their purported “fundamental right to possess and protect pro-

perty.’’ Consequently, plaintiffs submit that the ESA comes

before the court with a presumption of unconstitutionality and

that the burden of proof shifts to the defendants to show that:

(1) Congress had a compelling interest in the ESA’s passage;

and (2) that Congress accomplished this interest in the least

restrictive manner.

_ Upon review, the court finds itself unpersuaded by plain-

tiffs’ arguments. Accordingly, this court refuses to recognize

the existence of the ‘‘fundamental right to possess and pro-

3a

tect property’’ asserted by the plaintiffs.

Since no fundamental right is impinged upon in the ins-

tant case, the ESA and Grizzly bear protective regulations

need only rationally relate toa legitimate governmental in-

terest. In the Court’s opinion, that requirement is clearly

satisfied by the legitimate governmental concern of protec-

Plaintiffs’ second basis for opposing defendants’ summary

judgment motion is that the only way to determine factual

issues regarding the constitutionality of the ESA and its

regulations is by “‘full-fledged”’ trial. The court disagrees. In

the instant case, a full evidentiary hearing has already been

held before an administrative law judge and the record of

those proceedings is before this court.

Plaintiffs allege the loss of their property (i.e., sheep) to

the protected Grizzly bears constituted a governmental tak-

ing requiring just compensation under the Fifth Amendment

to the Constitution. In support, plaintiffs argue that, as a prac-

tical matter, the ESA and its regulations work to prevent them

from protecting their sheep.

Of the courts that have considered whether damage to

private property by protected wildlife constitutes a ‘‘taking,”’

the clear majority has held that it does not, and that the

government thus does not owe compensation. Mountain States

Legal Foundation v. 799 F .2d 1423, 1429 (10th Cir. 1986),

cert. denied, U.S. , 107 S.Crt. 1616 (1987). See also, Bishop v.

ni 126 F Supp. 449, 452-53 (Ct. Cl. 1964), cert. den.,

U.S. 955 (1955) ; Sickman v. United States, 184 F.2d 616 (7th

Cir. 1950), cert. den., 341 U.S. 939 (1951); Bailey v. Holland,

126 F.2d 317 (4th Cir. 1942); Jordan v. State, 681 P.2d 346

(Alaska App. 1984); Collopy v. Wildlife Commission, Etc. , 625

P.2d 994 (Colo. 1981).

Because the court agrees with the rationale of the above.

cited cases, it is compelled to conclude the ESA and its reguia-

tions do not, as a practical matter, constitute a governmenta!

taking requiring compensation.

Plaintiffs next assert the ESA constitutes an unconstitu-

>

2. See, San Antonio independent School District v. Rodriguez, 411 U.S. 1

(1973).

*

tional delegation of legislative power. In the alternative, the

plaintiffs argue that even if the delegation itself is valid, the

Secretary of the Interior exceeded the authority granted him

by the ESA when he promulgated the Grizzly bear regulations

at issue. In the court’s opinion, the ESA is a valid delegation

of legislative authority. Furthermore, the regulations at issue

are a rational reflection of Congressional will, properly pro-

mulgated under the authority vested in the Secretary of the

Interior. Accordingly, plaintiffs’ arguments fail as a matter

of law.

Finally, plaintiffs assert this court should review, de novo,

the fine imposed on Christy, pursuant to 16 U.S.C. §1540(a) and

50 C.F.R. §§11, et seq., for knowingly killing a Grizzly bear.

Upon review, the court is compelled to conclude the fine is sup-

ported by substantial evidence contained within the ad-

ministrative record. Therefore, this court hereby affirms the

$2,500 fine assessed Christy by the administrative law judge.

For the reasons cited herein, the court hereby concludes

no issues of material fact exist in the present case and, fur-

thermore, defendants are entitled to judgment as a matter of

law. Therefore, defendants’ motion for summary judgment is

hereby GRANTED.

The Clerk is directed to enter JUDGMENT accordingly.

IT IS SO ORDERED.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RicHarD P. Curisty; THomas B.

Guturie; [RA PERKINS,

Plaintiffs-Appellants, ' No. 87-3998

Vv. ; D.C. No.

DONALD P. Hope , Secretary of the CV-86-24-PGH

Interior, UNITED STATES OPINION

DEPARTMENT OF INTERIOR,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Montana (Great Falls)

Paul G. Hatfield, District Judge, Presiding

Argued and Submitted

August 5, 1988—Seattle, Washington

Filed Septermbder 21, 1988

Before: Arthur L. Alarcon and Robert R. Beezer, Circuit

Judges, and Thclton E. Henderson,* District Judge.

Opinion by Judge Alarcon

*Honorable Thelton E. Henderson, United States District Judge for the

Northern District of California, sitting by designation.

e 6a

11880 CHRISTY V. HODEL

SUMMARY

Environmental Law/Constitutiona!l Law

Affirming a judgment, the court held that the prohibition

against killing protected wildlife in defense of private prop-

erty violates neither due process nor equal protection.

Defending his sheep, appellee Richard Christy killed a griz-

zly bear. Appellee U.S. Department of the Interior assessed a

civil penalty against Christy for killing the grizzly in violation

of the Endangered Species Act (ESA) and the regulations pro-

mulgated by the Department. The grizzly bear is a threatened

species; its taking is forbidden except in certain specified cir-

cumstances. Christy’s appeal, arguing that the imposition of

a penalty violated his alleged constitutional righi to defend

his sheep, was denied on the ground that the Department had

no jurisdiction to determine the constitutionality of federal

laws or fegulations. Christy sued. Also named as plaintiffs

were appellants Thomas Guthrie and Ira Perkins, fellow

sheepowners. Plaintiffs seek a declaration that application of

the ESA and the regulations to them in circumstances where

they are defending their property is unconstitutional. Plain-

tiffs also seek declarations that the ESA contained an uncons-

titutinal delegation of legislative power to the Secretary and

that the Secretary exceeded his delegated authority in pro-

mulgating the regulations. The district court granted defen-

dants’ motion for summary judgment. The court rejected

plaintiffs’ argument that there is a fundamental right to pos-

sess and protect property. The court held that damage to pri-

vate property by protected wildlife does not constitute a

taking. The court further concluded that the ESA is a valid

delegation of iegislative authority. Finally, the court affirmed

the penalty.

{1] The right claimed by the plaintiffs in this action is the

right to protect their property from immediate destruction

7a

CHRISTY V. HODEL 11881

from federally protected wildlife. [2] The U.S. Constitution

does not protect such a right. [3] Although grizzly bears may

be taken ir. self-defense or in defense of others, the ESA

makes no mention of a right to kill a member of a threatened

species in defense of property. [4] The court also declined

plaintiffs’ invitation to construe the fifth amendment as guar-

anteeing the right to kill federally protected wildlife in

defense of property. [5] Because killing of grizzly bears to pro-

tect sheep is not a fundamental right, the ESA and the grizzly

bear regulations are not subject to strict scrutiny. [6] The

court does not agree with appellants that the ESA and the reg-

ulations have no rational basis. Congress’s intent in enacting

the ESA was to halt and reverse the trend to vards species

extinction. The regulations advance this goal. [7] The first

classification identified by plaintiff—persons raising live-

stock near grizzly bear habitat—is simply not a classification

made by the ESA or by the grizzly bear regulations. [8] The

second classification identified by plaintiffs is that which

allows a certain group of people to hunt and kill grizzly bears

for sport while withholding this same authority to livestock

owners, even in defense of their stock. [9] This classification

is neither suspect nor impairs the exercise of any fundamental

right. Accordingly, the classification is subject to the rational

basis test. [10] Plaintiffs argue that no rational basis supports

the provision for sport hunting of grizzly bears. [11] Plaantiffs’

argument is premised on the unsupported assumption ihat a

program of carefully controlled killings of bears in limited

geographic regions cannot promote conservation and, there-

fore, necessarily conflicts with the purpose of the ESA. How-

ever, population pressures within a given ecosystem may not

be otherwise relieved except by regulated taking. [12] Plain-

tiffs contend that by protecting grizzly bears, the Department

has transformed the bears into governmental agents who have

physically taken plaintiffs’ property without just compensa-

tion in violation of the fifth amendment. [13] The defendants

properly focus on the regulations. The regulations them-

selves, however, do not purport to take, or even to regulate

11882 Curisty Vv. HODEL

the use of, plaintiffs’ property. Plaintiffs err in attributing

such takings to the government. [14] Numerous cases have

considered, and rejected, the argument that destruction of

private property by protected wildlife constitutes a govern-

mental taking. [15] By limiting the Secretary’s legislative

authority to the promulgation of regulations that promote the

conservation of threatened species, Congress has established

a standard sufficiently definite and precise to permit the

courts to determine whether the Secretary’s enactments com-

port with congressional will. Thus, the ESA does not uncon-

stitutionally delegate legislative authority to the Secretary.

{16] Finally, the Secretary did not exceed his delegated

authority in promulgating regulations providing for limited

and controlled sport hunting of grizzly bears in designated

geographic regions. n designated geographic regions.

COUNSEL

K. Dale Schwanke, and Sue Ann Love, Great Falls, Montana,

for the plaintiffs-appellants.

Jacques B. Gelin, Department of Justice, Washington, D.C.,

for the defendants-appellees.

OPINION

ALARCON, Circuit Judge:

Plaintiffs-Appellants Richard P. Christy (Christy), Thomas

B. Guthrie (Guthrie), and Ira Perkins (Perkins) appeal from

the district court’s grant of summary judgment in favor of -

Defendants-Appellees Donald P. Hodel, Secretary of the

Interior (Secretary) and the United States Department of

Interior (Department). The district court rejected plaintiffs’

claim that the Endangered Species Act (ESA) and certain reg-

9a

Curisty v. Hope 11883

ulations promulgated thereunder 2re unconstitutional as

applied because they prevent plaintiffs from defending their

sheep by killing grizzly bears. The court also rejected plain-

tiffs’ claims that the ESA unlawfully delegated legislative

authority to the Secretary and that the Secretary exceeded his

lawful authority in promulgating the regulations at issue. We

affirm.

I. FACTS

Christy owned 1700 head of sheep. On or about June |,

1982, he began grazing the sheep on land he had leased from

the Blackfeet Indian Tribe. The land was located adjacent to

Glacier National Park in Glacier County, Montana.

Beginning about July 1, 1982, bears attacked the herd on a

nightly basis. The herder employed by Christy frightened the

bears away with limited success by building fires and shooting

a gun into the air. Christy sought assistance from Kenneth

Wheeler, a trapper employed by the United States Fish and

Wildlife Service. Wheeler set snares in an attempt to capture

the bears.

By July 9, 1982, the bears had killed approximately twenty

sheep, worth at least $1200. That evening, while Christy and

Wheeler were on the leased land together, Christy observed

two grizzly bears emerge from the forest. One of the bears

quickly retreated to the trees. The other bear moved toward

the herd. When the animal was 60-100 yards away, Christy

picked up his rifle and fired one shot, which hit the bear. It ran

a short distance, then fell to the ground. Christy approached

the bear and fired a second shot into its carcass to ensure that

it was dead.

Wheeler’s subsequent efforts to capture any bears were

unsuccessful. On July 22, 1982, the Tribe agreed to terminate

the lease and to refund Christy’s money. On July 24, 1982,

10a

11884 CHRISTY V. HODEL

Christy removed his sheep from the leased land, having lost

a total of 84 sheep to the bears during the lease term.

Pursuant to authority conferred by the ESA, the Secretary

has listed the grizzly bear (Ursus arctos horribilis) as a threat-

ened species throughout the 48 contiguous states. 50 C.F.R.

§ 17.1 1(h) (1987). Regulations promulgated by the Depart-

ment forbid the “taking” of grizzly bears, except in certain

specified circumstances. See id. § 17.40(b).'

The Department assessed 4 civil penalty of $3,000 against

Christy for killing a grizzly bear in violation of the ESA and

the regulations. On August 13, 1984, at Christy’s request, the

Department held an administrative hearing. At the hearing,

Christy admitted that he had killed the bear knowing it to be

a grizzly, but contended that he did so in the exercise of his

right to defend his sheep. The administrative law judge (ALJ)

upheld the imposition of a penalty but lowered the amount to

$2,500.

Christy filed an administrative appeal, arguing that the

imposition of a penalty violated his constitutional

right to defend his sheep.

ground that the Department had no jurisdiction to

the constitutionality of federal laws or regulations.

On January 30, 1986, Christy instituted the present action.

Also named as plaintiffs are Guthrie and Perkins, who have

The pertinent regulations are referred to throughout this opinion as “the

grizzly bear regulations” or simply “the regulations.”

“Taking,” as defined in the ESA, means “to harass, harm, pursue, hunt,

shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any

such conduct.” 16 U.S.C. § 1532(19) (1982). This case concerns only the

killing of grizzly bears in defense of sheep. For the sake of precision, and to

avoid confusion between plaintiffs’ “taking” of grizzly bears and the gov-

ernment’s alleged “taking” of plaintiffs’ sheep without just compensation,

our opinion shail refer to the “killing,” rather than the “taking,” of grizzly

bears, except when quoting sources that use the latter term.

lla

Curisty v. HODEL 11885

pastured flocks of sheep in Teton County, Montana. Guthrie

and Perkins allege that they, too, have lost sheep to grizz'y

bears. They allege that they were informed by the United

States Fish and Wildlife Service that they would be fined if

they harmed or killed a grizzly bear, even in defense of their

sheep. Guthrie alleges that, “[a]s a result of his losses to the

grizzly bears and the harassment of the flock by the bears in

the years 1984 and 1985, Guthrie sold all the merchantable

sheep from his flock in 1985.”

Plaintiffs seek a permanent injunction restraining defen-

dants from enforcing the ESA and the grizzly bear regulations

against them. Christy seeks a declaration that the Depart-

ment’s application of the ESA and the regulations to him in

the administrative proceeding deprived him of “his funda-

mental right to possess and protect his property,” deprived

him of his property and liberty without just compensation or

due process, and deprived him of equal protection of the

laws. Guthrie and Perkins seek a declaration that the promul-

gation of the regulations was unconstitutional on the same

grounds asserted by Christy. All plaintiffs seek a declaration

that application of the ESA and the regulations to them in cir-

cumstances where they are defending their property is uncon-

stitutional. Plaintiffs also seek declarations that the ESA

contained an unconstitutional delegation of legislative power

to the Secretary and that the Secretary exceeded his delegated

authority in promulgating the regulations.

The Department filed a counterclaim against Christy seek-

ing judgment in the amount of $2,500, plus interest, repre-

senting the unpaid penalty assessed against him by the ALJ.

The Department lodged the administrative record with the

district court.

On July 23, 1986, the defendants filed a motion for sum-

mary judgment. The defendants relied on the facts alleged in

the complaint and on the administrative record. In response,

plaintiffs asserted that “genuine issues of material fact exist as

12a

oa.

11886 CHRISTY V. HODEL

to allegations of Plaintiffs’ Complaint.” Plaintiffs, however,

submitted no affidavits or other evidence in opposition to the

defendants’ motion.

On May 4, 1987, the district court issued a Memorandum

and Order granting the defendants’ motion for summary

judgment. The court found that “[t}he material facts preced-

ing and arising from this lawsuit are not in dispute.” The

court ruled that the defendants were entitled to judgment as

a matter of law. The court rejected plaintiffs’ argument that

there is a fundamental right to possess and protect property.

Accordingly, the court evaluated the ESA and the grizzly bear

regulations under the “rational basis” test and found that they

satisfied that test. The court next rejected plaintiffs’ conten-

tion that the loss of their sheep constituted a taking of their

property by the federal government without just compensa-

tion. The court held that damage to private property by pro-

tected wildlife does not constitute a taking.

The court further concluded that “the ESA is a valid delega-

tion of legislative authority,” and that “the regulations at

issue are a rational reflection of Congressional will, properly

promulgated under the authority vested in the Secretary of

the Interior.” Finally, the court affirmed the penalty assessed

against Christy by the ALJ, finding that it was supported by

substantial evidence contained in the administrative record.

Plaintiffs now appeal from the judgment entered against

them.

Il. JURISDICTION

This action arises under the United States Constitution and

under the ESA, 16 U.S.C. §§ 1533(d), 1540(g) (1982). The dis-

trict court had jurisdiction over the action pursuant to section

1540(g) and 28 U.S.C. §§ 1331, 1346(a)(2) (1982). We have

jurisdiction over plaintiffs’ appeal from the final judgment

pursuant to 28 U.S.C. § 1291 (1982). The judgment was

entered on May 4, 1987, and plaintiffs filed their notice of

13a

Curisty v. HODEL 11887

appeal on June 30, 1987. Thus, the notice was timely filed.

Fed. R. App. P. 4(a)(1).

Ill. DISCUSSION

A grant of summary judgment is reviewed de novo.

Coverdell v. Department of Social & Health Services, 834 F.2d

758, 761 (9th Cir. 1987). We must-determine, “viewing the

evidence in the light most favorable to the nonmoving party,

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant sub-

stantive law.” Jd. at 761-62.

Plaintiffs contend that entry of summary judgment was

improper because “many genuine issues of material fact are

unresolved.” In their motion for summary judgment, the

defendants relied on facts set forth in plaintiffs’ own com-

plaint, together with the administrative record. Plaintiffs sub-

mitted no evidence, by affidavit or otherwise, in opposition to

the defendants’ motion.

When a defendant’s motion shows that there are no genu-

ine issues of material fact, a plaintiff's unsupported assertion

to the contrary is insufficient to forestall summary judgment.

“Once the moving party shows the absence of evidence [to

support the nonmoving party’s case], the burden shifts to the

nonmoving party to designate ‘ “specific facts showing that

there is a genuine issue for tria!.”’” /d. at 769 (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986), quoting

Fed. R. Civ. P. 56(e)). Because plaintiffs failed to demon-

strate the existence of any genuine issues of material fact,’ we

?Plaintiffs assert that whether the ESA and the grizzly bear regulations

rationally further Congress's goal of conserving threatened species is a gen-

uine issue of material fact. In assessing whether challenged legislation ratio-

nally furthers a legitimate governmental goal, the court will consider not

only the basis on which the legislature actually acted, if ascertainable, but

also any hypothetical basis on which it might have acted. “As long as there

14a

11888 CuRIsTy Vv. Hope

need only determine whether the district court correctly

applied the relevant law to the facts of record.

A. Do the ESA and the Regulations, as Applied, Deprive

Plaintiffs of Property Without Due Process?

Plaintiffs contend that application of the ESA and the regu-

lations so as to prevent them from defending their sheep

against destruction by grizzly bears deprives them of property

without due process, in viclation of the fifth amendment.’

The first step in our analysis is to determine the standard to

be applied in reviewing the challenged legislation.

Strict judicial scrutiny of legislation that allegedly violates

the due process clause is reserved for those enactments that

“impinge upon constitutionally protected rights.” San Anto-

nio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 40 (1973).

When legislation impairs the exercise of a “fundamental”

right, the government “must prove to the Court that the law

is necessary to promote a compelling or overriding interest.”

2 Rotunda § 15.4, at 59; accord Beller v. Middendorf, 632 F.2d

788, 808 (9th Cir. 1980), cert. denied, 452 U.S. 905, 454 U.S.

855 (1981).

On the other hand, when the legislative enactment

infringes on no fundamental right, “the law need only ration-

is any conceivable basis for finding such a rational relationship, the law will

be upheld.” 2 R. Rotunda, J. Nowak & J. Young, Treatise on Constitutional

Law: Substance and Procedure § 15.4, at 59 (1986) [hereinafter Rotunda);

id. at 60 (“The law will be upheld so long as the justices can conceive of a

basis for terming the classification rationally related to a legitimate end of

government.”). Since the court itself may postulate a basis for the legisla-

tion, satisfaction of the rationality test should be deemed a legal, rather

than a factual, issue.

*The fifth amendment provides, in pertinent part: “No person shall be

... deprived of life, liberty, or property, without due process of law .. . .”

U.S. Const. amend. V.

15a

Curusty v. HODEL 11889

ally relate to any legitimate end of government.” 2 Rotunda

§ 15.4, at 59; accord Beller, 632 F.2d at 808. The law will be

upheld if the court can hypothesize any possible basis on

which the legislature might have acted. See supra note 2.

{1] The right claimed by the plaintiffs in this action is the

right “to protect their prop rty from immediate destruction

from federally protected wildlife.” In their opening brief,

plaintiffs characterize this as a “natural and fundamental con-

stitutional right.” In their reply brief, plaintiffs backtrack

somewhat, arguing that the right “should be deemed

fundamental.”

{2} Certain state courts have construed their own constitu-

tions to protect the sort of right claimed by the plaintiffs in

this case. See, e.g., Cross v. State, 370 P.2d 371, 376, 377

(Wyo. 1962) (due process clause in state constitution con-

strued to guarantee “the inherent and inalienable right to pro-

tect property”); State v. Rathbone, 110 Mont. 225, — , 100

P.2d 86, 90 (1940) (state constitution expressly guaranteed

the right “of acquiring, possessing, and protecting property”);

see generally Annotation, Right to Kill Game in Defense of

Person or Property, 93 A.L.R.2d 1366 (1964). No court, how-

ever, has construed the United States Constitution to protect

such a right. See Mountain States Legal Found. v. Hodel, 799

F.2d 1423, 1428 n.8 (10th Cir. 1986) (en banc) (noting the

absence of authority on the question), cert. denied, 107 S. Ct.

1616 (1987).

[3] The ESA expressly provides that no civil penalty shall be

imposed on a defendant who proves that, in killing a member

of a threatened species, the defendant was acting in self-

defense or in defense of others. 16 U.S.C. § 1540(a\3) (1982);

see 50 C.F.R. § 17.40(b)(1 (iB) (1987) (“Grizzly bears may

be taken in self-defense, or in defense of others ....”). The

defendant may raise the same defense in criminal prosecu-

tions under the ESA. 16 U.S.C. § 1540(b)(3) (1982). The ESA

makes no mention, however, of a right to kill a member of a

16a

11890 Curisty v. Hope.

threatened species in defense of property. One circuit court

has opined that this omission evinces a congressional view

that no such right exists under the United States Constitu-

tion. See Mountain States, 799 F.2d at 1428 n.8.

The U.S. Constitution does not explicitly recognize a right

to kill federally protected wildlife in defense of property.

Plaintiffs, nevertheless, urge that we infer such a right, in

much the same way that the Supreme Court has inferred a

constitutiona! right to privacy despite the absence of language

expressly recognizing such a right. See Griswold v. Connecti-

cut, 381 U.S. 479, 484-85 (1965) (state law forbidding mar-

ried couples from using contraceptives violated consti-

tutional right to privacy).

The Supreme Court has recently expressed reluctance “to

discover new fundamental rights imbedded in the Due Pro-

cess Clause.” Bowers v. Hardwick, 478 U.S. 186, 194 (1986).

The Court explained:

There should be . . . great resistance to expand the

substantive reach of [the due process clauses of the

fifth and fourteenth amendments], particularly if :*

requires redefining the category of rights deemed to

be fundamental. Otherwise, the Judiciary necessar-

ily takes to itself further authority to govern the

country without express constitutional authority.

Id. at 195. The Court in Bowers refused to recognize a funda-

mental constitutional right of homosexuals to engage in sod-

“On the other hand, neither the ESA nor the regulations appear to forbid

a property owner from attempting to fence out grizzly bears or to drive

them away by nonharmful means. Indeed, in the present case, Christy's

herder enjoyed limited success in driving bears away by building fires and

shooting a gun into the air. Thus, it is inaccurate to say that the laws pre-

vent an owner from defending his property against grizzly bears. The laws

merely operate to bar certain means of defending pr-perty from grizzly

bears.

t

17a

Curisty v. Hopet 11891

omy, rejecting the argument that the constitutional right to

privacy extended to protect such conduct. /d. at 190-94. The

Court's reticence to “redefin[e] the category of rights deemed

to be fundamental” is further manifested by the Court's

refusal to find a fundamental right to such necessities as edu-

cation, Rodriguez, 411 U.S. at 37, and adequate housing,

Lindsey v. Normet, 405 U.S. 56, 74 (1972). |

The Supreme Couri’s teaching is clear and unmistak-

able—federal courts should refrain from divining new funda-

mental rights from the due process clauses of the fifth and

fourteenth amendments, at least when the claimed right is

neither “implicit in the concept of ordered liberty,” Palko v.

Connecticut, 302 U.S. 319, 325 (1937), overruled on other

grounds, Benton v. Maryland, 395 U.S. 784 (1969), or “deeply

rooted in this Nation’s history and tradition,” Moore v. City

of East Cleveland, 431 U.S. 494, 503 (1977) (op. of Powell,

J.). Thus, we recently “heed[ed] the Supreme Court’s counsels

of caution” and refused to extend the right to privacy to

include the right of a prison inmate to be free from a state

official’s unauthorized disclosure of intimate photographs ot

the inmate’s wife. Davis v. Bucher, No. 87-3694, slip op. 9397,

9401, 9403 (9th Cir. Aug. 2, 1988).

[4] In light of the Supreme Court’s admonition that we

exercise restraint in creating new definitions of substantive

due process, we decline plaintiffs’ invitation to construe the

fifth amendment as guaranteeing the right to kill federally

protected wildlife in defense of property. In so doing, we do

not minimize the seriousness of the problem faced by live-

stock owners such as plaintiffs nor do we suggest that defense

of property is an unimportant value. We simply hold that the

right to kill federally protected wildlife in defense of property

is not “implicit in the concept of ordered liberty” nor so

“deeply rooted in this Nation’s history and tradition” that it

can be recognized by us as a fundamental right guaranteed by

the fifth amendment.

18a

11892 Cureisty v./ Hope.

[5] Because of our determination that the killing of grizzly

bears to protect sheep is not a fundamental right enjoyed by

the plaintiffs, we are not required to subject the ESA and the

grizzly bear regulations to strict scrutiny. Instead, we must

determine whether those enactments rationally further a

legitimate governmental objective.

Plaintiffs do not argue that preservation of threatened spe-

cies is an impermissible objective, or that Congress lacks

authority to pursue that objective. Plaintiffs contend, rather,

that the ESA and the grizzly bear regulations do not rationally

further that objective. Plaintiffs’ position appears to be that

regulations preventing citizens from protecting their property

against depredating bears will inevitably generate a backlash,

including “unlawful killings resulting from the gross unfair-

ness of the existing system.”

[6] We do not agree that the ESA and the regulations have

no rational basis. Congress’s intent in enacting the ESA was

“to halt and reverse the trend towards species extinction,

whatever the cost.” Tennessee Valley Authority v. Hill, 437

U.S. 153, 184 (1978). The regulations at issue plainly advance

this goal by forbidding the killing of grizzly bears, except in

certain limited circumstances. See 50 C.F.R. § 17.40(b)(1)(i)

(1981).

The regulations recognize the concerns and accommodate

the needs of owners of livestock and other property by autho-

rizing the killing of “nuisance bears” by government officials

when efforts to live-capture such bears have been unsuccess-

ful. See id. § 17.40(b)(1)(i(C). The regulations are reasonable

in requiring private citizens to seek the assistance of experi-

enced government officials, who may be expected to protect

the public interest, rather than leaving every individual free

to kill a “nuisance bear” whenever he or she deems it neces-

sary. See State v. Webber, 85 Or. App. 347, 350-51, 736 P.2d

220, 222 (state statute requiring owner to obtain permit

before killing depredating wildlife was “a reasonable restraint

19a

~

CHRISTY V. HODEL 11893

on defendant’s right to protect his property”), review denied,

304 Or. 56, 742 P.2d 1187 (1987). :

Moreover, the regulations do not forbid plaintiffs from per-

sonally defending their property by means other than killing

grizzly bears. See supra note 4; see also Barrett v. State, 220

N.Y. 423, , 116 N.E. 99, 101-02 (1917) (state statute forbid-

ding molestation or disturbance of wild beavers held consti-

tutional because it left property owners free to fence their

land or to drive away destructive beavers).

For the foregoing reasons, the ESA and the grizzly bear reg-

ulations, as applied to prevent plaintiffs from killing such

bears in defense of their property, do not deprive plaintiffs of

their property without due process of law.

B. Do the ESA and the Regulations, as Applied, Deny

Plaintiffs Equal Protection of the Laws?

Plaintiffs also argue that the ESA and the grizzly bear regu-

lations, as applied to prevent them from killing grizzly bears

to protect their sheep against imminent destruction, deny

them equal protection of the laws.

The due process clause of the fifth amendment has been

construed to require the federal government to accord every

person within its jurisdiction equal protection of the laws. See

Jimenez v. Weinberger, 417 U.S. 628, 637 (1974) (referring to

“the equal protection of the laws guaranteed by the due pro-

cess provision of the Fifth Amendment”); Bolling v. Sharpe,

347 U.S. 497, 499 (1954) (invalidating racial segregation of

public schools under the fifth amendment); Eskra vy. Morton,

§24 F.2d 9, 13 (7th Cir. 1975) (“The United States, as well as

each of the several States, must accord every person within its

jurisdiction the equal protection of the laws.”).

“[I]n order to subject a law to any form of review under the

equal protection guarantee, one must be able to demonstrate

11894 CHRISTY V. HODEL

that the law classifies persons in somye manner.” 2 Rotunda

§ 18.4, at 343-44. A classification may be demonstrated in

one of three ways: by showing that the law, on its face,

employs a classification; by showing that the law is applied in

a discriminatory fashion; or by showing that the law is “in

reality ... a device designed to impose different burdens on

different classes of persons.” Jd. at 344.

Once a legislative classification has been demonstrated, it

will be subjected to strict judicial scrutiny if it employs a

“suspect” class or if it classifies in such a way as to impair the

exercise of a fundamental right. 2 Rotunda § 15.4, at 60; id.

§ 18.3, at 323; see Clark v. Jeter, 108 S. Ct. 1910, 1914 (1988)

(“Classifications based on race or national origin, and classifi-

cations affecting fundamental rights, are given the most

exacting scrutiny.”) (citations omitted). On the other hand,

“where the law classifies persons on a non-suspect basis for

the exercise of liberties which are not fundamental constitu-

tional rights,” the law will be upheld if it rationally relates to

a legitimate governmental objective. 2 Rotunda § 15.4, at 60:

see Dandridge v. Williams, 397 U.S. 471, 485 (1970) (in the

area of economics and social welfare, legislative classification

satisfies requirements of equal protection if it has some

“reasonable basis” and if any state of facts can be conceived

to justify it).°

[7] Plaintiffs argue that the ESA and the grizzly bear regula-

tions classify persons along two lines. “The first class-

ification,” they contend, “is between a group of persons who,

like Plaintiffs, are raising livestock near grizzly bear habitat

and all remaining citizens and taxpayers of the U.S.” Plain-

tiffs have made no showing, however, that the ESA or the

grizzly bear regulations employ such a classification. This is

*The Court applies a middle-level scrutiny to legislation that classifies

individuals according to sex or legitimacy of birth. Jeter, 108 S. Ct. at 1914:

2 Roturda § 18.3, at 326-27. Classi‘Sications of this sort are not involved in

the present case.

2la

CHRISTY V. HODEL 11895

certainly not a classification that appears on the face of the

challenged enactments. Nor have the plaintiffs proffered any

evidence to suggest that the prohibition on the killing of griz-

zly bears is applied with greater severity against persons rais-

ing livestock near grizzly bear habitat.* Finally, plaintiffs do

not contend that the enactments constitute a device for

imposing excessive burdens on such persons. In short, the

first so-called classification identified by plaintiff—persons

raising livestock near grizzly bear habitat—is simply not a

classification made by the ESA or by the grizzly bear regula-

tions.

[8] The second classification identified by plaintiffs “is that

which allows a certain group of people to hunt and kill grizzly

bears under certain conditions for sport while withholding

this same authcrity to livestock owners like Plaintiffs, even in

immediate defense of their stock.” This classification

appeared on the face of the regulations as they read at all

times relevant to this case:

Northwestern Montana. If it is not contrary to the

laws and regulations of the State of Montana, a per-

son may hunt grizzly bears in the Flathead National

Forest, the Bob Marshall Wilderness Area, and the

Mission Mountains Primitive Area of Montana:

Provided, That if in any year in question 25 grizzly

bears have already been killed for whatever reason

in that part of Montana, including the Flathead

SOf course, persons raising livestock near grizzly bear habitat are more

likely to find themselves restrained by the regulations than, for example,

persons residing in large metropolitan areas far removed from bear coun-

try. By the same token, persons who travel by automobile are more likely

to find themselves restrained by speed limits than persons who travel by

bicycle. Plaintiffs cite no authority for the proposition that a regulation that

is evenhanded on its face and that is applied equally to all who violate its

provisions nevertheless deni: equal protection of the laws simply because

it is likely to be applied more frequently against members of some identifi-

able, nonsuspect class of persons.

11896 CHRISTY V. HODEL

National Forest, the Bob Marshall Wilderness Area

and the Mission Mountains Primitive Area, which is

bounded on the north by the United States-

Canadian Border, on the east by U.S. Highway 91,

on the south by U.S. Highway 12, and on the west by

Montana-Idaho State line, the Director shall post

and publish a notice prohibiting such hunting, and

any such hunting for the remainder of that year shall

be unlawful ....

50 C.F.R. § 17.40(b)(1 (iE) (1981).

[9] Plaintiffs do not contend that the foregoing classifica-

tion is “suspect,” and no case so holds. Nor does this classifi-

cation impair the exercise of any fundamental constitutional

right. See Part III(A) supra. Accordingly, the classification

should be upheld if it satisfies the “rational basis” test, i.e., if

any state of facts can be conceived to justify it.

|10} Plaintiffs argue that no rational basis supports the pro-

vision for sport hunting of grizzly bears: “Not only is the

hunting of a threatened species unrelated to the goals of the

Act, it is in complete derogation of its purposes, i.e. the preser-

vation of threatened species. ... Indeed, given the threat.

ened nature of their existence, allowing hunters to také even

one [grizzly bear] arguably would be in di:‘ect conflict with the

Act. Since this classification is in complete contradiction of

the purposes of the Act, it can in no way have even a rational

relationship to the purposes of the Act, as a matter of law.”

[11] Plaintiffs’ argument is premised on-the unsupported

assumption that a program of carefully controlled killings of

bears in limited geographic regions cannot promote

“conservation” and, therefore, necessarily conflicts with the

purpose of the ESA. On the contrary, Congress expressly con-

templated that “in the extraordinary case where population

pressures within a given ecosystem cannot be otherwise

relieved,” conservation may require “regulated taking.” 16

23a

CHRISTY V. HODEL 11897 3

U.S.C. § 1532(3) (1982). Further, although it expressly pro-

hibited the killing of endangered species, Congress delegated

to the Secretary the task of determining whether the killing of

threatened species should also be prohibited. Compare id.

§ 1538(a)(1)B) (imposing general prohibition on killing of

endangered species) with id. § 1533(d) (Se¢retary “shall issue

such regulations as he deems necessary and advisable to pro-

vide for the conservation of” threatened species). Congress

authorized, but did not require, the Secretary to forbid the

killing of threatened species. Jd. § 1533(d). This legislative

scheme reflects Congress’ s conclusion that certain killings of

a threatened species could be consistent with the goal of con-

serving that species.

The Secretary had a rational basis for authorizing

“regulated taking” of grizzly bears, by means of sport hunting,

in those regions specified in the regulations. The basis is set

forth in Amendment Listing the Grizzly Bear of the 48 Coter-

minous States as a Threatened Species, 40 Fed. Reg. 31,734-

35 (1975) [hereinafter Amendment]. Briefly, relying on inves-

tigations by Fish and Wildlife Service biologists, data submit-

ted by the Governors of Colorado, Idaho, Montana,

Washington, and Wyoming, and comments filed by inter-

ested members 0 the pubric, the Director of the Fish and

Wildlife Service, »» behalf of the Secretary, determined that

“grizzly bear population pressures definitely exist in the Bob

Marshall Ecosystem.” /d. at 31,735. The Director considered

easing such pressures through live-trapping and transplanta-

tion of the animals but rejected that approach as “too danger-

ous and too expensive to be used with sufficient frequcacy to

relieve the .. . population pressures.” Jd. The Director con-

cluded that “fa limited amount of regulated taking is

necessary.” Jd.

The Director then considered whether such regulated

“taking” should be accomplished through the isolated killing

of nuisance bears or through seasonal sport hunting. The

Director concluded that isolated killings, while necessary,

24a

11898 CHRISTY V. HODEL

were “not sufficient to prevent numerous depredations and

threats to human safety. This is because the occasional killing

of one bear does not create a fear of man among the grizzly

bear population in general.” Jd. A carefully controlled sea-

sonal hunt, on the other hand, wouid both relieve the popula-

tion pressures and condition the bears “to avoid all areas

where humans are encountered,” thus minimizing human-

bear contact and the resultant risks to both. Jd. Accordingly,

the Director ruled that the best system of relieving the popu-

lation pressures in the Bob Marshall Ecosystem would be “to

combine limited taking of specific nuisance bears with a

closely regulated sport hunt.” Jd. The promulgated regula-

tions strictly controlled the total number of bears killed each

year by mandating the cessation of hunting in any year

“where the total number of bears killed for whatever reason

.. reaches 25 bears for that year.” Jd.’

In light of the foregoing, the regulations authorizing a care-

fully contreiled and limited sport hunt of grizzly bears in des-

ignated geographic regions had a rational basis. Plaintiffs

have proffered no evidence to suggest otherwise. The classifi-

cation employed by the regulations, therefore, does not deny

plaintiffs equal protection of the laws.

renciateeenaalaetiemniatentiinientetiiateeseneimeainenanet

the initial regulations, the Secretary redesignated the geographic regions

within which sport hunting would be permitted and lowered the number of

bears that may be taen each year. See Revision of Special Regulations for

the Grizzly Bear, 51 Fed. Reg. 33,753 (1986). The Secretary specifically

considered and rejected the argument “that it was preposterous, illogical,

and inconsistent to permit hunting of a threatened species.” Jd. at 33,757.

The Secretary relied on studies and data suggesting that a carefully con-

trolied sport hunt wouid eliminate unwary bears, thereby minimizing bear-

human contact over the long-run and promoting conservation of the total

bear population. Jd. at 33,755, 33,757.

CHRISTY V. HODEL 11899

C. Do the ESA and the Regulations Effect a “Taking” of

Plaintiffs’ Property Without Just Compensation, in

Violation of the Fifth Amendment?

[12] The fifth amendment provides that private property

shall not “be taken for public use, without just

compensation.” U.S. Const. amend. V. This prohibition

applies only to takings by the federal government. See Twin

Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe,

370 F.2d 529, 533 (8th Cir. 1967) (citing Koch v. Zuieback,

316 F.2d 1,.2 (9th Cir. 1963)).* Plaintiffs contend that by pro-

tecting grizzly bears, the Department has transformed the

bears into “governmental agents” who have physically taken

plaintiffs’ property.

The defendants analyze this case under the principles

applicable to regulatory takings. Plaintiffs, on the other hand,

insist that their property has been physically taken, because

their sheep have been “destroyed, killed, and rendered abso-

lutely useless by the bear’s act.”

[13] The defendants properly focus on the regulations, pro-

mulgation of which constituted governmental action. The

regulations themselves, however, do not purport to take, or

even to regulate the use of, plaintiffs’ property. The regula-

tions leave the plaintiffs in full possession of the complete

“bundle” of property rights to their sheep. Perhaps because

plaintiffs recognize this fact, they choose to focus on the con-

duct of the bears. Undoubtedly, the bears have physically

taken plaintiffs’ property, but plaintiffs err in attributing such

takings to the government.

[14] Numerous cases have considered, and rejected, the

*The fifth amendment’s proscription against takings without just com-

pensation is made applicable :o state governments through the due process

clause of the fourteenth amendment. Webb's Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 160 (1980).

26a

11900 Curisty v. HODEL

argument that destruction of private property by protected

wildlife constitutes a governmental taking. The pertinent

cases were recently summarized by the Tenth Circuit:

Of the courts that have considered whether dam-

age to private property by protected wildlife consti-

tutes a “taking,” a clear majority have held that it

does not and that the government thus does not owe

compensation. The Court of Claims rejected such a

claim for damage done to crops by geese protected

under the Migratory Bird Treaty Act in Bishop v.

United States, 126 F. Supp. 449, 452-53 (Ct. Cl.

1954), cert. denied, 349 U.S. 955-(1955). The United

States Court of Appeals for the Seventh Circuit ,

rejected a similar claim under the Federal Tort /

Claims Act in Sickman v. United States, 184 F.2d ~

616 (7th Cir. 1950), cert. denied, 341 U.S. 939 -

(1951). Several state courts have also rejected claims —

for damage to property by wildlife protected under -

state laws. See, e.g., Jordan v. State, 681 P.2d 346, -

350 n.3 (Alaska App. 1984) (defendants were not

deprived of their property interest in a moose car-

cass by regulation prohibiting the killing of a bear

that attacked the carcass because “their loss was

incidental to the state regulation which was enacted

to protect game”); Leger v. Louisiana Department of

Wildlife & Fisheries, 306 So. 2d 391 (La. Ct. App.),

writ of review denied, 310 So. 2d 640 (La. 1975) (be-

cause wildlife is regulated by the state in its sover-

eign, as distinct from its propriety [sic] capacity, the

state has no duty to control its movements or pre-

vent it from damaging private property); Barrett v.

State, 220 N.Y. 423, 116 N.E. 99 (N.Y. Ct. App.

1917) (damage to timber by beavers not compensa-

ble because the state has a general right to protect

wild animals as a matter of public interest, and inci-

dental injury by them cannot be complained of); see

also Collopy v. Wildlife Commission, Department of

27a

CHRISTY V. HODEL 11901

Natural Resources, 625 P.2d 994 (Colo. 1981);

Maitland v. People, 93 Colo. 59, 63, 23 P.2d 116, 117

(1933); Cooke v. State, 192 Wash. 602, 74 P.2d 199,

203 (1937); Platt v. Philbrick, 8 Cal. App. 2d 27, 30,

47 P.2d 302, 304 (1935). But see State v. Herwig, 17

Wis. 2d 442, 117 N.W.2d 335 (1962); Shellnut v.

Arkansas State Game & Fish Commission, 222 Ark.

25, 258 S.W.2d 570 (1953).

Mountain States, 799 F.2d at 1428-29. The Tenth Circuit

held that damage to private property caused by federally pro-

tected wild burros did not constitute a taking under the fifth

amendment. /d. at 1431.

Plaintiffs do not challenge the constitutional power of Con-

gress to enact legislation to protect threatened species. Yet

plaintiffs would, in effect, require that the government insure

its citizens against property damage inflicted by such species.

The federal government does not “own” the wild animals it

protects, nor does the government control the conduct of such

animals.’ See Douglas v. Seacoast Products, Inc., 431 U.S.

265, 284 (1977) (“[I]t is pure fantasy to talk of ‘owning’ wild

fish, birds, or animals. Neither the States nor the Federal

Government ... has title to these creatures until they are

reduced to possession by skillful capture.”). Plaintiffs assume

that the conduct of the grizzly bears is attributable to the gov-

ernment but offer no explanation or authority to support their

assumption.

Plaintiffs cite the following language from a recent

Supreme Court opinion in support of their argument that the

*We note that plaintiffs do not contend, and the record does not show,

that the federal government physically introduced any bears to the areas

near plaintiffs’ properties. Whether the government may be held responsi-

ble for damage caused by bears or other wild animals that have been relo-

cated by the government, under a theory that such animals are

instrumentalities of the government, is a question we do not decide.

11902 Curisty Vv. HODEL

government should compensate them for the killing of their

sheep by grizzly bears: “It is axiomatic that the Fifth Amend-

ment’s just compensation provision is ‘designed to bar Gov-

ernment from forcing some people alone to bear public

burdens which, in all fairness and justice, should be borne by

the public as a whole.’” First English Evangelical Lutheran

Church v. County of Los Angeles, 107 S. Ct. 2378, 2388 (1987)

(quoting Armstrong v. United States, 364 U.S. 40, 49 (1960)).

The foregoing principle is inapplicable to the present case,

because neither the ESA nor the grizzly bear regulations

“force” plaintiffs to bear any burden. The losses sustained by

the plaintiffs are the incidental, and by no means inevitable,

result of reasonable regulation in the public interest. As one

State court has aptly noted:

Wherever protection is accorded [to wild animals]

harm may be done to the individual. Deer or moose

may browse on his crops; mink or skunks kill his

chickens; robins eat his cherries. In certain cases the

Legislature may be mistaken in its belief that more

good than harm is occasioned. But this is clearly a

matter which is confided to its discretion. It exer-

cises a governmental function for the benefit of the

public at large, and no one can complain of the inci-

dental injuries that may result.

Barrett v. State, 220 N.Y. at — , 116 N_E. at 100.

For the foregoing reasons, we hold that the ESA and the

grizzly bear regulations do not effect a taking of plaintiffs’

property by the government so as to trigger the just compen-

sation clause of the fifth amendment, and that the govern-

ment is not answerable for the conduct of the bears in taking

plaintiffs’ property.

D. Does the ESA Unconstitutionally Delegate Legislative

Authority to the Secretary?

The ESA provides that “[w]Jhenever any species is listed as

a threatened species . . . the Secretary shall issue such regula-

29a

Curisty v. HODEL 11903

tions as he deems necessary and advisable to provide for the

conservation of such species.” 16 U.S.C. § 1533(d) (1982).

Plaintiffs argue that the foregoing delegation of legislative

power is unconstitutional because it “fails to provide the nec-

essary standards either to direct the Secretary in the promul-

gation of the regulations, or for a reviewing Court to employ

in examining the content of the regulations against the statu-

tory authorization.”

Although the Constitution vests “all legislative powers” in

Congress, U.S. Const. art. I, § 1, Congress may “establish gen-

eral standards and delegate to others the responsibility for

effectuating the legislative policy.” Avoyelles Sportsmen's

League, Inc. v. Marsh, 715 F.2d 897, 916 (Sth Cir. 1983) (cit-

ing A.L.A, Schechter Poultry Corp. v. United States, 295 U.S.

495, 529-30 (1935)). A delegation of legislative authority will

be upheld if the standards prescribed by Congress “are suffi-

ciently definite and precise to enable Congress, the courts and

the public to ascertain” whether regulations promulgated pur-

suant to that authority conform to the legislative will. Yakus

v. United States, 321 U.S. 414, 426 (1944); see Marsh, 715

F.2d at 916.

f

The standards set forth in the ESA are sufficiently definite

and precise to withstand constitutional attack. The chal-

lenged standard requires the Secretary to promulgate “such

regulations as he deems necessary and advisable to provide

for the conservation of” species that the Secretary has listed

as threatened. 16 U.S.C. §1533(d) (1982). The term

“conservation” is defined to mean the bringing of a threat-

ened species “to the point at which the measures provided

pursuant to this chapter are no longer necessary.” /d.

§ 1532(3). Congress provided the following examples of activ-

ities that constitute “conservation”: “[A]ll activities associ-

ated with scientific resources management such as research,

census, law enforcement, habitat acquisition and mainte-

nance, propagation, live trapping, and transplantation, and,

in the extraordinary case where population pressures within

30a

11904 Curisty v. Hope.

a given ecosystem cannot be otherwise relieved, . . . regulated

taking.” /d.

{15} By limiting the Secretary's legislative authority to the

promulgation of regulations that promote the “conservation”

of threatened species, Congress has established a standard

sufficiently definite and precise to permit the courts to deter-

mine whether the Secretary’s enactments comport with con-

gressional will. See Sierra Club v. Clark, 755 F.2d 608, 612-15

(8th Cir. 1985) (invalidating regulation on ground that it

exceeded scope of Secretary’s authority to provide for the

“conservation” of threatened species). It is our conclusion

that the ESA does not unconstitutionally delegate legislative

authority to the Secretary.

E. Did the Secretary Exceed the Scope of His Delegated

Authority in Promulgating Regulations Permitting

Limited Sport Hunting of Grizzly Bears?

The grizzly bear regulations permit limited sport hunting of

grizzly bears in specified geographic regions of Montana. See

50 C.F.R. § 17.40(b\ 1 Xi E) (1981) (quoted and discussed in

Part II1(B) supra). Plaintiffs argue that such regulations are

contrary to the purpose of the ESA: “The hunting and killing

of up to 25 grizzly bears each year cannot be deemed, under

any imaginable set of circumstances, as providing for the

conservation of grizzly bears.”

Congress has expressly authorized the “regulated taking” of

threatened species “in the extraordinary case where popula-

tion pressures within a given ecosystem cannot be otherwise

relieved.” 16 U.S.C. §§ 1532(3), 1533(d) (1982). Thus, the

Secretary is authorized to permit “regulated taking,” ¢.¢.

limited sport hunting, but he must first find that “population

pressures within a given ecosystem cannot be otherwise

relieved.” Sierra Club, 755 F.2d at 613.

3la

Curisty v. Hope 11905

The Secretary has acted within the scope of his authority in

this case. His subordinate, the Director of the Fish and Wild-

life Service, expressly determined that the population of griz-

zly bears in the Bob Marshall Ecosystem created pressures

that could not be relieved other than through carefully regu-

lated sport hunting. See Amendment, 40 Fed. Reg. at 31,735.

The regulations as promulgated reflected this determination,

by limiting the hunting of grizzly bears to designated areas

within the Bob Marshall Ecosystem. See 50 C.F.R. § 17.40(b)

(1MiME) (1981)."° The Director’s determination was sup-

ported by a detailed statement of reasons. See Amendment,

40 Fed. Reg. at 31,735. Plaintiffs have proffered no evidence

to raise a genuine issue of fact concerning the validity of the

Secretary’s stated reasons.

{16} In summary, the Secretary did not exceed his delegated

authority in promulgating regulations providing for limited

and controlled sport hunting of grizzly bears in designated

geographic regions of Montana.

IV. CONCLUSION

For the reasons set forth herein, we AFFIRM the district

court’s entry of summary judgment in favor of defendants.

In 1986, the regulations were amended to redesignate the geographic

areas within which hunting of grizzly bears is permitted. See supra note 7

Plaintiffs do not challenge the amendment or the designation of certain

hunting areas rather than others. Plaintiffs challenge the Secretary's author-

ity to permit any hunting of grizzly bears.

32a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD P. CHRISTY; * ) NO. 87-3998

THOMAS B. GUTHRIE; ) D.C. NO. CV-86-24-PGH

Plaintiffs-Appellants, )

vs ) ORDER

DONALD P. HODEL, Secretary of )

the Interior; UNITED STATES)

DEPARTMENT OF INTERIOR, )

Defendants-Appellees. )

Appeal from the United States District Court

for the District of Montana (Great Falls)

Paul G. Hatfield, District Judge, Presiding

Argued and Submitted August 5, 1988

Seattle Washington

Filed September 21. 1988

Before: ALARCON and BEEZER, Circuit Judges, and

HENDERSON’ District Judge

Appellants’ petition for rehearing is denied.

Filed November 3, 1988

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD P. CHRISTY; )

THOMAS 8. GUTHRIE; ) NO. 87-3998

IRA PERKINS, )

Plaintiffs-Appellants, )

D.C. NO. CV-86-24-PGH

‘ YNALD P. HODEL, Secretary of )

c.+ Interior; UNITED STATES )

D PARTMENT OF INTERIOR, )

ORDER

Defendants-Appellees.

Appeal from the United States District Court

for the District of Montana (Great Falls)

Paul G. Hatfield, District Judge, Presiding

Argued and Submitted August 5, 198%

Seattle, Washington

Filed September 21, 1988

Before: ALARCON and BEEZER, Circuit Judges, and

HENDERSON? District Judge

Appellants’ ‘‘Motion to Reconsider the Order Denying Ap-

pellants’ Petition for Rehearing and to Stay Mandate Pending

Consideration of Motion to Reconsider,’’ filed November 14,

1988 is denied. Mandate shall issue forthwith.

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 87-3998

RICHARD P. CHRISTY, THOMAS B. GUTHRIE

and IRA PERKINS,

Appellants.

vs.

DONALD P. HODEL, Secretary of the Interior

and THE UNITED STATES DEPARTMENT OF INTERIOR,

Appellees.

AFFIDAVIT OF RICHARD P. CHRISTY

STATE OF MONTANA )

: $s

County of Teton )

RICHARD CHRISTY, being first duly sworn, deposes on

oath and says:

1. I am one of the Appellants in the above entitled mat-

ter. As is more specifically set forth in the Complaint which

was filed in this matter, my bringing this action stems from

Defendants’ having assessed a civil penalty against me for

shooting a grizzly bear when it was making an attack on my

flock of sheep which were pastured on land leased by me fror

the Blackfeet Tribe, which land is located on the north side

of Chief Mountain.

2. As is set forth in the Complaint (para. 7.0), I began leas-

ing this land in the summer of 1982 after having been assured

by the previous lessee that there had been very minimal pro-

blems with black bears on the land prior to my having leased

. it. However, shortly after my having moved my flock onto the

leased land, I heard rumors that this area on Chief Mountain

had in the past served as a place where government officials

had been transplanting grizzly bears who had already killed

sheep in other areas.

3. In reading the Opinion of this Court daied September

21, 1988, I noted a reference in footnote 9 to the question of

whether any of the depredating grizzly bears may have been

relocated or transplanted by the government. Specifically this

Court noted that:

... the record does not show, that the federal govern-

ment physically introduced any bears to the areas

near plaintiffs’ properties. Whether the government

may be held responsible for damage caused by bears

or other wild animals that have been relocated by

the government, under a theory that such animals

are instrumentalities of the government, is a ques-

tion we do not decide.

[ Opinion, p. 11901, footnote 9)

4. This entry coupled with my recollection of having heard

the rumors in 1982 that sheep-killing grizzly bears had been

transplanted onto Chief Mountain caused me to talk recently

with Ken Wheeler, government trapper. Mr. Wheeler is the

government trapper referred to in paragraph 7.1 of the Com-

plaint, who had made numerous, but futile attempts to cap-

ture the grizzly bears who were de,redating my flock on Chief

Mountain, prior to my having shot the grizzly which is the sub-"

ject of this action.

5. During this recent conversation I understood Mr.

Wheeler to say that during the summer or fall of 1981, he per-

sonally, acting as government trapper, had transferred two

sheep-killing grizzly bears onto or near the area which I had

leased from the Blackfeet Tribe on the north side of Chief

Mountain.

6. Wheeler told me that written documentation is kept of

all such transfers of grizzly bears.

7. Based upon what Mr. Wheeler told me during this re-

cent conversation, there is in my mind, a very real issue as

to whether or not the grizzly bears which were depredating

my flock in 1982, and in particular the grizzly bear which was

shot by me, had been transplanted into this area by the govern-

ment. Had we been afforded the opportunity to pursue

discovery in this district court, we could have obtained the

documentation necessary to establish whether the bears caus-

ing damage had in fact been relocated into the area by the

government.

Further Affiant sayeth not.

RICHARD P. CHRISTY

SUBSCRIBED AND SWORN TO before me this 3rd day of

November, 1988.

37a

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NO. 87-3998

RICHARD P. CHRISTY, THOMAS B.

GUTHRIE and IRA PERKINS,

Appellants.

vs.

DONALD P. HODEL, Secretary

of the Interior and

THE UNITED STATES

DEPARTMENT OF INTERIOR,

Appellees.

AFFIDAVIT OF SUE ANN LOVE IN SUPPORT

OF APPELLANTS’ MOTION TO RECONSIDER THIS

COURT’S ON. DER DENYING APPELLANTS’ PETIT!0ON

FOR REHEARING

STATE OF MONTANA )

County of Cascade )

SUE ANN LOVE, being first duly sworn, deposes on oath

and says:

1. Iam one of the Attorneys for the Appellants in.the above

entitled matter. At the time of the filing of the Appellants’ Peti-

tion for Rehearing, neither I nor co-counsel, K Dale Schwanke,

had ever received any information from our clients or any

other source which in any way indicated that the grizzly bear

shot by Appellant Christy and which is the subject of this ac-

38a

tion, bad or may have been transplanted by the government

onto the area where it was depredating Christy’s flock of

sheep. In fact, it was not until late October, 1988, that our client,

Appellant Richard P. Christy, first informed us of a conver-

sation which he had just recently had with government trap-

per, Ken Wheeler, wherein Wheeler informed Christy that

Wheeler had been involved in relocating sheep-killing grizzlies

onto this area prior to the date on which Christy shot the grizzly

bear.

2. After having received this information by mail from

Mr. Christy, I personally telephoned government trapper Ken

Wheeler and his supervisor Carter Niemeyer and confirmed

this information. After doing so, I prepared an Affidavit for

Mr. Christy and mailed it to him. Mr. Christy signed the Af-

fidavit and sent it back to me by return mail. I received Mr.

Christy’s Affidavit.on the same day (November 7, 1988) as I

received the Court’s Order denying our Petition for Rehearing.

3. During my telephone conversation with Mr. Wheeler,

he informed me that he personally had transplanted two sheep-

killing grizzly bears from an area near the Milk River Ridge

on-the Cut Bank Creek drainage onto Oil Well Road on the

north slope of Chief Mountain. (Appellant Christy shot the

grizzly bear on the north side of Chief Mountain.) Wheeler said

that he did not recall exactly what year that was, but he would

have to say that it was before 1981. Wheeler said that he was

always required to complete very detailed records concern-

ing each and every bear that was moved, including the bear’s

age, weight, sex, identification numbers, tatoos, etc. Wheeler

said that complete records pertaining to all of these grizzly

bear relocations could be found in his agency’s animal damage

control office in Billings.

4. Subsequent to my conversation with Mr. Wheeler, I

spoke to his supervisor Mr. Niemeyer. Mr. Niemeyer confirm-

ed this information and I understood him to say that prior to

the time Mr. Christy had shot the grizzly bear which is the sub-

ject of this action, the area on which Mr. Christy shot the grizz-

ly bear had been a common dumping ground for problem grizz-

39a

ly bears. He also informed me that his office was required to

keep records of any relocation of problem bears which it car-

ried out and that such records would be available through

Defendants’ offices.

Further Affiant sayeth not.

SUE ANN LOVE

SUBSCRIBED AND SWORN TO before me this 7th day of

November, 1988.

UNITED STATES DEPARTMENT OF THE INTERIOP

OFFICE OF HEARINGS AND APPEALS

Hearings Division

6432 Federal Building

Salt Lake City, Utah 84138-1194

(Phone: 801-524-5344)

March 14, 1985

U.S. FISH & WILDLIFE : Docket No. DENVER 84-1

SERVICE

__: Civil Penalty Proceeding

Complainant : Endangered Species Act of

V. ‘ : 1973, 87 Stat. £84,

‘, : 16 U.S.C. §§ 1538-1540

RICHARD PAUL CHRISTY

: INV 8-23014

Respondent

DECISION

Appearances: Curtis Menefee, Esq., Office of the Solicitor,

Department of the Interior, Denver, Colorado

for complainant

Dale Schwanke, Esq., and Sue Ann Love, Esq.,

of the Law Firm Jardine, Stephenson, Blewett

& Weaver, Great Falls, Montana for

respondent

Before: Administrative Law Judge Sweitzer

These proceedings are governed by the provisions of the En-

dangered Species Act of 1973, as amended, 16 U.S.C. §§ 1531-

1543, and Title 50 CFR, Subchapter B.

4la

‘ Complainant issued to Richard Paul Christy a Notice of Viola-

tion, dated February 7, 1983, alleging that:

On or about July 9, 1982, while subject to the jurisdic-

tion of the United States, Respondent did shoot and kill

a grizzly bear Ursus arctos, near Chief Mountain on

the Blackfeet Indian Reservation, in Glacier County,

Montana, thus, violating the Endangered Species Act.

Respondent violated Section 1538(a) (1) of Title 16 of the

United States Code which makes it unlawful to take any

endangered species, fish or wildlife.

The Notice of Violation was answered with a Petition for

Relief, dated March 10, 1983. A Notice of Assessment was

subsequently given on September 15, 1983, assessing a civil

penalty of $3,000.00. (The Notice of Assessment also refined

the species designation to Ursus arctos horribilus, whereas the

Notice of Violation only designated Ursus arctos).

On October 31, 1983, respondent filed a request for hearing.

A hearing was scheduled for May 9, 1984. At the request of

respondent it was postponed, and was held on August 13, 1984,

at Great Falls, Montana. Oral argument was waived, and post-

hearing briefs were filed by both parties as follows:

Complainant’s Posthearing Brief, October 9, 1984; Respon-

dent’s Answer Brief, November 14, 1984; Complainant’s Rep-

ly Brief, November 28, 1984.

oy

The Law and Regulations

Grizzly bears are listed as an endangered or threatened

species at 50 CFR 17.11, in accordance with 16 U.S.C. §1533(c).

The sub-species of yrizzly bear involved in this case, Ursus

arctos horrib‘us, is a threatened species. The Secretary of the

Interior can regulate any threatened species in the same man-

ner an endangered species can be regulated under 16 U.S.C.

§1538. The statutory authority states:

Whenever any species is listed as a threatened species

pursuant to subsection (c) of this section, the Secretary —

shall issue such regulations as he deems necessary and

advisable to provide for the conservation of such

species. The Secretary may by regulation prohibit with

respect to any threatened species any act prohibitd

[SIC] under section 1538(a) (1) of this title, in the case

of fish or wildlife, or section 1538(a)(2) of this title, in

the case of plants, with respect to endangered species.

16 U.S.C. §1533(d).

In relevant part, said section 1538(a)(1) provides:

[With respect to any endangered species of fish or

wildlife listed pursuant to section 1533 of this title it is

unlawful for any person subject to the jurisdiction of

the United States to--

** * take any such species within the United States or

the territorial sea of the United States. 16 U.S.C.

§1538(a)(1)(B).

The regulations for threatened species (50 CFR, Part 17, Sub-

part D) have been promulgated under the Endangered Species

Act, s supra, by the Secretary of the Interior. Certain threaten-

ed species have special rules governing ‘iveir existence (round

in 50 CFR 17.40-17.48). These special rules contain all the pro-

hibitions and exceptions applicable (o the threatened species,

to the exclusion of all other rules. 50 CFR 17.31(c.).

43a

The special rule applicable to grizzly bears is located at 50 CFR

17.40(b). This regulation states that no grizzly bear shall be

taken, except as provided in specified subsequent exceptions.

Thus, the illegal taking of an endangered species as found in

16 U.S.C. §1538, applies to this threatened species, the grizzly

bear.

, Two of the specified exceptions to the taking of a grizzly bear

were, at one time or another, asserted in this case. The ap-

plicable portions of the regulations are as follows:

Grizzly bears may be taken in self-defense, or in

defense of others, but any such taking shall be reported

in writing to the United States Fish and Wildlife Ser-

vice, Division of Law Enforcement, P.O. Box 19183,

Washington, D.C. 20036, and to appropriate State of-

ficials, within 5 days after it occurs. 50 CFR 17.40(b)

(1)(i)(B).

Removal of nuisance bears. A grizzly bear con-

stituting a demonstrable but non-immediate threat to

human safety, or committing significant depredations

to lawfully present livestock, may be taken, but only if:

(1) it has not been reasonably possible to eliminate

such threat or depredation by live-capturing and

releasing unharmed in a remote area the grizzly bear

involved; and

(2) the taking is done in a humane manner by au-

thorized Federal or State employees; and

(3) the taking is reported in writing to the United

States Fish and Wildlife Service, Division of Law En-

forcement, P.O Box 19183, Washington, D.C. 20036, and

to appropriate State officials, within 5 days after it oc-

curs. 50 CFR 17.40(b)(1)(i)(C).

—_———

The penalty and enforcement provision of the Endangered

Species Act is found at 16 U.S.C.§1540. It states that “‘[A]ny

person who knowingly violates, and any person engaged in

business as an importer or exporter of fish, wildlife, or plants

who violates, any provision of this chapter’? may be assessed

a civil penalty up to $10,000.00 for each violation. 16 U.S.C.

§1540(a)(1).

The Facts

The record shows the fullowing to be the facts surrounding the

killing of the grizzly bear on July 9, 1982. Respondent obtained

a lease from the Blackfeet Indian Tribe to graze his sheep on

lands held in trust by the United States of America for the use

and benefit of the Tribe. The leased land was located adjacent

to Glacier National Park in Glacier County, Montana. The

term of the lease was from June 1, 1982 until sometime in Oc-

tober of 1982. Prior to entering into the lease, respondent con-

tacted a prior lessee to inquire about possible predation. He

was informed that bear problems were minimal, however, no

sheep had been on the land for the past three to five years.

Respondent moved approximately 800 ewes and 900 lambs onto

the leased land. (Tr. 49-51).

On June 14, 1982, soon after the sheep were moved onto the

leased land, a bear of undetermined species attacked the herd,

and respondent killed it. (Tr. 52-53). The carcass of the bear

was given to a group of persons who were never identified or

located. Mr. Wayne Hamby, then Criminal Investigator for the

Bureau of Indian Affairs, was informed of the incident, and

on June 16, 1982, advised respondent that he was not allowed

to hunt or kill any wildlife on the Reservation, and warned him

especially against shooting grizzly bears as they are a

threatened species. (Tr. 9). Respondent then left the leased

land, leaving his herder in charge of the sheep. Respondent

reported that there were no significant problems between June

14, 1982 and approximately July 1, 1982. (Tr. 54).

Beginning around July 1, 1982, respondent’s herder began ex-

periencing nightly attacks on the sheep. (Tr. 54-55).

The herder was frightening the bears away with limited suc-

cess by building fires and shooting his gun in the air. (Tr. 27).

Mr. Kenneth Wheeler, a government trapper employed by the

U.S. Fish and Wildlife Service and responsible for animal

damage control, was contacted to assess the situation and to

remedy the problem. (Tr. 54)..Mr. Wheeler had warned

‘respondent in mid-June against having his sheep in the area

as there would likely be many bears there. (Tr. 14). Mr.

Wheeler identified the animals attacking the sheep as being

two black bears and two grizzly bears. This information was

given to respondent on July 6, 1982. (Tr. 55). Snares were set

by Mr. Wheeler about July 5, 1982 in an attempt to live-capture

the bears. (Tr. 15-16). The snares were checked twice daily.

By July 9, 1982, respondent had lost approximately twenty

head of sheep. (Tr. 56).

Respondent returned to the leased grazing area on July 9, 1982.

(Tr. 55-56). He was aware of the nightly attacks on his sheep

and felt that his herder had been pushed to the limit. (Tr. 56).

Mr. Wheeler arrived there later that evening to check his

snares and learned that earlier in the day respondent had shot

two black bears. (Tr. 16-17; 60). After resetting his snares, Mr.

Wheeler and respondent went to the camp area near the sheep

wagon. Respondent then observed two grizzly bears emerge

from the edge of the forest. (Tr. 60-61). One of the bears went

back into the heavy trees, so that when Mr. Wheeler turned,

he observed only one grizzly bear. The bears were between

60-100 yards away and moving in their general direction. (Tr.

18; 60-61). The grizzlies were not moving toward the sheep.

The grizzly bear Mr. Wheeler observed was not acting ag-

gressively toward the herd. (Tr. 18). While there is discrepan-

cy between the testimony of the respondent and the govern-

ment trapper as to what respondent stated and exactly what

he did immediately after he observed the bears, it is un-

disputed that respondent picked up his rifle, moved to a posi-

tion where he could shoot, and fired one shot at the bear that

remained visible. The shot hit the bear and it ran a short

distance before falling down. The length of time between

respondent’s sighting of the bears and the time that he fired

his rifle and killed the grizzly bear was somewhere between

15 seconds to 1 minute. Thereafter, Mr. Wheeler kept a lookout

for the other bear while respondent went down and fired his

shotgun into the bear to ensure that it was dead. (Tr. 17-20;

60-63). The other grizzly bear returned three times that same

night and was chased away each time. (Tr. 63-64).

The killing of sheep continued and further unsuccessful at-

tempts were made by Mr. Wheeler to live-capture the remain-

ing grizzly bear. (Tr. 36-37; 64-67). On July 15, 1982, respon-

dent requested that the Tribe terminate his lease and refund

his money. The request was granted on July 22, 1982. (Tr. 66).

Respondent moved his sheep out of the leased land on July 24,

1982. Respondent allegedly lost 44 ewes and 40 lambs during

the duration of the lease. (Tr. 66). The majority of this loss .

apparently came after the grizzly bear had been shot on July

9, 1982, since respondent testified that approximately 20 sheep

were taken by July 9, 1982.

Evaluation

The entire record of the case has been fully considered. Fin-

dings of fact and conclusions of law are set out hereinafter.

In all instances where these findings and conclusions are in-

consistent with those proposed by counsel in briefs, those pro-

posals are rejected because they are deemed immaterial or

not supported by the evidence.

At the outset of the hearing, counsel for respondent announc-

ed that any defense of self-defense was being withdrawn, and

that respondent would defend solely on the greundls that he had

the right to take the grizzly bear to protect his property. (Tr.

4). Respondent’s Answer Brief alleges that the Endangered

Species Act and regulations promulgated thereunder as ap-

plied to respondent under the facts of this case are unconstitu-

tional in that they: 1) unreasonably deprive him of his constitu-

tional right to protect his property, 2) operate to deprive him

47a

of his property without due process of law, and 3) involve the

taking of his property for public use without just compensa-

tion. (Respondent’s Answer Brief p.4).

The Department of the Interior, as an agency of the executive

branch of the Government, is without jurisdiction to consider

whether or not a statute enacted by Congress is constitutional.

United States v. Imperial Gold, Inc., 64 IBLA 241, 245-46 (1982),

and cases cited therein. Neither may the question of validity

of the implementing Departmental regulations be considered

here. Lynn Keith, 88 1.D. 369, 372 (1981), and cases cited

therein. Thus the only question to be decided in this forum is

whether respondent knowingly took a grizzly bear in violation

of section 1538(a)(1)(B) of Title 16 of the United States Code,

and if so, whether the penalty assessed him is appropriate

under the circumstances.

Subsequent to respondent's killing of a bear of undetermined

species on June 14, 1982, he was contacted by two federal

employees. Mr. Wheeler, the animal damage control specialist

from the Fish and Wildlife Service, told respondent that he

shouldn’t have his sheep in that area as there was sure to be

a high bear population. (Tr. 14). Mr. Hamby, a Criminal In-

vestigator for the Bureau of Indian Affairs, was also contacted

about the incident, and*-warned respondent on June 16, 1982,

against hunting or killing any wildlife on the Reservation, and

particularly against shooting grizzly bears, a threatened

species. (Tr. 9).! Thus respondent had actual knowledge’ that

the taking of a grizzly bear was illegal.

There is no question that the responden? new he was shooting

1. Counsel for respondent asked respondent whether he was advised by “Mr

Hamby” about “the potential problems with wildlife in the area,” to which respon-

dent answered in pertinent part: “Mr. Hamby did not advise me that there were

many bear in.the area” (Tr. 51-52). In fact, it was Mr. Wheeler, not Mr. Hamby,

who advised respondent that ‘he shoutdn't have his sheep in this area in the

high bear population and there had to be lots of bear in the area” (Tr. 14). Mr.

Hamby told him that ‘‘non-members of the Tribe wasn't allowed to do any hunting

or killing of wildlife on the [Blackfeet] Reservation, and particularly Indian people

also couldn't shoot grizzly bears, because they were a threatened species’ (Tr. 9).

48a

at a Grizzly bear on July 9, 1982. Upon seeing the bears emerge

from the timber that evening, respondent recalls saying

“There is two grizzlies.”’ (Tr. 61). Mr. Wheeler also identified

the bear he observed as a grizzly. (Tr. 18). Further describ-

ing the incident, respondent testified, ‘I jumped up from the

table, grabbed my rifle, that was laying on the hood of the

pickup. I ran over 10 feet from the table and shot the bear

within seconds, I don’t know how long, 15, 20 seconds, 30

seconds.” (Tr. 61-62). The uncontradicted testimony of respon-

dent and Mr. Wheeler who was present when the shooting took

place, leaves no doubt that respondent shot the grizzly bear.

Respondent alleges that he has a right to protect his own pro-

perty from destructior and that the provisions of the En-

dangered Species Act must be read to recognize this right.

(Respondent’s Answer Brief p.4). However, the regulations

promulgated under the Endangered Species Act contain no

such provision. A grizzly bear may be taken in self-defense

or defense of others under 50 CFR 17.40(b)(1)(i)(B), supra,’

a situation not argued in this case.*

The provision regarding removal of nuisance bears, 50 CFR

17.40(b)(1)(i)(C), supra, sets out specific circumstances, pro-

cedures, and proper authority, for lawful taking. The bear

must be committing significant deprivations [sic] to lawfully

present livestock. Then it may be taken only if it has not been

reasonably possibie to eliminate the threat by live-capture,

and the taking is done by an authorized person. The taking

must also be reported to the appropriate authorities. Whether

there was significant deprivations [sic] to respondent's

livestock, and whether or not a sufficient attempt had been

made to live-capture the grizzly bears, was not argued by

either counsel. Respondent clearly was not an authorized per-

2. For an example, see Administrative Law Judge decision, U.S. Fish and Wildlife

Service v. Ronald Lewis Matthew, Docket No. DENVER 84-2, INV 821338 (November

30, 1984). That decision found respondent therein was justified in shooting a

grizzly bear because he was acting in self-defense or defense of others

3. As mentioned earlier in this decision, respondent specifically withdrew any

defense of self-defense or defense of others, and defended “solely on the

grounds that he had the right to take this bear to protect his property” (Tr. 4)

; 49a

son under the regulation to take the grizzly, and as testified

by Mr. Wheeler, the government does not authorize anyone

in respondent’s situation to kill a nuisance grizzly bear. (Tr.

33).

The testimony from the proceedings leaves little doubt that

this was not a case of necessity for immediate defense of pro-

perty. Respondent introduced into evidence a drawing depic-

ting the surrounding area where the incident took place. (Exh.

A). It identified where the sheep were bedded down on July

9, 1982, the location of the wagons and vehicles, and where the

shooting occurred. Mr. Wheeler verified the accuracy of the

map. (Tr. 34). He testified that the bear he observed was 90-100

yards away from the sheep and was not acting aggressively

toward the sheep. (Tr. 18). Respondent twice stated that the

bear was coming in his direction or towards him. (Tr. 60-61).

Exhibit A illustrates that the location of the sheep was in a dif-

ferent direction, and that movement of the bear towards

respondent excludes the possibility that the bear was heading

toward his sheep. In various documents filed in conjunction

with this incident, there do seem to be inconsistent statements

as to the direction the bear was moving. In its Notice of Assess-

ment (p.2), the Department asserted that the bear appeared

to be heading toward the sheep. The Petition for Relief by

respondent claims self-defense and defense of others, imply-

ing that the bear was coming in their direction. This defense

was withdrawn by respondent at the outset of the hearing (see

footnote 3, supra). In Respondent’s Answer Brief (p.3) it is

asserted that the grizzly bear was moving in the direction of

the sheep. The testimony at the proceeding and the Exhibit

A drawing by respondent establish that the bear was not mov-

ing in the direction of the sheep herd, nor was it near the area

where the bears had been entering the sheep bedding grounds

on previous asserted attacks of the herd. Respondent, in con-

junction with his testimony of the incident, indicated with an

arrow drawn on the Exhibit A map the direction the grizzly

was taking immediately before it was shot, and it was not mov-

ing toward the sheep. (Tr. 61).

The pertinent reguiation (50 CFR 17.40(b)(1)(i)(C), supra)

30a

ee as

specifically sets out limited circumstances in which a nuisance

grizzly bear can be taken by duly authorized Federal or State

employees. Respondent was not one of those authorized per-

sons, and it is not even clear that a taking of the grizzly by

an authorized person would have been justified under the cir-

cumstances. The bears had previously been frightened away

with at least some success. The grizzly bear that was not shot

returned to the sheep herd and was chased away three times

the night of July 9, 1982, after the other grizzly had been shot.

This suggests the first grizzly bear might also have been chas-

ed away and not shot. Clearly, the regulation for the taking

of a nuisance grizzly bear was not followed by respondent.

Having determined that respondent knowingly took a grizzly

bear in violation of the Endangered Species Act and the regula-

tions promulgated thereunder, the final determination to be

made is whether the penalty assessed was appropriate in the

circumstances. The Act, in 16 U.S.C. §1540, supra, authorizes

the maximum civil penalty of $10,000 per violation. In this case,

respondent’s assessment was for slightly less than one-third

of that amount. Assumably, the Fis’: end Wildlife Service did

not feel that this was the type of incident that required the

maximum penalty and reduced the assessment accordingly.

Other than taking the grizzly, respondent was reasonable in

his actions and did attempt to mitigate damages. Before the

grizzly killing, he contacted the prior lessee in order to check

for possible predation problems. (Tr. 50). After the killing, he

terminated the lease and removed his sheep herd in a timely

manner. (Tr. 66). There were no aggravating circumstances

such as joy killing or trophy hunting of this threatened species.

Respondent was cooperative with the investigation of the in-

cident. (Tr. 45).

There was a substantial time delay by the Fish and Wildlife

Service in the assessment process. Well over a year elapsed

from the date of the incident until the Notice of Assessment

was filed. This delay was not satisfactorily explained. (See,

e.g., Tr. 46-47). However there is no indication of any injustice

resulting from this delay.

There were several circums.ances that indicate respondent

was ‘‘quick on the trigger.’’ When he moved his sheep onto the

leased land in June of 1982, a bear of undetermined species

attacked his herd and he killed it. Respondent testified ‘‘At the

time I didn’t realize that black bears came in any other color

besides black, so we assumed this bear could have been a

grizzly * * *.”’ (Tr. 53).

Respondent was warned against killing bears and particular-

ly grizzlies, yet he thereafter did kill the grizzly and two black

bears. The penalty determined by this decision in no way at-

tempts to penalize respondent for shooting the black bears.

Nevertheless, a general disregard for game protection laws,

and thus a possible intent to shoot promiscuously, is suggested

by the fact that the black bears were killed following the war-

ning. Moreover, respondent evidently never did make an ef-

fort to have the bear taken by proper authorities under the

cited regulation.

The loss of property suffered by respondent was substantial.

Approximately 20 sheep had been killed when the grizzly was

taken on July 9, 1982. (Tr. 56). Respondent estimated his total

loss at $10,000. (Tr. 66). In considering the appropriate penal-

ty, these facts have been taken into account. However, the

penalty imposed must have a deterrent effect and not merely

be a factor in a cost benefit analysis when private property

is being menaced by a threatened species. If a substantially

reduced penalty were assessed, respondent and others similar-

ly situated might vention of the Endangered Species Act, and

without complying with appropriate regulations promulgated

thereunder, if their property is being endangered or destroyed.

Proven violations of the Endangered Species Act must receive

substantial sanctions in order to implement the dictates of the

Act. Notwithstanding, considering all the circumstances, in-

cluding the mitigating aspects discussed above, I am of the

view that a penalty of twenty-five percent of maximum is more

fitting than the thirty per cent of maximum imposed by com-

plainant. Therefore a penalty of $2,500 is deemed appropriate.

92a

.

ia tit Ai Gite

Conclusion and Order

I conclude that: a) this is not the proper forum to consider

whether the Endangered Species Act and regulations pro-

mulgated thereunder are unconstitutional; b) respondent

knowingly took a grizzly bear in violation of section

1538(a)(1)(B) of Title 16 of the United States Code; c) proper

procedures for the removal of nuisance grizzly bears (found

at 50 CFR 17.40(b)(1)(i)(C)) were not followed; and d) the

assessment of $3,000 should be reduced to $2,500, the latter be-

ing deemed a more reasonable penalty to be imposed under

the circumstances.

Therefore respondent is ordered to pay complainant a civil

penalty of Two Thousand Five Hundred Dollars ($2,500.00).

Harvey C. Sweitzer

Administrative Law Judge

Appeal Information

This decision may be appealed in accordance with Title 50,

Code of Federal Regulations, Section 11.25, an excerpt of which

is attached.

§ 11.25 Appeal.

(a) Either the respondent or the Director may seek an

appeal from the decision of an administrative law

judge rendered subsequent to January 1, 1974, by fil-

ing of a ‘Notice of Request for Appeal’’ with the Direc-

tor, Office of Hearings and Appeals, United States

Department of the Interior, 4015 Wilson Boulevard, Arl-

ington, Virginia 22203, within 30 calendar days of the

date of the administrative law judge’s decision. Such

notice shall be accompanied by proof of service on the

administrative law judge and the opposing party.

53a

(b) Upon receipt of such a request, the Director, Of-

fice of Hearings and Appeals, shall appoint an ad hoc

appeals board to determine whether an appeal should

be granted, and to hear and decide an appeal. To the

extent they are not inconsistent herewith, the provi-

sions of Subpart G of the Department Hearings and Ap-

peals Procedures in 43 CFR Part 4 shall apply to ap-

peal proceedings under this Subpart. The determina-

tion of the board to grant or deny an appeal, as well

as its decision on the merits of an appeal, shall be in

writing and become effective as the final ad-

ministrative determination of the Secretary in the pro-

ceeding on the date it is rendered, unless ..-«rwise

specified therein.

o4a

UNITED STATES

DEPARTMENT OF THE INTERIOR

OFFICE OF HEARINGS AND APPEALS

Hearings Division

6432 Federal Building

Salt Lake City, Utah 84138-1194

(Phone: 801-524-5344)

April 3, 1985

U.S. FISH & WILDLIFE : Docket No. DENVER 84-1

SERVICE

Complainant : Civil Penalty Proceeding

v. : Endangered Species Act of

: 1973, 87 Stat.0884,

RICHARD PAUL CHRISTY, : 16 U.S.C. §§ 1538-1540

Respondent : INV 8-23014

ERRATUM

The top line on page 11 of the captioned decision which issued

March 14, 1985, was omitted. The corrected page 11 is attach-

ed hereto.

Harvey C. Sweitzer

Administrative Law Judge

Attachment

feel justified in taking a threatened species in contravention

of the Endangered Species Act, and without complying with

appropriate regulations promulgated thereunder, if their pro-

perty is being endangered or destroyed. Proven violations of

the Endangered Species Act must receive substantial sanc-

tions in order to implement the dictates of the Act. Not-

55a

United States Constitution Provisions

Amendment V, Due Process of Law

** * nor be deprived of life, liberty, or property,

without due process of law; * * *

Amendment V, Just Compensation for Property

*** nor shall private property be taken for public use

without just compensation.

§1531. Congressional findings and declaration of purposes and

policy

(b) Purposes

The purposes of this chapter are to provide a means

whereby the ecosystems upon which endangered species and

threatened species depend may be conserved, to provide a pro-

gram for the conservation of such endangered species and

threatened species, and to take such steps as may be ap-

propriate to achieve the purposes of the treaties anc conven-

tions set forth in subsection (a) of this section.

§1532. Definitions

(6) The term “endangered species’’ means any

species which is in danger of extinction throughout

all or a significant portion of its range other than a

species of the Class Insecta determined by the

Secretary to constitute a pest whose protection under

the provisions of this chapter would present an over-

whelming and overriding risk to man.

(19) The ter... ‘“‘take’’ means to harass, harm, pur-

sue, hunt, shoot, wound, kill, trap, capture, or col-

lect, or to attempt to engage in any such conduct.

(20) The term “threatened species’’ means any

species which is likely to become an endangered

species within the foreseeable future throughout all

or a significant portion of its range.

57a

§1533. Determination of endangered species and threatened

species

(a) Generally

(1) The secretary shall by regulation promulgated in accor-

dance with subsection (b) of this section determine whether

any species is an endangered species or a threatened species

because of any of the following factors:

(A) the present or threatened destruction, modifica-

tion, or curtailment of its habitat or range;

(B) overutilization for commercial, recreational,

scientific, or educational purposes;

(C) disease or predation;

(D) the inadequacy of existing regulatory

mechanisms; or

(E) other natural or manmade factors affecting its

continued existence.

§1533. Determination of endangered species and threaten-

ed species

(d) Protective regulations

Whenever any species is listed as a threatened spec.es pur-

suant to subsection (c) of this section, the Secre*ary shall issue

such regulations as he deems necessary and advisable to pro-

vide for the conservation of such species. The Secretary may

by regulation prohibit with respect to any threatened species

any act prohibited under section 1538(a)(1) of this title, in the

case of fish or wildlife, or section 1538(a)(2) of this title, in the

case of plants, with respect to endangered species....

§1538. Prohibited acts

(a) Generally

(1) Except as provided ins -tions 1535(g)(2) and 1539 of this

title, with respect to any endangered species of fish or wildlife

listed pursuant to section 1533 of this title it is unlawful for any

person subject to the jurisdiction of the United States to —

(B) take any such species within the United States

or the territorial sea of the United States; ...

50 C.F.R. §17.40 Special rules-mammals.

(b) Grizzly bear (Ursus arctos horribilis)--(1) Prohibitions.

The following prohibitions apply to the grizzly bear:

(i) Taking.

(A) Except as provided in paragraphs (b)(1)(i) (B) through

(F), of this section no person shall take any grizzly bear in the

48 conterminous states of the United States.

(B) Grizzly bears may be taken in self- defense, or in defense

of others, but any such taking shall be reported in writing to

the United States Fish and Wildlife Service, Division of Law

Enforcement, P.O. Box 19183, Washington, D.C. 20036, and to

appropriate State officials, within 5 days after it occurs.

(C) Removal of nuisance bears. A grizzly bear constituting

a demonstrable but non-immediate threat to human safety, or

committing significant depredations to lawfully present

livestock, may be taken, but only if:

(1) it has not been reasonably possible to eliminate such threat

or depredation by live-capturing ard releasing unharmed in

a remote area the grizzly bear involved; and

(2) the taking is done in a humane manner by authorized

Federal or State employees; and

(3) the taking is reported in writing to the United States Fish

and Wildlife Service, Division of Law Enforcement, P.O. Box

19183, Washington, D.C. 20036, and to appropriate State of-

ficials, within 5 days after it occurs.

(D) Federal or state scientific or research activities.

Authorized Federal or State employees may pursue, capture,

or collect grizzly bears for scientific or research purposes.

(E) Northwestern Montana. If it is not contrary to the laws

and regulations of the State of Montana, a person may hunt

grizzly bears in the Flathead National Forest, the Bob Mar-

shall Wilderness Area, and the Mission Mountains Primitive

Area of Montana: Provided, That if in any year in question

25 grizzly bears have already been killed for whatever reason

in that part of Montana, including the Flathead National

Forest, the Bob Marshall Wilderness Area and the Mission

Mountains Wilderness Area, which is bounded on the north by

United States-Canadian Border, on the east by U.S. Highway

91, on the south by U.S. Highway 12, and on the west by

Montana-Idaho State line, the Director shall post and publish

a notice prohibiting such hunting, and any such hunting for

the remainder of that year shall be unlawful: Provided fur-

ther, That any taking of a grizzly bear, for whatever reason,

in the above-described portion of Montana shall be reported

in writing to the United States Fish and Wildlife Service, Divi-

sion of Law Enforcement, P.O. Box 19183, Washington, D.C.

20036, and to the Montana Department of Fish and Game,

within 5 days after the taking occurs; and except that any tak-

ing on an Indian reservation within the above-described area

shall be so reported only to the United States Fish and Wildlife

Service, Division of Law Enforcement, P.O. Box 19183,

Washington, D.C. 20036.

(F) National Parks. The regulations of the National Park Ser-

vice shall govern all taking of grizzly bears in National Parks.

6la

Boyd, Grizzlies & Sheep & People,

IDAHO WOOL GROWERS BULLETIN,

September 1984

** *

A wool grower that’s been in the news the past year in

regards to grizzly-sheep conflict is Bill Enget of St. Anthony.

Bill owns a ranch near the east end of Henry’s Lake Flat, just

over the Continental Divide from Yellowstone National Park.

His family has grazed sheep in the area since 1924. During the

summer of 1983, a prominent but now deceased grizzly, No.

38, and her two cubs took a liking to Bill’s unadvertised

hospitality. as well as his sheep. They moved in to the Two Top

Area of Bill’s range. The Two Top Area is classified Situation

I, which means all management of the area is worked around

the grizzly. This area borders Bill's privately owned ground,

which is classified Situation III. This means if a grizzly shows

up, the grizzly has to be moved.

When grizzly No. 38 first showed up in the Two Top Area,

Bill contacted the proper authorities u.ad the bureaucrats mov-

ed in. Over a year later, which is right now, Bill Enget has

lost his range ‘‘temporarily’’ and ’ol No. 38 is dead, subdued

not by an angry rancher, but by a sedative overdose ad-

ministered by representatives of the Interagency Grizzly Bear

Committee....

As mentioned above, the Enget family was the recipient

of another visit by a grizzly in the early morning hours of

August 29. Unfortunately, there wasn’t time for visiting with

authorities in regards to steps to be taken. “he bear crawled

right back into Bill’s buck herd, less than 300 yards from his

house. When the dust settled, a wounded grizzly was on the run.

...All governmental, environmental, and citizen groups involv-

ed simp!y have to face reality. They can have grizzlies eating

these uanatun ally placed carcasses in peace and quiet or they

can have grizzlies eating out of dumpsters in West

Yellowstone, raiding campgrounds, or eating sheep. All of

these will only lead to more dead grizzlies, sheep and people.

Since 1970, a total of 193 dead grizzlies have been documented.

Residents Learn the Grizzly is Not an Easy Neighbor,

High Country News,

Jan. 4, 1988, at 12, col. 1

*_* *

Montview, Idaho, sheep rancher Sam Davis also says he

can live with the grizzly, but not under the current

arrangement.

Davis’ family has herded sheep on the same allotments

on the west slope of the Tetons for more than 100 years. He

and his brother Jim are among the last sheep ranchers with

flocks grazing in Situation One Habitat under grizzly bear

guidelines for the Greater Yellowstone Ecosystem. Situation

One means that when a grizzly bear starts eating their sheep,

they, not the bear, have to move.

‘My business can’t survive if it means moving out of the bear’s

way,’’ Davis said. ‘‘We’ve been on these ranges for more than

100 years and dealing with the same grizzly bears. We’ve never

killed them off and they’ve never driven us off.”’

** *

Davis, whose business pumps about $250,000 annually in-

to the Idaho economy, had little problem with grizzlies before

the bear was placed on the threatened species list in 1975. He

was spared the problems of his neighbors when Targhee of-

ficials installed grizzly rules early in the ’80s.

But this year, in July and August, Davis faced his first con-

frontation with a grizzly bear since the Forest Service installed

its sheep-monitoring system. For the Targhee National Forest,

the survival! of that particular bear spelled success.

But for Davis, it added costs that cut his business’ slim

margin. It also fueled uncertainty over whether he could con-

tinue te graze the area that his herders, sheep and family know

so well. “It’s already cost me $20,000 or more,”’ said Davis.

64a

“It could cost me the whole operation, all for one bear.’’

The incident started in July when herders reported a bear

was killing some of Davis’ sheep on the Bitch Creek ridge in

Wyoming, northeast of Tetonia, Idaho. The area had a history

of black bear predation, so government trappers came in and

set snares.

A black bear was caught and killed, but the signs pointed

to more than one bear. On July 16, a grizzly sow was found

in the trap with two cubs near by. Wyoming Game and Fish

officers tranquilized the bear and released it.

Davis sheep were allowed to stay, but a week later the

grizzly struck again. Moving the sheep at that time would

mean a loss of 10 to 15 pounds of weight gain in his lambs just

prior to shipping. Sam Davis contacted a U.S. Department of

Agriculture official, who contacted Regional Forester Stan

Tixier, chairman of the Interagency Grizzly Bear Committee.

Tixier and the Forest Service held fast and Davis began

moving the sheep out of the mountains. The grizzly followed

and took more sheep before it left.

The number of sheep grazing in Situation One Habitat on

the Targhee National Forest has dropped from 30,000 adults

and lambs in 1975 to 2,120 in 1986, said Burns.

In the 1970s, the area around Davis’ allotment became a

“black hole” for grizzlies; they entered but often never left.

Official mortality figures show seven bears were killed by

sheepherders in the area in 1978 and 1979. No legal action was

taken. Targhee officials began sending monitors along with

the sheepherders to ensure that they were not killing grizzlies.

Burns said livestock protection is important to self-esteem

of most ranchers....

“You aren’t very well-respected in your area if you don’t

take care of your animals,” he said. “It’s hard to stand by

while your animals are being killed by a bear.”’

Once the monitor system was in place, only one major in-

cident took place on the Targhee prior to this season. ‘“‘We’re

not going to move unless they force us to do it,’’ said Davis.

“If they force us to do it then we’re broke.”’

Davis is pinning his hopes on changes in regulations once

the bear is no longer listed as a threatened species. But that

is not expected to happen soon, if ever, said Tixier.

There are mahy vacant sheep allotments outside of Situa-

tion One Habitat that could be used by Davis, said Tixier. But

Davis said the cost of moving his operation and the adapta-

tion of people and sheep to new range would make moving im-

possible.

** *

Robbins, A Town Divided by the Grizzly,

New York Times Magazine,

August 31, 1986, Section 6

In the spring, two young grizzly bears, just out of a

winter’s sleep, wandered down out of the timbered high coun-

try of the Rocky Mountains and onto the prairie near Choteau,

a smal) ranching community in central Montana....

Choteau, population less than 2,000 is a textbook illustra-

tion of the volatile mixture of biology and politics. The effort

to protect certain animal species, with the powerful Federal

Endangered Species Act (E.S.A.) as a tool, has generated no

end of controversy....

At issue in Choteau is not only the fate of the grizzly, but

a conflict between Federal policy and the rights of the

individual...

Bert [Guthrie] blames the conflict between bears and peo-

ple on the law’s strict limitations against killing bears.

Marauding bears that do not directly threaten a human life

may only be tranquilized and moved. ‘‘The grizzly people are

in control,’ Bert says.

***

At the center of the debate in Choteau is the E.S.A. Pass-

ed by Congress in 1973 to assure protection for animals

threatened with extinction, the act prohibits the “‘taking’’--

directly or indirectly causing the death--of a species considered

imperiled. Grizzlies were declared ‘‘threatened”’ in 1975.

Of all threatened American species, grizzlies are the most

fierce...Although no one in Choteau has been involved, the fear

is pervasive.

67a

Physical danger is not the only issue. Economics is involv-

ed. In 1984, bears got into Bert’s flock and killed five sheep.

The only legal recourse was to call a state wildlife official, who

traps and relocates the animals--a process Bert says is

cumbersome and ineffectual. Montana officials did snare and

relocate two orphan grizzlies, which may or may not have been

responsible for killing Bert’s sheep. Then, one night in 1985,

claims Bert, grizzlies killed another 30 sheep, which he values

at about $50 each. “‘It’s crazy,” says Bert. ‘“‘We’re in the

business of raising sheep for human consumption, not bear

consumption.”

** *

‘

‘Government involvement in the lives of individuals has

been the cause of this,’ says Bert Guthrie. “It’s a human-

rights issue-the right of an individual to protect his

property.’’....

** *

Robbins, Grizzly and Man When Species Collide,

National Wildlife,

Feb/Mar 1988, p.21

...few would argue that the aptly named Ursus arctos hor-

ribilis is a formidable animal, the most dangerous of the more

than 400 species protected under the U.S. Endangered Species

Act. It has the strength to kill a man with a halfhearted blow.

Perhaps even more threatening, it is largely beyond human

control, a creature that must be met on its own terms. As one

bear expert recently said, the phrase ‘‘grizzly bear manage-

ment”? is a “contradiction in terms, like military

intelligence.’’...

** *

The grizzly bear is a powerful symbol—so powerful

sometimes that it seems to defy logic—of two very conflicting

things. To some the massive creature is nature at its worst,

a predator that indiscriminately kills people and livestock,

threatening the existence--and very lives--of ranchers and

farmers. Protection fer the grizzly, says Ira Perkins, a ran-

cher in Bynum, Montana, is sheer folly, a scheme fomented

by easterners who have no clue about what it is like to cope

with such a predator in their own backyard. ‘‘Our view is

realism, theirs is idealisrn,’’ says Perkins. ‘If they were here

where the bear could take a bite out of them, they’d be just

like us.”’

Today grizzlies are found in two primary enclaves in the

Lower 48--around the Continental Divide in northern Montana,

with Glacier National Park at its core; and in the area con-

taining Yellowstone Park. Between 400 and 800 bears--the on-

ly population that Montana officials want to delist--are

estimated to inhabit Glacier Country. More than 200 grizzlies

are believed to inhabit the Yellowstone region. In Canada and

Alaska, meanwhile, there are thousands of grizzly bears.

** *

...more and more people have been moving closer to the

bears’ mountain retreats. And more grizzlies are venturing

down to the plains. The result: conflicts between the two

species--and renewed calls to control the grizzly population.

And ranchers are occasionally taking matters into their own

hands.

70a

Turbak, Grizzly on the Ropes,

American Forest,

Feb. 1984, Vol. 90 N2 pp. 22-23

Today there are six populations of grizzlies in the lower

48 states ... 1) the northern Cascade Mountains in Washington,

2) the Selway-Bitterroot Wilderness along the Idaho-Montana

border, 3) the Selkirk Mountains on the Idaho-Washington

border, and 4) the Cabinet Mountains in northwest Montana...

The second largest population of grizzlies dwells in the

wild area in and around Yellowstone National Park....

The largest grizzly population...lives in northern Mon-

tana’s Glacier National Park and the adjacent Bob Marshall,

Great Bear, Mission Mountain, and Scapegoat Wilderness

areas.

Adding to the Cabinet grizzly’s woes is the fact that the

94,000-acre wilderness may contain significant amounts of cop-

per and silver. For the past four years, the American Smelting

and Refining Company has been drilling for minerals within

the wilderness. U.S. Borax began its own drilling project there

last year. |

The Cabinet Wilderness grizzly dilemma is a bureaucrat’s

nightmare. On one hand, the Wilderness Act of 1964 and the

Mining Law of 1872 support the search for minerals. But the

grizzly’s threatened status gives the big bear protection under

other federal law....

Public-land custodians frequently find themselves in the

dilemma of having to manage forests simultaneously for

recreation, timber production, mining, and grazing, as well

as for grizzlies and other wildlife.

7la

No Right to Shoot Marauding Grizzly Bears, Ranchers Told,

Los Angeles Times,

Sept. 22, 1988, at 1, col. 3

Ranchers whose livestock are threatened by grizzly bears

have no constitutional right to shoot an endangered species,

even when federal law permits limited sport hunting of the

bears, a federal appeals court ruled Wednesday.

Ruling in the case of a Montana rancher who lost 84 sheep

in a single month to marauding grizzlies, the U.S. 9th Circuit

Court of Appeals held that there is no constitutional right to

defend property against wildlife protected under federal law.

Rancher Richard P. Christy was fined $2,500 when he shot

and killed a grizzly bear, one of several that had already

slaughtered 20 of his sheep grazing on lands leased from the

Blackfoot Indian Tribe near Glacier National Park.

Previous attempts to frighten the bears by building fires

and firing shots into the air had failed, as had attempts by the

U.S. Fish and Wildlife Service to set traps.

Christy challenged the fine, asserting that the penalty

violated his constitutional right to defend his sheep. He later

sought to have the federal regulations protecting the grizzlies

declared unconstitutional because he said they irrationally

permit limited sport hunting of the bears while preventing ran-

chers from protecting their livestock.

But in a unanimous decision written by Judge Arthur L.

Alarcon, the court upheld the regulations and held that while

ranchers can kill an endangered species to protect their lives,

there is no such protection for defense of property.

“‘We do not minimize the seriousness of the problem fac-

ed by livestock owners such as plaintiffs, nor do we suggest

that defense of property is an unimportant value,’’ the court

said.

‘“‘We simply hold that the right to kill federally protected

wildlife in defense of property is not ‘implicit in the concept

of ordered liberty’ nor so ‘deeply rooted in this nation’s history

and tradition’ that it can be recognized by us as a fundamen-

tal right guaranteed by the Fifth Amendment.”’

7s *

Opinion: Grizzly Kill Means Congress Needs to Bear Down and

Work,

The Herald (Provo, Utah),

November 14, 1988 at 5

... [Christy] didn’t expect, oo that the bears would

devour 84 of his sheep in just the first two months.

So, with a startled U.S. Fish and Wildlife Service agent

standing nearby, Christy shot one. But because the grizzly is

an endangered species, the 9th U.S. Circuit Court of Appeals

ruled the other day that Christy should not have killed the bear

no matter how grave the provocation.

The decision denies the historic right of the shepherd to

protect his flock from a predator that happens to be under

government protection, and it has stirred intense controver-

sy among Western ranchers and wildlife advocates.

Environmentalists argue that to be effective the federal

government has to prohibit killing endangered species except

where a human life is endangered.

Christy’s attorneys, however, point out that enforcing that

prohibition against stockmen doesn’t make sense since the feds

already allow grizzlies to be hunted for sport, endangered or

not. More important, those kinds of conflicts and contradic-

tions are only going to increase as the government presses

ahead with its efforts not just to expand the population of in-

digenous predators but also to reintroduce some others that

haven't been seen in the Western states for generations.

In the realm of sheer absurdity, Christy’s bear is easily

outstripped by the current federal rules regulating relations

with the wolves that Fish and Wildlife officials are trying to

re-establish in the Yellowstone area. Currently a rancher can

shoot a wolf outside the park if it came to the United States

on its own but not if it’s one of the wolves the government

brought here from Canad: . That distinction isn’t likely to make

74a

any difference to the wolf that’s being fired on. And, of course,

it’s of no practical use either to the hunter who encounters a

wolf in the forest and is apparently expected to ask the beast

whether he walked in or came by bus.

There are alternatives. Some experts have proposed that

wildlife programs should provide limited compensation for any

losses they may cause to farmers and livestock owners. That’s

how its done here in Utah, and Colorado and Wyoming have

similar assistance programs for damage done by certain

predators. Other states, like California, pay to feed birds and

waterfowl that might otherwise be tempted to dine on valuable

crops.

Brown, Return of the Natives,

Wilderness Magazine,

Winter 1988, p. 40

... Now, operating on the assumption that true wilderness must

include healthy populations of endemic wildlife--including the

great predators that once occupied the top of a food chain that

did not include civilized man--many people in and out of

government are pushing to broaden the effort, a movement

not without problems but one with enormous potential fo:

enlarging and enriching the wilderness experience.

With a growing national interest in ‘‘nongame’’ wildlife

and the passage of the Endangered Species Act in 1973,

animals other than game species are also beginning to be

reintroduced....

** *

Even if every game animal and all of our endangered birds

should be restored to levels rivaling their original abundance,

our wildlife heritage will be incomplete. No government or in-

dividual has yet to replace a lost population of cougars, gray

wolves, or grizzlies. Until such time as these big carnivores

are returned to at least some representative areas within the

ranges they formerly occupied, many people believe, the job

begun by Dr. Looney and his generation will remain undone.

The reasons for the omission are political more than

biological. Bureaucracies have found the proposed reintroduc-

tion of a potentially troublesome species even more controver-

sial and difficult than the protection of an endangered one.

Hence, no agency administrator wants to take on the op-

probrium of introducing a predator that is sure to incite the

wrath of stockmen and even some ‘“‘old-time’’ sportsmen--even

though few people of other persuasions now question the value

of cougars, wolves and grizzlies to the natural world.

76a

No animal has come to symbolize more the difference bet-

ween what wilderness should be and what it is has become than

the gray wolf. And no other animal, not even the grizzly, is

more despised by stockmen. For decades the wolf was in-

cessantly hunted down and eliminated everywhere it could be

found....

When all remaining subspecies of the gray wolf in the

coterminous United States were declared ‘‘endangered’”’ in

1967, their management was entrusted to the Fish and Wildlife

Service, the same agency that had worked so hard to eliminate

them....The responsibility for any reintroductions, however,

was left to the states, which did little or nothing to evaluate

potential reintroduction sites and elicit public support ‘or such

a program. Strongly influenced by the livestock indus’ _ most

Western state officials expressed outright hostility to any rein-

troduction efforts;...

After years of debate and severa! revisions, a Northern

Rocky Mountain Wolf Recovery Plaa finally was approved in

August 1987. The plan called for restoring three separate

populations of ten or more breeding pairs or packs (the terms

are almost synonymous) in central Idaho, in the Glacier

National Park-Bob Marshall Wilderness area of Montana, and

in the Greater Yellowstone Ecosystem. Because state officials

oppose a reintroduction of wolves to central Idaho, where they

believe as many as fifteen wolves may already be present, and

because wolves may naturally become reestablished in and

around Glacier National Park, most of the attention has focus-

ed on reintroducing wolves to Yellowstone National Park.

Although Yellowstone itself is closed to grazing and its 25,000

elk and unhunted bison and mule deer literally need wolves

for population control, the prospect of wolves spreading out-

side the park infuriates livestock operators. Under pressure

from Rocky Mountain legislators, the Director of the Fish and

77a

Wildlife Service, Frank Dunkle, a former Montana legislator

himself, went back on his approval to reintroduce wolves to

Yellowstone.

Nonetheless, an increasing number of people want wolves

and support for introduction 2nrears to be growing...

Times cannot change soon enough for the grizzly bear. If

the how] of a wolf is the call of the wild, the presence of a grizz-

ly is the ultimate wilderness experience for humans....By

World War II the grizzly had disappeared from all of his

former strongholds in California, Arizona, New Mexico, Utah,

and Oregon. Fifty years later and the grizzly is gone from Mex-

ico and Colorado. Despite its retreating distribution and

decades of wrangling over how many grizzlies remain, no state

plans to reintroduce a grizzly....

This sentiment against grizzlies results not so much from

fear of human safety, but, again, from the opposition of ran-

chmen. Paving gotten rid of the grizzly, the stu..men still fear

its ghost. They know that the time of unregulated control has

come and gone, and that should grizzlies be reintroduced, the

bears would now be valued more as treasures ths.n condemned

as nuisances. Such a prospect would “‘interfere’’ with their

ranching operations on public lands, and accommodating an

endangered species would cause them to have to change their

ways of doing business. As for wildlife agency heads, rein-

troducing grizzlies translates only into problems and expense.

***

Is the absence of a full complement of native wildlife--

including J«rge predators--a necessary price of civilization?

In the spring of 1987 I went to Italy to see how a nation not much

larger than California, populated by 55 million people and settl-

ed for up” ‘ards of 3,000 years, could still boast populations of

both wolves and bears....

...Italian farmers are more tolerant, it appears, than

American stockmen, and the park...has been zoned in an at-

tempt to accommodate the needs of both man and bears. I was

shown how sheep are folded at night and guarded by shepherds

and dogs....livestock losses from bears are unusual and

sporadic. Depredation complaints are generally confined to

bears getting into cornfields,.... Such claims when validated

are compensated by the government.

Are most of America’s wildlands destined to remain

forever depauperate, without the very symbols of their

wilderness? If so, it is not because of biological limitation.

Suitable stock for restoration exists, numerous innovative cap-

ture and release techniques have been proposed and tested,

and the world’s greatest wilderness system assures a wide

selection of potential release sites. What is needed is the will

and intelligence to make the restoration of our big predators

politically possible.

Pennisi, Wolves,

United Press International, Inc.

Wire Service, April 30, 1988

** *

...efforts to bring wolves back in North Carolina, the

Southwest and the Northern Rockies have mixed results and

have sparked criticism from pro-wolf and arti-wolf factions.

While environmentalists and conservationists want to

_ reestablish wolves in the wild, ranchers and farmers are con-

cerned about the wolves’ appetite for cattle and sheep.

Because wolves are a protected species, ranchers are pro-

hibited from trying to shoot or otherwise dispatch them to their

maker.

Courage in the federal government is probably not be the

issue for Joe Helle, a sheep rancher in Dillon, Mont., who said

simply: ‘I fear for my livestock.”’

** *

_..others have surveyed pub‘ic opinion and attitudes about

wolves. Kellert’s poll of Minnesotans showed that most peo-

ple value the wolf’s existence, even though many are not really

willing to limit human activity to protett wolf habitats. Ur-

ban dwellers tended to be most supportive of wolves.

Of the three U.S. Fish and Wildlife Service plans for wolf

recovery one for each type of wolf the one for the red wolf is

the furtherest along.

The gray wolf has not been as well received, at least not

so far. Recovery plans for both the Mexican gray wolf and the

Northern gray wolf have hit snags.

The U.S. Fish and Wildlife recovery plan for the Mexican

gray wolf has provided for breeding the wolf in captivity and

for possible release in New Mexico, Texas or Arizona. But at

this point, no state is willing to host wolves in the wild.

(Emphasis added. )

The most likely site had been in New Mexico. But in

March, for the second time, the commanding general of the

White Sands Missile Range refused to allow the base, which

had been a tentative site, to [be] considered as a wolf refuge.

Texas has passed a law prohibiting the wolf’s reintroduction

within its borders.

Arizona Fish and Game officials haven’t ruled out the

possibility of reintroducing wolves, but they are not actively

considering a site. The agency first wants to survey its

residents about their knowledge and attitudes toward wolves.

“The whole thing is a very delicate issue in the Southwest,

particularly in Arizona,’”’ said Barry Spicer, non-game

biologist for the Arizona Game and Fish. Ranchers fear the

wolves would kill livestock...

In 1980, a team that included state, federal and university

wildlife managers; members of conservation groups; and ran-

chers began designing a recovery plan for these wolves.

For reintroduction of wolves, the plan sets up three areas,

one in Greater Yellowstone, one that includes in the Bob Mar-

shall Wilderness Area in Montana, and one in central Idaho.

8la

t

** *

Reintroduction into the other areas is a little more com-

plicated, however. The recovery plan for the Northe'n

Rockies, which includes Montana, northern Idaho and

Yellowstone National Park, contains compensation for ran-

chers should their livestock be killed by wolves, but many ran-

chers are still leery, said Peek. The plan has not yet been

enacted.

Said rancher Helle: ‘‘We feel very threatened by it. For

wolf advocates to think they could just bring the wolf back to

its original status in the lower 48 states is ludicrous.”’

“The nation should not have to feed wolves domestic

livestock and that’s what would happen.”

** *

In Idaho, there was such a uproar over [the] plan,

however, a proposal was introduced in the legislature

reclassify wolves as predators. The motion was defeated. Mon-

tana has refused to support the plan on the basis that it would

be too expensive and inflexible.

Some of these concerns are well-founded, said Peek. When

two cows were killed by six wolves that crossed over from

Canada, farmers had to call for help from the federal govern-

ment because they could not try to nab the wolves themselves.

Federal authorities ended up killing three of the wolves and

trapping two pups and sending them to zoos. The sixth wolf

eluded capture. The whole effort cost $90,000.

*_* *

Hunters, too, are concerned about the wolves. Peek

evaluated the effects that these wolves, once they established

packs totaling 100 individuals, would have on the 4,600 elk in

the Bob Marshall site. Hunters kill about 580 elk there each

year.

Peek used data from other studies to estimate the yearly

dietary needs of the wolves. On the average a wolf kills a

moose or elk once every 52 days and a deer once every 23 days.

In the Bob Marshall area, they will eat a mix of both. If the

wolves thrive, then hunters wil! have to stop hunting female

elk and would have to cut their catch by a half to keep the elk

herd stable, said Peek. “It will have a major effect on the

hunters,”’ he said.

Vesey, Wolves,

United Press International, Inc. Wire Service

December 13, 1987

** *

One...plan is to place the Rocky Mountain timber wolf, a

subspecies of the gray wolf, in Yellowstone National Park,

where they have not lived for more than 50 years.

The Wyoming congressional delegation opposes the idea.

‘‘T don’t have any problems with wolves in Yellowstone,” said

Rep. Richard Cheney, R-Wyo. ‘‘The problem is wolves getting

out of the park and the inability of the federal government to

control predators.”

Differences over wolf recovery have led to a political bat-

tle that persists on Capitol Hill and within the Reagan

administration.

When he became director of the park service in 1985,

William Penn Mott, Jr. announced he favored a wolf recovery

program.

The U.S. Fish and Wildlife Service came up with a plan,

mandated by the Endangered Species Act, to re-establish

wolves in northern Montana, central Idaho and Yellowstone.

The plan would result in 10 breeding pairs of wolves in each

locale.

Cheney and Wyoming’s Republican senators, Alan Simp-

son and Malcom Wallop, campaigned against the plan. They

lobbied Mott’s bosses, Fish and Wildlife Service Director

Frank Dunkle and Interior Secretary Donald Hodel, both of

whom opposed the recovery plan.

In August, Mott was forced to put the wolf program on hold

indefinitely, but he made it clear he would continue to speak

out in support of the plan.

84a

In September, Owens determined to see the wolf plan car-

ried out introduced legislation that orders the National Park

Service to reintroduce wolves to Yellowstone withir. three

years.

That did not please ranchers in the Yellowstone region.

Afraid that wolves would kill their livestock, the ranchers are

determined to defeat the wolf recovery program.

The Rocky Mountain gray wolf is one of the largest of the

wolf family. Males measure up to 32 inches at the shoulder and

can top 100 pounds.

It eats from 5 to 10 pounds of meat a day.....

Robbins, Wolves Across the Border,

Natural History,

5/86, p. 6

The reappearance of an endangered predator in Glacier

National Park may be greeted with howls of protest

After thirteen puzzling years of trying to answer one ques-

tion about wolves, biologist Robert Ream’s luck has changed.

He now has one answer and, in typical scientific fashion, a

whole list of new questions.

The question was answered unexpectedly last November

when a pack of twelve wolves--named the Magic Pack--moved

south from Alberta to Glacier National Park. It was the first

pack to take up residence in the western United States since

the 1930s (some 1,200 wolves inhabit parts of Minnesota, nor-

thern Wisconsin, and Michigan).

The wolf's reappearance has also begun to fan back to life

the long-dead embers of human controversy. The economies

of Montana and Idaho are based largely on agricultural and

resource industries. The presence of the wolf could throw an

unexpected wrench into the currently troubled, sputtering

operation of these industries. To make matters worse, the wolf

appears on the scene in the midst of a vitriolic debate between

ranchers and state governments over management of another

predator--the grizzly bear.

Compounding the problem, according to U.S. Fish and

Wildlife Service wolf recovery team members, is a flaw in the

Endangered Species Act. Under the act, no wolf--even in-

dividuals that kill livestock--can be killed. This has led the

director of Montana’s Department of Fish, Wildlife and Parks

to bow his agency completely out of wolf recovery until the

control problem is solved.

ser

Deprived of the bison, the wolf turned to the plentiful and

vulnerable cattle and sheep. A bounty was placed on the head

of the wolf, and between 1883 and 1918 more than 80,000 wolves

were killed in Montana alone—either poisoned, shot, or

dynamited in their dens. The wolf was pursued with a

vengeance, and even though its numbers had been greatly

reduced by the century’s turn, ranchers were not appeased.

The migration of wolves into Glacier National Park is con-

sidered a natural recovery. In recent years a great deal of at-

tention has been focused on the proposed reintroduction of the

wolf into Yellowstone National Park--a prime location for

wolves because it covers almost 3,500 square miles and has

an extremely large population of ungulates. However, the issue

is a political tar baby for a number of reasons-first, rein-

troduction means trapping wolves where populations are

healthy and importing them to the park. Second, the park is

surrounded by sheep and cattle allotments on national forest

land, and many of the ranchers there are already angry about

existing problems with federally protected grizzly bears,

which occasionally satisfy a craving for livestock. In Glacier

National Park there is only one large cattle operation, on the

west side of the park, which makes the recovery there more

palatable to cattlemen. The political problems with the wolf

around Yellowstone are so great that Ream, who is on the U.S.

Fish and Wi'dlife Service Northern Rocky Mountain Wolf

Recovery Team, voted against recommending wolf rein-

troduction there.

Livestock operators are not thrilled about the return of an

old nemesis, natural or otherwise. Even with a zone system,

the industry expects problems. ‘“They don’t understand boun-

daries, they don’t understand zones,”’ said Stuart Doggett of

the Montana Stockgrowers Association....

87a

Livestock interests think the wolf should be downlisted

from an endangered to a threatened species to allow for more

flexible management. ‘‘If the wolf was not on the endangered

species list, I think we could protect ourselves,’’ said Mons

Teigen, director of the Montana Stockgrowers Association, a

group that was formed a century ago around the nucleus of

perceived wolf predation. ‘‘[The wolf] being on the list, we

have to defend ourselves with our hands tied behind our

backs.”’ Asked if he thinks wolf and livestock can coexist,

Teigen shook his head and replied, ‘‘I doubt it.’’ Teigen

believes labyrinthire federal endangered species regulations

may lead a few ranchers to control wolves with the three-S

method. ‘‘Shoot, shovel, and shut up,”’ he said. “‘Maybe that

system has something to offer--I don’t know.”’

As the law reads now, the Fish and Wildlife Service has

the authority to trap livestock-killing wolves, but only to

relocate them. Destruction is against the law. And moving the

animals, says Bart O’Gara, leader of the recovery team, is

next to impossible because no one will accept a livestock-

killing wolf. Both he and Bob Ream think a change in the En-

dangered Species Act to allow a greater flexibility with en-

dangered predators is vital to wolf recovery. ‘‘Managing an

endangered predator is quite different from managing an en-

dangered butterfly,’’ O’Gara said. “If I was a rancher I'd be

worried.”’

In Minnesota the problem was eased by downlisting the

wolf from an endangered to a threatened species, a move that

allows wolves to be destroyed....