# Appendix — Richard P. Christy v. Manuel Lujan, Jr., Secretary of the Interior and United States Department of the Interior > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1482%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1114 ## Text 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 expe [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1482%3A03. Public record. Not legal advice.