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

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No. 88-1461 |

In The

Supreme Court of the United States

October Term, 1988

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RICHARD P. CHRISTY, ET AL.,

Petitioners,

vV.

Sa LUJAN, JR., ET AL.,

Respondents.

—

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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BRIEF AMICUS CURIAE OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

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Eric TWELKER

MAarTHA PHILurs ALLBRIGHT

Counsel of Record

Mountain States Legal Foundation

1660 Lincoln Street, Suite 2300

Denver, Colorado 80264

(303) 861-0244

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

ofl

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TABLE OF CONTENTS

INTERESTS OF AMICUS CURIAE

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. The Federal Government Is Responsible for

Reintroductions of Large Predators and the

Court Should Decide the Legal Rights and

Responsibilities Accordingly

II. The Public, Not Select Individuals, Should Pay

for Esthetic Public Environmental Benefits ....

III. The Ninth Circuit’s Decision Completes Elim-

ination of a Long Established Property Right. .

CONCLUSION

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TABLE OF AUTHORITIES

CaAsES

Mountain States Legal Foundation v. Hodel, 799 F.2d

1423, 1428 n.8 (10th Cir. 1986) ...........- eee eee

Mugler v. Kansas, 123 U.S. 623, 668-69 (1927) .........

Nollan v. California Coastal Comm'n, 483 U.S. 825

(1987) . cc cccccecccnscsesccscescecsuse hens ennn mE

OTHER AUTHORITIES

38 C.J.S. Game § 10 at 12 (IDES). 05... ccccesasosesuven

No. 88-1461

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In The

Supreme Court of the United States

October Term, 1988

+

RICHARD P. CHRISTY, ET AL.,

Petitioners,

MANUEL LUJAN, JR., ET AL.,

Respondents.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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BRIEF AMICUS CURIAE OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

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Mountain States Legal Foundation (MSLF or the

Foundation) respectfully submits this brief amicus curiae

in support of Richard P. Christy, et al., the Petitioners for

certiorari. Copies of letters of consent to this filing have

been filed with the Court.

INTERESTS OF AMICUS CURIAE

MSLF is a nonprofit, membership, public interest law

foundation dedicated to bringing before the courts those

issues vital to the defense and preservation of individual

liberties, private property rights, and the free enterprise

system. The Foundation is particularly active in Western

public land and natural resource issues.

Foundation members include businesses and individ-

uals in the Western states who live and work in the areas

affected by recovery programs for large predators under

the Endangered Species Act, 16 U.S.C. §§ 1531-43 (1982).

MSLF members directly affected by the ruling below

include livestock operators. Additionally, numerous other

members who make their livings in the mining, timber,

farming, and oil and gas businesses, and those who ser-

vice these businesses are indirectly affected.

Elimination of long established property rights in

order te facilitate predator recovery is an important issue

to many rural Westerners. In 1987, the United States

Forest Service and Fish and Wildlife Service denied MSLF

members in the town of Yellow Pine, Idaho, the only

winter road access to their town and homes because of

possible disturbance to endangered wolves. The elevation

of endangered species over established property rights is

a real threat to both homes and livelihoods of rural

Westerners.

In this case, the Foundation asks the Court to exer-

cise its jurisdiction in order to define the rights of those

whose homes and livelihoods are affected by the ruling

below.

STATEMENT OF THE CASE

Amicus curiae adopts Petitioners’ statement of the

- Case.

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REASONS FOR GRANTING THE WRIT

I. THE FEDERAL GOVERNMENT IS RESPONSIBLE

FOR REINTRODUCTIONS OF LARGE PREDA-

TORS AND THE COURT SHOULD DECIDE THE

LEGAL RIGHTS AND RESPONSIBILITIES

ACCORDINGLY

Since passage of the Endangered Species Act in 1973,

the federal government has put a major effort into

encouraging the recovery of grizzly bears and wolves. See

U.S. Fish and Wildlife Service, Grizzly Bear Recovery

Plan (January 29, 1982); U.S. Fish and Wildlife Service,

Northern Rocky Mountain Wolf Recovery Plan (August 2,

1987). Initial attempts at reintroduction have begun and

they affect this case. See Petition at 8-9. As those efforts

have started to succeed, the federally nurtured predators

have increasingly come into conflict with livestock on

public and private lands.

As the level of contention has built, Westerners have

begun to speak out. In Idaho, the State legislature passed

a memorial aimed at blunting adverse impact on the lives

of rural Idahoans. Western farming and ranching organi-

zations have spoken out forcefully to try to stop the

introduction of predators. See, e.g., American Farm

Bureau Federation Petition for Regulatory Changes (Janu-

ary 5, 1989).

The conflict is between federal government policy

and property rights in the Western states where the large

predators are being reintroduced. This is the kind of

dispute between the weak and strong that the judicial

branch of our constitutional government was designed to

protect. Instead of addressing the conflict between pro-

tected predators and Western property owners, the courts

have ignored the federal efforts and denied the respon-

sibility of the federal government. The result is a ruling

like that in Christy. It is time for the Court to abandon the

legal fiction and address the property rights conflict.

The lower courts have misassimilated laws denying

government responsibility for predators and modern

laws prohibiting killing of protected animals. They have,

in essence, overruled long established law allowing

defense of property against predators. Protected preda-

tors will be given free reign if the Christy ruling is not

reviewed and reversed.

Even the endangered species recovery plans pre-

pared by the United States Fish and Wildlife Service

recognize that conflict caused by reintroduction programs

is to be avoided. Public acceptance is essential. See North-

ern Rocky Mountain Wolf Recovery Plan at 23. If conflict

between the endangered species and rural residents is

allowed to fester, then recovery can be jeopardized.

Il. THE PUBLIC, NOT SELECT INDIVIDUALS,

SHOULD PAY FOR ESTHETIC PUBLIC ENVI-

RONMENTAL BENEFITS

This case also involves a larger issue of who should

pay for esthetic benefits to our nation’s environment. The

cost of the cities’ health and esthetic environmental bene-

fits, such as clean air, clean water, and toxic clean-up is

borne by the nation as a whole either through increased

consumer goods costs or taxation. On the other hand, the

cost of greenbelts, pristine countryside and streams, and

reintroductions of wildlife are typically paid for by rural

property owners.

At least theoretically, the laws and Constitution

should protect the minority from majority imposition of

such a burden. But this has not proven to be true where

private property interests conflict with esthetic environ-

mental regulation. Environmental regulation has gone

from uncompensated takings to protect the health, safety

or morals of a community, see Mugler v. Kansas, 123 U.S.

623, 668-69 (1927), to providing convenient public beach

access. See Nollan v. California Coastal Comm'n, 483 U.S.

825 (1987) (reversing taking).

The Christy case represents the culmination of this

trend. Mr. Christy is being punished as a consequence of

protecting his personal property within the confines of

his real property. Like the landowner in Nollan, Mr.

Christy is being asked to pay for esthetic benefits to the

public by giving up one of the sticks in his bundle of

property rights.

The Court should take jurisdiction in this case to

rectify this fundamental injustice and misdirection of the

law by the lower courts.

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Ill. THE NINTH CIRCUIT’S DECISION COMPLETES

ELIMINATION OF A LONG ESTABLISHED

PROPERTY RIGHT

Fifty years ago, the right to defend one’s property

from protected wildlife was a settled principle of law. In

1943, Corpus Juris Secundum stated that “[llegal justifica-

tion may always be interposed as a defense by a person

charged with killing a wild animal contrary to law. Hence

the killing of game protected by the statute or regulations

is not prevented by them when reasonably necessary for

the protection of person or property...” 38 C.J.S. Game

§ 10 at 12 (1943). See Christy v. Hodel, 857 F.2d 1324, 1329

(9th Cir. 1988) (App. 16a) (citing cases and annotation).

Now the Ninth Circuit says that there is no such right,

nor does this situation involve any right of compensation

for the taking of private property. Christy, 857 F.2d at

1329-30 (App. 18a).

The extreme position of recent circuit court opinions

is expressed in the Christy opinion, 857 F.2d at 1329 (App.

17a). The court has approved the concept that Congress

can pass a law denying a right to protect one’s own life

from protected predators. See Mountain States Legal Foun-

dation v. Hodel, 799 F.2d 1423, 1428 n.8 (10th Cir. 1986)

(cited with approval in Christy). An ancient right to pro-

tect property and person has apparently disappeared

without leaving a trace.

CONCLUSION

In recent years the Court has searched for new rights

in our Constitution. As it has done so, the judicial system

has left behind some of the rights held dear by those who

authored the Constitution. If the Constitution does not

have a lasting place for life and property; then we must

ask, for what does it have a lasting place?

For the above reasons the writ should be granted.

Respectfully submitted,

Eric TWELKER

MartTHA Puiturs ALLBRIGHT

Counsel of Record

Mountain States Legal Foundation

1660 Lincoln Street, Suite 2300

Denver, Colorado 80264

(303) 861-0244

Dated: March 31, 1989