# Amicus Curiae Brief — 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%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1114 ## Text 0) A No. 88-1461 | In The Supreme Court of the United States October Term, 1988 + 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 + BRIEF AMICUS CURIAE OF MOUNTAIN STATES LEGAL FOUNDATION IN SUPPORT OF PETITIONERS + 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 i 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 6 ii 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 . 3 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 + BRIEF AMICUS CURIAE OF MOUNTAIN STATES LEGAL FOUNDATION IN SUPPORT OF PETITIONERS *-- 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. + 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. 6 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1482%3A07. Public record. Not legal advice.