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

No. 88-1461 4

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

RICHARD P. CHRISTY, THOMAS B. GUTHRIE, IRA PERKINS,

Petitioners,

Vv.

MANUEL LUJAN, Secretary of the Interior,

UNITED STATES DEPARTMENT OF THE INTERIOR,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

JOHN J. RADEMACHER *

General Counsel

RICHARD L. KRAUSE

Assistant Counsel

AMERICAN FARM BUREAU

FEDERATION

225 Touhy Avenue

Park Ridge, Illinois 60068

(312) 399-5795

* Counsel of Record

WILSON - Eres Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

Page

A ii

INTEREST OF AMICUS CURIAE ....................00000....... 1

STATEMENT OF THE CASE ......2..........cccccecceccccc.-eneess 3

REASONS FOR GRANTING THE WRIT .................... «#5

I. The Extent and Scope of Private Property

BEARS BUCRES TCT OIE once ceccccccccnccceecseccecccsecsses 6

II. The Regulatory Scheme at Issue Unduly and

Arbitrarily Restricts the Defense of Private

Property in Violation of the Equal Protection

RE AIRES REL ae 6 Oe nS Ned ae Oe So eS a x

III. This Case Presents Significant Issues pertain.

ing to Fifth Amendment “Takings” .............0..-.. 9

ARE St SEED A A ee 12

ii

TABLE OF AUTHORITIES

CASES Page

Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841,

92 L.Ed.2d 140 (1986) ....................... oseuiuinaaaaal 7

Brzoznowski v. Andrus, D.C., Minn. No. CA-5-77-

2D (BGBD) neececccicccnscccennnnssinesseesinsaaanes 6

Cross v. State of Wyoming, 370 P.2d 371 (Wyo.

BOGE cinececessocetcossenseinannsnmnidanecemmn 6

Douglas v. Seacoast Products, Inc., 431 U.S. 265,

97 S.Ct. 1740, 52 L.Ed.2d 304 (1977) ~.......... 4,5, 11, 12

First English Evangelical Lutheran Church v.

County of Los Angeles, U.S. 482 ——, 107 S.Ct.

2378, 2388, 96 L.Ed.2d 250 (1987) .................. 10

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 434-435 (1982) .............-.--......--- 10

Moore v. City of East Cleveland, 431 U.S. 494, 503,

97 S.Ct. 1932, 1938, 52 L.Ed.2d 531 (1977) ........ 7

Mountain States Legal Foundation v. Hodel, 799

- 8). 3, Fo Pees. 6, 7,9

Nollan v. California Coastal Commission, 483 U.S.

S £2 °°) 3 8) | eee 10

Paiko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct.

ve FF Fn F Ff) | eee 7

Sickman v. United States, 184 F.2d 616 (7th Cir.

1950), cert. denied, 341 U.S. 939, 71 S.Ct. 999,

en 8) 8) a 4, 5,11, 12

CONSTITUTION

Fifth Amendment, U.S. Constitution ............... 4, 8, 10, 12

STATUTES

Endangered Species Act 16 U.S.C. § 1531 et seq... 3

Endangered Species Act 16 U.S.C. § 1533 -.......... 11

REGULATIONS

lt, § f EMER ye re ERS 3

BD Ge REO cccccctisnisscnnscsninitnteceninasbaaiatiaaunadtalenians 3

CO Cir ae SEDER CB) CED GP cccrnocccrecstnnitnitessniinsietetantcincinneies 8,9

te. 8. 2) Teil ft » eee 8

Rule 56 of the Federal Rules of Civil Procedure.... 12 -

MISCELLANEOUS

Appendix to Petition for Writ, pages 35a-40a....3-4, 5, 12

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-1461

RICHARD P. CHRISTY, THOMAS B. GUTHRIE, IRA PERKINS,

7 Petitioners,

MANUEL LUJAN, Secretary of the Interior,

UNITED STATES DEPARTMENT OF THE INTERIOR,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

AMERICAN FARM BUREAU FEDERATION

IN SUPPORT OF PETITIONERS

The American Farm Bureau Federation respectfully

files this brief amicus curiae. Pursuant to Supreme Court

Rule 36, this brief is filed with the written consent vf all

parties.

INTEREST OF AMICUS CURIAE

Th American Farm Bureau Federation (AFBF) is

a non-profit general farm organization incorporated pur-

suant to the laws of the State of Illinois. Its purposes

are to promote, protect and represent the economic, social

and educational interests of farmers and ranchers across

the United States. The largest general farm organiza-

2

tion in the country, AFBF has member state organiza-

tions in 49 states (including Montana, Idaho and Wyo-

ming) and Puerto Rico, representing the interests of

more than 3.6 million member families.

The pretection of private property, including crops

and livestock, is of paramount importance to farmers and

ranchers if they are to be able to pursue their liveli-

hoods. It is especially important to livestock producers

who already suffer staggering losses from predation thus

forcing many of them out of business. AFBF has —

party to previous litigation seeking protection from pre

dation by coyotes and wolves. We have heard from

many of our members regarding similar problems with

grizzlies, wolves and other listed species urging our par-

ticipation in this case.

Farming and ranching are the productiou of crops and

livestock. While land and machinery are essential to

production, there can be no agriculture without crops or

livestock. Protection of crops and livestock is critical to

continued agricultural production. The instant case pre-

vents farmers and ranchers from protecting their crops

and livestock from grizzly bear predation, thereby pre-

venting them from pursuing their livelihood.

The instant case not only has ramifications for farm-

ers and ranchers, but for private property owners every-

where. Protection of private property rights strikes to

the heart of our societal fabric and must be explicitly

recognized by our Constitution. The lower court de-

cision goes beyond a denial of the right to protect prop-

erty, however. While denying the rights of producers to

protect their crops and livestock from grizzly bear de-

struction, the decision also permits those same bears to

be hunted by sportsmen. The clear implication is a

subordination of private property rights to the recrea-

tional interests of sportsmen. This, we submit, is not

what the framers of our Constitution intended.

STATEMENT OF THE CASE

Petitioners are all former sheep producers who suf-

fered substantial losses from grizzly bears, listed as

“threatened” under the Endangered Species Act [16

U.S.C. § 1531 et seg.]. The grizzly is “an animal that

cannot compromise or adjust its way of life to ours”

(inside cover, Grizzly Bear Recovery Plan, U.S. Fish &

Wildlife Service, 1982) and which had caused depreda-

tion to livestock since the early days of settlement of

the West (p. 4-5 Grizzly Bear Recovery Plan).

Petitioner Christy began experiencing losses of sheep

to grizzly bears on or about July 1, 1982. Pursuant to

U.S. Fish & Wildlife Service (FWS) regulations [50

CFR 17.40(b)] Mr. Christy contacted the FWS to re-

move the bears from his property. Their efforts to trap

the bears proved utterly fruitless.

By July 9, 1982, Christy had lost 27 sheep to grizzly

predation. On that date, in the company of a local FWS

agent, Christy noticed grizzlies about to attack his sheep.

He killed one of the grizzlies and the other ran off. On

July 24, 1982, he removed his sheep and terminated his

lease, having lost 84 sheep.

Christy was subsequently charged with “taking” a

threatened species in violation of the Endangered Species

Act and the procedures set forth in 50 CFR 17.40. That

same regulation, while prohibiting a landowner from

taking 4 grizzly that is killing livestock, permits a limited

sport hunting season of up to 25 grizzlies per year in the

same area where Christy’s sheep were located.

Christy’s case was heard before an Administrative Law

Judge (ALJ). After finding that he “is without juris-

diction to consider whether or not a statute enacted by

Congress is constitutional” and that “neither may the

question of validity of the implementing Departmental

regulations be considered,” (Appendix to Petition for

4

Writ, p. 48a), the ALJ fined Christy $2,500 for remov-

ing the bear:

Christy brought an action in the federal court for

the district of Montana challenging the application of

the Endangered Species Act and implementing regula-

tions on the grounds that he was denied his constitutional

rights to protect his property, that his property was

“taken” without compensation in violation of the Fifth

Amendment to the U.S. Constitution, and claimed that

by denying him the right to protect his property but

allowing sportsmen to hunt grizzlies, he was denied

equal protection under the law.

The district court prohibited any discovery and granted

the government’s motion for summary judgment on all

claims.

The Ninth Circuit, despite finding that “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,” affirmed

the district court in an opinion published at 857 F.2d

1324 (9th Cir. 1988). Its primary rationale was that

neither the Constitution nor the Supreme Court had

explicitly recognized a fundamental right to defend

property.

The Ninth Circuit also held that there was no uncon-

stitutional “taking” of Christy’s property, citing Douglas

v. Seacoast Products, Inc., 431 U.S. 265, 97 S.Ct. 1740,

52 L.Ed.2d 304 (1977) and Sickman v. United States,

184 F.2d 616 (7th Cir. 1950), cert. denied, 341 U.S.

939, 71 S.Ct. 999, 95 L.Ed. 1366 (1951). Those cases

hold that neither the state nor the federal government

has title to wild animals until they are “reduced to pos-

session by skillful capture.” Key to the Ninth Circuit’s

holding was a finding that “plaintiffs do not contend, and

the record does not show, that the federal government

physically introduced any bears to the areas near plain-

tiffs’ properties,” and therefore was “a question we do

not decide.” (See ftn. 9, 857 F.2d at 1335).

In fact, there is a genuine issue whether or not the bears

that ravaged Christy’s flock had been relocated in the area

after causing livestock losses elsewhere. (See Affidavits

of Richard Christy and Sue Ann Love, Appendix to Pe-

tition for Writ, pages 35a-40a). Possible capture and

relocation of problem bears to Christy’s area is certainly

relevant to the “taking” issue because these bears would

have been reduced “to possession through skillful cap-

ture” by the FWS within the Sickman and Douglas cri-

teria, and the result might very well have been dif-

ferent here. These facts could very well have been de-

termined had the district court permitted discovery.

Petitioners’ Request for Rehearing, based on the Affi-

davits, was denied by the Ninth Circuit.

REASONS FOR GRANTING THE WRIT

This case raises several fundamental yet unresolved

issues regarding the sanctity of private property rights

and the extent that those rights are constitutionally

protected.

The immediate context of this case permits this Court

to define the scope of these rights, as well as to decide

specific issues that are of extreme importance to rural

areas around the nation.

Wildlife protection statutes such as the Endangered

Species Act have been interpreted by the federal agen-

cies as giving them virtual carte blanche authority to

force private landowners to shelter and feed “protected”

wildlife at their own expense. Statutes such as the En-

dangered Species Act are purportedly for the public

benefit, yet the general public has assumed few of the

costs of such protection and no responsibility for any

damages that protected species might inflict. Instead,

those expenses are solely borne by private landowners

6

like Christy who must sit idly by while protected species

feed on crops and livestock. In destroying crops and

livestock, these protected species also destroy the very

means by which producers can pursue their livelihood.

The problems experienced by agricultural producers are

growing in severity and numbers. The very same prob-

lems raised here were experienced by ranchers in Min-

nesota (losses to wolves) [Brzoznowski v. Andrus, D.C.,

Minn., No. CA-5-77-19 (1980)], and in Nevada (losses

to wild horses) [Mountain States Legal Foundation v.

Hodel, 799 F.2d 1423 (10th Cir. 198€)]. These problems

have already sparked conflicts betw:. producers seeking

to protect their livelihood and their government which is

elected and appointed to represent and serve them.

I. The Extent and Scope of Private Property Rights

Needs Definition

The nation was founded on the basic premise of the

right to acquire and possess property without undue in-

terference by the federal government. The court below

found no decision by this Court that defines the nature

and extent of that right and the ability of private indi-

viduals to protect that right.

Several state courts have resolved the issue whether

private individuals have a right to protect their prop-

erty, even if such a right is not expressly mentioned

in the state constitution. (See Cross v. State of Wyo-

ming, 370 P.2d 371 (Wyo. 1962), and the decisions

from numerous jurisdictions cited therein). With the

federal government assuming a greater role in protect-

ing wildlife through such statutes as the Endangered

Species Act, Wild and Free-Roaming Horses and Bur-

ros Act, and the Bald and Golden Eagle Protection Act,

to name only a few, the time has come to squarely ad-

dress the issue within the context of the U.S. Constitution.

7

The Court has generally described the criteria as to

what constitutes a “fundamental right” under the con-

stitution. Rights are “fundamental” if they are “im-

plicit in the concept of ordered liberty” Palko v. Connec-

ticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288

(1937) or if they are “deeply rooted in this Nation’s his-

tory and tradition,” Moore v. City of East Cleveland, 431

U.S. 494, 503, 97 S.Ct. 1932, 19388, 52 L.Ed.2d 531

(1977). We submit that protection of private property

and the ability to pursue an agricultural livelihood meet

both standards.

Absent clear direction from this Court, lower federal

courts are extremely reluctant to interpret these stand-

ards and determine fundamental rights on their own.

In Mountain States, supra, the Tenth Circuit stated that

“No case has yet addressed whether a [right to defend

property] exists under the United States Constitution.” '

and declined the express invitation to be the first court to

do so.

The Ninth Circuit below was even more reluctant to

address the issue without direction from this court. Cit-

ing Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841,

92 L.Ed.2d 140 (1986) and its caution not to “expand”

the reach of the constitution by “re-defining the category

of rights deemed fundamental,”* the Ninth Circuit

stated:

In light of the Supreme Court’s admonition that we

exercise restraint in creating new definitions of sub-

stantive due process, we decline plaintiffs’ invita-

tion to construe the fifth amendment as guarantee-

ing the right to kill federally protected wildlife in

defense of property. In so doing, we do not mini-

mize the seriousness of the problem faced by live-

1799 F.2d at 1428, ftn. 8.

2478 U.S. at 194. We submit that a fundamental right to pro-

tect property can be found without such “re-definition.”

8

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 pro-

tected wildlife in defense of property is not “im-

plicit in the concept of ordered liberty” nor SO

“deeply rooted in this Nation’s history and tradi-

tion” that it can be recognized by us as a funda-

mental right guaranteed by the Fifth Amendment.”

(Emphasis added. ) *

It seems clear that both the Ninth and Tenth Circuits

are looking for direction from this Court on the issue

of whether protection of private property is a constitu-

tionally protected right, since both courts declined to

address the issue on their own.

II. The Regulatory Scheme at Issue Unduly and Arbi-

trarily Restricts the Defense of Private Property in

Violation of the Equal Protection Clause

Even if the Court were to determine that defense of

property is not a “fundamental right” under the consti-

tution, this case still presents a significant issue for reso-

lution concerning the importance of private property

rights.

The grizzly bear regulations subordinate the right of a

landowner to protect his property to the recreational

interests of sport hunters. Under 50 CFR 17.40(b) (1)

(i) (C) private landowners must suffer “significant dep-

redations” before a grizzly may be taken from an area,

and only then the “taking” must be by a state, tribal or

federal authority and only after efforts to trap and re-

move the bear have proven unsuccessful.*

By contrast, 50 CFR 17.40(b) (1) (i) (E) permits sport

hunting of up to 25 grizzlies in the area where Christy’s

3 857 F.2d at 1330.

4 Efforts to trap and remove bears on Christy’s lands were com-

pletely unsuccessful, resulting in the loss of 84 sheep.

9

losses occurred. The only private individuals allowed to

kill grizzlies under the regulations are sport hunters.

The regulations prohibiting a private landowner from

protecting his own property against grizzlies cannot

therefore be sustained on the basis of protecting a threat-

ened species if sport hunting of that species is permitted.

Regardless of the degree of importance placed on the

protection of private property, there is something dis-

turbingly out of balance in our society if people who are

seeking to protect their livelihoods are punished for

actions which others are permitted to take for sport.

Neither the Ninth Circuit below nor the Tenth Cir-

cuit in Mountain States was willing to address this issue

until this Court takes action. In the meantime, farmers

and ranchers are suffering crop and livestock losses and

appear doomed to continue to do so.

III. This Case Presents Significant Issues Pertaining to

Fifth Amendment “Takings”

Wildlife protection statutes such as the Endangered

Species Act are based on the premise that there is a

“public benefit” to preservation of protected species. As

such, costs for preservation must be borne by the general

public. In the present case, as in other cases under these

statutes, farmers and ranchers bear a disproportionate

share of those costs.

The Ninth Cireuit conclusion that “neither the ESA

nor the grizzly bear regulations ‘force’ plaintiffs to bear

any burden”® is belied by the regulation itself, which

provides for removal only after “significant depreda-

tions.” [50 CFR 17.40 (b) (1) (i)(C)]. The conclusion

that such losses are “incidental, and by no means in-

evitable,”° is similarly belied by the statement in the

FWS Grizzly Bear Recovery Plan set forth in our State-

5 857 F.2d at 1335.

® Ibid.

10

ment of Interest, above, that grizzly bear conflicts with

livestock have occurred throughout the settlement of the

West. There is little questica that grizzly-livestock con-

flicts are “inevitable” in areas where both are found.

The Court has recently reiterated that “the Fifth

Amendment just compensation provision is ‘designed to

bar Government 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 Evan-

gelical Lutheran Church v. County of Los Angeles, 482

USS. , 107 S.Ct. 2378, 2388, 96 L.Ed.2d 250 (1987).

In fact the Court, in First English and in Nollan v.

California Coastal Commission, 483 U.S. ——, 107 S.Ct.

3141 (1987), clarified the nature and scope of the Fifth

Amendment “taking clause”. The present case should be

scrutinized in light of these recent decisions.

In both First English and Nollan, the Court reiterated

that takings are more readily found where there are

physical invasions “without regard to whether the action

achieves an important public benefit or has only minimal

economic impact on the owner.” Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 434-435 (1982).

There is no question that the grizzlies “physically in-

vaded” Christy’s property, and in fact drove him out of

business.

Nollan further states that the “evident constitutional

propriety disappears, however, if the condition substi-

tuted for the prohibition utterly fails to further the end

advanced as the justification for the prohibition.” ‘ Here,

the prohibition against protection of one’s property can-

not be used to justify any “end” of protecting wildlife

as long as sport hunting is permitted. —

ourts have permitted the federal government to evade

their Fifth Amendment just compensation responsibili-

7107 S.Ct. at 3148.

11

ties on the grounds that governmental authorities do not

“own” wild animals and are therefore, not responsible

for their actions. (See Sickman and Douglas, supra.)

Governmental agencies, however, impose management

criteria and restrictions in implementing wildlife protec- -

tion statutes that narrow the range in which such ani-

mals exist, thereby defining the habitat for these species

to a great degree. One example of this management style

is the “critical habitat” direction in the Endangered

Species Act, 16 U.S.C. § 1533.

As management restrictions and the resultant habitat

enhancement become more specific, the more “protected”

animals are likely to be found in areas where government

wants them. At some point they have crossed the line of

being “reduced to skillful capture’ for which the gov-

ernment must assume responsibility for the damage these

animals cause to farmers and ranchers. That line should

be drawn by this Court in order to prevent even more

uncompensated injury to agriculture. This case presents

a golden opportunity for this Court to resolve this im-

portant issue.

This case also presents an opportunity to address one

other issue of importance—the responsibility of the gov-

ernment to provide compensation to private landowners

for damages caused by “protected animals” which the

government has itself introduced into an area. This issue

is not only significant for areas where the government

has relocated “problem bears” or “problem wolves,” but

is also important in cases where our government is pro-

posing the re-introduction of species in areas where they

no longer exist or never existed. Petitioners have men-

tioned in their Petition the plans to re-introduce wolves

into the Yellowstone Park area. There are also plans to

re-introduce endangered California condors and _ black-

footed ferrets into areas where they no longer exist.

Also, peregrine falcons are being introduced into new

areas.

12

It seems clear that such re-introduced animals have

been “reduced to skillful capture” by any test that Sick-

man, Douglas or any other court might apply. There can

be no doubt that the government would be responsible for

compensation of damages caused to agriculture by such

animals within the Sickman and Douglas criteria.

There is evidence in this case that the grizzlies that

attacked Christy’s sheep might have been relocated to the

area. See Christy and Love affidavits (Appendix to Peti-

tion, pages 34a-40a) . By prohibiting discovery, the Dis-

trict Court prevented development of these facts which

would be vital to Christy’s taking claim. The “adminis-

trative record” is itself insufficient to resolve the Con-

stitutional claims, because these issues were admittedly

not before the ALJ. The Ninth Circuit denied a Peti-

tion for Rehearing to develop these facts as well.

We submit both courts were in error in preventing

development of these facts and in granting summary

judgment to Respondent. Rule 56 of the Federal Rules

of Civil Procedure prohibits entry of summary judgment

if there is a “genuine issue of material fact.” We submit

that the affidavits raise such a “genuine issue of material

fact” which would quite possibly change the result. Such

facts could not be known because the district court pro-

hibited discovery. If Petitioners are to receive justice,

these facts should be permitted to be déveloped.

CONCLUSION

The nature and extent to which individuals can protect

their private property is an important and fundamental

issue that has not heretofore been addressed by this

Court. Two circuits have now specifically declined to

tackle the issue absent direction from this Court. Fur-

ther, the extent of the Fifth Amendment just compensa-

tion clause as applied to damage caused by protected

wildlife should be determined in accordance with the

- recent Supreme Court clarification of this issue.

13

This case should be reviewed to provide the direction

and analysis that lower courts need in order to address

these important issues.

Respectfully submitted,

JOHN J. RADEMACHER *

General Counsel

RICHARD L. KRAUSE

Assistant Counsel

AMERICAN FARM BUREAU

FEDERATION

225 Touhy Avenue

Park Ridge, Illinois 60068

(312) 399-5795

* Counsel of Record