# 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%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 490 U.S. 1114 ## Text 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 a 5 Me, 4 : ‘ § ’ Aa ee 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1482%3A08. Public record. Not legal advice.