Opposition Brief — Moerman v. California

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In the | MAR } 6 1994

SUPREME COURT OF THE UNITE STATES salad

October Term, 1993 i. seal 2

No. 93-1171

ROBIN R. MOERMAN,

Petitioner,

v.

STATE OF CALIFORNIA, Director of the Department of

Fish and Game of the State of California; and DOES |

through IX, inclusive,

Respondents.

On Petition for Writ of Certiorari to the Court of Appeal,

State of California, First Appellate District,

Division One

BRIEF FOR RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

DANIEL E. LUNGREN

Attorney General of the State of California

RODERICK E. WALSTON

Chief Assistant Attorney General

WALTER E. WUNDERLICH

Assistant Attorney General

MARY E. HACKENBRACHT

M. ANNE JENNINGS

(Counsel Of Record)

Deputy Attorneys General

2101 Webster Street, 12th Street

Oakland, California 94612-3049

Telephone: (510) 286-1356

Attorneys for Respondents

i

QUESTION PRESENTED FOR REVIEW

Does damage caused by wild animals relocated by

the State constitute a physical taking by the State when

the State neither owns nor controls the wild animals?

ii

TABLE OF CONTENTS

Page

JURISDICTION 2

STATEMENT OF THE CASE 2

REASONS WHY THE PETITION SHOULD BE

DENIED 5

I. NEITHER THE DECISION BELOW NOR

THE RECORD RAISE THE QUESTION

PRESENTED IN THE PETITION 5

II. THIS COURT LACKS JURISDICTION

BECAUSE THE PETITIONER FAILED

TO RAISE A FEDERAL

CONSTITUTIONAL ISSUE AND THE

STATE APPELLATE COURT DID NOT

DECIDE ANY FEDERAL ISSUE 8

Ill. THIS CASE DOES NOT PRESENT AN

IMPORTANT ISSUE THAT REQUIRES

THIS COURT’S EXPENDITURE OF

SCARCE JUDICIAL RESOURCES 9

CONCLUSION 1]

lil

TABLE OF AUTHORITIES

Cases

Barrett v. State

220 N.Y. 423

116 N.E. 99 (N.Y.Ct.App. 1917)

Christy v. Hodel

857 F.2d 1324 (9th Cir. 1988)

cert. denied 490 U.S. 1114 (1989)

Kaiser Aetna v. United States

444 U.S. 164 (1979)

Loretto v. Teleprompter Manhattan

CATV Corp.

458 U.S. 419 (1982)

People v. Brady

234 Cal.App.3d 954

186 Cal.Rptr. 19 (1991)

Yee v. City of Escondido. Cal

503 U.S.

112 S.Ct. 1522 (1992)

Federal Statutes

28 U.S.C. § 1257(a)

Public Law

Pub. L. No. 94-389 § 4

90 Stat. 1190 (1976)

Page

10

4,7

iV

TABLE OF AUTHORITIES CONT’D

California Constitution

Article I, § 19

California Statutes

California Fish & Game Code

§ 332

§ 395]

California Regulations

14 California Code of Regulations

§ 364.5

§ 670.5

Page

6

10

1

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1993

No. 93-1171

ROBIN R. MOERMAN,

Petitioner,

v.

STATE OF CALIFORNIA, Director of the Department of

Fish and Game of the State of California; and DOES I

through IX, inclusive,

Respondents.

On Petition for Writ of Certiorari to the Court of Appeal,

State of California, First Appellate District,

Division One

BRIEF FOR RESPONDENTS IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

The respondents State of California and the

Director of the Department of Fish and Game of the

State of California, respectfully request that this Court

deny the petition for writ of certiorari, seeking review of

the opinion of the State of California Court of Appeal for

the First District, Division One in this case. That opinion

is reported at 17 Cal. App. 4th 452 (1993).

2

JURISDICTION

The jurisdiction of this Court is invoked under 28

US.C. § 1257(a).

STATEMENT OF THE CASE

In 1971, the California Legislature enacted

legislation designed to protect and conserve California’s

native tule elk population. It directed the California

Department of Fish and Game ("the Department") to

restore the once abundant population by relocating tule

elk to suitable habitats. Cal. Fish & G. Code § 3951.

Pursuant to the Legislature’s mandate, one area to which

the Department relocated tule elk is an area near Lake

Pillsbury within the Mendocino National Forest in Lake

County, California, in 1978-1980. AA at 152-153 91 4 -

6.

In November, 1988, some eight years after the

relocation had occurred, petitioner Robin R. Moerman

("Moerman" or "Petitioner") filed a complaint in state

superior court against the Department claiming the

Department was liable for the presence of the tule elk on

his property. AA at 001-003. An amended complaint was

filed in May, 1991. AA at 107-110. No federal

constitutional provisions were cited in either of Moerman’s

complaints, contrary to Moerman’s statements in his

petition. Pet. at 8.

The State moved for summary judgment. RA 001-

005. The State presented evidence on the material facts

that the tule elk on Moerman’s ranch were wild animals

that were neither owned nor controlled by _ the

1. References to the Appellant's Appendix filed in the Court

of Appeal are designated "AA" followed by the page numbers.

References to the Respondent’s Appendix filed in the Court of

Appeal are designated "RA".

3

Department. Id. at 007. The State argued that, as a

matter of law, the State was not liable for takings based

upon the activity of wild animals which it neither owns

nor controls. AA 132-137, 296-299, 308-310.

In his opposition to the motion for summary

judgment, Moerman never argued or presented evidence

of many of the assertions made in his Petition to this

Court. For example, Moerman never argued or presented

evidence to support his broad assertions that he had

exhausted all reasonable alternatives to exclude the tule

elk from his ranch or that the State had deprived him of

all reasonable and economic means to exclude the tule elk

from his ranch. AA 280-282. Moerman never argued or

presented evidence that the State intended the tule elk to

move onto his property. Ibid.

Moerman also never argued violation of any federal

constitutional rights. In his brief to the Trial Court, he

expressly stated that the "California Constitution Article I,

Section 19 protected him against taking without due

process." AA 229, 231, 233.

The only evidence presented by Moerman went

solely to the issue whether the State "controlled" the tule

elk. Id. at 281-282. This evidence simply showed that the

State captured, moved and released tule elk, and that the

movement of no more than one quarter of the tule elk

was monitored by means of radio telemetry collars. Ibid.

The trial court granted the State’s motion for

summary judgment, finding that there was no dispute that

the tule elk were wild animals and that the Department

has exercised no control over them since their release

over ten years (now twelve years) ago. Pet. Appendix A

at 2. Judgment was entered dismissing the case. AA at

320. Moerman appealed.

4

The Court of Appeal unanimously affirmed the

judgment of the Trial Court. 17 Cal. App. 4th 452

reprinted at Petition Appendix B. The Court found that

there had been no physical taking of Moerman’s property

because the tule elk are not instrumentalities of the State

and they ari: not controlled by the State. Pet. Appendix

B at 6.

The Court of Appeal’s decision was based on the

undisputed fact that "tule.elk are wild animals who roam

across private and public property" and on the long-

standing legal principle that "The state does not own wild

animals [citation omitted] nor does it control wild animals

that have not been reduced to possession [citation

omitted]." Id. at 11.

The Court of Appeal declined to consider

Moerman’s regulatory taking argument because he did not

advance it in the trial court. Id. at 16. The Court held

that the trial. court was never asked to perform the

complex factual assessment and balancing of interests

required to determine whether a regulatory taking has

occurred. Ibid.

Moerman belatedly attempted to raise a federal

claim in the Court of Appeal. The Court of Appeal,

however, did not decide any federal claims. In fact, in

distinguishing Moerman’s claim from that of the petitioner

in Yee v. City of Escondido, Cal., 503 U.S. __, 112 S.Ct.

1522 (1992), the Court stated "[Moerman] a1 arguably did

not present a proper federal claim below." Appendix B at

17.

The Court of Appeal denied Moerman’s petition

for rehearing. Pet. Appendix C. The California Supreme

Court denied Moerman’s petition for review. Pet.

Appendix D.

5

REASONS WHY THE PETITION SHOULD BE DENIED

The issue decided by the Court of Appeal was

whether the State is liable for damage to property caused

by wild animals. The trial court and the Court of Appeal

correctly ruled that according to long-standing principles

of law, the occasional presence of wild tule elk on

Moerman’s ranch does not constitute a physical taking of

Moerman’s property by the State. The tule elk are wild

animals and are neither owned nor controlled by the

State. The State’s relocation of these animals to their

native range did not change their nature or their legal

Status as wild animals.

I. NEITHER THE DECISION BELOW NOR

THE RECORD RAISES THE QUESTION

PRESENTED IN THE PETITION.

The instant petition is based on a misstatement of

the facts, the record and the applicable law. In effect, it

describes a case utterly different from what was presented

and decided below. Petitioner has phrased the Question

Presented for Review in the petition as whether a private

property owner suffering damages caused by wild animals

must prove that the government owns or controls the

animals "when the government relocates statutorily

protected animals to a new area with the intent that they

feed upon surrounding private lands." Pet. at i. This was

not, however, the issue that the state court decided.

Moreover, although the issue is phrased in a manner

calculated to pique this Court’s interest, the record below

will not allow the Court to address that issue.

Petitioner’s misstatement of the issue contains

numerous factual predicates that are not borne out by the

record and were not part of the decisions below. For

example, Petitioner attempts to phrase the issue so as to

bring himself within cases in which it is argued that

Statutory protection of wild animals deprives the

landowner of the use of his property and amounts to an

6

inverse condemnation.’ This misstatement is repeated in

Moerman’s statement of statutory and _ regulatory

provisions at issue. Pet. at 2-3. Moerman’s inverse

condemnation cause of action was based solely upon the

Department’s action in relocating tule elk. He never

contended that California law protecting tule elk

interfered with his use of or ability to protect his property.

Moerman’s reference to the tule elk having been

relocated to a “new area" also misrepresents the record

below. Although tule elk had disappeared from

Mendocino County by 1870, the undisputed evidence was

that Moerman’s ranch fell within the elk’s native range.

Appendix B at 6. Thus, neither the area to which they

were relocated nor Moerman’s ranch were "new areas" for

California’s tule elk population.

Moerman’s provocative reference to "the state’s

intent that tule elk feed on surrounding private lands"

misrepresents the issue decided by the Court of Appeal

and the factual record below. Moerman neither presented

evidence of the State’s alleged intent nor requested the

trial court or Court of Appeal to rule upon this complex

factual issue.2/ His opposition to the State’s motion for

2. California Fish and Game Code section 332 authorizes the

California Fish and Game Commission to regulate the hunting of

tule elk. Pet. Appendix E. California Fish and Game Code

section 3951 establishes the tule elk management program.

Appendix F. California Code of Regulations, title 14, section 364.5

sets forth provisions adopted by the California Fish and Game

Commission for the taking of tule elk. The provisions are adopted

annually, with modifications. Moerman’s Appendix G does not

indicate to what year it applies.

3. The evidence cited by Moerman in his petition regarding

the state’s "intent" (see Pet. at 5) is not necessarily probative of the

State’s intent in 1978-1980. The Management Plan for the

Conservation of Tule Elk ("“MPCTE") was prepared by an

interagency task force comprised of state and federal agencies,

pursuant to federal statute. Pub. L. No. 94-389 § 4, 90 Stat. 1190

7

summary judgment was based solely upon the issue of

control: whether the State controlled the tule elk after it

released them such that it was responsible for the damage _

caused to Moerman’s ranch.

In addition, Moerman incorrectly asserts in his

petition that this case presents a regulatory takings claim.

Pet. at 11, n. 5. As the Court of Appeal correctly

decided, Moerman failed to raise the regulatory taking

claim in the trial court and the doctrine against raising

new factually complex issues for the first time on appeal

precluded the Court from deciding the issue. This Court’s

decision in Yee v. City of Escondido, 503 U.S. oy bs

S.Ct. 1522, 1532-1534, does not require otherwise.

In Yee, the absence of a factual record was not

prejudicial to the parties because the case involved a

facial challenge to the City’s mobile home rent control

ordinance. Here, however, Moerman is challenging the

State’s action as applied to his property. As this Court

has stated, a regulatory taking challenge involves a

complex factual assessment and balancing of interests.

Yee, 112 S.Ct. at 1526. Moerman, however, presented

no evidence whatsoever regarding this assessment and

balancing of interests; he never asked the trial court to

perform this analysis and the State was never obliged to

present evidence on or refute a regulatory taking theory.

See Appendix B at 16.

(1976). The version cited by Moerman was prepared in 1985. AA

at 201-227. The Mendocino County Tule Elk Management Plan

was prepared by the Department in 1988. AA 159-187.

8

Il. THIS COURT LACKS JURISDICTION

BECAUSE THE PETITIONER FAILED TO

RAISE A FEDERAL CONSTITUTIONAL

ISSUE AND THE STATE APPELLATE

COURT DID NOT DECIDE ANY

FEDERAL CONSTITUTIONAL ISSUE.

Despite Moerman’s protestations to the contrary,

the federal issue which Moerman purports to raise in this

petition--that the Department’s actions violate his rights

under the Fifth and Fourteenth Amendments to the

Untied States Constitution--was neither raised by

Moerman nor decided by the Court of Appeal. Appendix

B at 15, 17. Neither Moerman’s original complaint, nor

his amended complaint cite any federal constitutional

provisions. Moerman’s trial brief refers expressly and

exclusively to the California Constitution. AA 228, 231,

233. Although Moerman’s trial brief refers to a federal

case, Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988) cert

denied 490 U.S. 1114 (1989), that case decided a

regulatory takings question which is not at issue in this

case, and refers to a blend of state and federal cases

interpreting state and federal constitutions. See 857 F.2d

at 1334-1335.

Moerman attempted to raise a federal claim in his

appellate briefs. The state responded that no federal

claim had been stated. Respondents Brief at 74/ The

Court of Appeal itself expressed doubt that a federal

claim had been presented. "... in fact, [Moerman] only

tangentially asserted a taking under the federal

4. "Similarly, the arguments in the trial court considered

whether there was a physical taking of plaintiffs property in

violation of the State Constitution. (See, ¢.g., appendix pp. 229,

231 (sic) 233.) The Opening Brief focusses instead on takings law

under the federal constitution. While the takings provision of both

constitutions are substantially similar (citation omitted), the claims

at issue here do not raise federal questions." Respondents’ Brief at

3

9

Constitution" (Appendix B at 15) and "[Moerman]

arguably did not present a proper federal claim below’

(Appendix B at 17). The Court of Appeal did not decide

the federal constitutional issue. Because the Court of

Appeal doubted that Moerman had raised a federal claim,

one can imply that the Court of Appeal rested its decision

upon the state constitution not the federal constitution.

If. THIS CASE DOES NOT PRESENT AN

IMPORTANT ISSUE THAT REQUIRES

THIS COURT’S EXPENDITURE OF

SCARCE JUDICIAL RESOURCES.

Based upon the undisputed fact that the tule elk

on Moerman’s ranch are wild animals that roam at will

across private and public property, the Court of Appeal

reached the common sense conclusion that their presence

on Moerman’s ranch is not a physical occupation of his

property by the State or authorized by the State. The

. Court of Appeal’s decision is consistent with the long line

of cases holding that the State is not liable for damages

caused by wild animals. See Christy v. Hodel, 857 F.2d at

1334-1335, and the cases cited therein. The earliest cases

were decided toward the beginning of the century. See,

¢.g., Barrett v. State, 220 N.Y. 423, 116 N.E. 99, 101-102

(N.Y.Ct.App. 1917) [state not responsible for damages to

private property caused by relocated beavers].

In a strained attempt to make this case attractive

for certiorari, Moerman incorrectly contends that his case

presents an issue left unresolved in a footnote by the

Ninth Circuit in Christy. The Ninth Circuit indicated in

that footnote that there were issues which it did not

decide.’ The Court did not decide this issue because it

5. At footnote 9, the Court stated "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

4 question we do not decide." 857 F.2d at 1335.

10

was not presented in the case. On the contrary, the

Christy opinion supports the Court of Appeal’s decision.

Pet. Appendix B at 11. Further, Christy presented a

regulatory taking challenge; Moerman in this case raised

and the state appellate court decided only a physical

taking challenge.

Moerman makes a futile attempt to analogize the

issue presented by his case to the issue described by

Justice White in his dissent to this Court’s denial of

Christy’s petition for writ of certiorari. Justice White

indicated interest in an issue regarding the government’s

prohibition against Christy’s shooting grizzly bears, an

endangered species. As stated above, however, this case

does not involve any governmental prohibition against

Moerman shooting tule elk or otherwise excluding them

from his property. Moerman’s case simply involves the

government’s relocation of tule elk and no other

governmental activity. Moreover, the tule elk are not

listed as an endangered or threatened species. See 14

Cal. Code Regs. § 670.5. Moerman never claimed, he

never presented evidence, and the state courts never

decided any issue involving any governmental prohibition

or other regulation of Moerman’s use of his property.

Finally, Moerman attempts to shoehorn his case

into the physical taking holdings of Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419

(1982) and Kaiser Aetna v. United States, 444 U.S. 164

(1979). The Court of Appeal correctly rejected

Moerman’s effort. In Loretto, this Court held that a

physical taking had occurred when a local ordinance

required a landlord to permit the installation of cable

television equipment on his property. 458 U.S. at 438-

439. The Court of Appeal correctly noted the distinction

between tule elk and cable television equipment or

personnel. Appendix B at 11. Unlike equipment or

personnel,the tule elk are wild animals over whom the

a question we do not decide." 857 F.2d at 1335.

11

State has no control or possessory interest. See People v.

Brady, 234 Cal.App.3d 954, 958-959, 186 Cal.Rptr. 19

(1991). While the elk may have, on occasion, been

physically present on parts of Moerman’s ranch, because

they are not agents or instrumentalities of the State, the

State has not occupied his ranch.

Loretto is also distinguishable because Moerman is

not required to suffer the presence of tule elk whereas

the landlord in Loretto was required to suffer the

presence of cable equipment and personnel. In

recognition of this critical distinction, Moerman blithely

and belatedly contends that he has exhausted all

alternatives to exclude tule elk from his property. Pet. at

7. As discussed above, however, this issue was never

advanced to the trial court and was not decided by the

Court of Appeal.£/

Moerman’s case is also distinguishable from Kaiser

Aetna, 444 U.S. 164, 176. Unlike the situation in Kaiser,

the State has not given the tule elk a "right" to cross

Moerman’s property; it merely released them at a place

in a nationa! forest from which they eventually wandered

onto Moerman’s ranch.

CONCLUSION

Moerman’s petition fails to present the

circumstance “[w]hen a state court . . . has decided an

important question of federal law which has not been, but

should be, settled by this Court." The Question Presented

by Moerman was not presented to or ruled upon by the

state court. Nor does the record allow this Court to

decide the Question Presented. Rather, the issue that the

6. The Court of Appeal noted in passing that "while as a

practical matter it may be difficult for Moerman to exclude the tule

elk from his property without harming them, the state is not

requiring him to submit to the occupation." Appendix B at 13.

12

State Court did decide is based upon long-standing

principles of law that the presence of wild animals on

Moerman’s ranch does not constitute a physical taking of

his property by the State.

For these reasons, Moerman’s petition for certiorari

should be denied.

Respectfully submitted,

DANIEL E. LUNGREN

Attorney General of the

State of California

RODERICK E. WALSTON

Chief Assistant Attorney General

WALTER E. WUNDERLICH

Assistant Attorney General

MARY E. HACKENBRACHT

M. ANNE JENNINGS

Deputy Attorneys General

Attorneys for Respondents