Amicus Curiae Brief — Moerman v. California

Bupreine Court, UL&

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MAR 16 1994 |

No. 93-1171

IN THE : ! ‘J

Supreme Court of the Gnited States

OCTOBER TERM, 1993

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.

Petition for Writ of Certiorari to the Court of

Appeal, State of California, First Appellate District,

Division One

BRIEF OF

UNITED STATES SENATOR LARRY CRAIG

AS AMICUS CURIAE IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI AND PETITIONER

ROBIN R. MOERMAN

*LAURENCE MICHAEL BOGERT BROOKE M. ROBERTS

*Counsel of Record Office of U.S. Senator

11250 Waples Mill Road Larry Craig

Fairfax, Virginia 22030 313 SHOB

Telephone: 703/267-1235 Washington, D.C. 20510

Attorneys for Amicus Curiae ~

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

QUESTION PRESENTED FOR REVIEW

When a statutorily protected species invades and damages

the private property of a landowner under a governmentally

sanctioned relocation program, must the species be shown to

be under the complete ownership and control of the

government in order to state a claim for taking without just

compensation under the Fifth Amendment to the United States

Constitution?

TABLE OF CONTENTS

Page

QUESTION PIAEGRIN EE ccc ccc reer tertoens i

TABLES OF ALTERS ED oc eter rcrverrecss ii

IDENTITY AND INTEREST OF AMICUS CURIAE .. 2

SUMMARY OF ARGUMENT................... 3

pit | 3) ere Oh err ea ete 5

I. This Case Presents an Appropriate Issue for Resolution

under This Court's Fifth Amendment Takings Clause

ROURUURINNE, oo eee eee 5

II. The Court Below Misconstrued this Court's Holdings in

Loretto v. Teleprompter Manhattan CATV Corp., and Yee

v. City of Escondido, and Misapplied Additional Federal

Fees Cae CRON ec eee tse ee 9

i eb). + rem A ee yay 20

TABLE OF AUTHORITIES

Page

CASES

Armstrong v. United States, 464 U.S. 40 (1960)........ 5, 16

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

cert. denied, 490 U.S. 1114 (1989)........ 4, 5, 6, 15, 16

Dolan v. City of Tigard, 854 P.2d 437 (Or. 1993), cert.

granted, US. __ ,114S.Ct. 544(US. Nov. 29,

SR i 9

FCC v. Florida Power Corp., 480 U.S. 245 (1987)... . 13, 14

First English Evangelical Lutheran Church of Glendale v.

County of Los Angeles, 482 U.S. 304 (1987)........ 7, 16

Keystone Bituminous Coal Association v. DeBenedictis,

sare ds Ga cece eked kss esas 7

Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982)............... 4,9, 10, 11, 13, 19

Lucas v. South Carolina Coastal Council, US. ___,

Ee 7, 8,9

Moerman v. State of California, 17 Cal.App.4th 452

ME NN de viene ccnes, 10, 11, 12

Mountain States Legal Foundation v. Hodel,

799 F.2d 1423 (10th Cir. 1986),

cert. denied 480 U.S. 951 (1987)... ... 4, 5, 16, 17, 18, 19

-iv-

TABLE OF AUTHORITIES - Continued

Page

Nollan v. California Coastal Commission,

483 U.S. 825 (1987). ee 7,9

People v. Brady, 234 Cal. App.3d 954

(Cal.Ct.App. 1991)... .. ae | 14

Webb's Fabulous Pharmacies, Inc. v. Beckwith,

449 U.S. 155 (1980). | | | 5,8

Yee v. City of Escondido, 503 U.S. ___,

112 S.Ct. 1522 (1992) 4, 12, 13, 14

CONSTITUTIONS AND STATUTES

U.S. Const.amend. V......... passim

16 U.S.C. §§ 1331-1340 (1985) 17

16 U.S.C. § 1338(a)(3) (1985) , 17

16 U.S.C. § 1531 et seg. (1988) 15

CAL.CIV. CODE §§ 798 et seq. (West Supp. 1994). 13

CAL. FISH & GAME CODE § 332 (West Supp. 1994). ve

CAL.GOv'T CODE § 3951 (West Supp. 1994).......3, 10, 14

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITY

50 C.F.R. § 17.11(h)(1987). .... ) eee

Clean Water Act... . > | Dy ioe ea

Endangered Species Act. Se

National Environmental Policy Act. 3

New York Exec.Law § 828 (McKinney Supp.

1981-1982)............. soe 10

S.C.Code § 48-39-10 et seq. (1987) 8

South Carolina Beachfront Management Act. 8

U.S. SuP.CT.R.10.1(c)....... | a 4

’ ne a

No. 93-1171

In THE

Supreme Court of the Gnited States

OCTOBER TERM, 1993

ROBIN R. MOERMAN,

Petitioner,

Vv.

STATE OF CALIFORNIA, Director of the Department of

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

through IX inclusive,

Respondents.

Petition for Writ of Certiorari to the Court of

Appeal, State of California, First Appellate District,

Division One

BRIEF OF

UNITED STATES SENATOR LARRY CRAIG

AS AMICUS CURIAE IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI AND PETITIONER

ROBIN R. MOERMAN

Pursuant to Supreme Court Rule 37, United States

Senator Larry Craig submits this brief amicus curiae in support

of petitioner Robin R. Moerman. Written consent to the filing

of this brief has been granted by counsel for all parties. Copies

of the letters of consent have been lodged with the Clerk of this

Court.

2

IDENTITY AND INTEREST OF AMICUS CURIAE

Amicus curiae Larry Craig is the senior United States

Senator from the State of Idaho. He has been a Member of

Congress for thirteen years, now beginning his fourth year in

the Senate with ten years of prior service in the House of

Representatives. Senator Craig is the ranking Republican on

the Forestry Subcommittee of the Senate Agriculture

Committee, and he also sits on the Energy and Natural

Resources Committee. With these committee assignments,

amicus encounters national policy with respect to land use and

natural resource management on a daily basis.

A significant majority of Senator Craig's home state (aimost

seventy percent of the total acreage) is owned and controlled

by the State of Idaho and United States Government. As such,

Idaho is subject to considerable and often oppressive

governmental regulation. Indeed, the economic livelihood of

many Idahoans engaged in mining, logging and other resource-

related industries depend upon a successful relationship with

the United States Government. The ranching industry alone

accounts for almost $1,000,000 of Idaho's total economic

product, and range land itself accounts for over forty percent

of the State's total designated land use.

As a United States Senator, Mr. Craig believes he can offer

the Court a unique perspective on the petition presently before

this Court. Amicus believes that the Constitution's prohibition

on the taking without just compensation by the government --

be it amy government, state or federal -- of private property for

public use should be activated when the implementation and

enforcement of a species protection program adversely affects

private property rights. Amicus has a direct interest in the

outcome of this matter because many of Senator Craig's

3

constituents will be economically affected by the ultimate

disposition of this case.

Further, the governmental regulation under examination ir

the instant petition for certiorari is not qualitatively different in

application than the panoply of similar environmental law,

including, inter alia, the Endangered Species Act, Clean Water

Act, and the National Environmental Policy Act, federal

legislation which critically affects the ability of individual

Idahoans to maintain a viable vocation. As Idaho's senior

federal legislator, Senator Craig will be intimately involved in

any effort by Congress to address the issues passed on or left

unresolved by the Court in this case.

SUMMARY OF ARGUMENT

The petitioner, at present, has been unable to extricate his

private property from the ever-tightening choke hold of

government. While he enjoyed the sanctity of his private

property in Mendocino County, California, the California

Department of Fish and Game, the state agency charged with

wildlife preservation and enhancement, acted to relocate a herd

of tule elk near the petitioner's property. These animals, under

the caring and guiding hand of the State of California, have

prospered and are now thriving. As the tule elk have

flourished, petitioner's private land has proportionately suffered

destruction by the physical invasion of this protected species.

The Department of Fish and Game acted under the

authority granted by another branch of government -- the

legislative branch -- when it executed California Fish and Game

Code section 3951. The government's initial intervention and

subsequent oversight of efforts aimed at augmenting the tule

elk population in California has been rewarded by a significant

4

increase in the population of the species. But by this successful

recovery, the state has not "simply take[nj a single "strand" of

[petitioner's] property rights: it [has] chop[ped] through the

bundle, taking a slice of every strand." Loretto v.

Teleprompter Manhattan CATV Corp., 458 U.S. 419, 436

(1982). Petitioner's efforts to seek redress from his

government bring him before this Court.

This brief amicus curiae will demonstrate that the

petitioner's claims are important and warrant scrutiny by this

Court.’ First, an assessment of this Court's jurisprudence

under the Fifth Amendment indicates that this matter is

particularly suitable for review at this time. The relocation of

tule elk by the state of California was a government activity

which resulted in a physical invasion of petitioner's private

property. Under this Court's principal Takings Clause cases,

the petitioner has stated a claim for a physical taking by the

government under the Fifth Amendment to the United States

Constitution.

Second, the distinction drawn by the court below between a

species protected by the government and other physical takings

held compensable by this Court in Loretto is at worst

distinction without difference, or at best an issue yet to be

resolved. Yee v. City of Escondido,503 U.S. ___, 112 S.Ct.

1522 (1992), Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988),

cert. denied, 490 U.S. 1114 (1989), and Mountain States

Legal Foundation v. Hodel, 799 F.2d 1423 (10th Cir. 1986),

‘Rule 10.1(c) makes certiorari review appropriate by this Court "[wJhen a

state court or a United States court of appeals has decided an important

question of federal law which has not been, but should be, settled by this

Court or has decided a federal question in a way that conflicts with applicable

decisions of this Court." U.S. Sup. CT. R. 10.1(c).

5

cert. denied, 480 U.S. 951 (1987) have been misconstrued and

misapplied by the court below.

The cost of providing a public benefit, specifically, a

successful tule elk recovery program, is being borne directly by

the petitioner. Such success from a statute enacted by public

representatives and implemented by a governmental agency

does not “authorize the imposition of [a] direct and peculiar

and substantial a burden upon [petitioner's] property without

compensation to him." Armstrong v. United States, 464 U.S.

40, 49 (1960). When policy is realized through legislation and

implementation by the state, the Fifth Amendment requires that

a public cost must necessarily follow when the sanctity of a

private landholding is violated by that public benefit. The

application of this fundamental constitutional tenant is squarely

raised by this case, and the petition for certiorari pending

before the Court should be granted.

ARGUMENT

I. This Case Presents an Appropriate Issue for Resolution

under This Court's Fifth Amendment Takings Clause

Jurisprudence.

The Fifth Amendment to the United States Constitution

forbids "private property [from] be[ing] taken for public use,

without just compensation." U.S. Const. amend. V. But this

rudimentary constitutional relationship between the citizens of

this nation and their governments’ has not been evenly

>The Takings Clause of the Fifth Amendment apr ‘ies equally to a taking

by the federal or state government. Webb's Fabulous Pharmacies, Inc. v.

Beckwith, 449 U.S. 155, 164 (1980).

6

implemented by the judicial branch in the context of

environmental regulation. Justice White, in his dissent from

denial of certiorari in Christy v. Hodel, 857 F.2d 1324 (9th Cir.

1988), cert. denied, 490 U.S. 1114 (1989), offered an

appropriate constitutional inquiry.

The Ninth Circuit in Christy held that a sheep rancher was

not entitled to compensation from the federal government

when grizzly bears, a protected species, ate some of his sheep.

Because the rancher was not allowed to kill the bear to protect

his sheep, he argued that the government had essentially

"taken" his property without just compensation. Justice White

was Clearly distressed by the Ninth Circuit's view of species

protection and offered an unopaque example to make his point:

There can be little doubt that if a federal statute

authorized park rangers to come around at night and

take petitioner's livestock to feed the bears, such a

governmental action would constitute[] a ‘taking’... ."

Thus, if the government decided (in lieu of the food

stamp program) to enact a law barring grocery store .

owners from ‘harassing, harming or pursuing’ people

who wish to take food off grocery store shelves without

paying for it, such a law might well be suspect under the

Fifth Amendment. For similar reasons, the Endangered

Species Act may be suspect as applied in petitioner's

case.

Christy, 490 U.S. at 1115-16 (White, J., dissent from denial of

certiorari).

Justice White's pronouncement in Christy echoes a recent

invigoration of the Fifth Amendment as applied to the

preservation of property rights. In 1987, this Court decided a

7

series of property rights cases which provided hope for land

owners potentially captured in the vice grip of federal or state

environmental law. The most important of those cases was

Nollan v. California Coastal Commission, 483 U.S. 825

(1987). A few years later, an additional application of the

Takings Clause was provided in Lucas v. South Carolina

Coastal Council, __ U.S. ____, 112 S.Ct. 2886 (1992).

Nollan squarely presented the issue of what conditions can

be placed upon development permits by a state without the

exactions becoming an unconstitutional taking of property

The California Coastal Commission, the agency with permitting

authority over all development activity on the California coast,

demanded dedication by the Nollans of one third of their beach

front property as an exaction for a building permit. The

Coastal Commission argued that Nollans' home constituted a

public "psychological barrier" to the beach.

This Court held that there was no "nexus" or "close fit"

between the supposed harms from the development and

conditions imposed by the state in exchange for the permit.

Nollan, 483 U.S. at 836. Significantly, this Court placed its

imprimatur on heightened scrutiny in examining the legitimacy

of the conditions placed on the proposed development activity

Nollan, 483 U.S. at 834 n.3.

In Lucas, an owner of beach front property brought suit

under the Fifth Amendment to require just compensation after

the South Carolina Beachfront Management Act rendered his

‘The so-called "1987 Trilogy,” in addition to Nollan, included Keystone

Bituminous Coal Association v. DeBenedictis, 480 U.S. 470 (1987) and

First English Evangelical Lutheran Church of Glendale v. County of Los

Angeles, 482 U.S. 304 (1987).

property valueless.‘ After reviewing Fifth Amendment takings

jurisprudence, Justice Scalia reiterated that "there are good

reasons for our frequently expressed belief that when the

owner of real property has been called upon to sacrifice all

economically beneficial uses in the name of the common good,

that is, to leave his property economically idle, he has suffered

a taking." Lucas, 112 S.Ct. at 2895 (emphasis in original). In

order for the state to avoid having to compensate property

owners, a government

must do more than proffer the legislature's declaration

that the uses ... are inconsistent with the public interest,

or the conclusory assertion that they violate a

common-law maxim such as sic utere tuo ut alienum

non laedas. As we have said, a "State by ipse dixit, may

not transform private property into public property

without compensation....". Webb's Fabulous

Pharmacies, Inc. v. Beckwith, 449 U.S. 155, 164

(1980). Instead, as it would be required to do if it

sought to restrain Lucas in a common-law action for

public nuisance, South Carolina must identify

background principles of nuisance and property law that

‘Petitioner David Lucas paid $975,000 in 1986 for two residential lots on

which he intended to build single-family homes. At the time Lucas obtained

the property, the land was not designated as a "critical area" under the South

Carolina Coastal Zone Management Act. S.C.Code § 48-39-10 et seq.

(1987). If certain land was designated "critical area," development activity on

that property required a permit from the South Carolina Coastal Council.

The legislation at issue passed after Lucas began plans to develop his

property. Under authority of the 1988 Beachfront Management Acct, the

Coastal Council subsequently established a “baseline” connecting the

landward-most points of erosion during the last forty vears. The latter-

established baseline subsumed Lucas’ property, and as a result, flatly

prohibited, without exceptions, construction of his planned occupiable

improvements. Lucas, 112 S.Ct. at 2889-90.

9

prohibit the uses he now intends in the circumstances in

which the property is presently found. Only on this

showing can the State fairly claim that, in proscribing all

such beneficial uses, the Beachfront Management Act is

taking nothing.

Lucas, 112 S.Ct. at 2901-02.

Lucas and Nollan thus provide hope for those facing the

often insuperable burden of environmental regulation. These

cases hold that mere invocation of the state's police power is

not enough to override the reasonable use expectations of

property owners.°

This case presents no less an important issue requiring

resolution by this Court than did the constitutional questions in

Nollan and Lucas. Whether Robin Moerman and others

affected by state wildlife management actions and regulations

which extinguish the economic vitality of private property can

seek redress under the Fifth Amendment is a logical issue

confronting this Court under the Takings Clause.

[I. The Court Below Misconstrued this Court's Holdings

in Loretto v. Teleprompter Manhattan CATV Corp., and

Yee v. City of Escondido, and Misapplied Additional

Federal Takings Clause Cases.

In rejecting petitioner's Fifth Amendment claim under

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

‘On November 29, 1993, the Court agreed to hear Dolan v. City of

Tigard, 854 P.2d 437 (Or. 1993), cert. granted, __U.S.___, 114 S.Ct.

544 (U.S. Nov. 29, 1993)(No. 93-518). This important property rights case

grapples with the issue of when the Fifth Amendment's prohibition on taking

without just compensation will be triggered in a conditional permitting

context.

10

419 (1982), the California appellate court below colloquially

recited that "[t]he distinction between tule elk and cable

television personnel or equipment should be obvious."

Moerman v. State of California, 17 Cal.App.4th 452, 457

(Cal.Ct.App. 1993). The court below either too easily

distinguished Loretto from the matter at bar or relied upon its

holding too literally.

The "very narrow" holding of Loretto was that "a

permanent physical occupation of property is a taking."

Loretto, 458 U.S. at 442. Here, the petitioner cannot rebut the

court of appeals’ irrefutable conclusion that an animal is not a

cable television box or employee. However, the /ega/

similarity between this case and Loretto are twofold. First, a

state statute in both cases provided the impetus for the physical

occupation of private property by a third party instrumentality °

Second, the aggrieved property owner in Loretto, as in this

case, suffered an involuntary physical occupation of private

°The New York statute in Loretto made it a crime for a landlord to

"interfere with the installation of cable television facilities upon his property

or premises." New York Exec.Law § 828 (McKinney Supp. 1981-1982)

California's tule elk are a protected species under several state statutes. See

Cal. Fish & Game Code §§ 332, 3951 (West Supp. 1994). The court below

begrudged that "as a practical matter, it may be difficult for [petitioner] to

exclude the tule elk from his property without harming them." Moerman, |7

Cal.App.4th at 459.

In Loretto, "the government authorize[d] the permanent occupation of the

landlords property by a third party,” specifically, the placement of cable

boxes 18" x 12” x 6" by the Teleprompter Corporation. Loretto, 458 U.S. at

440. Here, seven hundred pound tule elk, initially transported several

hundred miles by the Department of Fish and Game under authority of

California Fish and Game Code section 3951, have physically occupied

petitioner's property.

a

ll

property by government-sanctioned third parties.’

But these cases differ in one critical respect. In Loretto, the

government merely authorized the activity of the Teleprompter

Corporation to place cable equipment on the private property

in question. Here, significantly, the government not only

enacted the statute providing for the elk relocation program,

but the government itself implemented, supervised, and

monitored the successful elk breeding program causing the

petitioner's damage. Absence of an absolute "ownership" or

“control” by the government of the cable boxes in Loretto did

not render impotent petitioner's Fifth Amendment claim, and

the claim presented here is entitled to identical constitutional

dignity.*

"The Teleprompter Corporation installed cables “slightly less than one-half

inch in diameter and of approximately 30 feet in length of the building about

18 inches above the roof top, and directional taps, approximately 4 inches by

4 inches, on the front and rear of the roof ... [with the cable later] extended

another 4 to 6 feet ... ," in addition to two large silver boxes.” Loretto, 458

U.S. at 422. The physical invasion was described by this Court as "minor but

permanent,” 458 U.S. at 421, but, "[i]n any event ... whether the installation is

a taking does not depend on whether the volume of space it occupies is bigger

than a breadbox." Loretto, 458 U.S. at 437 n.16.

The record at bar reflects that an initial herd of fifty tule elk tore through

petitioner's fences in 1984, Appellants’ Appendix at 95, 269 (see Petition for

Wnt of Certiorari at 3 n.1 (hereinafter "AA”)); the herd has increased by

approximately 15-20 elk per year since, and as many as one hundred

individual elk have been observed on petitioner's property at any given time,

AA at 95, 269; the elk have persisted in tearing down petitioner's fences and

consuming his crops, AA at 95-96, 269-70, and the chronic occupation of

petitioner's property has interfered with petitioner's irrigation system by

creating potholes and stream bank erosion, AA at 95, 269.

*This Court easily dismissed a claim by the City of New York in Loretto

that the physical invader of private property must be the government itself: "A

permanent physical occupation authorized by state law is a taking without

regard to whether the State, or instead a party authorized by the State, is the

12

The court below cited Yee v. City of Escondido, 503 U.S.

___, 112 §.Ct. 1522, 1528 (1992), for the proposition that

petitioner's claim fails because he has not been required by the

State of California to submit to the physical occupation of his

land. Moerman, 17 Cal.App.4th at 459. Yee taught that the

Takings Clause of the Fifth Amendment would be triggered "if

considerations such as the purpose of the regulation or the

extent to which it deprives the owner of economic use of the

property suggest that the regulation has unfairly singled out the

property owner... ." Yee, 112 S.Ct. at 1526. An additional

lesson is that "the Takings Clause requires compensation if the

occupant.” Loretto, 458 U.S. at 432 1.9

Indeed, the record in the instant matter indicates numerous attempts by the

Califorma Department of Fish and Game to exercise dominion and control

over the tule elk prospering in Mendocino County. The court below

acknowledged that the state anticipated that if the recovery program was

successful, management of the species population would be accomplished

"through continued monitoring, habitat improvement carned out in

cooperation with landowners, sport hunting, and relocation of the elk if

necessary." Moerman, 17 Cal.App.4th at 458. Additionally, the respondents

actually captured and relocated twelve individual elk to another county upon

complaint of a landowner. Moerman, |7 Cal.App.4th at 458 n.4.

Further, the respondents assisted the petitioner in efforts to scare various

elk from his property through the use of helicopters, firecrackers, and guns

Respondents’ Appendix (hereinafter "RA") at 63-66. Ear tags and radio

collars were attached to certain elk in order to provide information on elk

herd migratory patterns and to assist the state monitoring the success of its

recovery program. Moerman, |7 Cal.App.4th at 458.

Far from indicating that the respondents’ post-relocation activity was, as

characterized below, “limited,” Moerman, 17 Cal.App.4th at 458, the record

reveals that the government anticipated that deliberate intervention would be

an important component of the initial recovery plan and that the Department

of Fish and Game continually sought to minimize the effects of its program on

private landowners such as the petitioner. Irrespective of success in their

efforts, the respondents intended to, and attempted to, “control” the tule elk

population in Mendocino County.

13

government authorizes a compelled physical invasion of

property." Yee, 112 S.Ct. at 1528.

This Court explained that because the Escondido rent

control ordinance, when coupled with the California mobile

home residency law,’ did not compel the prospective takings

claimants to rent their property to tenants or to continue doing

so, "no government has required any physical invasion of

petitioner's property. Petitioner's tenants were invited by

petitioner, not forced upon them by the government." Yee, 112

S.Ct. at 1528.

But this Court also took great pains to distinguish the

factual situation of Yee from Loretto. Invoking FCC v.

Florida Power Corp., 480 U.S. 245 (1987), the key distinction

between Yee and the successful takings claim under Loretto

was that "‘it is the invitation, not the rent, that makes the

difference. The line which separates [Florida Power] from

Loretto is the unambiguous distinction between a ... licensee

and an interloper with a government license.’ The distinction is

equally unambiguous here." Yee, 112 S.Ct. at 1531 (quoting

Florida Power, 480 U.S. at 252-253).

The petitioner has stated a Takings Clause claim under this

Court's holding in Yee. At no time did the petitioner invite or

acquiesce to the presence of elk upon his property. The

California Department of Fish and Game was empowered by

the state legislature to relocate this protected species, and was

*California Civil Code sections 798 et seq. limited the bases upon which a

mobile home park owner could terminate a mobile home owner's tenancy,

which included, among others, non-payment of rent, the moile home owners

violation of law or park rules, and the park owner's desire to change the use of

his land. Yee, 112 S.Ct. at 1526.

14

also granted legislative authority’® to prevent the elk from

"unwanted physical occupation of petitioners’ property," Yee,

112 S.Ct. at 1531. Because the tule elk are precisely the

"interloper[s] with a government license” this Court held

decisively significant in Florida Power and Yee, petitioner's

claim requires redress under the Fifth Amendment.

The lower court's grasping of Christy v. Hodel, 857 F.2d

1324 (9th Cir. 1988), cert. denied, 490 U.S. 1114 (1989) asa

basis for frustrating petitioner's Fifth Amendment claim is

similarly in error.'' There, the Ninth Circuit specifically

refused to pass on the question presented here for review:

"Whether the government may be held responsible for damages

caused by ... wild animals that have been relocated by the

government, under a theory that such animals are

The tule elk relocation statute provides that "[w]hen economic or

environmental damage occurs, emphasis shall be placed on managing each

tule elk herd at a biologically sound level through the use of relocation,

sporthunting, or other appropriate means determined by the department [of

Fish and Game] after consulting with local owners." Cal. Fish & Game Code

§ 3951 (West Supp. 1994).

''The court below declared that the state of California

does not own wild animals (People v. Brady, (1991) 234

Cal. App.3d 954, 958-959), nor does it control wild

animals that have not been reduced to possession (Christy

v. Hodel, (9th Cir. 1988) 857 F.2d 1324, 1355, Mountain

States Legal Foundation v. Hodel, (10th Cir. 1986) 799

F.2d 1423, 1426). The majority of courts that have

considered whether the government owes compensation for

damage to property caused by protected wildlife have held

that the government does not. (See Christy, at p. 1334, and

cases cited therein.)

Moerman, \7 Cal.App.4th at 457-458

15

instrumentalities of the government, is a question we do not

decide." Christy, 857 F.2d at 1335 n.9.

Christy involved a species protected under the Endangered

Species Act, the grizzly bear."? The plaintiff had lost a total of

84 sheep to bears which had entered land he leased for grazing.

After importantly narrowing the issue it was deciding for Fifth

Amendment purposes, the Ninth Circuit held that the ESA or

its regulations did not "force" the plaintiff to bear any unique

burden. "The losses sustained ... are the incidental, and by no

means inevitable, result of reasonable regulation in the public

interest." Christy, 857 F.2d at 1335.

But here, the record is replete with examples indicating that

the state knew exploitation of private property was

indispensable to the success of the "Management Plan for the

Conservation of Tule Elk" (hereinafter "MPCTE"). Over

ninety percent of the land included in the Mendocino Tule Elk

Management Unit, or "MTEMU," the habitat planned to

support the relocation program, is under private ownership

AA at 183-84. Indeed, the government has conceded that the

California Legislature factored into their legislation that the

relocated elk would "roam from their point of relocation or

that they would cause injury to private property." Reporter's

Transcript-2 at 41 (hereinafter "RT").

But unlike Christy, the damages suffered by the petitioner

as the result of governmental regulation cannot merely be

pronounced "incidental" or "inevitable." An affirmative act of

government induced the events causing petitioner's property

damage. Without his knowledge or consent, the California

"16 U.S.C. § 1531 et seg. (1988) (her-inafter "ESA"). The grizzly bears

had been listed as “threatened” under the ESA and regulations. 50 C.F.R. §

17.11¢h)(1987)

16

Legislature along with the Department of Fish and Game

volunteered the property of the petitioner in order to ensure

the success of California's elk relocation program. Once the

government intr: duced the elk into the state's stream of

ecological commerce, it was not only foreseeable -- it was

planned -- that petitioner's private property could eventually be

converted to public use.’ The circumstances reviewed by the

Ninth Circuit in Christy are thus clearly distinguishable from

the facts of this case."*

The court below also coaxed significance from Mountain

States Legal Foundation v. Hodel, 799 F.2d 1423 (10th Cir

"See Petition for Writ of Certiorari at 5 (describing the MPCTE as

evaluating that "{tule} elk can compete with livestock for available forage,

cause considerable damage to crops [and] frequently damage fences.")

'“|_ and owners and land users faced with oppressive efforts by the

government to apply environmental regulation were once heartened by Justice

White's view of the outcome of Christy:

[S]ustaining grizzly bears is a worthwhile and important

governmental objective. But it 1s axiomatic that the Fifth

Amendment's just compensation 1s ‘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 Evangelical

Lutheran Church of Glendale v. County of Los Angeles,

482 U.S. 304, 318-319 (1987), quoting Armstrong v.

United States, 364 U.S. 40, 49 (1960). Here, [petitioner]

tas been asked to bear the burden of feeding endangered

grizzlies -- or at the least, has been estopped from taking

measures necessary to prevent the use of his property for

this purpose. Thus, it is quite possible that petitioner has

been denied the Fifth Amendment's protection against

takings.

Christy, 490 U.S. at 1116 (White, J., dissent from denial of certiorari).

17

1986), cert. denied, 480 U.S. 951 (1987) in turning away

petitioner's takings claim. At issue in Mountain States was the

Wild Free-Roaming Horses and Burros Act, 16 U.S.C. §§

1331-1340 (1985), which was enacted by Congress to protect

wild horses and burros from "capture, branding, harassment, or

death." A portion of that statute provided that the federal

government would be responsible for removing wild horses or

burros straying from public lands onto private property, 16

U.S.C. § 1334, but that any person who "maliciously causes

the death or harassment of any wild free-roaming horse or

burro” would be subjected to criminal penalties. 16 U.S.C. §

1338(a)(3) (1985).

In Mountain States, the Rock Springs, Wyoming Grazing

Association claimed that the disregarding by the government of

repeated requests to remove the wild animals from private

grazing lands constituted a takings claim under the Fifth

Amendment.'* The Tenth Circuit in Mountain States brushed

aside that argument, concluding that "wild horses and burros

are no less ‘wild’ than are the grizzly bears that roam our

national parks and forests." Mountain States, 799 F 2d at

1426. In characterizing the regulatory scheme at issue, the

Tenth Circuit declared that the "Wild Free-Roaming Horses

and Burros Act is nothing more than a land-use regulation

enacted by Congress to ensure the survival of a particular

species of wildlife." Because the Act was "not unique in its

‘The Grazing Association claimed that “it is the panoply of management

responsibility set forth in the Act and its regulations, including [section

1334], which . . . subject to the United States to liability due to its pervasive

control over the horses’ existence." Mountain States, 799 F.2d at 1426. The

wild horses and burros eroded top soil and consumed vast quantities of

natural resources on the private property of the associations’ membership.

Mountain States, 799 F.2d at 1425.

—

18

impact on private resources owners,” the Tenth Circuit turned

away the Fifth Amendment claim brought by the plaintiffs.

Mountain States, 799 F.2d at 1428 (emphasis supplied).

The factual predicate upon which the Tenth Circuit based

its holding in Mountain States is profoundly distinct from the

instant matter. Unlike the private landholders in Mountain

States, Robin Moerman could not have foreseen that a

voracious protected species would one day forage and trample

upon his private property. It was only through the course of

events set in motion by the enactment of California

Government Code sections 332 and 3951, and subsequent

implementation by the California Department of Fish and

Game, did petitioner's property interest become violated.

And also unlike the activity of the *u/y wild horses and

burros at issue in Mountain States, the burgeoning tule elk

herds in Mendocino, California would not invaded petitioner's

property but for the state's relocation effort.'* Indeed, if the

‘Particularly disturbing is the lower court's bald conclusion that

"[c]learly it is unreasonable to argue that because the [tule elk] were once

eliminated from Lake and Mendocino counties and driven to the brink of

extinction, that they are now nothing more than a public improvement or pet,

under control of the state." Moerman, 17 Cal.App.4th at 459.

[f it is “obvious” that cable boxes and the people that install them are not

tule elk, it is just as indisputable that the year 1994 is not hundreds of years

ago when California was blessed with a half-million now-protected individual

species. Moerman, |7 Cal.App.4th at 458-459 ("Historical reports indicate

that at one ume there were approximately 500,000 tule elk in this state,

inhabiting essentially all oak woodland and oak grassland habitat, including

Lake County and eastern Mendocino County."). The court's irrational view of

basic historical progress means that any species or natural resource

preservation scheme is de facto immunized from the Fifth Amendment's

Takings Clause where the property owner's interest merely collides with that

of the government._ The court below, while invoking a virtuous legislative

design, has nonetheless disregarded the Fifth Amendment's constitutional

function, namely, that compensation to private property owners must be paid

19

elk breeding program had any chance of success (or if it in fact

succeeded), private property would have to have been

expropriated in order to ensure the elk a sufficient food source

and population habitat.'’ Although California did not air drop

the elk directly onto petitioner's property, an identical result

was effected by the relocation program. Mountain States is

clearly distinguishable from the matter pending review here,

and the lower court's attempt to analogize the respective

instrumentalities of the government as identical in each case is

fallacious.

California's tule elk program is precisely the type of

government activity which, by any possible calibration, is

paradigmatic of a public good. However, "a permanent

physical occupation authorized by government is a taking

without regard to the public interests that it may serve."

Loretto, 458 U.S. at 427.

Fortunately for the People of California and the citizens of

the United States, the elk recovery effort in Mendocino County

has undoubtedly achieved its public purpose. Unfortunately for

the petitioner, he must personally bear the cost of this

government activity which has met -- indeed, exceeded -- even

reasonable expectations. The Takings Clause precedent below

cannot be neglected by this Court.

if the government engages a balancing of competing land uses and determines

to indulge a public purpose at the expense of those property owners.

"The California Department of Fish and Game recognized in their

MPCTE that "[o}ne positive aspect of livestock grazing is that s'nce water

sources are developed by ranchers for their cattle and sheep, permanent water

supplies are available year-round for elk and other wildlife." AA at 180.

20

CONCLUSION

For the foregoing reasons, amicus curiae United States

Senator Larry Craig urges this Court to grant the petition for

certiorari filed by the petitioner in this case.

Dated: March 16, 1994

Respectfully submitted,

*LAURENCE MICHAEL BOGERT BROOKE M. ROBERTS

*Counsel of Record Office of U S. Senator

11250 Waples Mill Road Larry Craig

Fairfax, Virginia 22030 313 SHOB

Telephone: 703/267-1235 Washington, D.C. 20510

Attorneys for Amicus Curiae