Amicus Curiae Brief — Moerman v. California

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No. 93-1171

In the

Supreme Court of the United States

October 7» m, 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.

On Petition for Writ of Certiorari to the Court of

Appeal, State of California, First Appellate District,

Division One

AMICUS CURIAE BRIEF OF THE WASHINGTON

WOOL GROWERS ASSOCIATION, THE

AMERICAN LAND RIGHTS ASSOCIATION, ROGAN

COOMBS, VERNE REISCH AND DIXIE REISCH IN

SUPPORT OF THE PETITION FOR CERTIORARI

RICHARD M. STEPHENS

Law Offices of Richard M. Stephens

800 Bellevue Way, Suite 400

Bellevue, Washington 98004-4229

Telephone: (206) 462-2082

Attorney for the Washington Wool

Growers Association, the American Land

Rights Association, Rogan Coombs,

Verne Reisch and Dixie Reisch

QUESTIONS PRESENTED FOR REVIEW

When the government relocates si*«torily protected

animals to a new area with the intent tivat they feed upon

surrounding private lands, must a private property owner

damaged by :liose animals prove that the government owns

or controls tie animals in order to state a cause of action for

an unconstitutional taking of private property?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW...................... i

FREE Cr Cae ri sinvicccisesasseceszicntvssicmiaants ii

TABLE GP AaFreer i ie verse sacnedecetsnitiasttndgconeentn iv

IDENTITY AND INTEREST OF AMICUS CURIAE......... l

Ce BIG cin intectasesesnineusiaacueespeasiecmenssereeenien 2

STATOR OP Tie CAs ove risiscssecscssstcanabersuenacs 2

REASONS FOR GRANTING THE WRIT.....................6.. 4

I. Whether Government is Liable for the Taking of

Private Property by Protected Wildlife When The

Government Moves Wildlife Adjacent to Private

Lands in order for Those Private Lands to Provide Food

for the Wildlife Is an Important Question Which

should be Decided by this Court.......................ceee eee 5

II. Whether Government is Liable under the per

se Taking Rules for Physical Invasion Rules for

Invasions by Wildlife Proximately Caused by the

Government Action is an Important Question Which

Should be Decided by this Court.........................00005 9

iil

III. Whether the Equitable Principles of the

Fifth Amendment apply to the Taking of Private

Property Caused by Government Action and Regulation

Even though the Government Does not Own or

Control the Wildlife Entirely is an Important

Question Which Should be Decided by this Court........ li

RES RA A SLE EE le ale eS ae 14

TABLE OF AUTHORITIES CITED

Cases

Armstrong v. United States, 364 |

Seay ie Cats daicctensndansdcdecrrientveentiseheeeenss

Barrett v. State, 220 N.Y. 423,

116 N.E. 99 (N.Y. Ct. App. 1917)....0.cccccccceeeee.

Christy v. Hodel, 857 F.2d 1334

(9th Cir. 1988), cert. denied,

SR BE i ixdosesivcinenincscocensthacssneaversies

Cook v. State, 74 P.2d 199 (Wash. 1937)...............

Loretto v. Teleprompter Manhattan CATV

CO, GSS Be GE CRP ences snceciccsesesvcverscenecs

Penn Central Transportation Co.

v. New York City, 438 U.S. 104 (1978)...............

Pennsylvania Coal Co. v. Mahon, 260

SES ME Es Aigibaddhauhssctuanreukoxsrscsshecdsucniien

Pumpelly v. Green Bay & Mississippi

Canal Company, 80 U.S. (13 Wall.)

SS ik iicusnerieesncsbuberensaspubetieenidtiariiderss

Shelinut v. Arkansas State Game & Fish

Commission, 258 S.W.2d 570 (Ark. 1953)............

State v. Burk, 195 P. 16 (Wash. 1921)...................

Page

Rules and Statutes

California Penal Code section 197.............ccccecccscccsescessces 7

I IE I TE loess secn dona aavedeconeandsocsvsearalcdons 4

Ny SIE SIE Oss vc ccasunedoncsoniespavuveuseedinacaruned l

United States Constitution

Pe PI vind cccvccctbensidccrediieceivcsietaeel passim

Pursuant to Supreme Court Rule 37.2, amici curiae,

the Washington Wool Growers Association, the American

Land Rights Association, Rogan Coombs, and Verne and

Dixie Reisch respectfully file this amicus curiae brief in

support of petitioner, Robin R. Moerman, and urge this

Court to grant the petition for certiorari and reverse the

decision of the California Court of Appeal. Counsel for

petitioner and respondents have consented to the filing of

this brief and such consent has been lodged with the Clerk

of this Court.

IDENTITY AND INTEREST OF AMICUS CURIAE

The Washington Wool Growers is an incorporated,

nonprofit association of producers of lamb and wool in

Washington State, representing the interests of its members

for over 100 years. The Washington Wool Growers

Association has approximately 450 members in an industry

with approximately 2,000 wool and lamb producers

statewide. Its members include those with only 2 animals to

those with over 9,000. The Association has actively opposed

government efforts to reintroduce animals which feed off its

members’ herds, particularly wolves and grizzly bears. The

Washington Wool Growers and its members are also

concerned about the present case because of the loss of

private property to feed wild coyotes.

The American Land Rights Association (ALRA) is a

national networking organization with over 18,000 members

concerned about the need to private property rights from

overreaching government regulation at every level. The

ALRA’s members include landowners, ranchers, miners,

loggers and others who either own private property or make

their living from land-based resources. The ALRA’s mission

includes protecting all landowners from government

regulation which prevents the productive use of private

property without just compensation. Involvement in litigation

such as the present case is one of the many ways the ALRA

seeks to protect private propert; owners.

Amicus Rogan Coombs is the owner of approximately

12,000 acres of rural land in Northern California. He is

concerned over the protection the Constitution gives to

property owners when government action causes private

property to be taken without payment of just compensation.

His ownership of rural land is detrimentally affected by the

limited interpretation of Constitutional rights in the ruling by

the California Court of Appeal in the present case.

Amici, Verne and Dixie Reisch, are the owners of 90

acres in Clackamas County, Oregon. Mr. and Mrs. Reisch

run cattle on their land and use their land for production of

natural resources. They are troubled by the lack of

protection some courts, including the California Court of

Appeal, have given to people who work to enhance their

private property. Amici have an interest in urging this Court

to grant the petition for certiorari in this case.

OPINION BELOW

The opinion of the First District Court of Appeal,

Division One is reported at 17 Cal. App. 4th 452 (1993), and

is reproduced in Appendix B to the Petition for Writ of

Certiorari (hereinafter Appendix).

STATEMENT OF THE CASE

Between 1978 and 1980, the California Department of

Fish and Game (hereinafter Department) captured tule elk in

Kern County, California and transported them 400 miles

away to the Mendocino National Forest. Petitioner, Robin

Moerman, owns a 200-acre ranch in Mendocino County,

California. Until this forced migration by the state, tule elk

had been extinct in Mendocino County since the mid-1800’s.

The Department chose the Mendocino National Forest

because natural vegetation in the area would support the

relocated herd. The Department attempts to "‘reintroduce[]

[the elk] to areas where the natural vegetation can support the

animals on a year round basis.’" Petition for Writ of,

Certiorari at 4 (quoting A Management Plan for the’

Conservation of Tule Elk (hereinafter MPTCE) at 12).

Moreover, the Department was fully aware of the damage

tule elk can have on private lands. "[E]lk can compete with

livestock for available forage, cause considerable damage to

crops [and] frequentiy damage fences." MPTCE at 11-12.

See also Reporter’s Transcript (RT), Vol. 2 at 41 (attorney

general stating that it "was clearly contemplated by the

legislature, that [the elk would] roam from their point of

relocation or that they would cause injury to private

property").

In the winter of 1984, the elk outgrew the capacity of

the Mendocino National Forest and a herd of approximately

50 elk tore through Moerman’s barbed wire fences to feed

off his cultivated pastures. Appellant’s Appendix (AA) at

95. Since then, the elk have raided Moerman’s pastures on

a regular basis. AA at 95-96. The number of elk have

increased approximately 15-20 per year and Moerman has

observed up to 100 elk ravaging his pastures at one time.

These elk are protected by California law and Moerman

has been unable to protect his property from destruction by

the elk’s feeding habits. Cal. Fish and Game Code §§ 332

and 3951. Limited permits to reduce the number of elk

raiding his property have been denied. RT-2, at 8, 31.

Moerman filed suit alleging that the state’s tule elk

relocation and management program has caused a taking of

his private property for public use without just compensation

as required by the Fifth and Fourteenth Amendments to the

United States Constitution. The trial court found that

petitioner’s takings claim was unsuccessful because the State

did not intend to possess or control the wildlife it subjected

to relocation. Appendix at A-2. Moerman appealed his case

to the First District Court of Appeal of California, Division

One, asking the court to reverse the trial court’s ruling on

the takings claim. The Court of Appeal rejected Moerman’s

takings argument because "tule elk are not instrumentalities

of the state nor are they controlled by the state." Appendix

at B-13. The Court of Appeal denied Moerman’s request for

rehearing and the California Supreme Court denied

Moerman’s petition for review on October 21, 1993.

Having been unsuccessful in getting a California court

to even consider whether the taking of property proximately

caused by actions of the state is sufficient to create liability

under the Fifth and Fourteenth Amendments, Moerman filed

the pending petition for writ of certiorari.

REASONS FOR GRANTING THE WRIT

Rule 10 of the Supreme Court identifies factors the

Court considers important to determining whether a petition

for writ of certiorari should be granted. One section of Rule

10.1 is applicable here.

When 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.

Rule 10.1(c). This case involves an important question of

federal law which has not, but should be decided by this

Court--can government escape liability for taking private

property which it causes simply because it does not control

every action of the article which physically invades the

private property?

Whether Government is Liable for the Taking of

Private Property by Protected Wildlife When The

Government Moves Wildlife Adjacent to Private

Lands in Order for Those Private Lands to Provide Food

for the Wildlife Is an Important Question which

should be Decided by this Court

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

cert. denied, 490 U.S. 1114 (1989), the Ninth Circuit

rejected a sheep rancher’s claim for damages caused by

grizzly bears which were protected under the Endangered

Species Act. The court rejected the claim because "the

government is not answerable for the conduct of the bears in

taking plaintiffs’ property." Jd. at 1335. The Ninth

Circuit’s decision was also based on the outdated notion that

it is simply a legislative prerogative to destroy private

property for the benefit of the general public without paying

just compensation. Christy, 837 F.2d at 1335 (citing Barrett

v. State, 220 N.Y. 423, 427, 116 N.E. 99, 100 (N.Y. Ct.

App. 1917)).

However, the Ninth Circuit refused to rule on a

hypothetical situation where the government involvement was

more than merely prohibiting the destruction of the invading

wildlife.

We note that plaintiffs do not contend, and the

record does not show, that the federal

government physically introduced any bears to

the areas near plaintiffs’ properties. Whether the

government may be held responsible for damage

caused by bears or other wild animals that have

ii iii

been relocated by the government, under a theory

that such animals are instrumentalities of the

government, is a question we do not decide.

Id. at 1335 n.9. That hypothetical in Christy is exactly the

Situation with the present «ac.

Recognizing the inherent wnfairness in outlawing the

long-standing custom of protecting one’s private property

from predators, Justice White dissented when the Supreme

Court decided to deny Christy’s petition for certiorari.

{I]f 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 wished to take food off

grocery shelves without paying for it, such a law

might well be suspect under the Fifth

Amendment.

490 U.S. at 1114 (White, J., dissenting). These issues are

significant to the many people, such as amici, who own and

cultivate crops and herds on private lands.

Furthermore, other courts have come to opposing

conclusions. The Washington Supreme Court held in State

v. Burk, 195 P. 16 (Wash. 1921), that property owners have

a constitutional right to defend and protect their property

against imminent and threatened injury by protected animals,

even to the extent of killing the animals. Later, in Cook v.

State, 74 P.2d 199, 203 (Wash. 1937), the same court ruled

that, while establishing hunting restrictions on private land

did not cause a taking of private property caused by the

wildlife, the property owners would have been justified in

removing the offending animals regardless of government

prohibitions to the contrary.

Similarly, in Shellnut v. Arkansas State Game & Fish

Commission, 258 S.W.2d 570 (Ark. 1953), the Arkansas

Supreme Court held that a prohibition of protecting one’s

property from invading wildlife effected a taking of the

private property. The regulation "was an attempt to impose

an easement or servitude on the appellants’ lands, without the

consent of the landowners, and without complying with the

eminent domain provisions of our Constitution." Jd. at 573.

The California Court of Appeal’s decision in the

present case conflicts with the decisions of other jurisdictions

on the basic right to protect one’s property. The decision

has the anomalous result of giving no relief to those who are

prohibited from killing animals which destroy property even

though California Penal Code section 197 provides defense

of property as a justification for homicide. Only this Court

can settle the confused state of the law on this issue.

Whether Government is Liable under the per

se Taking Rules for Physical Invasion Rules for

Invasions by Wildlife Proximately Caused by the

Government Action is an Important Question Which

Should be Decided by this Court

This Court has fixed governmental liability under the

Fifth Amendment to pay just compensation whenever govern-

ment physically invades or authorizes others to invade private

property. Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419 (1982). This is a per se taking--the result of

a bright line test which provides relief from a practically

standardless ad hoc factual inquiry with which courts and

property owners have struggled in the regulatory takings

context. Penn Central Transportation Co. v. New York City,

438 U.S. 104, 124 (1978).

At the heart of this case are repeated physical invasions

which would have never occurred had it not been for the

State of California’s elk relocation program. Moerman’s

claim is not based on the notion that relocated wild animals

near his property are injurious to his ranching operations.

These animals invade his property, destroy his fences and eat

his crops. And the state was fully aware that such injury to

Moerman would occur as a result of it moving these animals

to Moerman’s area.

The California court’s decision to make the

constitutional right to compensation hinge on whether the

wildlife are determined to be "instrumentalities of the

government” is ridiculous. It conflicts with the long history

of government liability for physical invasions of various

kinds which are caused by government action. The

government was responsible for the physical invasion of Ms.

Loretto’s property by the cable company, regardless of

whether the cable employees were "instrumentalities of the

government." Loretto v. Teleprompter Manhattan CATV

Corp. , 458 U.S. 419 (1982). The government is responsible

for flooding of private land it causes, regardless of whether

the water is owned by or considered an “instrumentality of

the government." Pumpelly v. Green Bay & Mississippi

Canal Company, 80 U.S. (13 Wall.) 166 (1872).

It is important that the clear physical invasion rule

establishing takings liability for invasions caused by

government action not be filled with exceptions. The

government should be responsible for the physical invasion

of wildlife that have been placed in an area where it is

reasonably foreseeable that the wildlife will invade the

private land for foraging purposes. When invasions are

caused by government action, it should make no difference

whether what crosses on to private land is owned by the

government.

Ill

Whether the Equitable Principles of the

Fifth Amendment apply to the Taking of Private

Property Caused by Government Action and Regulation

Even though the Government Does not Own or

Control the Wildlife Entirely is an Important

Question Which Should be Decided by this Court

The underlying purpose of the takings provision is to

prevent government from forcing some people "to bear

public burdens which, in all fairness and justice, should be

borne by the public as a whole." Armstrong v. United

States, 364 U.S. 40, 49 (1960). These same principles

should apply to petitioner Moerman because he is being

forced to bear the public’s burden in not just preserving

wildlife, but actively reintroducing a species to a new area.

If the state wanted to grow crops on Mr. Moerman’s land, it

would be required to pay for it. Sustaining wildlife stock on

it should lead to no different result.

Justice Holmes warned:

We are in danger of forgetting that a strong

public desire to improve the public condition is

not enough to warrant achieving the desire by a

shorter cut than the constitutional way of paying

for the change."

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

Protecting tule elk and moving them to new locations was

determined to be in the best interest in the public at large.

The costs of doing so, then, must be borne by the public by

application of the just compensation provision in the Fifth

and Fourteenth Amendments.

As Justice White wrote in his dissent in the denial of

certiorari in Christy,

"(T]he Fifth Amendment’s 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.’" Here, petitioner has

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 seems quite possible that petitioner has

been denied the Fifth Amendment’s protection

against uncompensated takings.

490 U.S. at 1114-15 (citations omitted). Of course, the

public desire to increase the natural supply of tule elk may

very well be legitimate. It is illegitimate to make Mr.

Moerman feed them while the rest of society pays nothing.

CONCLUSION

Amici urge this Court to grant the pending petition for

certiorari in this case. Too long has the law on the right of

people to defend their property and the right to receive

compensation for invasions of property caused by

government policy been in a state of confusion. These issues

are important to the many ranchers, farmers and rural

i eeceseaeaeicieinaenlaiaiiaeliiiliaiaae

landowners who seek to earn their living from agricultural

pursuits.

DATED: March, 1994

Respectfully submitted,