# Amicus Curiae Brief — Moerman v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1115%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1994 - **Citation:** 511 U.S. 1031 ## Text 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? ee il 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 iV 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 2 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. 3 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 4 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 5 every action of the article which physically invades the private property? 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 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 6 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 7 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. 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 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 8 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. 9 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. 10 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 11 landowners who seek to earn their living from agricultural pursuits. DATED: March, 1994 Respectfully submitted, 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1115%3A06. Public record. Not legal advice.