Amicus Curiae Brief — Moerman v. California

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Brpreee Court, Ae

| FILED

| MAR 16 1994

No. 93-1171

Sth et ULERK

In The —

Supreme Court of the United States

October Term, 1993

¢

ROBIN R. MOERMAN,

Petitioner,

STATE OF CALIFORNIA, Director of the

Department of Fish and Game of the State of California;

and DOES I through IX, inclusive,

Respondents.

S

On Petition For Writ Of Certiorari

To The Court Of Appeal, State Of California,

First Appellate District, Division One

¢

BRIEF OF FLORIDA LEGAL FOUNDATION, INC.

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

¢

MIcHAEL L. RosEN*

*Counsel of Record

Florida Legal Foundation, Inc.

Post Office Box 10228

Suite 502, Barnett Bank Building

Tallahassee, FL 32302

(904) 681-9346

Attorneys for Amicus Curiae

Florida Legal Foundation, Inc.

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

Wee ee ob csv vneoesccscenesdavecs ii

PORE GI PRNGOD ocr vicvcredccssvccccceces 1

SuAsumeres OF THE CASE... 2 occ ccccccccsccccece 3

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

Ps ER reer re heer eat eT ee ee 4

BY RULING THAT NO COMPENSABLE TAK-

ING OCCURS WHEN A STATE RELOCATES

PROTECTED WILDLIFE THAT PHYSICALLY

INVADES, OCCUPIES, AND INJURES PRIVATE

PROPERTY, THE CALIFORNIA APPELLATE

COURT HAS DECIDED AN IMPORTANT BUT

UNRESOLVED QUESTION OF FEDERAL CON-

STITUTIONAL LAW THAT SHOULD BE SET-

pe oe OU: ee ere +

A. The State’s Responsibility For The Physical

Occupation Of Private Property By Relo-

cated Wildlife Is A Constitutional Question

That Requires Resolution.................. 6

B. The Effect Of Regulatory Restraints On The

Right Of Landowners To Exclude Harmful

Wildlife Is A Constitutional Issue That

Should Be Settled Here.................... 15

Se IY 64.04 04d ds 4 aU ene awae ness aed ereeen 19

ii

TABLE OF AUTHORITIES

CASES

Armstrong v. United States, 364 U.S. 40 (1960)........ 14

Barrett v. State, 220 N.Y. 423, 116 N.E. 99 (1917). .10, 11

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

denied, 490 U.S. 1114 (1989)..........000 cee eee passim

Cook v. State, 74 P.2d 199 (Wash. 1937).............- 11

FCC v. Florida Power Corp., 480 U.S. 245 (1987)...... 16

Kaiser Aetna v. United States, 444 U.S. 164 (1979). .16, 17

Loretto v. Teleprompter Manhattan CATV Corp., 458

US. G19 (19RD) vcscceseccee eee 2, 6, 7, 13,

Lucas v. South Carolina Coastal Council, 505 U.S.

__, 112 S. Ct. 2886, 120 L.Ed.2d 798 (1992)....... 18

Mountain States Legal Foundation v. Hodel, 799 F.2d

1423 (10th Cir. 1986), cert. denied, 480 U.S. 951

CSUN) 6 vcccccsesavecesuctagiiae eee passim

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

GID (W967) 6 occ caries teudextaeeeee 6, 16, 17

Pumpelly v. Green Bay & Mississippi Canal Co., 80

US. (13. Wall) 166 (1072) 3.03 ceceeccsssteusesces 13, 18

Sickman v. United States, 184 F.2d 616 (7th Cir.

1950), cert. denied, 341 U.S. 999 (1951). ... 0.02200. 12

Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

US. 155 (ERGO os ccsscecestesnssnsee eee eae 5

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

1822, 116 L.Bb.26 150 (290s ics cceeeeeee 15, 16

see

TABLE OF AUTHORITIES - Continued

Page

FLORIDA STATUTES

EE, Eis CE, CEUUOD sco scccccsccvvccevevaveces 2

nS, ME, CUUEED, cscs cccecccccetecteccesess 3

ar meeaemreen, Wem. Demet. CIDTS) . on cccccccccccccccceess 3

OrHer AUTHORITIES

Florida Administrative Code

ee ee ese ala don uw eee ew eee oes 3

Florida Panther Habitat Protection Plan.............. 3

I NS POD. Pa oo cen tivcvecvevesscxissnees 1

Michelman, Property, Utility, and Fairness: Com-

ments on the Ethical Foundations of “Just Com-

pensation” Law, 80 Harv. L. Rev. 1165, 1184

aC Cen e StoP 6 Gos ues daa e ean se duis abs 14

NOTE: References to Petitioner’s Appendix are signi-

fied herein as [Pet. App. |; references to the

Petition are signified as [Pet. at ___].

No. 93-1171

4

In The

Supreme Court of the United States

October Term, 1993

+

ROBIN R. MOERMAN,

Petitioner,

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

a

BRIEF OF FLORIDA LEGAL FOUNDATION, INC.

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

¢

INTEREST OF AMICUS

Florida Legal Foundation, Inc. submits this amicus

curiae brief in support of the Petition for Writ of Cer-

tiorari filed by Robin R. Moerman. In accordance with

Supreme Court Rule 37.2, this brief is accompanied by the

written consent of the parties, evidenced by letters that

have been filed with the Clerk of the Court.

The Florida Legal Foundation is a nonprofit corpora-

tion established to promote the public interest in balanc-

ing private property rights and public needs for the

benefit of all citizens. Recognizing that the adversarial

1

2

process can function properly only when all parties are

afforded effective representation, the Foundation seeks to

assure, through advocacy within the legal system, that

the rights of Florida property owners are fairly consid-

ered and adequately defended against unreasonable

restriction or deprivation due to the exercise of goverri-

mental power. A primary purpose of the Foundation is to

provide legal support for landowners who are disadvan-

taged in defending their interests, particularly in cases

where government agencies or environmental groups

possessing superior resources are promoting principles of

law that might establish a precedent adversely affecting

the property rights of others.

As an advocate for Florida landowners, the Founda-

tion is interested in this case because the decision of the

California appellate court, if not reviewed and rectified

by this Court, poses a serious threat to the rights of

private property owners in every state where wildlife

relocation programs are being implemented or contem-

plated. That threat may be more immediate in Florida

than in most jurisdictions, not only because Florida and

California share the distinction of being the states with

the greatest number of endangered or threatened spe-

cies,! but because Florida also has undertaken efforts to

1 The Florida Legislature has declared that “Florida has

more endangered and threatened species than any other conti-

nental state,” section 372.072(2), Florida Statutes (1993),

although one recent study has ranked Florida second to Califor-

nia in this regard. See Draft Florida Panther Habitat Protection

Plan, prepared by representatives of the U.S. Fish and Wildlife

Service, the Florida Game and Fresh Water Fish Commission,

the Florida Department of Natural Resources, and the National

Park Service, and published February 16, 1993 (hereinafter

referred to as “Panther Habitat Plan”).

Se a

3

expand the population of certain protected species, such

as the Florida panther, by reintroducing them into areas

where they are likely to invade and damage private farm

lands.2, Consequently, the Florida Legal Foundation

believes that the issue presented here merits review and

resolution by this Court now, before more ambitious

wildlife relocation programs begin to proliferate as an

inevitable result of the ruling below that the state is not

responsible for property losses caused by animals it has

relocated.

STATEMENT OF THE CASE

The Florida Legal Foundation adopts the statement

of the case presented in Moerman’s Petition for Writ of

Certiorari.

SUMMARY OF THE ARGUMENT

Under settled principles, a permanent physical occu-

pation of private property authorized by government

constitutes a compensable taking. It is undisputed here

that Moerman has suffered damages due to the invasion

and permanent physical occupation of his property by

? Florida law specifically provides for programs to “rees-

tablish Florida panthers into areas of suitable habitat,” section

372.672(2)(c), Florida Statutes (1993), and prohibits the killing of

Florida panthers or any panther occurring in the wild. Section

372.671, Florida Statutes (1993). The Florida panther is classified

by rule as an endangered species, Fla. Admin. Code R.

39-27.003(32), and in 1988 the Florida Game and Fresh Water

Fish Commission began a reintroduction program in north Flor-

ida. Panther Habitat Plan at 22. Over 50% of the panther’s

occupied range in south Florida is private land, consisting

largely of cattle ranches, citrus groves, or vegetable farms. Id. at

1, 5, 11-20.

4

the tule elk, which were transported by the state to the

area near his ranch, and which he is forbidden by the

state from forcibly expelling. The California courts none-

theless rejected his takings claim on the grounds that the

state is not responsible for the actions of the elk and is

not requiring him to submit to their occupation.

Review of that decision is warranted because the

court, by relying on materially distinguishable cases and

disregarding the more compelling circumstances pre-

sented here, has greatly expanded the power of govern-

ment to appropriate private property for public use in an

area of growing importance — wildlife conservation. Even

assuming that government may not be responsible for

damage caused by wildlife that wanders across unfenced

lands while roaming within its natural habitat, this case

involves a permanent occupation of fenced pastures by

protected animals that were deliberately relocated by the

state from a distant locale to an area surrounded by

private farmland. This Court should confirm that the

combined effects of the state’s relocation and protection

program - facilitating the invasion by relocating the elk,

and requiring submission to the occupation by regulatory

restraints that deny the landowner any practical means of

excluding the animals - constitute a taking.

ARGUMENT

BY RULING THAT NO COMPENSABLE TAKING

OCCURS WHEN A STATE RELOCATES PROTECTED

WILDLIFE THAT PHYSICALLY INVADES, OCCUPIES,

AND INJURES PRIVATE PROPERTY, THE CALIFOR-

NIA APPELLATE COURT HAS DECIDED AN IMPOR-

TANT BUT UNRESOLVED QUESTION OF FEDERAL

CONSTITUTIONAL LAW THAT SHOULD BE SET-

TLED BY THIS COURT.

This case affords the Court an opportunity to delin-

eate the extent to which state government may, through a

5

combination of affirmative acts and regulatory restraints,

facilitate the physical occupation and use of private prop-

erty by protected wildlife before incurring an obligation

to compensate the landowner under the Takings Clause

of the Fifth Amendment.? The precise issue presented

here is whether a compensable taking occurs when the

state, acting pursuant to a wildlife relocation and protec-

tion program, has captured tule elk and transported them

400 miles to an area not previously inhabited by such

animals for more than a century, specifically contemplat-

ing that the animals would physically invade and injure

the private farmlands that now comprise 90% of the

surrounding property.

The California appellate court acknowledged that

under this Court’s decision in Loretto v. Teleprompter Man-

hattan CATV Corp., 458 U.S. 419 (1982), a permanent phys-

ical occupation of private property by the government, or

by a third party acting pursuant to governmental author-

ity, constitutes a taking. Although the court did not ques-

tion the fact that the presence of the elk on Moerman’s

property amounted to a permanent physical occupation,

it nonetheless affirmed summary judgment in favor of the

state, concluding that Moerman is not entitled to recover

because (a) the tule elk “are not instrumentalities of the

state nor are they controlled by the state”; and (b) “the

State is not requiring [Moerman] to submit to the occupa-

tion.” [Pet. App. B-13.] Analysis reveals that the Califor-

nia appellate court’s reasoning is without legal or logical

° The Takings Clause of the Fifth Amendment, which pro-

hibits the federal government from taking private property for

public use without payment of just compensation, operates as a

limitation on state governments by virtue of the Fourteenth

Amendment. Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449

U.S. 155, 160 (1980).

6

foundation, and that its decision merits review because

the state’s action in this case, infringing upon private

property rights to promote the cause of conservation,

exceeds the perimeters of tolerance established in prior

takings cases.

A. The State’s Responsibility For The Physical

Occupation Of Private Property By Relocated

Wildlife Is a Constitutional Question That

Requires Resolution.

When a “permanent physical occupation” of private

property results from government action, or from the

action of a third party authorized by government, this

Court’s decisions “uniformly have found a taking to the

extent of the occupation, without regard to whether the

action achieves an important public benefit or has only

minimal economic impact on the owner.” Loretto, 458 U.S.

at 434-35. In this case, there is no dispute that the intru-

sions of the relocated tule elk, which “have remained on

{[Moerman’s] property almost continuously since 1984”

[Pet. App. B-6-7], constitute a “permanent physical occu-

pation,” as that term has been authoritatively construed.

Thus, the critical question here is whether the physical

invasion and occupation of private property by protected

wildlife that has been relocated by the state may be

regarded as an action “authorized by government” for

purposes of the Takings Clause.

* To establish a physical taking within the ambit of the Fifth

Amendment, it is sufficient to show that the invaders have “a

permanent and continuous right to pass to and fro, so that the

real property may continuously be traversed, even though no

particular individual is permitted to station himself perma-

nently upon the premises.” Nollan v. California Coastal Commis-

sion, 483 U.S. 825, 832 (1987).

7

Addressing that question below, the California appel-

late court initially acknowledged that a third-party inva-

sion authorized by government, such as the cable

television installation in Loretto, constitutes a taking. The

court found, however, that “[t]he distinction between tule

elk and cable television personnel or equipment should

be obvious,” because the elk “are wild animals who roam

across private and public property.” [Pet. App. B-11.] On

the premise that “(t]he state does not own wild animals,

nor does it control wild animals that have not been

reduced to possession,” the court observed that the

majority rule does not require the government to com-

pensate landowners “for damage to property caused by

protected wildlife.” [Pet. App. B-11 (citations omitted).]

As authority for the general proposition that govern-

ment is not responsible for the actions of protected wild-

life, the California appellate court relied principally upon

Mountain States Legal Foundation v. Hodel, 799 F.2d 1423

(10th Cir. 1986), cert. denied, 480 U.S. 951 (1987), and

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

490 U.S. 1114 (1989). In Mountain States, the Tenth Circuit

rejected the claims of cattle ranchers who asserted that

the federal government was liable for damages caused by

roaming herds of wild horses that grazed upon the alter-

nating sections of private and public lands in the

“checkerboard” area of southwestern Wyoming. The

court noted that while the horses were protected from

harm by the Wild Free-Roaming Horses and Burros Act,

neither federal nor state law deprived the ranchers of

their “right to exclude” the wild horses by fencing off

their lands. 799 F.2d at 1428 n.8 and 1431. A petition for

certiorari was denied by this Court without comment. 480

U.S. 951 (1987).

8

In Christy, the Ninth Circuit likewise ruled that no

compensable taking attributable to the government

occurred where wild grizzly bears protected by the fed-

eral Endangered Species Act had repeatedly attacked and

killed sheep on private land leased by Christy adjacent to

Glacier National Park. As in Mountain States, the court

noted that the property owner could have attempted to

fence out the bears or to drive them away by “nonharm-

ful means.” 857 F.2d at 1329 n.4. Although this Court

again denied certiorari, Justice White filed a dissenting

opinion in which he expressed the view that “if a federal

statute authorized park rangers to come around at night

and take petitioners’ livestock to feed the bears, such a

governmental action would constitute a ‘taking,’” and

that “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 shelves without paying

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

Amendment.” 490 U.S. 1114, 1114-15 (1989) (White, J.,

dissenting).

It is readily apparent that the California appellate

court’s reliance on Mountain States and Christy here is

misplaced, because those decisions are materially distin-

guishable in two respects. First, the cattle ranchers in

Mountain States knowingly assumed the risk of damage

caused by the free-roaming horses that had continuously

inhabited the “checkerboard” area of southwestern Wyo-

ming; and the sheep ranchers in Christy likewise accepted

the danger of depredation by grizzly bears that had con-

tinuously inhabited the area of Glacier National Park

adjacent to their lands. Despite those known risks natu-

tally associated with the location of their lands, however,

9

the ranchers in neither case even attempted to protect

their property by fencing out intruders.

By contrast, Moerman’s land is located more than 400

miles from the natural habitat of the tule elk that ulti-

mately dispossessed him. When Moerman purchased his

ranch in 1976, tule elk had not inhabited Mendocino

County for more than a century. Although he could not

have anticipated the threat of invasion by such massive

animals, Moerman had fenced his pastures to prevent

others from trespassing, and he endeavored after the

fences were repeatedly breached to drive away the elk by

nonharmful means. Thus, to the extent that the land-

owner’s reasonable expectations of harm and efforts to

exclude intruders are relevant factors in a takings anal-

ysis, this case warrants reassessment of the government's

responsibility for damage caused by protected wildlife

for reasons not found in Mountain States or Christy.®

The second, and more significant, feature that distin-

guishes this case from those previously presented for

review is the fact that the state, by relocating the tule elk,

played an active and instrumental role in precipitating

the physical invasion. Indeed, the Ninth Circuit in Christy

specifically recognized that such action by the govern-

ment would pose a different question:

We note that plaintiffs do not contend, and the

record does not show, that the federal govern-

ment physically introduced any bears to the

areas near plaintiffs’ properties. Whether the gov-

ernment may be held responsible for damage caused

5 As noted in Christy, “persons raising livestock near griz-

zly bear habitat are more likely to find themselves restrained by

the regulations than, for example, persons residing in large

metropolitan areas far removed from bear country.” 857 F.2d at

1332 n.6.

10

by bears or other wild animals that have been relo-

cated by the government, under a theory that such

animals are instrumentalities of the government, is a

question we do not decide.

857 F.2d at 1335 n.9 (emphasis added). That issue, left

unsettled in Christy, is central to the disposition of Moer-

man’s claim.

On the question of whether a state’s affirmative

action in relocating animals should affect the imposition

of responsibility for the resulting damage to private prop-

erty, the California appellate court opined that because

tule elk had “at one time” inhabited the area, “[t]he fact

that the state has chosen to return some of the animals to

their native habitat does not mean it caused Moerman’s

damages.” Citing Barrett v. State, 220 N.Y. 423, 116 N.E. 99

(1917), the court rejected as “unreasonable” any argument

that the reintroduction of the elk to an area from which

they were once eliminated effectively placed them “under

the control of the state.” [Pet. App. B-13.]

The California appellate court’s rationale for ruling

that the act of relocating the elk did not implicate the

state as a link in the chain of causation cannot withstand

scrutiny. In the first place, the fact that tule elk “at one

time” inhabited the area of Moerman’s ranch hardly con-

stitutes justification for reintroducing such animals at a

site presently surrounded by private property. Undoubt-

edly, tule elk “at one time” inhabited areas of northern

California that are now entirely urban or residential in

character; but no court would condone as reasonable a

release of elk in highly populated locales on the theory

that the state was merely “return[ing] some of the ani-

mals to their native habitat.” The record reflects that, in

fact, the state deliberately selected a relocation area sur-

rounded by private agricultural property for the specific

11

purpose of assuring that the elk would have access to

forageable farmland. [Pet. at 5.]

Moreover, although Barrett appears to be the only

reported appellate decision to address the liability of a

state for damage caused by relocated wildlife, an exam-

ination of the case discloses that it should not be deemed

persuasive authority here for several reasons. While

denying the right of landowners to recover for dimin-

ished property value due to the destruction of their pop-

lar trees by relocated beaver, the New York Court of

Appeals in Barrett cautioned that “[i]f the claimants, find-

ing beaver destroying their property, might not drive

them away, then possibly their rights would be

infringed.” 220 N.Y. at 429, 116 N.E. at 101. The court

further observed that “[t]he claimants might have fenced

their land without violation of the statute.” Id. Thus, like

Mountain States and Christy, Barrett is distinguishable

because Moerman attempted to exclude the tule elk from

his land, both by using nonharmful means to drive them

away and by rebuilding the fences they breached, but

those efforts were futile.

Perhaps the most important reason Barrett should not

be regarded as sound precedent here, however, stems

from the fact that the case was decided more than seventy

years ago.© When it considered whether the act of relocat-

ing wildlife should render the state liable for damages to

private property, the court in Barrett did not have the

benefit of this Court’s recent decisions that have devel-

oped the concept of taking by government authorized,

third-party occupation. Nor could the New York court

© Even twenty years later, another state court characterized

Barrett as a decision that endorsed a “harsh rule.” Cook v. State,

74 P.2d 199, 203 (Wash. 1937).

12

have envisioned the consequences of relocation programs

conducted on a scale commonly seen today.

The foregoing analysis demonstrates that none of the

authorities cited by the California appellate court to sup-

port its decision addressed the issue presented here in the

context of similar factual circumstances. Mountain States

and Christy did not involve relocated wildlife; and nei-

ther those decisions nor Barrett dealt with an invasion

and permanent physical occupation of fenced lands by

animals that could not be evicted without violating the

protective restraints imposed by government regulations.

Thus, the question of whether the state is responsible for

losses resulting from its relocation and protection of the

tule elk cannot be resolved simply by citing cases with

dissimilar facts and saying, in effect, that these are dis-

tinctions without a difference.

There is no dispute here that government has the

power to prohibit landowners from harming wild animals

that happen to pass across private property while roam-

ing within their native habitat, even if the protected

animals cause incidental damage. In effect, the govern-

ment is simply acting in defense of the status quo to

assure that landowners who live in areas commonly

inhabited by wildlife do not disturb the balance of nature

by creating new obstacles to survival.

Furthermore, it may be assumed, for purposes of this

proceeding, that the government generally is not respons-

ible for incidental damage to or depredation of private

property caused by wild animals during the course of

their instinctive wanderings. Courts have traditionally

recognized that governments, like private persons, are

not liable for the trespasses of animals “which are ferae

naturae, and which have not been reduced to possession,

but which exist in a state of nature.” Sickman v. United

13

States, 184 F.2d 616, 618 (7th Cir. 1950), cert. denied, 341

U.S. 939 (1951). Thus, if the tule elk had migrated to

Mendocino County in the natural course of events, Moer-

man’s claim that the state should compensate him for the

damage they caused might arguably be resolved on the

basis of existing precedent.

These animals, however, arrived at Moerman’s prop-

erty as a result of the government relocation program.

That fact constitutes a material distinction not just

because it elevates the degree of the state’s involvement,

but because it fundamentally alters the character of the

state’s role as a contributing cause to the landowner’s

loss. As this Court confirmed in Loretto, the character of

the government action is determinative of whether a

physical invasion constitutes a taking. 458 U.S. at 426.

When the government takes affirmative action to

alter the course of nature for the public benefit, it must in

fairness take responsibility for the consequential loss to

private landowners. The difference between foraging

damage to private property caused by naturally migrat-

ing wildlife and that resulting from artificially relocated

animals should be no less significant, in the context of a

takings case, than the difference between flood damage to

private property caused by a naturally migrating water-

course ai.d that resulting from an artificially diverted

stream. See Pumpelly v. Green Bay & Mississippi Canal Co.,

80 U.S. (13 Wall) 166, 177-81 (1872) (state-authorized dam

construction that caused river waters to back up and

flood private property constituted a compensable taking).

The significance of the state’s involvement may be

evaluated by reference to the analogies drawn in Justice

White’s dissent to the denial of certiorari in Christy. By

releasing the tule elk near Moerman’s ranch with the

knowledge that they would invade his pastures, the

14

state’s taking is no less manifest than if it had authorized

agents to enter the property and gather food for the

animals. Moreover, as an added twist to Justice White’s

analogy regarding the effect of government regulatory

restraints, it might be said that in addition to barring

grocery store owners from interfering with people who

wish to take food off the shelves without paying, the

State here is bussing people into a particular neighbor-

hood, causing the grocer who has the misfortune of being

located in that area to suffer a disproportionate share of

the loss. Such consequences, of course, defeat the intent

of the Takings Clause “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.” Armstrong v. United States, 364 U.S. 40, 49 (1960).

The circumstances here would seem to fall within the

category of what Professor Michelman characterizes as

“[t]he one incontestable case for compensation,” which

occurs “when the government deliberately brings it about

that its agents, or the public at large, ‘regularly’ use, or

‘permanently’ occupy, space or a thing which theretofore

was understood to be under private ownership.” Michel-

man, Property, Utility, and Fairness: Comments on the

Ethical Foundations of “Just Compensation” Law, 80

Harv. L. Rev. 1165, 1184 (1967), quoted with approval in

Loretto, 458 U.S. at 427 n.5. While the state may have a

legitimate interest in restoring the environment to its

original condition, it cannot do so with impunity where

vested property rights would be substantially impaired.

Accordingly, this Court should accept jurisdiction to con-

firm that if government officials find a beneficial public

15

purpose is served by reestablishing the tule elk popula-

tion in an area occupied predominately by private farm-

land, then the state must in fairness bear the

corresponding financial burden of feeding those animals.

B. The Effect Of Regulatory Restraints On the

Right Of Landowners To Exclude Harmful

Wildlife Is A Constitutional Issue That Should

Be Settled Here.

The California appellate court suggested, as an alter-

native reason for rejecting Moerman’s claim, that he is

not being “required” by the state to accept the occupation

of his land by the tule elk. Relying on this Court’s decla-

ration that “[t]he government effects a physical taking

only where it requires the landowner to submit to the

physical occupation of his land,” Yee v. City of Escondido,

503 U.S. __, 112 S.Ct. 1522, 1528, 118 L.Ed.2d 153, 165

(1992) (emphasis in original), the California appellate

court reasoned:

While as a practical matter it may be difficult for

Moerman to exclude the tule elk from his prop-

erty without harming them, the state is not

requiring him to submit to the occupation. (See

Mountain States Legal Foundation v. Hodel, supra,

799 F.2d at p. 1428 fn. 8.) The management plan

prepared by the DF&G indicates that some

hunting of the elk will be allowed . . . , which

would possibly provide Moerman with oppor-

tunities to mitigate the damage to his property.

[Pet. App. B-13.] This rationale rests on an apparent mis-

reading or misapplication of the cited authorities.

As previously discussed, the footnote in Mountain

States suggesting that cattle ranchers could lawfully pro-

tect their property by fencing out the wild horses is

irrelevant here, since Moerman had fences. Moreover,

when this Court in Yee rejected the mobile home owners’

14

claim that they were being subjected to compulsory occu-

pation of their parks, the majority emphasized that “no

government has required any physical invasion of peti-

tioners’ property,” because the tenants “were invited by

petitioners, not forced upon them by government.” 118

L.Ed.2d at 165. Analogizing the case to FCC v. Florida

Power Corp., 480 U.S. 245 (1987), in which the claimant

was deemed to have invited the physical invasion by

leasing space on its utility poles, this Court concluded

that the state regulation did not constitute a taking

because it “does not authorize an unwanted physical occu-

pation of petitioners’ property.” 118 L.Ed.2d at 168

(emphasis added).

This case is readily distinguishable from Yee and FCC

v. Florida Power Corp. in three respects. First, Moerman

did not invite the tule elk onto his land; their invasion

and physical occupation has at all times been

“unwanted.” Second, Moerman does not receive any rent,

or fee, or other form of compensation for the use of his

lands by the elk; although this Court in Yee reiterated its

finding in FCC v. Florida Power Corp. that the amount of

rent paid is less important than the “ ‘unambiguous dis-

tinction between a. . . lessee and an interloper with a

government license,’ ” 118 L.Ed.2d at 168 (quoting from

480 U.S. at 252-53), it is noteworthy that even in Loretto

the landlord received a token fee for the cable installa-

tion. Finally, Moerman is being forced to suffer an addi-

tional kind of loss as a consequence of the fact that the

physical occupation in this case is by live animals - the

uncompensated consumption of his feed crops.

As a practical matter, the circumstances here are con-

ceptually similar to those presented in Kaiser Aetna v.

United States, 444 U.S. 164 (1979), and in Nollan v. Califor-

nia Coastal Commission, 483 U.S. 825 (1987), where the

17

government attempted to use its regulatory power to

facilitate a physical invasion of private property by open-

ing an easement of access for the public. In both cases,

this Court concluded that the government may obtain a

public easement on or access to private property only by

compensating the landowner. See Kaiser Aetna, 444 U.S. at

180 (“[E]ven if the government physically invades only

an easement in property, it must nonetheless pay just

compensation.”); Nollan, 483 U.S. at 843 (“[I]f the [gov-

ernment] wants an easement across the Nollans’ property,

it must pay for it.”).

Although the government regulation at issue here

effectively creates an easement of access to private prop-

erty for the relocated elk, rather than for members of the

public, that distinction should not be dispositive of the

takings claim. The determination of whether a landowner

has suffered a deprivation of property rights depends not

on the identity or nature of the intrusive force, but on the

fact that the owner “has no power to éxclude the occupier

from possession and use of the space.” Loretto, 458 U.S. at

435. As this Court recognized in Nollan, a regulation that

effectively appropriates a public easement across a land-

owner's property cannot be insulated from a takings

claim by characterizing it as a mere restriction on the

owner's right to use the property, 483 U.S. at 831; no

semantical sleight-of-hand can obscure the difference

between a regulation that simply limits the landowner’s

right to use the property and one that restricts the land-

owner's right to exclude others from using the property.

This Court has recognized that “the ‘right to

exclude,’ so universally held to be a fundamental element

of the property right, falls within this category of inter-

ests that the Government cannot take without compensa-

tion.” Kaiser Aetna, 444 U.S. at 179-80. More recently, the

18

Court has noted that the right to exclude others is among

the “nonecon»mic interests in land whose impairment

will invite exceedingly close scrutiny under the Takings

Clause.” Lucas v. South Carolina Coastal Council, 505 U.S.

_, 112 S.Ct. 2886, 2895 n.8, 120 L.Ed.2d 798, 815 n.8

(1992). Because this case involves a regulatory restraint

that substantially impairs Moerman’s right to exclude the

tule elk, close scrutiny is certainly warranted.

Finally, the California appellate court’s conclusion

that the state regulations protecting the tule elk do not

“require” Moerman to submit to the occupation simply

ignores the practical realities. Even with the limited right

to hunt elk provided under the management plan, Moer-

man would only be allowed to kill a few animals each

season. Thus, he could never significantly “mitigate the

damage to his property” caused by a herd that can

number up to 100 at a given time.

-As for fencing, experience has shown that an ordi-

nary barrier cannot contain these animals. Although it is

conceivable that Moerman could somehow exclude the

elk from his property, perhaps by creating an edifice of

Jurassic Park proportions, no authority supports the

imposition of such a burden on the private landowner. If

there were no reasonable limits on the effort and expense

that landowners might be expected to bear in resisting a

physical invasion — lest it be said that they were not

“required” to submit to the occupation — then no taking

could be found in flooding cases, such as Pumpelly,

because the proprietors could theoretically construct a

seawall of sufficient mass to withstand the water.

The extent to which a landowner must undertake

measures to protect against physical invasions authorized

by government is an unsettled issue. In this case, Moer-

man had fenced his property, and repeatedly attempted

19

to repair the fences; but the invasions of the tule elk could

not be prevented. Moerman also sought the assistance of

the responsible state agency in driving away the elk by all

reasonable means consistent with the regulations protect-

ing them from harm; but, as the California appellate court

acknowledged, those efforts were unsuccessful. In short,

Moerman exhausted all of the reasonable alternatives that

the law allowed.

In light of these facts, it is unclear how the court

below could find that “the state is not requiring [Moer-

man] to submit to the occupation.” If regulatory restric-

tions prohibit Moerman from using the only practical

means of evicting the elk, then the state is necessarily

requiring him to submit to their occupation — unless the

California court meant that the landowner must resort to

any permissible means, without regard to cost or prac-

ticality. Because that question has serious implications for

a growing body of Fifth Amendment cases, this Court

should grant review and provide some guidance as to

how far landowners must go in defending against gov-

ernmental intrusion before a compensable taking occurs.

CONCLUSION

The question posed by this case is not whether con-

servation of wildlife is a just end, but whether confisca-

tion of private property is a justifiable means to that end.

That Moerman has suffered a pecuniary loss due to the

physical invasion, occupation, and use of his lands by the

relocated elk is indisputable. That he has endeavored to

prevent or mitigate the damage by all reasonable means

permitted under state regulations protecting the elk is

likewise beyond doubt. Thus, due to state actions that he

did not invite and could not anticipate, Moerman has

been physically dispossessed, or at least forced to cede a

20

grazing easement, with respect to a portion of his private

property.

Whether a compensable taking has occurred under

these circumstances is an issue presented for the first

time in this case, notwithstanding the California appellate

court’s disposition in reliance on inapposite precedents.

The decision below is based on an inadequate analysis

because it fails to account for the combined effects of the

state’s affirmative acts in moving the elk to a location

where the physical invasion of private property was inev-

itable, and the state’s regulatory restraints that render the

landowners powerless to protect themselves against such

invasion. Given the increasing frequency with which that

unsettled question is beginning to surface as wildlife

relocation and protection programs proliferate, the Flor-

ida Legal Foundation agrees with Petitioner that review

and resolution of the issue by this Court is clearly war-

ranted.

Respectfully submitted,

MicHaet L. Rosen*

*Counsel of Record

Florida Legal Foundation, Inc.

Post Office Box 10228

Suite 502, Barnett Bank Building

Tallahassee, FL 32302

(904) 681-9346

Attorneys for Amicus Curiae

Florida Legal Foundation, Inc.