# Amicus Curiae Brief — Moerman v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1115%3A08

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1031

## Text

ee

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_1115%3A08. Public record. Not legal advice.