Amicus Curiae Brief — Babbitt v. Sweet Home Chapter, Communities for Great Ore.

Supreme Court, U.S.

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MAR eo iso

No. 94- |

a OFFICE Ur inc CLERK |

In The

Supreme Court of the United States

October Term, 1994

6

BRUCE BABBITT, SECRETARY OF

THE INTERIOR, et al.,

Petitioners,

SWEET HOME CHAPTER OF COMMUNITIES

FOR A GREAT OREGON, et al.,

Respondents.

- o

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

—@ — ee

BRIEF OF FLORIDA LEGAL FOUNDATION

AND SOUTHEASTERN LEGAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

reds

Cs. STEPHEN PARK MicHart Le. Rosen’

SOUTHEASTERN LEGA FroripA Lraat FOUNDATION

FOUNDATION, I INC.

2900 Chamblee-lucker Rd., Post Office Box 10228

Bldg. 4 Suite 502, Barnett Bank Bldg.

Atlanta, GA 30341 fallahassee, FL 32302

$04) 458-8313 (904) 681-9346

forneys for Amici Curiae

March, 1995 *Counsel of Record

TABLE OF CONTENTS

Page

ee a, Pe ook csc kobe endo ea eens li

PTET eT Eee Tey Teer eee eT 1

eg gg Sk ere rer rrr rere 3

DUNT OE GE FEI ooo coc keto tetciases: 4

Pe OPT CT PEE CTT ETAL TEER ERE TLC 2

I. THE REGULATION DEFINING “HARM,” AS

USED IN THE ENDANGERED SPECIES ACT

PROHIBITION AGAINST A “TAKE” OF

WILDLIFE, TO INCLUDE HABITAT MOD-

IFICATION ON PRIVATE PROPERTY NOT

SUBJECT TO FEDERAL OVERSIGHT, IS CON-

TRARY TO THE INTENT OF CONGRESS AS

REFLECTED IN THE LANGUAGE AND

Paw ET GON COU FUG Bers isa bere ete eae 5

Il. THE REGULATION DEFINING “HARM” TO

INCLUDE HABITAT MODIFICATION

EXTENDS THE ESA BEYOND THE SCOPE

THAT CONGRESS INTENDED BY TRANS-

FORMING THE ACT INTO AN INSTRUMENT

FOR DENYING THE USE OF PRIVATE LAND,

THEREBY SUBJECTING THE FEDERAL GOV-

~*~ ERNMENT TO POTENTIAL LIABILITY FOR

FIFTH AMENDMENT TAKINGS CLAIMS.... 16

I rk ee as alas 1G Ca a ee wwe ee 24

il

TABLE OF AUTHORITIES

Page

Cases

Achilli v. United States, 353 U.S. 373 (1957) ........... 9

Agins v. Tiburon, 447 U.S. 255 (1980) ................ 21

Armstrong v. United States, 364 U.S. 40 (1960)........ 20

Chevron U.S.A., Inc. v. Natural Resources Defense

Counce, fac., 467 US. Gar Ces «aces deckeceuss 6, 13

Chicago v. Environmental Defense Fund, 511 US.

wy» 194 SCR. 8g EAD Ce Se CE oo cnceee. y

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

dented, G6 US. TERE Cie xa hsb Ake de taces cases 18

Estate of Cowart v. Nicklos Drilling, 505 U.S. __,

112 S.Ct. 2509, 120 LL.B 2e We CUGMED owe ccc cccce: 7

Department of Energy v. Ohio, 503 U.S. __, 112

on) 2H > 7). | rr rrr 8

Dolan v. City of Tigard, 512 U.S. __, 114 S.Ct. __,

Be BG rrr tree errr re 3

First English Evangelical Lutheran Church v. County

of Les Angeles, G52 US. FOO {IGG «oc ccc gecicses: 17

Florida Game & Fresh Water Fish Comm’‘n v. Flotilla,

Inc., 636 So.2d 761 (Fla. 2d DCA), rev. denied, 645

ew £ oe; | rer ree rer ee 15

Florida Rock Industries, Inc. v. United States, 18 F.3d

1560 (Fed. Cir. 1994), cert. denied, __ U.S. __,

_§- SA. __, FAD Ue Fe CRs on sc eccccces. 22

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ........... 7

King v. St. Vincent’s Hospital, 502 U.S. __, 112 S.Ct.

eewee BO LD SOW CUUED 60 66 odd Cu peeesnanceses 9

A res

ne remem

iil

TABLE OF AUTHORITIES - Continued

ERD EE ae 18

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

__, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992)..2, 17, 22

Melkonyan v. Sullivan, 501 U.S. __, 111 S.Ct. __L

ee i Ds enh a 8 hae dee daw ade woe 10

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

21 Cal.Rptr.2d 329 (1st Dist. 1993), cert. denied,

BE ce ee ene ee 99

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

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

EN Ne ea as Vg aly U's ad Ge a do 8 AO 18

Northeastern Florida Contractors v. Jacksonville, 113

0 i Soy php aioe ws <a deseo s 2

Penn Central Transportation Co. v. New York City,

Se ee sey sy wks 3a Ne win R68 21

Presley v. Etowah County Commission, 502 U.S. __,

Ree ee ee, Se Bere Oe (ESOS os eee ec tess 6

Ratzlaf v. United States, 510 U.S. __, 114S.Ct. __,

ee 7

Semler v. Oregon State Bd. of Dental Examiners, 294

RRS Se gg ae 12

Shell Oil Co. v. Iowa Dept. of Revenue, 488 U.S. 19

ee Url yeaa v5 as cob evee ve RW 8 Haas 7

Sierra Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991)....15

LInited States v. Petrillo, 332 U.S. 1 (1947)............ 12

Virginian Railway Co. v. System Federation No. 40,

ne ee ere 14

iV

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND REGULATIONS

Se eS Sf ren errr iar ira rare wry erga se 6

Endangered Species Act (“ESA”), 16 U.S.C.

Se See Oe OU cas ach tasectashaeenesen diene eees > ae

MISCELLANEOUS

S. Rep. No. 307, 93d Cong. ist Sess. 7 (1973) ....... 13

S. 2410 and H. 9, 103d Cong. 2d Sess. (1995)........ 22

U.S. General Accounting Office, Endangered Species

Act: Information On Species Protection On Nonfederal

Lands (December 1994) (“GAO Report”). ......... 20, 23

P. Logan, et al., Florida Panther Habitat Preserva-

tion Plan (Florida Panther Interagency Commit-

ae, Serer eee (Ser eus ee awe e rear eke koe: 14

een

No. 94-859

e

In The

Supreme Court of the United States

October Term, 1994

a

BRUCE BABBITT, SECRETARY OF

THE INTERIOR, et al.,

Petitioners,

SWEET HOME CHAPTER OF COMMUNITIES

FOR A GREAT OREGON, et al.,

Respondents.

*

On Writ Of Certiorari To The

United States Court Of Appeals

For The District Of Columbia Circuit

¢

BRIEF OF FLORIDA LEGAL FOUNDATION

AND SOUTHEASTERN LEGAL FOUNDATION AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

¢

INTEREST OF AMICI

The Florida Legal Foundation and Southeastern

Legal Foundation submit their brief as amici curiae in

support of Respondents. 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

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 govern-

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.

The Southeastern Legal Foundation is a public inter-

est law firm which provides the courts with the views of

those who support limited government, individual eco-

nomic freedom, and the free enterprise system. South-

eastern’s function is to engage in litigation in support of

these principles, and to oppose governmental abuse of

authority at all levels. In the course of carrying out this

mission, Southeastern provides direct legal representa-

tion to parties in civil litigation, and files amicus curiae

briefs in selected cases, where important public policy

issues are presented. Southeastern appeared as counsel of

record in this Court for the petitioner in Northeastern

Florida Contractors v. Jacksonville, 113 S.Ct. 2297 (1993),

and has appeared as amicus curiae in numerous cases,

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

ne

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

City of Tigard, 512 U.S. __, 114 S.Ct. __, 129 L.Ed.2d 304

(1994).

As advocates for private property rights, the Florida

Legal Foundation and Southeastern Legal Foundation are

interested in this case because the regulation at issue

substantially impairs the rights of landowners to use

their property for productive and otherwise lawful pur-

poses. The impact of the regulation is particularly severe

in Florida, which has more endangered and threatened

species than any state in the continental United States

except California. The Florida Legal Foundation and

Southeastern Legal Foundation believe that the court of

appeals’ decision properly invalidated the regulation as

an unauthorized extension of the limited power to control

private land use that Congress intended to confer under

the Endangered Species Act. This case provides the Court

an opportunity to reaffirm its recent pronouncements that

government regulations which encroach upon constitu-

tionally protected property rights warrant close scrutiny

_ and require clear support.

STATEMENT OF THE CASE

Amici Florida Legal Foundation and Southeastern

Legal Foundation adopt the statement of the case con-

tained in the brief of the Respondents.

SUMMARY OF THE ARGUMENT

To the extent that it prohibits the ordinary and lawful

use of private property as a “habitat modification” that

causes “harm,” and thus constitutes a “take” of protected

wildlife, the FWS regulation exceeds the authority dele-

gated by Congress under the ESA. The language and

structure of the Act reflect that Congress expressly pro-

vided for habitat preservation in the sections that autho-

rized acquisition of private lands and required regulation

of lands subject to federal ownership or oversight, but

made no mention of habitat protection in the section

prohibiting a “take” of listed species. Based on the tradi-

tional tools of statutory construction, which must be

applied before resorting to extrinsic aids such as legisla-

tive history or administrative interpretation, the express

reference to habitat modification in some sections but not

others signifies a purposeful intent to regulate such activ-

ities on federally controlled lands, including private

lands subject to federal permitting, but not on purely

private property.

Given the fact that the “revealed design” of Congress

is evident from the explicit terms of the statute, there is

no necessity or justification for reaching policy questions

or considering the reasonableness of the agency’s inter-

pretation. Nonetheless, the court of appeals’ construction

is supported by the distinction, presumably known to

Congress, between the common law power of govern-

ment to prohibit direct acts of force against wildlife as an

offense against public property, and the constitutional

restraint on the power of government to take private

property without compensation by regulatory depriva-

tion of use. Consistent with that distinction, Congress

————EaroOv

reasonably and responsibly exercised its regulatory

power under the ESA only to the extent that it could do

so without “going too far” and forcing private land-

owners to bear the public burden of providing habitat for

wildlife.

The FWS regulation, however, crosses that line by

mandating habitat preservation on private lands under

threat of fine or imprisonment; it thereby transforms the

ESA into a land use regulation that subjects the govern-

ment to potential liability for Fifth Amendment takings of

private property. Moreover, the regulation is especially

oppressive for small landowners, who have no practical

remedy because they lack the resources or the bargaining

power to do anything except capitulate to whatever terms

are dictated by the FWS. The manifest undesirability of

such consequences confirms that this regulation extends

the scope of the ESA far beyond the limits contemplated

by Congress.

ARGUMENT

I. THE REGULATION DEFINING “HARM,” AS USED

IN THE ENDANGERED SPECIES ACT PROHIBI-

TION AGAINST A “TAKE” OF WILDLIFE, TO

INCLUDE HABITAT MODIFICATION ON PRI-

VATE PROPERTY NOT SUBJECT TO FEDERAL

OVERSIGHT, IS CONTRARY TO THE INTENT OF

CONGRESS AS REFLECTED IN THE LANGUAGE

AND STRUCTURE OF THE ACT.

The sole question presented here is whether the

Endangered Species Act (“ESA”), 16 U.S.C. §§1531 et seq.,

ai

by describing the kinds of conduct prohibited as a “take”

of wildlife to encompass acts that “harm” listed species,

provides authority for a Fish and Wildlife Service

(“FWS”) regulation, 50 C.F.R. 17.3, further defining

“harm” to include habitat modification that may result

from otherwise lawful uses of private property. Although

Petitioners and their supporting amici attempt to cast this

controversy as one that poses a choice between compet-

ing policies, the Florida Legal Foundation and South-

eastern Legal Foundation submit that the Court is

confronted with nothing more than a straightforward

issue of statutory construction. Thus, efforts to influence

the resolution of this case based on the purported neces-

sity or desirability of the disputed regulation should not

obscure the fact that, in assessing the validity of a regula-

tion, it is not the function of this Court to search for some

rationale that would justify acquiescence in the agency’s

interpretation; rather, it is the duty of the Court to deter-

mine whether Congress intended or contemplated that

the agency be empowered to exercise the asserted author-

ity. Presley v. Etowah County Commission, 502 U.S. __, 112

S.Ct. 820, 117 L.Ed.2d 51, 67 (1992).

When an agency’s construction of a statute it admin-

isters is challenged, the Court must first endeavor to

discern the intent of Congress from the language and

structure of the Act. “If a Court, employing traditional

tools of statutory construction, ascertains that Congress

had an intention on the precise question at issue, that

intention is the law and must be given effect.” Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467

U.S. 837, 843 n.9 (1984). Where intent can be determined

from the face of the statute, there is no need to resort to

extrinsic aids, such as legislative history, Ratzlaf v. United

States,510 U.S. __, 114 S.Ct. ___, 126 L.Ed.2d 615, 626 and

n.18 (1994), or administrative construction. Estate of Cow-

art v. Nicklos Drilling, 505 U.S. __, 112 S.Ct. 2589, 120

L.Ed.2d 379, 388-89 (1992); INS v. Cardoza-Fonseca, 480

U.S. 421, 445-48 (1987). Only if Congress has not

addressed the issue and the statute discloses no intent,

thus creating an ambiguity or leaving “a gap for the

agency to fill,” will the Court reach the question of

whether the regulation constitutes a permissible and rea-

sonable construction to which deference is due. Chevron,

467 U.S. at 843-44.

Where, as here, the regulation does not involve a

technically complex matter, but inherently infringes upon

constitutionally protected property rights, the Court

should not infer an intent to delegate authority from mere

silence, nor assume an intent to confer authority from the

absence of language expressly negating its existence.

Rather, the Court should require that the statute on its

face reflect an affirmative intent to authorize the exten-

sion of federal power.

Turning first to the express language, the word

“harm” is not defined in the ESA. Although the term can

be interpreted as expansively as the imagination permits,

its meaning in this context must properly be confined to

the kind of harm that can fairly be regarded as a prohib-

ited “take” of wildlife, which Congress intended to make

punishable by fine or imprisonment. The meaning of

statutory terms “depends on their context,” Shell Oil Co.

v. lowa Dept. of Revenue, 488 U.S. 19, 25 (1988), especially

when the context “may supply a clarity that the term

lacks in isolation.” Department of Energy v. Ohio, 503 U.S.

aw 112 S.Ct. __, 118 L.Ed.2d 255, 270 (1992).

The court of appeals, applying the maxim noscitur a

sociis, adopted a definition that related “harm” to the

other specified forms of “take” based on “a direct appli-

cation of force against the animal taken.” 17 F.3d at 1465.

Petitioners contend that this definition is too narrow,

because it does not encompass actions that indirectly

injure or kill. Amici National Wildlife Federation

(“NWF”) et al. suggest that the “common denominator”

among the words in the “take” definition is that “[eJach

word pertains to acts (or omissions) that detrimentally

affect endangered or threatened species,” and thus “[t]he

“detrimental effect, rather than the nature of the act, is the

linchpin of a section 9 take.” NWF Brief at 23. This

definition, however, is manifestly overbroad, because vir-

tually all human activity entails some “detrimental

effect” on wildlife.

Any effort to formulate a definition of “harm” that

cannot be condemned as either overinclusive or under-

inclusive may be an exercise in futility; but it is an exer-

cise that the Court need not undertake for purposes of

deciding this case. The issue is not whether it is possible

to frame a definition of “harm” that will neatly fit every

hypothetical situation, but whether the definition pro-

mulgated by FWS in the regulation at issue here goes

beyond the authority that Congress intended to delegate

under the ESA. Assuming, arguendo, that the court of

appeals’ construction based on associated words within

the same section was not sufficiently conclusive on that

question, the next stage of analysis requires the Court to

examine other sections of the ESA for guidance as to the

legislative intent.

The Act reflects that Congress expressly provided

means for habitat preservation in section 5 (acquisition of

private lands) and in section 7 (supervision of federal

lands and other lands subject to federal oversight), but

made no mention of habitat protection in the section 9

“take” prohibition. Although Petitioners insist that the

Court should ascribe no significance to this selective use

of language in the various sections of the Act, application

of the “traditional tools of statutory construction” rein-

forces the conclusion that Congress did not intend to

employ the punitive “take” provision of section 9 as a

mechanism for compelling private habitat conservation.

In construing legislative enactments, the Court cus-

tomarily “follow{s] the cardinal rule that a statute is to be

read as a whole, .. . since the meaning of statutory

language, plain or not, depends on context,” King v. St.

Vincent's Hospital, 502 U.S. __, 112 S.Ct. ___, 116 L.Ed.2d

578, 586 (1991) (citations omitted), and the Court’s “duty

is to give coherence to what Congress has done within

the bounds imposed by a fair reading of legislation.”

Achilli v. United States, 353 U.S. 373, 379 (1957). Of partic-

ular relevance here are the rules, consistently reaffirmed

by this Court, that (a) where Congress ” ‘includes particu-

lar language in one section of a statute but omits it in

another,’ ” it “ ‘is generally presumed that Congress acts

intentionally and purposely,’ ” Chicago v. Environmental

Defense Fund, 511 U.S. _-, 114S.Ct. __, 128 L.Ed.2d 302,

311 (1994) (quoting Keene v. United States, 508 U.S. __,

113 S.Ct. 2035, 124 L.Ed.2d 118, 128 (1993));-and (b) the

use of different wording in other sections of the same

10

statute shows that Congress knew how to signify its

intent to draw a distinction in addressing the subject.

Melkonyan v. Sullivan, 501 U.S. __, 111 S.Ct. __, 115

L.Ed.2d 78, 89-90 (1991).

Considered in light of these principles, the fact that

Congress explicitly provided for habitat preservation on

lands that are federally owned or subject to federal over-

sight in another section of the same enactment shows that

Congress recognized habitat modification as a distinct

kind of conduct toward wildlife, and knew how to

express an intent that it be subjected to regulation;

because of the specific inclusion in section 7, the omission

from section 9 is entitled to interpretative significance.

Amici NWF et al. argue that it is a “misreading” of the

Act to “assume that section 7 reaches habitat degradation

but that section 9 does not.” NWF Brief at 25. Based on

the plain language of these provisions, however, it is

hardly possible to do otherwise, because section 7

expressly refers to “the destruction or adverse modifica-

tion of habitat,” while section 9 contains no mention of

habitat modification.

Petitioners acknowledge that to achieve the purposes

of providing for conservation of ecosystems upon which

protected species depend, “the Act contains numerous

provisions that specifically address, in varying ways, the

protection of habitat.” Petitioners’ Brief at 24. Having

conceded that fact, however, Petitioners invite the Court

to bypass the explicit provisions for habitat protection

and imply an unarticulated Congressional intent to

include habitat modification by private landowners as a

form of prohibited “take” under section 9. This approach

11

turns the traditional principles of statutory construction

on their head.

Specifically, Petitioners dispute the “suggestion that

Congress intended land acquisition pursuant to Section 5

of the ESA to be the exclusive means by which habitat

destruction on private lands can be curbed under the

ESA,” and insist that “[i]Jt would depart from the ESA’s

comprehensive design to assume that Congress .

provided only a single solution to a complex problem -

especially one as central to the Act as the habitat of

protected species.” Petitioners’ Brief at 29 n.17. Analysis

reveals, however, that it is Petitioners’ argument that

rests on assumptions which cannot be reconciled with the

“comprehensive design” of the ESA.

The first unfounded assumption is that land acquisi-

tion under section 5 is the exclusive means by which

habitat modification on private land may be regulated

pursuant to the Act. As Petitioners themselves concede,

the obligation imposed on federal agencies by section

7(a)(2) to ensure that “any action authorized, funded, or

carried out by such agency” does not “result in the

destruction or adverse modification of habitat of [pro-

tected] species” is applicable to activities on private lands

that require a federal permit or license. Petitioners’ Brief

at 7-8. This provision extends the reach of federal regula-

tory power to encompass and control habitat modifica-

tion on vast areas of private land that involve projects or

uses subject to federal permitting.

Moreover, Petitioners’ theory assumes that Congress

intended to authorize the purchase of land as an optional

method of preserving habitat on private property, even

12

though the same result could be obtained without pay-

ment. Under Petitioners’ interpretation of the ESA, sec-

tion 5 empowers the FWS to create a habitat preserve on

private land by paying the owner, while section 9

empowers the FWS to create a habitat preserve on private

land by threatening to penalize the owner. At best, such a

scheme would invite arbitrary discrimination by enabling

the FWS to treat identically situated persons differently,

without any apparent standard or basis in the statute for

determining which landowners enjoy compensation and

which ones suffer confiscation. In the case of a small

landowner who lacks the resources to resist or the bar-

gaining power to negotiate a satisfactory compromise, the

acquisition option would be rendered illusory, because

the FWS would have no incentive to acquire by compen-

sation what it can control by intimidation.

Finally, the notion that Congress would not have

provided “only a single solution to a complex problem”

ignores the fact that government frequently does not

address every aspect of an issue or adopt every solution

to a problem, and is not required to do so. As this Court

has observed, the government is “not bound .. . to strike

at all evils at the same time or in the same way,” Semler v.

Oregon State Bd. of Dental Examiners, 294 U.S. 608, 610

(1935), and “it is not within our province to say that

because Congress has prohibited some practices within

its power to prohibit, it must prohibit all within its

power.” United States v. Petrillo, 332 U.S. 1, 8 (1947). In

this case, the expressed intent of Congress to confine

federally mandated habitat preservation on private prop-

erty to those lands that the government acquires or

2 ae

13

already controls may simply reflect the fact that Con-

gress, unlike Petitioners and their supporting amici,

respect the constitutionally protected property rights of

private landowners.

Because the intent of Congress is evident from the

language and structure of the ESA, there is no need to

reach the second step of the Chevron analysis and con-

sider whether the agency’s interpretation, construing the

word “harm” to include habitat modification, “defines a

term in a way that is reasonable in light of the legisla-

ture’s revealed design.” Chevron, 467 U.S. at 844. The FWS

definition of “harm” is plainly irreconcilable with the

“revealed design” of Congress in the ESA.

Petitioners and their supporting amici nonetheless

urge the Court to look beyond the language and structure

of the ESA, and uphold the regulation on the ground that

it is a wise and desirable policy. They repeatedly emphas-

ize that a stated purpose of the ESA is “to provide a

means whereby the ecosystems upon which endangered

species and threatened species depend may be con-

served,” 16 U.S.C. §1531(b), and that Congress expressly

intended the word “take” as used in section 9 to be

defined “in the broadest possible manner to include

every conceivable way in which a person can ‘take’ any

fish or wildlife.” S. Rep. No. 307, 93d Cong. 1st Sess. 7

(1973). Those arguments, however, may be readily

refuted.

Initially, it is apparent from the face of the ESA that

Congress did in fact provide specific means by which

ecosystems could be protected and preserved — through

the acquisition of land under section 5 and the regulation

14

of land use under section 7. While Petitioners and their

supporting amici may perceive those means as inade-

quate, the more potent remedy that they implore this

Court to approve would require nothing less than a judi-

cial redrafting of the statute; thus, their pleas are mis-

directed. “It was for Congress to make the choice of the

means by which its objective . . . was to be secured, and

its judgment .. . is not open to review here.” Virginian

Railway Co. v. System Federation No. 40, 300 U.S. 515, 553

(1937).

Furthermore, no one other than Petitioners and their

supporting amici would find “conceivable” a scheme

under which a private property owner, engaged in ordi-

nary and lawful land uses that are in no way directed at

wildlife, could be regarded as guilty of “taking” pro-

tected species whose presence may not even be appar-

ent.! Amici NWF et al. recognize that “even without the

! Some listed species are so small in size, or so well con-

cealed, or so similar in appearance to related but non-listed

species, that ordinary persons cannot detect their presence. The

more oppressive impact on private landowners, however,

results from the designation of an expansive “range” within

which land use activities are forbidden or severely restricted.

For example, a study of Florida panther habitat conducted by

the FWS, the National Park Service, and the Florida Game &

Fresh Water Fish Commission concluded that the “composite

home range of 43 panthers encompasses 3.1 million acres or

4,844 square miles,” of which “53 percent is privately owned”;

that “habitat considered essential in maintaining a self-

sustaining population of panthers in south Florida is 1,253,102

acres”; and that the “preferred size” of habitat area required for

reintroduction of the animal in north Florida and south Georgia

is 500-2,500 square miles. P. Logan, et al., Florida Panther Habi-

tat Preservation Plan 12, 14, 33 (Florida Panther Interagency

ee

15

harm regulation, the words ‘harass,’ ‘kill,’ and ‘wound’

reach some acts of habitat degradation that injure or kill

protected wildlife.” NWF Brief at 25. That fact only con-

firms that the kinds of habitat modification which result

directly or by design in demonstrable injury or death are

already encompassed within the statutory prohibition,

and that the further extension of the ESA’s scope by this

broad regulation exceeds the authority contemplated by

Congress.

Conceding that habitat loss poses the greatest threat

to species, and that Congress through the ESA intended

to provide a means for conserving ecosystems, it does not

necessarily follow that Congress authorized a means

other than those expressly provided in section 5 and

section 7 for purchasing private lands and regulating

federally owned or supervised lands. The question is not

whether Congress understood that the preservation of

habitat is the most effective or expedient means of pro-

tecting listed species; the question is whether Congress

intended to authorize the federal government to enforce

compulsory preservation of habitat on purely private

property under threat of fine and imprisonment. Because

Committee, 1994). In the case of species such as the northern

spotted owl and the red cockaded woodpecker, a “buffer zone”

is established around active colonies. See Sierra Club v. Yeutter,

926 F.2d 429, 432-33 (5th Cir. 1991); see also Florida Game & Fresh

Water Fish Comm'n v. Flotilla, Inc., 636 So.2d 761, 763-65 (Fla. 2d

DCA), rev. denied, 645 So.2d 452 (Fla. 1994) (development halted

in “zone of preservation” surrounding eagles’ nests). Where

such buffer zones overlap property boundaries, neighboring

owners are subject to prosecution for land use activities even

though the listed species is not, and may never have been,

actually present on their property.

16

the Act on its face refutes any such construction, the

court of appeals’ decision should be affirmed.

Il. THE REGULATION DEFINING “HARM” TO

INCLUDE HABITAT MODIFICATION EXTENDS

THE ESA BEYOND THE SCOPE THAT CON-

GRESS INTENDED BY TRANSFORMING THE

ACT INTO AN INSTRUMENT FOR DENYING

THE USE OF PRIVATE LAND, THEREBY SUB-

JECTING THE FEDERAL GOVERNMENT TO

POTENTIAL LIABILITY FOR FIFTH AMEND-

MENT TAKINGS CLAIMS.

The foregoing analysis demonstrates that the lan-

guage and structure of the ESA evince a clear Congres-

sional intent to provide for habitat preservation on lands

that the federal government owns, or has independent

authority to regulate, or is willing to purchase; but noth-

ing in the Act supports a prohibition against habitat

modification as such on private property. Petitioners

nonetheless insist that “[t]here is no reason why Congress

would have intended to allow the killing or injury of

protected wildlife where that consequence is brought

about by the destruction of habitat .. . rather than by

other means, such as the discharge of a firearm or sim-

ilarly direct application of force. ...” Petitioners’ Brief at

21. Because habitat destruction that is deliberately intended

to kill or injure wildlife can be characterized as a prohib-

ited “take” based on other terms within the statutory

definition, such as “kill” or “wound,” the critical question

posed by Petitioners must be stated more precisely as

whether there is any reason why Congress would treat

lawful land use activities by private property owners that

17

indirectly and unintentionally produce detrimental

effects on wildlife differently from direct attacks.

The Florida Legal Foundation and Southeastern

Legal Foundation submit that there is in fact a legally and

logically sound reason why Congress, while prohibiting

direct acts of force against protected species, would

refrain from imposing penalties on private landowners

for engaging in otherwise lawful land uses that may

incidentally impair the behavioral patterns of wildlife.

Analysis reveals that this limitation on the exercise of

federal regulatory authority rests upon a distinction that

is rooted in the Constitution and the common law.

At the outset, it merits emphasis that the kinds of

acts characterized as “habitat modification or degrada-

tion” amount to nothing more than ordinary land uses,

many of which are essential to the feeding and sheltering

of the human species. Such land uses, unless otherwise

prohibited by law, are within the constitutionally pro-

tected “bundle” of private property rights that the Fifth

Amendment forbids the government from taking for pub-

lic use without compensation, whether the confiscatory

effect results from physical occupation or from an equiva-

lent deprivation of use by the exercise of regulatory

authority. See Lucas v. South Carolina Coastal Council, 505

U.S. __, 112 S.Ct. 2886, 120 L.Ed.2d 798, 812-15, 820-22

(1992). Government regulations that deny landowners the

economically viable use of their property, even if only

temporarily and for a proper purpose, may constitute a

compensable taking. First English Evangelical Lutheran

Church v. County of Los Angeles, 482 U.S. 304, 314-19

(1987).

18

By contrast, the discharge of a firearm or other

“direct application of force” against wildlife is not a

constitutionally protected activity, because it is settled as

a matter of common law that wild animals are public

property, which government has the power to protect.

The wild animals within its borders are, so

far as capable of ownership, owned by the state

in its sovereign capacity for the common benefit

of all of its people. Because of such ownership,

and in the exercise of its police power, the state

may regulate and control the taking, subsequent

use, and property rights that may be acquired

therein.

Lacoste v. Department of Conservation, 263 U.S. 545, 549

(1924). Based on this principle, federal legislation that

prohibits landowners from killing or injuring protected

wildlife, even when necessary to prevent depredation of

livestock or other damage to private property, has been

upheld against claims that such regulation effects a com-

pensable taking under the Fifth Amendment. See Christy

v. Hodel, 857 F.2d 1324, 1334-35 (9th Cir. 1988), cert. denied,

490 U.S. 1114 (1989) (no liability under ESA for depreda-

tion of sheep by grizzly bears); Mountain States Legal

Foundation v. Hodel, 799 F.2d 1423, 1426-31 (10th Cir.

1986), cert. denied, 480 U.S. 951 (1987) (no liability under

Wild Free-Roaming Horses and Burros Act for consump-

tion of forage by wild horses).

* Not surprisingly, the states are eagerly following the fed-

eral lead on the strength of these authorities. For example, one

state has extended the principle to deny compensation where a

private landowner’s fenced pastures were invaded and perma-

nently occupied by a herd of tule elk that had been deliberately

a haar meat Od

19

Considered in light of these principles, the limita-

tions defined by the language and structure of the ESA

are not only understandable, but laudable. In drafting the

ESA, Congress presumably acted with knowledge of the

power conferred by common law to prohibit direct acts of

violence against wildlife, as well as the constitutional

restraint on its authority to regulate private land use.

Thus, Congress could reasonably and responsibly have

made a conscious decision to exercise its regulatory

power to the extent — but only to the extent — that it could

do so without “going too far,” and thereby subjecting the

federal government to potential liability for compensable

takings of private property.

Insofar as section 9 of the ESA is construed to pro-

hibit “harm” by deliberate and direct acts against pro-

tected wildlife, its application is consistent with decisions

that recognize such conduct as a punishable offense

against public property. By interpreting “harm” to

include habitat modification, however, the FWS regula-

tion effectively imposes a burden on the landowner to

provide food, shelter, and breeding grounds for “public”

wildlife. This Court certainly should not assume that

Congress intended what the Constitution does not allow

- “forcing some people alone to bear public burdens

which, in all fairness and justice, should be borne by the

transported to the area under a state relocation program, which

specifically contemplated that the animals would forage on pri-

vate farms and ranch lands. Moerman v. State of California, 17

Cal.App.4th 452, 21 Cal.Rptr.2d 329 (1st Dist. 1993), cert. denied,

went We es ee HCH. —__, 128 L.Ed.2d 191 (1996).

20

public as a whole.” Armstrong v. United States, 364 U.S. 40,

49 (1960).

That the prohibition against habitat modification by

private landowners effectively transforms the Act into a

pervasive land use regulation cannot be disputed. As

recognized by Judge Williams, speaking for the panel

majority upon the denial of rehearing en banc, the expan-

sion of the word “harm” to include habitat modification

“vests the Department with authority to supervise the

use of privately owned land in vast tracts of the United

States, even to the point of forbidding modest clearing

efforts conducted in the interest of fire protection in

populated areas.” 30 F.3d at 193.9 Even amici NWF et al.

concede that “[mJany conservation plan restrictions on

private land use operate in much the same way as zoning

laws,” while “[o]ther provisions are analogous to com-

mon land use regulations... .” NWF Brief at 28.

Petitioners and their supporting amici predictably

dismiss or downplay the idea that a prohibition against

habitat modification represents a significant impairment

> Evidence supporting Judge Williams’ observation is pro-

vided in a General Accounting Office report, which reflects that

the 31 Habitat Conservation Plans approved by the FWS

through June 1994 encompass a total area of more than 1.3

million acres. An additional 132 plans were being developed or

awaiting approval. Of the 31 approved plans, four cover the

habitat of the Stephens’ kangaroo rat in Riverside County, Cali-

fornia (including one with an area of 300,000 acres); two others

cover the habitat of the northern spotted owl (including one

with an area of 383,100 acres). U.S. General Accounting Office,

Endangered Species Act: Information On Species Protection On Non-

federal Lands 9, 18-20 (December 1994) (“GAO Report”). See also

supra note 2.

ie ot

21

of landowners’ rights. In particular, amici NWF et al.

assert that “no court has ever found that the harm regula-

tion has caused a Fifth Amendment taking of private

property,” and that no individual has ever been

imprisoned for normal land management activities under

the harm regulation. NWF Brief at 14-16 and n.13. Amici

NWF et al. further declare that “because species rarely

need totally undisturbed habitat, such modifications [of

private land use activities] are generally quite mod-

est, ... enabling private and governmental land uses to

proceed apace.” NWF Brief at 27. They conclude that

“[t]he harm regulation, therefore, does not operate to

foreclose private or public land uses.” Id.

Any suggestion that the FWS regulation prohibiting

habitat modification does not significantly inhibit the

rights of private landowners to use their property for

lawful purposes is sheer sophistry. The fact that enforce-

ment of the regulation has not yet resulted in a compen-

sation award does not mean that Congress intended to

authorize the measure; and it certainly does not mean

that there has been no serious deprivation of the land-

owners’ rights. It simply means that the FWS has thus far

managed to evade liability —- a relatively simple matter in

light of the prevailing standard for regulatory takings,

which effectively forecloses relief under the Fifth Amend-

ment if the regulation leaves a landowner with some

economically viable or beneficial use of the property.

Agins v. Tiburon, 447 U.S. 255 (1980); Penn Central Trans-

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

As acknowledged by amicus Friends of Animals, Inc.

(“FAI”), “[rJealistically . . . a ‘taking’ here would be

difficult to establish, since it appears that Respondents’

22

property has not been the subject of a total regulatory

taking, depriving Respondents of the complete economi-

cally viable use of their land.” FAI Brief at 9 (emphasis

added). This principle, which creates what the Court has

appropriately characterized as an “all-or-nothing” situa-

tion,4 enables the FWS to avoid liability for a takings

claim by carefully tailoring the application of its prohibi-

tion against habitat modification to assure that the land-

owner is never deprived of all economically beneficial

use of the entire property. There are encouraging indica-

tions, however, that the “all-or-nothing” rule may be

giving way to a more fair and reasonable approach - one

that recognizes a right to proportionate compensation for

partial takings — both in the courts, see Florida Rock Indus-

tries, Inc. v. United States, 18 F.3d 1560, 1568-71 (Fed. Cir.

1994), cert. denied, __ U.S. __, __ S.Ct. __, 130 L.Ed.2d

783 (1995), and in Congress. See S. 2410 and H. 9, 103d

Cong. 2d Sess. (1995). Thus, the likelihood that liability

may be imposed for a taking of private property due to

the operation of the “harm” regulation - a liability that

the FWS will have incurred for an exercise of authority

that Congress never conferred - is no longer a remote

prospect.

4 Lucas v. South Carolina Coastal Council, 505 U.S. __, 112

S.Ct. 2886, 120 L.Ed.2d 798, 815 n.8 (1992). Although the Court

noted that an owner “whose deprivation is one step short of

complete” only loses the benefit of the categorical rule, and may

still seek compensation by attempting to establish an inter-

ference with investment-backed expectations, the complexity,

expense, and extraordinary burden of proof that such a pro-

ceeding entails will typically present an insurmountable obsta-

cle for small landowners.

aa Otel A Na we

23

Finally, Petitioners argue that “the Section 10 permit

program adds flexibility to the ‘take’ prohibition by

enabling private owners’ land uses to be accommodated

in a way that protects listed species,” and that invalidat-

ing the application of section 9 to private habitat mod-

ification “would upset the careful balance intended by

Congress among the many competing interests of private

landowners, governmental entities, and the purposes of

the ESA.” Petitioners’ Brief at 49. The notion that habitat

conservation plans under section 10 afford a useful mech-

anism for balancing the regulatory objectives of the FWS

with the rights of private landowners is utterly fanciful.

Because the process required to prepare, submit, and

secure approval for a habitat conservation plan is so

costly and time consuming, the section 10 permit pro-

gram is simply not a viable option for most landowners.”

As a practical matter, small landowners have no rem-

edy for the taking of their property by application of the

habitat modification ban. When confronted with demands

by an agency of the federal government - often sup-

ported by state counterparts - that a portion of their

property must be preserved for the benefit of protected

wildlife, coupled with the threat of fine or imprisonment

for failure to comply, ordinary landowners have little or

no choice. Caught between the daunting prospect of

severe penalties for disobedience and the prohibitive

5 Experience bears out this fact. Of the 31 HCPs approved

through June 1994, only three involved parcels of less than ten

acres, while twice that many covered areas of more than 10,000

acres. See GAO Report, supra note 4, at 18-20.

24

expense of litigation, the landowner is obliged to capitu-

late. Under these circumstances, whatever terms or con-

ditions are dictated by the FWS will constitute, quite

literally, an offer that the landowner cannot refuse. That

Congress could have intended such consequences is man-

ifestly inconceivable.

CONCLUSION

The foregoing arguments -and authorities demon-

strate that the FWS regulation, by compelling habitat

preservation on private land under the guise of prevent-

ing a “take” of wildlife, not only exceeds the authority

delegated by the express terms of the ESA, but entails

practical consequences never contemplated by Congress.

Although great deference has been accorded to the FWS

in the implementation of the ESA since its enactment

more than two decades ago, neither Congress nor the

courts anticipated that the agency would effectively

transform the Act into a land use regulation. By arresting

this unauthorized expansion of power, the court of

appeals properly restored the ESA to the role that it was

intended to fulfill.

25

Accordingly, the decision of the court of appeals

should be affirmed.

Respectfully submitted,

G. STEPHEN PARKER MIcHAEL L. RosEN*

SOUTHEASTERN LEGAL FLORIDA LEGAL FOUNDATION,

FOUNDATION, INC. INc.

2900 Chamblee-Tucker Rd., Post Office Box 10228

Bldg. 4 Suite 502, Barnett Bank Bldg.

Atlanta, GA 30341 Tallahassee, FL 32302

(404) 458-8313 (904) 681-9346

Attorneys for Amici Curiae

March, 1995 *Counsel of Record