# Amicus Curiae Brief — Babbitt v. Sweet Home Chapter, Communities for Great Ore. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0804%3A24 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1995 - **Citation:** 515 U.S. 687 ## Text Supreme Court, U.S. =~ 2 an xm 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0804%3A24. Public record. Not legal advice.