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

FIBRE

No. 94-859 MAR 2 4 1999

Jn the

Supreme Court of the Anited States

OCTOBER TERM, 1994

BRUCE BABBITT, SECRETARY OF THE INTERIOR,

ET AL., PETITIONERS

Vv:

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 AMICUS CURIAE OF THE AMERICAN

FARM BUREAU FEDERATION, CALIFORNIA

FARM BUREAU FEDERATION, OREGON FARM

BUREAU FEDERATION, AND TEXAS FARM

BUREAU IN SUPPORT OF RESPONDENTS

JOHN J. RADEMACHER TIMOTHY S. BISHOP

General Counsel Counsel of Record

RICHARD L. KRAUSE MICHAEL F. ROSENBLUM

Assistant Counsel JEFFREY W. SARLES

American Farm Bureau Mayer, Brown & Platt

Federation 190 South LaSalle Street

225 Touhy Avenue Chicago, Illinois 60603

Park Ridge, Illinois 60068 (312) 782-0600

(708) 399-5700

Counsel for Amici Curiae

[Additional counsel listed on signature page]

- ew

QUESTIONS PRESENTED

Amici will address the following questions:

1. Whether ordinary principles of statutory construction

show that “harm” in section 3(19) of the Endangered Species

Act does not encompass habitat modification.

2. Whether the Fish and Wildlife Service’s regulation

construing “harm” to encompass habitat modification

imposes an intolerable burden on farmers, ranchers, and

other landowners never intended by Congress.

3. Whether the Fish and Wildlife Service’s regulation

results in Fifth Amendment takings of private property that

clearly were not contemplated by Congress when it enacted

the Endangered Species Act.

ll

TABLE OF CONTENTS

QUESTIONS PRESENTED .......-cccceces

INTERESTS OF THE AMICICURIAE ........

SUMMARY OF ARGUMENT ..............

Po PPC rrr TTT? ee

I. CONGRESS DID NOT AUTHORIZE

FWS’S HABITAT MODIFICATION RE-

SOEETED +> + oda eee a

A. Standard Principles Of Statutory Con-

struction Require That The Term

“Harm” Not Be Construed To Include

Habitat Modification .............

B. Congress Has Not Ratified FWS’s Erro-

neous Expansion Of “Harm” To Encom-

pass Habitat Modification ..........

II. FWS’S CONSTRUCTION OF ESA SEC-

TION 9 TO ENCOMPASS HABITAT

MODIFICATION HAS A SEVERE AD-

VERSE IMPACT ON FARMERS AND

OTHER PROPERTY OWNERS .......

ill

TABLE OF CONTENTS—Continued

Page

III. FWS’S CONSTRUCTION OF ESA SEC-

TION 9 TO ENCOMPASS HABITAT

MODIFICATION LEADS TO FIFTH

AMENDMENT TAKINGS FOR WHICH

JUST COMPENSATION MUST BE

EE CAO 5 Wis ie oes Boe e'. 17

A. FWS’s Prohibition Of Habitat Modifica-

tion Grossly Interferes With Historically-

Protected Uses Of Private Property .... 18

B. FWS’s Construction Of Section 9 Causes

Takings Of Private Property Requiring

fost Compensation ....:......... 20

ON a ee 26

1V

TABLE OF AUTHORITIES

Cases: Page

Armstrong v. United States, 364 U.S. 40 (1960) .... 26

Bell Atlantic Tel. Cos. v. FCC, 24 F.3d 1441 (D.C.

ee a oN os 8 eae ee ee eee 21

Bob Jones Univ. v. United States, 461 U.S. 574

SE, eos oon eae Anh oe eae ee ee 9

Boise Cascade Corp. v. Board of Forestry, 886 P.2d

SOs Com. GA; AD. ER 6 kn iG ee ccc aes 23

Brown v. Gardner, 115 S. Ct. 552 (1994) ........ G

. Burns v. United States, 501 U.S. 129 (1991) ....... 9

Camfield v. United States, 167 U.S. 518 (1897) .... 19

CBS, Inc. v. FCC, 453 U.S. 367 (1981) ......... 9

Central Bank v. First Interstate Bank, 114 S. Ct.

SN er wea Coe a aan 5, 10

Chicago v. Environmental Defense Fund, 114 S. Ct.

RE I Sg ene ek oe a ik oe 5, 6

Chicago, Burlington & Quincy R.R. v. Chicago, 166

i os ee es ee 19

Christy v. Lujan, 490 U.S. 1114 (1989) ......... 22

Dennis v. Higgins, 498 U.S. 439 (1991) ........ 19

yrs RST

Vv

TABLE OF AUTHORITIES—Continued

Page

Dole v. United Steelworkers of America, 494 U.S.

Yi. eee wero rer re en ee 7

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568

COR ei a vt do ete is ee ne 21

First English Evangelical Lutheran Church v. Coun-

ty of Los Angeles, 482 U.S. 304 (1987) ...... 25

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

1560 (Fed. Cir. 1994), cert denied, 115 S. Ct.

re Ce we > Hae OE Peek oe 8 23

Fuentes v. Shevin, 407 U.S. 67 (1972) ......... 20

Gade v. National Solid Wastes Management Ass'n,

Sia. Ge, Ber Gee bk 6 es ee ee hee 6

Green v. Biddle, 21 U.S. 1 (1823) ............ 18

Gustafson v. Alloyd Co. , No. 93-404 (U.S. Feb. 28,

I sal i para 3% a ke ee eles Ae eee 7

Hodel v. Irving, 481 U.S. 704 (1987) .......... 22

Hudson County Water Co. v. McCarter, 209 U.S.

ee ie ei er ee De ee 23

Idaho Farm Bureau Fed’n v. Babbitt, 839 F. Supp.

cf. Sf. wore rere 15

vi t

TABLE OF AUTHORITIES—Continued

Page

Industrial Union Dept. v. American Petroleum Inst. ,

a De . ere ae 10

Kaiser Aetna v. United States, 444 U.S. 164

Seer ee) eee ee 21, 22

Keene Corp. v. United States, 113 S. Ct. 2035

NE 8S 5s oer 65 we ee ee eee 3

Keystone Bituminous Coal Ass’n v. DeBenedictis,

ae Wee SO EEO OTD 6 kx Klee eee ww es S28 19

Loretto v. Teleprompter Manhattan CATV Corp.,

ee | or 21

Loveladies Harbor, Inc. v. United States, 28 F.3d

ef 6 ee SP ee ree 23

Lucas v. South Carolina Coastal Council, 112 S.

oe 3. eee. ere 22, 24, 25

Lynch v. Household Fin. Corp., 405 U.S. 538

rk od an ok ee ee ee es 19

Maryland v. Baltimore Radio Show, 338 U.S. 912

RE oa G'g ag 4 bgt aliete a ae a 11

Massachusetts v. Morash, 490 U.S. 107 (1989) ..... 7

NLRB v. Health Care & Retirement Corp., 114 S.

i Se va 4 ee eae oe eee 8, 11

NN ct ct came cmmaeas

Vii

TABLE OF AUTHORITIES—Continued

Page

Nollan v. California Coastal Comm’n, 485 U.S. 825

ee ee oe OTe eee ee es 21, 22

Olson v. United States, 292 U.S. 246 (1934) ...... 22

PBGC v. LTV Corp., 496 U.S. 633 (1990) ....... 10

Penn Central Transp. Co. v. City of New York, 438

Se EE 4k bs Ve wee a hoe ewe 23

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

DE ear es ee oe or Ooh 20

Pinter v. Dahl, 486 U.S. 622 (1988) ........... 6

Public Citizen v. United States Dept. of Justice, 491

ee a6 ee a oe ah RR 7

SEC v. Sloan, 436 U.S. 103 (1978) ......... 10, 11

Sexton v. Wheaton, 21 U.S. 229 (1823) ......... 19

Tennessee Valley Auth. v. Hill, 437 U.S. 153

has a ek ee a eee he oh 25

United States v. Bryan, 339 U.S. 323 (1950) ...... 7

United States v. General Motors Corp., 323 U.S.

er ee en ee 17

United States v. Riverside Bayview Homes, Inc. , 474

hey EY 3 aS Ss Se ee ke ws 9, 24

Vill

TABLE OF AUTHORITIES—Continued

Page

United States v. X-Citement Video, Inc., 115 S. Ct.

NE a 4a 8-3: 5 oe ee a ee 7

Waterman Steamship Corp. v. United States, 381

RR see ad RK ae es 8 es 11

Zuber v. Allen, 396 U.S. 168 (1969) ......... 8, 10

Statutes and Regulations:

ne 8b 6s ek a ae ee ee passim

SD Te ee os ook a ee ee eee 5

ee a ee eee 5, 8

ee he a ne Se De es passim

gk ot | rere ee ee rr ee a 8

De eet OE kn 0 eh ee ee 16

Pe ce 6 ss ge ReneS Cee eee 3, 21

Miscellaneous:

J. Adams, Discourses on Davila, quoted in James

Ely, Jr., The Guardian of Every Other Right

CE eee Pee CRIN OE eer 18

ix

TABLE OF AUTHORITIES—Continued

Arax, /mmigrant Farmer’s Woes Galvanize Conser-

vatives, L.A. Times, June 10, 1994 at Al

M. Bean et al., Reconciling Conflicts Under the

Endangered Species Act: The Habitat Conserva-

tion Planning Experience (1991) ........

Comment, The Endangered Species Act: Inadequate

Species Protection in the Wake of the Destruc-

tion of Property Rights, 55 Ohio St. L.J. 453

EE es ens 8 6 6 Abe ee

Comment, The Endangered Species Act and Ursine

Usurpations: A Grizzly Tale of Two Takings, 58

ar. Ci Be OO. EO GEE) 6 et ee

119 Cong. Rec. 30162 (Sept. 18, 1973) .......

Conner, Judge Rejects Challenges to Federal Log-

ging Plan, L.A. Times, Dec. 22, 1994, at A3 .

DeLong, It’s My Land, Isn’t It?, N.Y. Times, Mar.

ae 8 Pee eee eee ae

Dolan, Endangered Species Act Battles for its Own

Survival, L.A. Times, Dec. 21, 1992, at Al .

The Endangered Gremlins Act, Wall St. J., June 3,

ee eae

Flournoy, Beyond the “Spotted Owl Problem”:

Learning from the Old-Growth Controversy, 17

Harv. Envtl. L. Rev. 261 (1993) ........

X

TABLE OF AUTHORITIES—Continued

FWS Announces New Owl Rules, BNA State Envt.

Sa Be. ey Ba Oe Bic ee ee ld

Government Accounting Office, Endangered Species

Act: Information on Species Protection on Non-

federal Lands (Jan. 20, 1995) ....... 12, 24, 25

Grabow, Congressional Silence and the Search for

Legislative Intent: A Venture into “Speculative

Unrealities”, 64 B.U. L. Rev. 737 (1984)

Kainen, The Historical Framework for Reviving

Constitutional Protection for Property and

Contract Rights, 79 Cornell L. Rev. 87

1]

CR ak aes ee ee tale Se ae 18

Madison, Property, in 14 The Papers of James

Madison 266 (Rutland & Mason, eds. 1983) . 18

C. Mann & M. Plummer, Noah’s Choice: The

Future of Endangered Species (1995)... 12, 17, 23

McCoy, U.S. Wili Designate 11.6 Million Acres in

Northwest to Protect Owls, Tall Trees, Wall St.

J. RR. ee a es ve ie eae ee 13

Oxford English Dictionary (2d ed. 1989) ......... 6

Pryne, Clinton Plan for Logging Gets Split Recep-

tion, Seattle Times, Dec. 11, 1993, at Al2 ... 13

xi

TABLE OF AUTHORITIES—Continued

Sands, How Endangered Species Could Take a Bite

Out of Your Farm, Top Producer, Mid-Mar.

Se cee a ee eas 2s

Taylor, Preserving Forests May Pay Off, Seattle

Post-Intelligencer, Oct. 13, 1993, at Bl ....

Wald, Some Observations on the Use of Legislative

History in the 1981 Supreme Court Term, 68

Iowa L. Rev. 195 (1983) .............

Warren, Rural Land Owners Say Pain Goes Beyond

Data, Wall St. J. (Tex. ed.), Dec. 21, 1994, at

Wright, Death to Tweety, New Republic, July 6,

SE cg ee ee ager

Page

14, 22

No. 94-859

In the Supreme Court of the United States

OCTOBER TERM, 1994

BRUCE BABBITT, SECRETARY OF THE INTERIOR,

ET AL., PETITIONERS

V.

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 AMICUS CURIAE OF THE AMERICAN

FARM BUREAU FEDERATION, CALIFORNIA

FARM BUREAU FEDERATION, OREGON FARM

BUREAU FEDERATION, AND TEXAS FARM

BUREAU IN SUPPORT OF RESPONDENTS”

INTERESTS OF THE AMICI CURIAE

The American Farm Bureau Federation (AFBF) is a

voluntary general farm organization organized in 1920 under

the General Not-For-Profit Corporation Act of the State of

Illinois. AFBF was founded to protect, promote, and

represent the business, economic, social and educational

interests of American farmers and ranchers. AFBF has

member organizations in all 50 states and Puerto Rico

Consents to the filing of this brief are on file with the Clerk.

a

2

representing more than 4.4 million member families. Amici

California, Oregon, and Texas Farm Bureaus are members

of AFBF, representing the interests of farmers and ranchers

in their respective states.

AFBF and the state Farm Bureau amici have a direct

interest in the outcome of this case. Their farmer and rancher

members own or lease significant amounts of property, on

which they depend for their livelihoods and upon which all

Americans rely for food and other basic necessities. Amici’s

members’ use of their land has been severely restricted by

the Fish and Wildlife Service’s interpretation of section 9 of

the Endangered Species Act to encompass ordinary, everyday

farming and ranching activities as prohibited “habitat

modification.” That unduly broad interpretation rewrites the

Act to make potential criminals of vast numbers of families

engaged in agriculture and ranching activities, prohibiting

well-accepted agricultural practices and creating uncertainties

about permissible conduct that chill the most productive and

beneficial use of land.

In consequence, amici have a strong interest in affir-

mance of the court of appeals’ ruling that the Act does not

authorize FWS’s regulatory definition of “harm” to include

habitat modification on private land. We believe that amici’s

experiences with the operation of the regulation at issue—a

regulation that has had an especially deleterious impact in

those states whose farmers and ranchers are represented by

the state Farm Bureau amici—will be helpful to this Court in

reaching a decision.

SUMMARY OF ARGUMENT

1. Section 9 of the Endangered Species Act (“ESA”)

forbids any person to “take” a member of any of hundreds

of “endangered” or “threatened” species of animals and birds

(known as “listed” species). 16 U.S.C. § 1538(a)(1). Congress

defined “take” in section 3(19) to mean “to harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or collect” a

3

member of a listed species, or to attempt to do so. 16 U.S.C.

§ 1532(19). The standard tools of statutory interpretation

used by this Court uniformly point to one, clear meaning for

this provision: persons are prohibited from conduct directed

at wildlife that will kill, physically hurt, or reduce to

_ Captivity a member of a protected species. FWS’s regulation

defining the term “harm” much more broadly to include

“habitat modification” that impairs breeding, feeding, or

sheltering behavior (50 C.F.R. § 17.3)—e.g., normal land

use activity that disturbs or destroys a single nesting site,

food plant, or burrow—vastly expands the Act’s prohibitions

without any congressional authority and was correctly struck

down by the court of appeals.

2. The severe adverse practical impact of FWS’s regula-

tion on the ordinary, productive use of private property is

strong evidence that the agency has expanded the reach of the

Act far beyond what Congress intended. There is absolutely

no indication that Congress thought it was enacting in section

9 of the ESA a general, nationwide land use statute of enor-

mous consequence for the owners of hundreds of millions of

acres of private land—one that would micro-manage such

actions as clearing brush and plowing fields. Nor is there the

least indication that Congress intended to make criminals of

farmers and ranchers who in the course of working their land

impact future generations of listed species in ways that only

a biologist could predict.

3. FWS’s view that “harm” includes habitat modification

is belied as well by the Fifth Amendment consequences of

that definition. In turning section 9 of the ESA into a

substantial, pervasive restriction on the productive use of

private land, FWS threatens to impose a significant burden

on the public fisc in the form of payments of compensation

to landowners mandated by the Takings Clause. That

Congress clearly did not envisage the imposition of such

costs by section 9 further demonstrates the utter implausi-

bility of FWS’s interpretation of “harm.”

4

ARGUMENT

Executive branch agencies are to apply statutes, not

author them. The Fish and Wildlife Service has violated this

most basic principle. It has adopted a regulation—creating a

new crime of habitat modification, punishable by a year in

prison and a substantial fine—that flatly contradicts the intent

of Congress as determined using any of the methods of

Statutory interpretation endorsed in this Court’s precedents.

Because FWS’s definition of “harm” to include habitat

modification is at odds with the clear meaning of the Endan-

gered Species Act, the court of appeals’ judgment striking it

down should be affirmed.

Much is at stake here. FWS’s regulation is preventing

farmers from farming effectively, ranchers from ranching

effectively, and many other landowners from enjoying the

full entitlements of property ownership. Congress envisaged

no such consequences when it enacted and amended the ESA.

Moreover, the regulatory transformation of the ESA into a

national land use code has serious constitutional ramifica-

tions. The founders of our polity built protection of private

property rights into the framework of our fundamental law.

They would be aghast to learn that unelected administrators

have converted the plowing of fields and the clearing of trees

on private land into federal crimes. Indeed, the Takings

Clause of our Constitution requires that such abridgements of

fundamental individual rights be justly compensated.

I. CONGRESS DID NOT AUTHORIZE FWS’S HABI-

TAT MODIFICATION RESTRICTIONS

A. Standard Principles Of Statutory Construction

Require That The Term “Harm” Not Be Con-

strued To Include Habitat Modification

This case hinges on whether the term “harm,” as it

appears in section 3(19)’s definition of “take,” plausibly

encompasses habitat modification. It does not. Amici agree

with and will not repeat respondents’ full and careful analysis

5

of the statute and its legislative history. However, a few

well-accepted principles of statutory interpretation seem to us

particularly compelling in showing that FWS’s broad

definition of “harm” impermissibly “goes beyond the scope

of whatever ambiguity [section 3(19)] contains.” Chicago v.

Environmental Defense Fund, 114 S. Ct. 1588, 1594 (1994).

First, Congress well understood how to say “habitat

modification” when that was what it intended. Congress

mandated that in determining species to be listed, the

Department of Interior should consider the “destruction,

modification, or curtailment of [a creature’s] habitat.” 16

U.S.C. § 1533(a)(1)(A). ESA section 7 specifically requires

that federal agencies “insure that any action authorized,

funded, or carried out by such agency * * * is not likely to

* * * result in the destruction or adverse modification of

habitat of [a listed] species which is determined by the

Secretary * * * to be critical.” Jd. § 1536(a)(2). And section

7 also requires conferral between the Secretary and an

agency about “an agency action which is likely to * * *

result in the destruction or adverse modification of critical

habitat” proposed to be designated for a listed species. /d.

§ 1536(a)(4).

No such words or phrases appear anywhere in the “take”

provisions of the statute, as they surely would if Congress

had intended that section 9 should reach habitat modification.

Keene Corp. v. United States, 113 S. Ct. 2035, 2040 (1993)

(“‘[W]here Congress includes particular language in one

section of a statute but omits it in another * * *, it is

generally presumed that Congress acts intentionally and

purposely in the disparate inclusion or exclusion’”); see also

Central Bank v. First Interstate Bank, 114 S. Ct. 1439, 1448

(1994) (“Congress knew how to impose aiding and abetting

liability when it chose to do so. [Citing statutes expressly

creating aiding and abetting liability.] If * * * Congress

intended to impose aiding and abetting liability, we presume

it would have used the words ‘aid’ and ‘abet’ in the statutory

6

text”); Chicago v. Environmental Defense Fund, 114 S. Ct.

at 1593; Pinter v. Dahl, 486 U.S. 622, 650 (1988). In light

of the very different language used in different parts of the

statute, the court of appeals correctly found that only section

7 of the Act, imposing obligations on the federal government

but not private parties, together with section 5, which

authorizes federal acquisition of land to protect habitat, are

directed to habitat modification. 17 F.3d at 1466.'

Second, not only is the phrase “destruction or adverse

modification of habitat” starkly absent from sections 9 and

3(19), but everything about the statutory definition of “take”

conspires against FWS’s position. The defined

term—“take”—must be the starting point for understanding

the import of the section 3(19) definition, and it cannot be

stretched to encompass habitat modification. Not one of the

definitions of “take” given in the 17 pages devoted to this

elemental word in the Oxford English Dictionary comes close

to the sort of incidental, otherwise-directed activity prohibit-

ed by FWS’s regulation. To the contrary, the active verb in

its primary meanings evokes precisely the sense of an activity

directed to killing, hurting, or reducing a creature to captivi-

ty. See Oxford English Dictionary 558 (2d ed. 1989)

(defining “take” as “[t]o seize, grasp, capture, catch”; “To

lay hold upon”; “To catch, capture (a wild beast, bird, fish

etc.)”; “To strike, hit, impinge upon”).

' Congress would hardly have bothered to enact elaborate

provisions governing the designation and protection of “critical

habitats” by federal agencies if “habitat modification” were

generally prohibited, on federal and private land, by section 9.

Interpretation is “‘not [to] be guided by a single sentence or

member of a sentence, but * * * [by] the provisions of the whole

law.’” Gade v. National Solid Wastes Management Ass’n, 112

S. Ct. 2374, 2383-2384 (1992). FWS’s definition of “harm” fails

that test by rendering the “critical habitat” scheme largely otiose.

7

The more specific words listed in the section 3(19)

definition reflect these meanings: pursue, hunt, shoot,

wound, kill, trap, capture, collect. The general words that

begin the definition must be read to conform to these specific

words as well as to the common meaning of “take.” See

Dole v. United Steelworkers of America, 494 U.S. 26, 36

(1990) (“words grouped in a list should be given related

meaning”); Massachusetts v. Morash, 490 U.S. 107, 114

(1989). Otherwise—as FWS’s regulation perfectly illus-

trates—one word in a list may obtain “a meaning so broad

that it is inconsistent with its accompanying words, thus

giving ‘unintended breadth to the Acts of Congress.’”

Gustafson v. Alloyd Co., No. 93-404, slip op. at 13 (U.S.

Feb. 28, 1995). FWS’s regulation ignores these principles

and gives “harm” a meaning essentially unrelated to either

the term defined or the more specific words used to illumi-

nate that term. That cannot be right.

In our view, these straightforward precepts, which have

long guided this Court in its interpretation of statutes, should

be the end of this case: they point to affirmance. The

practical and constitutional implications of FWS’s overbroad

definition of “harm,” discussed below, nevertheless serve to

confirm our conclusion that “habitat modification” on private

land lies outside section 9’s reach. See Public Citizen v.

United States Dept. of Justice, 491 U.S. 440, 454 (1989)

(“‘unreasonable to believe’” that Congress intended “‘absurd

results which follow from giving * * * broad meaning to

[statutory] words’”); United States v. Bryan, 339 U.S. 323,

338 (1950) (“Court will not reach * * * result if it is

contrary to the congressional intent and leads to absurd

conclusions”); United States v. X-Citement Video, Inc., 115

S. Ct. 464, 470 (1994) (“we do not impute to Congress an

intent to pass legislation that is inconsistent with the Consti-

tution”).

8

B. Congress Has Not Ratified FWS’s Erroneous Ex-

pansion Of “Harm” To Encompass Habitat

Modification

Contrary to petitioners’ assertions, the 1978 and 1982

Congresses plainly did not acquiesce in or ratify FWS’s

interpretation of “take” to encompass habitat modification:

the amendments to ESA that they passed addressed neither

the prohibition of a “take” in § 9(a)(1) nor the definition of

a “take” in § 3(19). See Zuber v. Allen, 396 U.S. 168, 185

n.21 (1969) (“Where * * * there is no indication that a

subsequent Congress has addressed itself to the particular

problem, we are unpersuaded that silence is tantamount to

acquiescence, let alone * * * approval”). Rather, the amend-

ments added new sections to the Act that provided not for a

broadening of liability, but for a narrowing of liability

through exemption and permit procedures. 16 U.S.C.

§§ 1536(e)-(0), 1539(a). See NLRB v. Health Care & Retire-

ment Corp., 114 S. Ct. 1778, 1784 (1994) (finding history

of legislation amending other sections of a statute not

determinative of congressional intent with regard to statutory

section at issue). Congress could have amended section 9

specifically to target habitat modification, but did not do so.

FWS resorts to a far-fetched reading of the incidental

take amendment as Congress’s silent incorporation of the ban

on habitat modification devised by the agency. But such a

reading defies the plain meaning of the provision. Allowing

a permit for a taking “incidental to, and not the purpose of,

the carrying out of an otherwise lawful activity”

(§ 1539(a)(1)(B)) simply creates a procedure to remove

liability for nonpurposive “takes” —for example, the tripping

of a trap set for a non-listed animal, or the ingestion of

poisoned bait laid for non-listed pests, by a member of a |

protected species. The provision says not a word about

broadening the meaning of “take” or “harm.”? In these

2 There is no evidence that in 1978 or 1982 Congress was aware

9

circumstances, passage of the 1978 and 1982 amendments to

ESA is essentially irrelevant to the question whether “take”

and “harm” include habitat modification.

FWS is thus reduced to arguing that Congress’s failure

to reverse the agency’s “harm” regulation, in particular when

it passed the 1978 and 1982 amendments to ESA, constituted

“congressional ratification” of FWS’s interpretation. Pet. Br.

40. But “‘where the law is plain,’” as it is here (see pages 4-

7, supra), it is well established that “‘subsequent reenactment

does not constitute an adoption of a previous administrative

construction.’” Brown v. Gardner, 115 S. Ct. 552, 556

(1994). Mere reenactment (or amendment of other provisions

of a law) amounts to no more than “[c]ongressional silence,”

which “‘lacks persuasive significance,’ particularly where

administrative regulations are inconsistent with the contro!-

ling statute.” Jbid. And even if the text were not unam-

biguous, “congressional silence certainly cannot be credited

when it is contrary to all other textual and contextual

evidence of congressional intent,” as is the case here. Burns

v. United States, 501 U.S. 129, 136 (1991).

Indeed, petitioners’ elevation of congressional silence

into a legislative mandate raises serious constitutional

concerns. The Constitution prescribes very specific requisites

for making law; clearly, “‘[c]ongressional inaction cannot

of or sought to address the question of habitat modification in the

section 9 context at all. This is not a case where Congress defeated

a provision “specifically designed to supplant” a contested agency

interpretation (United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 137 (1985)) or where “its prolonged and acute

awareness” of the controversy allowed for a possible imputation of

acquiescence. Bob Jones Univ. v. United States, 461 U.S. 574,

601 (1983); see also CBS, Inc. v. FCC, 453 U.S. 367, 383-384

(1981) (Congress was repeatedly “made aware” of objections and

repeatedly rejected “specific proposals” to repeal offending

provision).

10

amend a duly enacted statute.’” Central Bank, 114 S. Ct. at

1453. Yet in contending that congressional inaction has

validated FWS’s vast expansion of the statute’s prohibitions,

that is precisely petitioners’ position. In effect, FWS inter-

prets Congress’s inaction as a silent delegation to the agency

to construe “take” broadly. But standardless delegation to

executive agencies violates the principle of separation of

powers (see /ndustrial Union Dept. v. American Petroleum

Inst., 448 U.S. 607 (1980)), and silent delegation, which is

inherently standardless, offends all the more.

Furthermore, there is simply no rational means to

determine what, if anything, Congress intended by not

amending the ESA “take” and “harm” provisions. Failure to

overturn an agency interpretation of a statute “‘lacks persua-

sive significance because several equally tenable inferences

may be drawn from such inaction.’” Central Bank, 114

S. Ct. at 1453, quoting PBGC v. LTV Corp., 496 U.S. 633,

650 (1990). In fact, failure to eliminate an offending inter-

pretation by amendment may not signify anything substantive

at all, but rather only “unawareness, preoccupation, or

paralysis.” Zuber, 396 U.S. at 185 n.21. See Wald, Some

Observations on the Use of Legislative History in the 1981

Supreme Court Term, 68 Iowa L. Rev. 195, 204 n.90 (1983)

(congressional rejections of efforts to change administrative

interpretations may be due to “tactical or political,” rather

than “substantive,” reasons). Here, congressional intent is

particularly unfathomable because Congress was doubly

silent. FWS focuses only on Congress’s failure to override

its regulation, ignoring Congress’s simultaneous failure to

add habitat modification to the definition of “take.” Any

attempt to decipher the “true” meaning of this tangle of non-

events would necessarily be a speculative enterprise.

Certainly, FWS’s offering of a few snippets of testimony

before a congressional subcommittee cannot impart meaning

to Congress’s inaction. In SEC v. Sloan, 436 U.S. 103

(1978), this Court invalidated an agency’s interpretation of

————eeeeeee————eEeEeEeE

11

a statute where, after testimony at committee hearings

concerning the offending interpretation and public approval

of that testimony by a committee member, Congress reenact-

ed the statutory provision at issue without amendment. Jd. at

119-120. This Court ruled that such “isolated statements” do

not demonstrate “widespread congressional awareness” and

are “not sufficient” to show acquiescence in the agency’s

interpretation. Jd. at 121. See also Health Care & Retirement

Corp., 1148S. Ct. at 1784 (“isolated statement” in committee

report is not “an authoritative interpretation” of congres-

sional intent). FWS offers no more here.?

FWS’s focus on the inaction of the 1978 and 1982

Congresses is particularly misplaced because “‘the views of

a subsequent Congress form a hazardous basis for inferring

the intent of an earlier one.’” Waterman Steamship Corp. v.

United States, 381 U.S. 252, 269 (1965). Even if subsequent

Congresses could be deemed to have acquiesced in FWS’s

interpretation, this is “scarcely the sort of congressional

approyal” of an agency interpretation that is entitled to any

weight. Sloan, 436 U.S. at 121; see also Grabow, Congres-

sional Silence and the Search for Legislative Intent: A

Venture into “Speculative Unrealities”, 64 B.U. L. Rev. 737,

754 (1984) (“the silent acquiescence of a subsequent Con-

gress should be accorded no weight by the courts in the

* Petitioners’ effort to extract significance from silence is

analogous to the media’s apparently incurable ascription of

meaning to this Court’s denials of certiorari. See Maryland v.

Baltimore Radio Show, 338 U.S. 912, 919 (1950) (Frankfurter, J.)

(“this court has rigorously insisted that such a denial carries with

it no implication whatever regarding the Court’s views on the

merits of a case which it has declined to review”). Indeed,

attributing meaning to congressional silence is even less defensible

because, in contrast to members of this Court, who have the

benefit of argument on substantive issues made in the petition for

certiorari, most members of Congress are not even aware of

amendments that go unadopted in committee

12

search for legislative intent”). In short, the meaning of

sections 9 and 3(19) must be determined from the text and

the intent of the Congress that enacted these provisions—a

test on which petitioners cannot prevail.

II. FWS’S CONSTRUCTION OF ESA SECTION 9 TO

ENCOMPASS HABITAT MODIFICATION HAS A

SEVERE ADVERSE IMPACT ON FARMERS AND

OTHER PROPERTY OWNERS

FWS’s construction of the term “harm” to include

“habitat modification” on private land—a concept with a vast

reach into the most ordinary uses of private property—has an

enormous impact on farmers and ranchers, who depend on

the land for their livelihoods, and indeed on all Americans,

who rely on the fruits of the land for food and other basic

needs. The legislative record contains not a hint that Con-

gress intended the sort of dire practical consequences that

flow from FWS’s regulation.

Under FWS’s approach, restrictions on the use of private

land are pervasive. There are presently over 800 listed

species, of which over 78 percent have habitat on private

lands. Moreover, habitat for 80 of the 105 species for which

critical habitat has been designated is found on nonfederal

iands. Government Accounting Office, Endangered Species

Act: Information on Species Protection on Nonfederal Lands

4-6 (Jan. 20, 1995) (“GAO Report”). Some 2,450 coun-

ties—making up almost 90 percent of the continental United

States—are home to at least one endangered species. C.

Mann & M. Plummer, Noah's Choice: The Future of

Endangered Species 14 (1995). 210 million Americans live

in the vicinity of at least one listed species. /d. at 15.

The effect of FWS’s regulation is thus to prevent

commonplace land use activity on vast stretches of private

property. Applying it to the spotted owl, for example, FWS

has since 1990 established owl circles radiating up to almost

two miles from each nest, in which almost half the land must

13

be left untouched. Pryne, Clinton Plan for Logging Gets Split

Reception, Seattle Times, Dec. 11, 1993, at A12. Within a

year of being instituted, the owl circles foreclosed to logging

an area the size of Massachusetts and Vermont. McCoy,

U.S. Will Designate 11.6 Million Acres in Northwest to

Protect Owls, Tall Trees, Wall St. J., Apr. 29, 1991, at A8.

In Washington alone, owl circles preclude foresting on over

half a million acres. FWS Announces New Owl Rules, BNA

State Envt. Daily, Feb. 8. 1995, at 1. The loss of tens of

thousands of logging-related jobs is the result. McCoy,

supra.* Although the adverse impact of owl circles on

logging lands may be the best known effect of FWS’s habitat

modification rule, FWS’s depredations of private property

reach well beyond the forests and into the agricultural

heartland of this country.

Nothing in the legislative history of the Endangered

Species Act indicates that Congress intended the Act to

plunge farmers and other landowners into a struggle for

economic survival. Yet that will be the effect of criminaliz-

ing habitat modification. Horror stories from all over the

country are accumulating rapidly.

@ In California, a Taiwanese immigrant invested almost

$2 million for desert scrub on which to grow Chinese

vegetables. Because of the alleged presence of three listed

kangaroo rats, a battalion of two dozen armed state and

federal agents, accompanied by helicopters, descended on his

farm, seized his tractor and other equipment, and charged

him with three counts of criminal destruction of habitat.

Arax, Immigrant Farmer’s Woes Galvanize Conservatives,

* Although the Clinton acministration’s new forest management

plan for the Pacific Northwest may affect some of these figures, its

application is limited to federal lands and thus has no bearing on

the private property rights at issue in this lawsuit. See Conner,

Judge Rejects Challenges to Federal Logging Plan, L.A. Times,

Dec. 22, 1994, at A3.

14

L.A. Times, June 10, 1994, at Al; see also id., Jan. 18,

1995, at Al.

@ FWS sent a letter to over 500 landowners in Polk

and Highlands Counties, Florida, warning them not to

destroy any “scrub habitat” on their property, allegedly

frequented by the listed Florida scrub jay. Only after a

public outcry did FWS back off from this heavy-handed

effort to prevent the most routine and necessary type of land

clearance.

@ George Foote, a 74-year-old Texas landowner,

cannot sell his land to obtain needed retirement money

because it may be habitat for the golden-cheeked warbler.

“That leaves me with land that has no value,” he complains,

“unless I want to lie to prospective buyers, and that’s

certainly not the thing to do.” Warren, Rural Land Owners

Say Pain Goes Beyond Data, Wall St. J. (Texas ed.), Dec.

21, 1994, at 1.

@ C.D. Barrett, North Carolina Tree Farmer of the

Year in 1989, could not sell his timber in 1992 because

officials had identified an old cavity in one tree that had once

been used by a red cockaded woodpecker. Although the nest

was abandoned, it took Mr. Barrett over six months to obtain

a Clearance letter from FWS, the delay preventing him from

selling timber during that period and compelling him to

suffer a substantial financial loss. See The Endangered

Gremlins Act, Wall St. J., June 3, 1994, at Al4.

® In southern California, Native Americans were

prevented from farming their fields because the listed

Stephens kangaroo rat had been found on their reservation.

Comment, The Endangered Species Act: Inadequate Species

Protection in the Wake of the Destruction of Property Rights,

55 Ohio St. L.J. 453, 453 (1994).

@ The Stephens kangaroo rat also prevented residents

of Riverside County, California, from plowing their fields or

clearing their land because they were in a 79,000-acre area

15

designated for study of the endangered rodent. (For example,

in 1990 FWS ordered fifth-generation farmers Cindy and

Andy Domenigoni to cease tillage of half their 1600 tillable

acres, costing them an average $70,000 in lost crops sales

for each of four years, plus an additional $100,000 in

biological consultation and legal fees.) When the resultant

thick growth in vegetation caught fire in 1993, many River-

side landowners faced the hobson’s choice of disking a

firebreak in violation of FWS regulations or obeying the

regulations and risking losing their homes. Only later did

FWS determine that the kangaroo rats had moved out of the

area before the fires because excessive plant growth—induced

by the ban on farming—had rendered the habitat unsuitable

for them. DeLong, /t’s My Land, Isn't It?, N.Y. Times,

Mar. 15, 1995, at AlS.

@ The FWS banned farmers in southwestern Idaho

from pumping groundwater in 1985 in order to maintain

existing groundwater levels and thus protect the survival of

a listed springsnail—despite the fact that the springsnail was

not known to populate any of the affected private property.

See Idaho Farm Bureau Fed'n v. Babbitt, 839 F. Supp. 739

(D. Idaho 1993).

® Minnesota farmer Dale Polzin mot only cannot hay

his 80-acre prairie because it is covered with a prairie bush

clover, a protected habitat, but that clover also prevents him

from using pesticides on nearby corn andbean fields. Sands,

How Endangered Species Could Take a Bite Out of Your

Farm, Top Producer, Mid-Mar. 1992, at 28.

@ In Tulare County, California, a farmer was fined

$5000 and had part of his land confiscated for allegedly

destroying the habitat of a listed blunt-ncsed leopard lizard.

Arax, Immigrant Farmer's Woes, L.A. Times, June 10,

1994, at Al.

As these examples demonstrate, FWS does not apply its

regulation in the “circumscribed” mannerit alleges (Pet. Br.

16

45), but rather to justify an aggressive land use management

program never authorized by Congress. ESA’s liberal citizen

suit provisions (16 U.S.C. § 1540(g)) broaden the impact of

the FWS’s regulation still further, and well beyond the

enforcement power of the FWS alone. Environmental groups

and other private plaintiffs are even less likely than FWS to

be circumspect in alleging illegal habitat modification.

The stories noted above are not about criminals, but

about hard-working Americans seeking to work their land

much as our forebears have done for centuries. It is simply

not conceivable that Congress intended section 9 to target the

otherwise lawful endeavors of these farmers. Nor is it at all

surprising that Congress should have foregone the extra step

of prohibiting habitat modification on private land. FWS’s

construction of “harm” creates perverse incentives that

Congress would reasonably have wanted to avoid. Landown-

ers who creute habitat favorable to listed species will be

penalized by losing control over that portion of their proper-

ty; while those who prevent the growth of favorable habitat

will be rewarded with full control. Thus, one small farmer

in Washington allegedly cut down old-growth trees rather

than risk attracting a listed spotted owl. Taylor, Preserving

Forests May Pay Off, Seattle Post-Intelligencer, Oct. 13,

1993, at Bl. A wealthier individual reportedly reacted in

similar fashion: learning that golden-cheeked warblers were

_ to be added to the endangered species list, a development

corporation owned by Ross Perot allegedly razed 333 acres

of juniper trees, the birds’ preferred habitat, while the birds

were off on a migrating sojourn to South America. Wright,

Death to Tweety, New Republic, July 6, 1992, at 9-10.

In other words, not only does FWS’s regulation unjustly

sanction routine farming and ranching activities that may

interfere with listed species’ habitats, but in doing so it

transforms something desirable—species-preserving habi-

tats—into a spectre that any rational landowner must fear.

17

Ironically, then, it is likely to undermine the FWS’s goal of

preserving endangered species.

These few examples—we could multiply them many

times over—provide but a glimpse into the havoc being

wreaked by FWS’s regulation. As new species are listed as

endangered or threatened, its impact will widen and wors-

en.° Upholding the court of appeals would rein in this

unfettered, terribly damaging, and wholly unjustified bureau-

cratic license to micro-manage the use of private land.

III. FWS’S CONSTRUCTION OF ESA SECTION 9 TO

ENCOMPASS HABITAT MODIFICATION LEADS

TO FIFTH AMENDMENT TAKINGS FOR

WHICH JUST COMPENSATION MUST BE PAID

A ban on habitat modification indisputably interferes with

individuals’ rights to work or otherwise use their land.

Because FWS’s regulation prevents landowners from enjoy-

ing all the elements of the bundle of rights that is property

ownership, it causes “takings” of property that, under the

Fifth Amendment, must be compensated. See United States

v. General Motors Corp., 323 U.S. 373, 378 (1945) (“pri-

vate property” encompasses the bundle of rights “to possess,

use and dispose of” land). There is no sign, however, that

Congress thought it was creating in the ESA an enormous,

unfunded obligation of this sort for federal agencies (and

ultimately for taxpayers). The absence of any mention in the

legislative history of the ESA of constitutional protections for

property rights or of the compensation requirement provides

strong evidence that Congress never envisioned that a “take”

of a listed animal could occur through habitat modification

on private land.

* In the first six months of 1994, FWS added 72 species to the list

and proposed adding another 27. Mann & Plummer, Noah's

Choice, supra, at 246.

18

A. FWS’s Prohibition Of Habitat Modification

Grossly Interferes With Historically-Protected

Uses Of Private Property

Ownership of a farm without the right to farm the land

is not the sort of property right our forebears had in mind

when they ratified the Fifth Amendment. The Framers

viewed property as a fundamental restraint on a government

of limited powers, not as a limited privilege revocable by

government. As John Adams put it, “[p]roperty must be

secured or liberty cannot exist.” Discourses on Davila,

quoted in James Ely, Jr., The Guardian of Every Other Right

43 (1992).

The Framers included numerous protections for private

property in the Constitution. Most notably, they gave it two

entries in the Bill of Rights—the Due Process and Takings

Clauses. But they also, for example, shielded landed wealth

from federal taxation (Article I, § 9, cl. 4), twice singled out

homes for protection (Amendments 3 and 4), and even

limited forfeitures of property for the heinous crime of

treason. Article III, § 3, cl. 3. In so doing, they recognized

that property is an important guarantee of liberty. As James

Madison put it, “just governments will equally respect the

rights of property and the property in rights.” Madison,

Property, in 14 The Papers of James Madison 266 (Rutland

& Mason, eds. 1983). See also Kainen, The Historical

Framework for Reviving Constitutional Protection for

Property and Contract Rights, 79 Cornell L. Rev. 87, 95

(1993).

In opinions written by contemporaries of the Framers,

this Court recognized that “a right of land * * * includes the

right to * * * receive the issues and profits arising from it.”

Green v. Biddle, 21 U.S. 1, 75 (1823). A law which “clogs

[the owner’s] recovery of such possession and profits, by

conditions and restrictions tending to diminish the value and

amount of the thing * * *, impairs his right to, and interest

in, the property.” /d. at 75-76. This dominion over one’s

19

property was to be limited only by respect for the rights of

others. Sexton v. Wheaton, 21 U.S. 229, 242 (1823) (proper-

ty owner has “absolute power [to] make any disposition of it

which does not interfere with the existing rights of others”).

This Court has continued to recognize that protection of

property rights is “a vital principle of republican institutions”

(Chicago, Burlington & Quincy R.R. v. Chicago, 166 U.S.

226, 235 (1897)), that “rights in property are basic civil

rights,” and that “a fundamental interdependence exists

between the personal right to liberty and the personal right

in property.” Lynch v. Household Fin. Corp. , 405 U.S. 538,

552 (1972); see also Dennis v. Higgins, 498 U.S. 439, 446

(1991) (“‘dichotomy between personal liberties and property

rights is a false one’”).

Over the years, the Court has allowed government to

restrain .uses of property without paying just compensation in

but two situations—where the restrained use amounts to a

nuisance, and where the restraint promotes a “reciprocity of

advantage” so that the burden on the owner as individual is

eclipsed by the benefit derived as a member of the public.

Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S.

470, 491 (1987). Neither exception applies here. Clearing or

otherwise working one’s land has never been viewed as a

nuisance. A private nuisance is an activity that “renders the

occupancy of adjoining property dangerous, intolerable or

even uncomfortable.” Camfield v. United States, 167 U.S.

518, 523 (1897). A public nuisance has a similar effect on a

wider circle of the community. FWS’s enjoinder of habitat

modification is not directed to an activity that could conceiv-

ably have any such effect. Nor is reciprocity of advantage

implicated where there is such a gross disparity between the

debilitating ban on using one’s own property and any benefits

derived from an incremental increase in the likelihood that a

listed species inhabiting one’s property will continue to exist.

Moreover, the FWS regulation unquestionably generates

confusion among landowners as to what they may do with

20

their property. As one prominent environmentalist has

conceded, “it is impossible for most landowners to translate

[FWS’s “harm” regulation] into clear and readily understand-

able rules regarding what they can or cannot do on their

property.” M. Bean et al., Reconciling Conflicts Under the

Endangered Species Act: The Habitat Conservation Planning

Experience 43 (1991). A landowner often will lack the

knowledge to determine if his activities are modifying the

habitat of a listed species. Even if a landowner might suspect

that his activity is degrading habitat, a non-biologist can

surely not know whether existing animals will be killed or

injured as a result. Still less can the landowner know whether

“essential behavioral patterns, including breeding, feeding,

or sheltering” would be “significantly impair[ed]” and so

“kill or injure” future generations of wildlife in the eyes of

FWS. 50 C.F.R. § 17.3. A regulation that requires a

landowner to obtain a biology degree in order to appreciate

the dangers of working his or her land—or face criminal

prosecution—creates intolerable and wholly unfair uncertainty

and defeats the security promised by ownership of private

property.

Preventing landowners from working their land is a truly

unprecedented intrusion by the federal government into the

private domain. The record provides no hint that Congress

intended such a startling upheaval in settled expectations.

FWS cannot take upon itself to redefine the privileges and

boundaries of property ownership. Upholding the court of

appeals will sustain “the high value, embedded in our

constitutional and political history, that we place on a

person’s right to enjoy what is his, free of governmental

interference.” Fuentes v. Shevin, 407 U.S. 67, 81 (1972).

B. FWS’s Construction Of Section 9 Causes Takings

Of Private Property Requiring Just Compensation

FWS’s edict making habitat modification one of the acts

proscribed by section 9 “goes too far.” Pennsylvania Coal

Co. v. Mahon, 260 U.S. 393, 415 (1922). FWS’s regulation,

21

by requiring private landowners to maintain potentially

significant portions of their land in an undisturbed state,

prevents the use and enjoyment of land and thus inevitably

results in takings requiring compensation under the Fifth

Amendment. It is inconceivable that Congress would not

have noted and addressed this concern had it believed that the

ESA could give rise to Fifth Amendment takings. It is also

appropriate for this Court to scrutinize strictly a regulation

which has so widespread and devastating an effect on

property rights. See Bell Atlantic Tel. Cos. v. FCC, 24 F.3d

1441, 1445 (D.C. Cir. 1994) (construing statute narrowly to

defeat administrative order that would necessarily give rise

to unconstitutional takings); see also Edward J. DeBartolo

Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council,

485 U.S. 568, 577 (1988) (narrowing agency’s construction

of statute that gives rise to “serious constitutional concerns”).

This Court has recognized two types of categorical tak-

ings—where the government effects a physical occupation of

real property and where it deprives the owner of all econom-

ic use of his land. Although at first blush 50 C.F.R. § 17.3

might appear to fit neither category, a closer look reveals

otherwise.

1. Physical takings. A physical occupation takes place

where “individuals are given a permanent and continuous

right to pass to and fro, so that the real property may

continuously be traversed.” Nollan v. California Coastal

Comm'n, 485 U.S. 825, 832 (1987). The occupiers need not

be government officials or agents for the land to be deemed

taken. See ibid.; Kaiser Aetna v. United States, 444 U.S.

164, 179-180 (1979). Nor need the occupation be particularly

physically intrusive, or involve persons rather than objects.

Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.

419 (1982).

FWS’s regulation allows selected animals to “pass to and

fro” and in fact to set up a home base on private property

free from the owner’s interference. To a farmer prevented

22

from farming, there is no practical distinction between being

hampered by sauntering tourists (identified as a taking in

Nollan and Kaiser Aetna) or by aviating or nesting birds (as

here). See Kaiser Aetna, 444 U.S. at 180 (imposition of

servitude allowing access to third parties is “actual physical

invasion” of property); Comment, The Endangered Species

Act and Ursine Usurpations: A Grizzly Tale of Two Takings,

58 U. Chi. L. Rev. 1101, 1114 (1991) (“The ESA, by

stifling preventive efforts, works a compensable taking

through the physically intrusive and destructive actions of

governmentally protected species”); Christy v. Lujan, 490

U.S. 1114, 1115-1116 (1989) (White, J., dissenting from

denial of certiorari) (ESA authorizes the “constitutional

equivalent” of a physical taking). FWS’s “habitat modifica-

tion” regulation at a minimum imposes negative easements

on private lands, preventing farmers and other owners from

meaningfully using parts of their property.°

2. Destruction of beneficial use. Whether or not it effects

a physical occupation, the challenged regulation will destroy

all beneficial use of some properties. A landowner forced “to

leave his property idle” has suffered a categorical taking.

Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886,

2895 (1992). Given that the home range for a single nesting

pair of owls, for example, is 3-5 thousand acres (Flournoy,

Beyond the “Spotted Owl Problem”: Learning from the Old-

° Moreover, a farm impeded from being farmed by the presence

of listed species is not likely to be transferable. See Warren, Rural

Land Owners Say Pain Goes Beyond Data, Wall. St. J. (Texas

ed.), Dec. 21, 1994, at 1 (“property that’s encumbered by endan-

gered species might be impossible to sell at any price”); Olson v.

United States, 292 US. 246, 256-258 (1934) (physical possibility

of alternate uses for and does not preclude a taking where there

is no demand for those alternate uses). The practical destruction of

the right-to-transfer stick from the bundle of property rights shou!d

entitle the owner to just compensation. Hodel v. Irving, 481 U.S.

704, 716 n.2 (1987).

Bi neato inne a Date AN A On SAE

23

Growth Controversy, 17 Harv. Envtl. L. Rev. 261, 268

(1993)), the regulation may paralyze entire farms, ranches,

and logging enterprises. See Boise Cascade Corp. v. Board

of Forestry, 886 P.2d 1033 (Or. Ct. App. 1994) (state’s

refusal to permit logging operations due to presence of

spotted owl nesting site may deprive land of all economic

value); Penn Central Transp. Co. v. City of New York, 438

U.S. 104, 127 (1978) (rendering ‘property commercially

impracticable may have same effect as complete destruction

of property rights); Hudson County Water Co. v. McCarter,

209 U.S. 349, 355 (1908) (Holmes, J.) (height restriction

rendering property wholly useless is a compensable taking).

3. Significant diminution in value. Even if FWS’s regula-

tion would not render a property 100% worthless, a substan-

tial loss of value is sufficient to qualify as a taking. A

portion of a farm, for example a field or just the apple trees

or Citrus groves, may be deprived of all economic value, and

such a “partial taking” should not be exempted from the

requirements of the Fifth Amendment. See Florida Rock

Indus., Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994);

Loveladies Harbor, Inc. v. United States, 28 F.3d 1171 (Fed.

Cir. 1994). More generally, FWS’s regulation effects so

great an economic impact and such a defeat of investment-

backed expectations as to constitute a taking.

In Austin, Texas, the lack of a clearance letter from

FWS stating that no golden-cheeked warblers nor suitable

habitat are present on one’s property wrests 25 percent from

the market value of the property. Mann & Plummer, Noah’s

Choice,- supra, at 202. The harsh economic impact of not

being able to farm sections of one’s farm hardly needs

elaboration. See Penn Central Transp. Co. , 438 U.S. at 127

(a “use restriction” may be a taking if it has “unduly harsh

impact upon the owner’s use of the property”). And certainly

most farmers had no reason to expect, when they acquired

their land, that the government would prevent them from the

effective use of their farm because its trees attract certain

24

birds or its fields are home to certain rodents. See Lucas,

112 S. Ct. at 2894 n.7 (farmers’ reasonable expectations

have “a rich tradition of protection at common law”).

4. Incidental take permits. The permitting scheme set

forth in section 10(a), 16 U.S.C. § 1539(a), does not avert

the confiscatory character of FWS’s restrictions on “habitat

modification.” Of course, amici recognize that a permitting

scheme does not in itself take property, because its very

existence allows for the possibility of obtaining permission to

freely use and enjoy one’s land. United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 127 (1985). But while

FWS’s regulation does not by itself constitute a Fifth

Amendment taking, takings clearly do occur through the

operation of the regulation. ESA’s permitting process in no

way means that Fifth Amendment takings will not occur. To

the contrary, the nature of that process guarantees that

temporary takings, at least, will be common. The complete

absence of any indication that Congress conceived ESA

would have these results is highly relevant to the issue of

statutory interpretation in this case.

To obtain an incidental take permit, a landowner must

submit a habitat conservation plan (HCP), including an

environmental impact statement, a description of proposed

mitigation techniques and funding for them, and an analysis

of alternatives. There follows a public comment period.

Thereafter, the Secretary must, before issuing a permit,

develop detailed findings as to the nature of the “take,” the

mitigation efforts and their funding, the impact on listed

species, and other concerns. Finally, even after the permit is

issued, the property owner must meet extensive reporting

requirements. 16 U.S.C. § 1539(a).

This permitting process is “arduous[,] * * * expensive

and time-consuming”—taking up to three years. Dolan,

Endangered Species Act Battles for Its Own Survival, L.A.

Times, Dec. 21, 1992, at Al; GAO Report at 9. Farmers

(and most other landowners) are often poorly equipped to

25

engage in the bureaucratic paperwork contemplated by

section 10(a). Usually, they must hire both an attorney and

biological consultants to assist in preparing the HCP. It is no

surprise, then, that as of June 1994 FWS had issued only 31

HCP permits. GAO Report at 9. In the unlikely event that a

property owner eventually obtains a permit, the affected

property will have been tied up for a significant length of

time, so a temporary taking will have occurred for which

compensation must be paid. First English Evangelical

Lutheran Church v. County of Los Angeles, 482 U.S. 304,

318-319 (1987). The permitting process is no answer, then,

to our showing that FWS’s regulation has practical and Fifth

Amendment implications that make it thoroughly implausible

to suppose that when Congress enacted the ESA it had in

mind to prohibit habitat modification on private land.

We do not dispute that preserving the habitat of some

animals may be a cause worthy of public attention. But even

if Congress had forbidden habitat modification by private

individuals (which it plainly did not), private property may

not be “pressed into some form of public service under the

guise of mitigating serious public harm.” Lucas, 112 S. Ct.

at 2895. Congress was careful to respect this principle in the

ESA; as the court of appeals noted, it imposed “very broad

burdens” on the federal government and “relatively narrow

ones” on individuals. 17 F.3d at 1466.’ Thus, the floor

manager of the House Bill explained that the Act provided

for habitat preservation by individuals only via cooperation

by “willing landowners.” 119 Cong. Rec. 30162 (Sept. 18,

1973) (statement of Rep. Sullivan). The FWS has ignored

that scheme and thereby paved the way for countless com-

pensable takings.

" Notably, the Act’s requirements upheld by this Court in

Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978), were

imposed on the federal government.

26

If farmers are to sacrifice their land for the good of the

public interest in preserving listed species, the government

has a constitutional duty to compensate them. See Armstrong

v. United States, 364 U.S. 40, 49 (1960) (the Framers

“designed [the Just Compensation 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”). Congress must be presumed to be aware

of this obligation, and if it had intended “take” to encompass

habitat modification it would surely have explored the fiscal

consequences and would have made its policy judgment

clear. Its failure to do so shows what is in any event obvious

from the language of the Act: neither “take” nor “harm”

may legitimately be stretched to include “habitat modifica-

tion” on private land.

CONCLUSION

The judgment of the United States Court of Appeals for

the District of Columbia Circuit should be affirmed.

Respectfully submitted.

JOHN J. RADEMACHER

General Counsel

RICHARD L. KRAUSE

Assistant Counsel

American Farm Bureau

Federation

225 Touhy Avenue

Park Ridge, Illinois 60068

(708) 399-5700

NANCY N. MCDONOUGH

General Counsel

CAROLYN S. RICHARDSON

Director, Department

of Environmental Advocacy

California Farm Bureau

Federation

1601 Exposition Boulevard

Sacramento, California 95815

(916) 924-4000

RIDGELY HILL PATE

Legal Director

27

TIMOTHY S. BISHOP

Counsel of Record

MICHAEL F, ROSENBLUM

JEFFREY W. SARLES

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

JOSEPH H. HOBSON, JR.

Lien, Hobson & Johnson

4855 River Road N.

Keizer, Oregon 97303

(503) 390-1635

DOUGLAS G. CAROOM

SYDNEY W. FALK, JR.

STEPHANIE CARTER MCMULL JOHN H. KNOX

Assistant Legal Director

Texas Farm Bureau

7420 Fish Pond Road

Waco, Texas 76710

(817) 772-3030

MARCH 1995

Bickerstaff, Heath &

Smiley, L.L.P.

98 San Jacinto Boulevard

Suite 1800

Austin, Texas 7870]

(512) 472-802]

Counsel for Amici Curiae