857 F.2d 1324 (9th Cir. 1988), 87-3998, Christy v. Hodel

Docket Nº:87-3998.
Citation:857 F.2d 1324
Party Name:Richard P. CHRISTY; Thomas B. Guthrie; Ira Perkins, Plaintiffs-Appellants, v. Donald P. HODEL, Secretary of the Interior; United States Department of Interior, Defendants-Appellees.
Case Date:September 21, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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857 F.2d 1324 (9th Cir. 1988)

Richard P. CHRISTY; Thomas B. Guthrie; Ira Perkins,



Donald P. HODEL, Secretary of the Interior; United States

Department of Interior, Defendants-Appellees.

No. 87-3998.

United States Court of Appeals, Ninth Circuit

September 21, 1988

Argued and Submitted Aug. 5, 1988.

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[Copyrighted Material Omitted]

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K. Dale Schwanke, and Sue Ann Love, Great Falls, Mont., for plaintiffs-appellants.

Jacques B. Gelin, Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Montana (Great Falls).

Before ALARCON and BEEZER, Circuit Judges, and HENDERSON, [*] District Judge.

ALARCON, Circuit Judge:

Plaintiffs-Appellants Richard P. Christy (Christy), Thomas B. Guthrie (Guthrie), and Ira Perkins (Perkins) appeal from the district court's grant of summary judgment in favor of Defendants-Appellees Donald P. Hodel, Secretary of the Interior (Secretary) and the United States Department of Interior (Department). The district court rejected plaintiffs' claim that the Endangered Species Act (ESA) and certain regulations promulgated thereunder are unconstitutional as applied because they prevent plaintiffs from defending their sheep by killing grizzly bears. The court also rejected plaintiffs' claims that the ESA unlawfully delegated legislative authority to the Secretary and that the Secretary exceeded his lawful authority in promulgating the regulations at issue. We affirm.


Christy owned 1700 head of sheep. On or about June 1, 1982, he began grazing the sheep on land he had leased from the Blackfeet Indian Tribe. The land was located adjacent to Glacier National Park in Glacier County, Montana.

Beginning about July 1, 1982, bears attacked the herd on a nightly basis. The herder employed by Christy frightened the bears away with limited success by building fires and shooting a gun into the air. Christy sought assistance from Kenneth Wheeler, a trapper employed by the United States Fish and Wildlife Service. Wheeler set snares in an attempt to capture the bears.

By July 9, 1982, the bears had killed approximately twenty sheep, worth at least $1200. That evening, while Christy and Wheeler were on the leased land together, Christy observed two grizzly bears emerge from the forest. One of the bears quickly retreated to the trees. The other bear moved toward the herd. When the animal was 60-100 yards away, Christy picked up his rifle and fired one shot, which hit the bear. It ran a short distance, then fell to the ground. Christy approached the bear and fired a second shot into its carcass to ensure that it was dead.

Wheeler's subsequent efforts to capture any bears were unsuccessful. On July 22, 1982, the Tribe agreed to terminate the lease and to refund Christy's money. On July 24, 1982, Christy removed his sheep from the leased land, having lost a total of 84 sheep to the bears during the lease term.

Pursuant to authority conferred by the ESA, the Secretary has listed the grizzly

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bear (Ursus arctos horribilis) as a threatened species throughout the 48 contiguous states. 50 C.F.R. Sec. 17.11(h) (1987). Regulations promulgated by the Department forbid the "taking" of grizzly bears, except in certain specified circumstances. See id. Sec. 17.40(b). 1

The Department assessed a civil penalty of $3,000 against Christy for killing a grizzly bear in violation of the ESA and the regulations. On August 13, 1984, at Christy's request, the Department held an administrative hearing. At the hearing, Christy admitted that he had killed the bear knowing it to be a grizzly, but contended that he did so in the exercise of his right to defend his sheep. The administrative law judge (ALJ) upheld the imposition of a penalty but lowered the amount to $2,500.

Christy filed an administrative appeal, arguing that the imposition of a penalty violated his alleged constitutional right to defend his sheep. The appeal was denied on the ground that the Department had no jurisdiction to determine the constitutionality of federal laws or regulations.

On January 30, 1986, Christy instituted the present action. Also named as plaintiffs are Guthrie and Perkins, who have pastured flocks of sheep in Teton County, Montana. Guthrie and Perkins allege that they, too, have lost sheep to grizzly bears. They allege that they were informed by the United States Fish and Wildlife Service that they would be fined if they harmed or killed a grizzly bear, even in defense of their sheep. Guthrie alleges that, "[a]s a result of his losses to the grizzly bears and the harassment of the flock by the bears in the years 1984 and 1985, Guthrie sold all the merchantable sheep from his flock in 1985."

Plaintiffs seek a permanent injunction restraining defendants from enforcing the ESA and the grizzly bear regulations against them. Christy seeks a declaration that the Department's application of the ESA and the regulations to him in the administrative proceeding deprived him of "his fundamental right to possess and protect his property," deprived him of his property and liberty without just compensation or due process, and deprived him of equal protection of the laws. Guthrie and Perkins seek a declaration that the promulgation of the regulations was unconstitutional on the same grounds asserted by Christy. All plaintiffs seek a declaration that application of the ESA and the regulations to them in circumstances where they are defending their property is unconstitutional. Plaintiffs also seek declarations that the ESA contained an unconstitutional delegation of legislative power to the Secretary and that the Secretary exceeded his delegated authority in promulgating the regulations.

The Department filed a counterclaim against Christy seeking judgment in the amount of $2,500, plus interest, representing the unpaid penalty assessed against him by the ALJ. The Department lodged the administrative record with the district court.

On July 23, 1986, the defendants filed a motion for summary judgment. The defendants relied on the facts alleged in the complaint and on the administrative record. In response, plaintiffs asserted that "genuine issues of material fact exist as to allegations of Plaintiffs' Complaint." Plaintiffs, however, submitted no affidavits or other evidence in opposition to the defendants' motion.

On May 4, 1987, the district court issued a Memorandum and Order granting the defendants' motion for summary judgment. The court found that "[t]he material facts preceding and arising from this lawsuit are not in dispute." The court ruled that the

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defendants were entitled to judgment as a matter of law. The court rejected plaintiffs' argument that there is a fundamental right to possess and protect property. Accordingly, the court evaluated the ESA and the grizzly bear regulations under the "rational basis" test and found that they satisfied that test. The court next rejected plaintiffs' contention that the loss of their sheep constituted a taking of their property by the federal government without just compensation. The court held that damage to private property by protected wildlife does not constitute a taking.

The court further concluded that "the ESA is a valid delegation of legislative authority," and that "the regulations at issue are a rational reflection of Congressional will, properly promulgated under the authority vested in the Secretary of the Interior." Finally, the court affirmed the penalty assessed against Christy by the ALJ, finding that it was supported by substantial evidence contained in the administrative record. Plaintiffs now appeal from the judgment entered against them.


This action arises under the United States Constitution and under the ESA, 16 U.S.C. Secs. 1533(d), 1540(g) (1982). The district court had jurisdiction over the action pursuant to section 1540(g) and 28 U.S.C. Secs. 1331, 1346(a)(2) (1982). We have jurisdiction over plaintiffs' appeal from the final judgment pursuant to 28 U.S.C. Sec. 1291 (1982). The judgment was entered on May 4, 1987, and plaintiffs filed their notice of appeal on June 30, 1987. Thus, the notice was timely filed. Fed.R.App.P. 4(a)(1).


A grant of summary judgment is reviewed de novo. Coverdell v. Department of Social & Health Services, 834 F.2d 758, 761 (9th Cir.1987). We must determine, "viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id. at 761-62.

Plaintiffs contend that entry of summary judgment was improper because "many genuine issues of material fact are unresolved." In their motion for summary judgment, the defendants relied on facts set forth in plaintiffs' own complaint, together with the administrative record. Plaintiffs submitted no evidence, by affidavit or otherwise, in opposition to the defendants' motion.

When a defendant's motion shows that there are no genuine issues of material fact, a plaintiff's unsupported assertion to the contrary is insufficient to forestall summary judgment. "Once the moving party shows the absence of evidence [to support the nonmoving party's case], the burden shifts to the nonmoving party to designate ' "specific facts showing that there is a genuine issue for trial." ' " Id. at 769 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), quoting Fed.R.Civ.P. 56(e)). Because plaintiffs failed to demonstrate the existence of any genuine issues of material fact, 2 we need only determine whether the district court correctly applied the relevant law to the facts of record.

A. Do the ESA and the Regulations, as Applied, Deprive Plaintiffs of Property Without Due Process?

Plaintiffs contend that...

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