ELR Citation: ELR 21430
No(s). 87-3998 (9th Cir. Sep 21, 1988)

The court holds that the Endangered Species Act (ESA) and its implementing regulations prohibiting the killing of grizzly bears to protect livestock do not violate due process or equal protection. Plaintiff had been fined $2,500 in civil penalties under the ESA for knowingly killing a grizzly bear, a threatened species, to protect his sheep. The court first holds that there is no fundamental right under the United States Constitution to kill federally protected wildlife in defense of property. The court holds that the ESA's prohibition satisfies the rational relationship test by rationally furthering the legitimate government purpose of preventing species extinction. The regulations reasonably accommodate property interests by authorizing government officials to kill nuisance bears, and by allowing citizens to defend their property by nonlethal means. The court next holds that the ESA and its regulations do not deny plaintiff equal protection, rejecting plaintiff's claim that the Act and regulations establish a classification of persons who raise livestock near grizzly bear habitat and a classification of all other persons. Although the regulations do establish a classification that includes persons allowed to kill grizzly bears for sport under certain conditions, but excludes persons who kill grizzly bears to protect livestock, this classification is not suspect and impairs no fundamental rights. The court holds that the classification satisfies the rational relationship test. The ESA recognizes that species population pressures may make some killings consistent with the statute's conservation purposes. The Secretary of the Interior rationally determined that authorizing controlled sport hunting, but not private killing of nuisance bears, would control bear population pressures and further conservation.

The court next holds that the grizzly bear regulations do not unlawfully "take private property without just compensation. The court holds that destruction of property by protected bears is not a government taking. The government neither owns the animals nor controls their conduct, and property losses are merely incidental results of reasonable regulation in the public interest. The court next holds that the ESA does not unconstitutionally delegate legislative authority to the Secretary. The ESA's standards sufficiently guide the Secretary in issuing implementing regulations. The Act requires those regulations to provide for conservation of threatened species, and defines conservation clearly enough to enable courts to determine whether the regulations comply with congressional intent. Finally, the court holds that the Secretary's authorization of sport hunting of grizzly bears is within his authority under the ESA. The ESA authorizes the Secretary to permit sport hunting if population pressures require it, and the Secretary has so determined.

Counsel for Plaintiffs-Appellants
K. Dale Schwanke, Sue Ann Love
Jardine, Stephenson, Blewett & Weaver
7th Fl., First Nat'l Bank Bldg., P.O. Box 2269, Great Falls MT 59403
(406) 727-5000

Counsel for Defendants-Appellees
Jacques B. Gelin
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2762

Before Beezer and Henderson,^* JJ.