Request By:
C. Thomas Bennett, Commissioner of the Kentucky
Department of Fish and Wildlife Resources
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Douglas Scott Porter, Assistant Attorney General
Opinion of the Attorney General
In December of 1997, the KDFWR began reintroducing elk, a species which was once indigenous to Kentucky, back to its native habitat. Commissioner C. Thomas Bennett of the Kentucky Department of Fish and Wildlife has inquired as to whether the KDFWR's reintroduction of the elk will impose any liability on the KDFWR.
Legal analysis
The General Assembly, through KRS 150.015, specifically stated that the policy of the Commonwealth of Kentucky and the mandate of the KDFWR is:
To protect and conserve the wildlife of this Commonwealth so as to ensure a permanent and continued supply of the wildlife resources of this state for the purposes of furnishing sport and recreation for the present and for the future residents of this state; to promote the general welfare of the Commonwealth; to provide for the prudent taking and disposition of wildlife within reasonable limits, based upon the adequacy of the supply thereof; to protect the food supply of this state, and to ensure the continuation of an important part of the commerce of this state which depends upon the existence of its wildlife resources.
In December of 1997, the KDFWR in conformity with its statutory mandate, began reintroducing elk back to Kentucky. 1 The KDFWR has requested an opinion from this office concerning the potential liability of the Commonwealth for damage caused by the reintroduction of certain species of animals.
The question concerning liability for wildlife damage was previously addressed by this office in OAG 90-70 which concluded that the KDFWR incurred no liability for wildlife damage. The reasons for this conclusion were twofold. The first was found in the fact that, except for a limited, one-time waiver, the General Assembly had never waived the Commonwealth's immunity from suit for wildlife damage. 2 Without such a waiver, the Commonwealth could be held liable only in an action brought in the Board of Claims and only after if it was determined by the Board that the Commonwealth was negligent. See KRS Chapter 44.
The second portion of OAG 90-70 reviewed the KDFWR's potential liability for a negligence action. Through KRS Chapter 44, the General Assembly has waived state agencies' immunity for acts of negligence up to a statutory cap of $ 100,000 in the Board of Claims as set out in KRS 44.070. At common law, in order to give rise to a negligence claim one must establish a duty, a violation thereof, and a consequence or injury.
M&P Chemicals, Inc. v. Westrick, Ky., 525 SW 2d 740 (1975). Absent a duty and a breach thereof, there can be no negligence and no liability.
OAG 90-70 reviewed a long litany of cases from other jurisdictions which analyzed the concept of state ownership of wildlife. However, none is more persuasive than the United States Supreme Court 's decision in
LaCoste v. Department of Conservation of the State of Louisiana, 263 U.S. 545, 68 L Ed 437, 44 S Ct 186 (1924) which states:
The wild animals within its [a state's] borders are, so far as capable of ownership, owned by the state in its sovereign capacity for the common benefit of the people. 3
Because a government has no proprietary ownership interest in its native wildlife, it cannot control the actions of said wildlife. Further, it has no duty to prohibit wildlife from causing damage. Government oversees and manages wildlife in trust for all its citizens, its essential duty is that as trustee of a public resource. As we said in OAG 90-70, this duty does not include a common-law duty to safeguard the public against damage that can result from wildlife. The opinion concluded that because there is no duty, then there can be no liability under a negligence theory. Regarding reintroduced wildlife, it could be argued that since a species is currently not found in the wilds of Kentucky, it might fall into a different category because these species must be captured, physically carried to a location, and then released. Hence the question, once a government actually reduces an animal to possession and control, and then subsequently releases it, does the government incur liability for the actions of the animal?
It is true that one who keeps wild or dangerous animals in captivity must see to it, at his own peril, that they do no damage to others.
Wigginton & Sweeney v. Bruce's Guardian, 174 Ky 691, 192 SW 850 (1917) and
True v. Shelton, 314 Ky 446, 235 SW 2d 1009 (1951). However, due to the principles of sovereign immunity as enunciated in Section 231 of the Kentucky Constitution, it is equally true that whenever an individual may be liable for a certain act, the state is not liable for the same act unless the General Assembly imposes that liability.
As previously stated, since Masden, the General Assembly has never waived the Commonwealth's immunity from suit for damage done by animals. This applies to animals that have been reintroduced as well as those which are naturally occurring. Thus, for the Commonwealth to be held liable in the Board of Claims for damage done by an animal that has been reintroduced in Kentucky, a claimant must still prove negligence on behalf of the Commonwealth. In order to prove negligence, an individual must demonstrate that the KDFWR had a duty to prevent damage done by a reintroduced animal and the failure of the breach was the proximate cause of the damage.
A survey of cases from across the United States has revealed only two instances where individuals have brought suit against the state for damage done by animals that were reintroduced by the state. The first case,
Barrett v. State, 230 NY 422, 116 NE 99 (1917), involved actions of property owners against the state of New York for damage done to timberland by reintroduced beavers. Prior to 1917, the state of New York had precious few beavers scattered throughout the state. By act of the legislature, public funds were spent on reintroducing the beaver into certain areas of the state and restocking existing population. In one particular area, a small group of beaver destroyed a fair amount of trees. The property owners sued seeking restitution for the damage done by the animals. The court held that because animals are a resource of the state, the state has the general right to protect wild animals, concluding that since preservation efforts of the state were a matter of public interest, no one can complain of the incidental injuries that may result from such protection. In order to preserve the animals, the state may provide for the increase of beaver by removing colonies to a more favorable locality, or by replacing those destroyed by fresh importation, as well as prohibiting the destruction of the animals already in the state. The New York court refused to recognize the argument that once an animal was relocated, even though it had been reduced to possession and control and relocated, it can no longer be considered wild.
The second case,
Moerman v. State, 21 Cal. Rptr. 2nd 239 (Cal. App. 1 Dist. 1993), involved the reintroduction of tule elk in California and reviewed the state's liability for reintroduced animals. California, in the 1970s, began reintroducing and relocating tule elk to their native ranges. Tule elk were originally indigenous to California, but by 1870, the animal was nearly extinct and could only be found in one isolated county in California. Due to the state's reintroduction program, a rancher filed suit alleging that his property and crops had been damaged and that the value of his property had been reduced by the presence of elk and the limited hunting of elk.
The claimant raised the issue that because the elk had been captured and their movements were being monitored by the Department of Wildlife, the government had the requisite amount of control to impose a duty to control the animals and prohibit them from doing damage. The court rejected this argument. It was determined that the state's involvement with the elk through monitoring of their movements via ear tags and radio collars, establishing limited hunting of the species, and even moving them off private property when a property owner complained were nothing more than strategies of management of the animals. The court concluded that these efforts were not any different than the practice employed for managing its existing native wildlife. The court did not agree that the elk, even though they had been captured and relocated, were no longer wild. The elk were wild when captured and then returned to their natural habitat still wild and undomesticated.
The Moerman case is significant to this analysis because the KDFWR's reintroduction of elk appears to be similar to the efforts of the State of California. A review of the KDFWR's reintroduction program demonstrates that once the elk are released, the only control that the KDFWR will have over the animals is monitoring their movements and relocating them when necessary. Further analysis of the program indicates that the KDFWR's policy is that elk will be handled no differently than the state's existing deer or bear population and the KDFWR will have no more control over the elk than they do over any other native wild animal. Therefore, we believe a Kentucky Court, if faced with this question, will similarly rule there is no liability on the part of the state.
Conclusion
To summarize, we believe there is sound legal precedent to conclude that the Commonwealth should not incur any liability for damage done by reintroduced wildlife absent a specific waiver by the General Assembly. Without this waiver, the Commonwealth can only be sued for negligence in the Board of Claims. In order to prove negligence, a claimant must show that the Commonwealth had a duty and breached that duty which was the proximate cause of the injury. Case law from the highest court in the United States and other state courts conclude that, because there is no proprietary ownership interest in animals, the government has no duty to prevent the actions of the animals which may result in damage. Therefore, it appears that the Commonwealth should not be found liable even in the Board of Claims for damage done by animals which are reintroduced into the state. Accordingly, the conclusion of OAG 90-70 is reaffirmed.
Footnotes
Footnotes
1 Elk have also been reintroduced in Wisconsin, Michigan, Pennsylvania, Arkansas, New Mexico, Arizona, California, Kansas and have been restored or relocated in other western states.
2 In 1942, the General Assembly waived the Commonwealth's immunity from suit arising from wildlife damage. This waiver related specifically to the creation of Bernheim Forest. The legislature deemed that due to the creation of the forest and surrounding nature preserve, the adjacent landowner, W.F. Masden, would be compensated for any damage caused to his property by wildlife for one year. Commonwealth v. Masden, 295 Ky. 861, 175 SW 2d 1004 (1943). The resolution of the General Assembly which allowed this also contained an expiration clause which made it very clear that this specific resolution was a one-time event related to a particular piece of property.
3 See also Missouri v. Holland, 252 U.S. 416, 64 L Ed 641 (1920), Mountain States Legal Foundation v. Hodel, 799 F.2d 1423 (10th Cir 1986), and Christy v. Hodel, 857 F.2d 1324 (9th Cir 1988).