Can Kentucky Fish and Wildlife euthanize a seized animal before a trial, or destroy a wild animal that bit someone to test it for rabies?
Plain-English summary
The Commissioner of Fish and Wildlife asked the Attorney General two related questions about killing seized wild animals. First, when the Department seizes a protected or dangerous animal as evidence in a criminal case (say, someone is charged with illegally possessing it), can it euthanize and freeze the animal before trial rather than keeping it alive through the case? Second, can the Department seize and destroy a wild or exotic animal that has bitten a person so it can be tested for rabies?
On the first question, the answer is a qualified yes that mostly means no. The opinion walks through KRS 150.120: when wildlife is seized, the officer "shall" impound it and take it before the court, with no discretion, and only "upon conviction" may the court declare it contraband and turn it over to the Department. The opinion contrasts that with KRS 150.399, which expressly declares illegal traps contraband "without any order of court," showing the legislature knows how to skip the court step when it wants to. So the general rule is no pre-conviction euthanasia. The exception is KRS 150.105: the Commissioner, with the Commission's approval, may authorize destroying any wild animal that is causing damage to people, property, or other animals, or spreading disease. The Department could use that authority case by case for a seized animal that meets those conditions, but the opinion says it may not adopt a blanket policy of euthanizing all evidence animals for budget or convenience to get around KRS 150.120.
On the second question, yes. KRS 258.085(1)(c) requires that a wild or exotic animal that bites a person or shows rabies symptoms be destroyed and tested. The rabies law lets the Cabinet for Health and Family Services and local health departments administer it, but nothing in that law strips the Department of its own authority to enforce wildlife laws (KRS 150.021(1)). Because a biting animal has caused harm and a rabid one can spread disease, the opinion concludes the Department may euthanize it under KRS 150.105 so it can be rabies-tested, which its own regulations already require.
What this means for you
Fish and Wildlife officials and game wardens
Under this opinion, an animal seized as evidence must generally be impounded and held until conviction and a court order declares it contraband (KRS 150.120). You may euthanize a seized evidence animal before then only on a case-by-case basis under KRS 150.105, and only if the Commissioner finds it is causing injury or spreading disease and the Commission concurs. The opinion specifically says you cannot adopt an across-the-board euthanize-and-store policy to sidestep KRS 150.120.
Prosecutors
The opinion ties the Department's hands on evidence animals to the conviction-then-contraband sequence in KRS 150.120, which affects what evidence is available and in what form at trial.
Local health departments and the Cabinet
The opinion reads the Department's wildlife-enforcement authority as concurrent with, not displaced by, the Cabinet's rabies authority; both may act to have a biting animal destroyed and tested under KRS 258.085(1)(c).
Wildlife permit holders and the public
The opinion confirms a wild or exotic animal that bites a person will be destroyed and tested for rabies, consistent with existing Department regulations.
Common questions
Q: Can Fish and Wildlife just put down an animal it seized as evidence?
A: Generally no, not before the criminal case ends. Under KRS 150.120 the animal must be impounded and held, and only after a conviction can a court declare it contraband. The exception is KRS 150.105 for an animal that is dangerous or spreading disease.
Q: What is the KRS 150.105 exception?
A: It lets the Commissioner, with the Commission's approval, authorize destroying any wild animal that is causing damage to people, property, or other animals, or spreading disease. The opinion allows using it case by case, but not as a blanket policy to avoid KRS 150.120.
Q: If a raccoon or other wild animal bites someone, can it be killed and tested?
A: Yes. The opinion says the Department may seize and euthanize a wild or exotic animal that has bitten a person so it can be tested for rabies under KRS 258.085(1)(c).
Q: Does only the health department handle rabies cases?
A: No. The opinion reads the Department's authority as concurrent with the Cabinet's and local health departments'; the rabies law does not take away the Department's power to act.
Background and statutory framework
Kentucky's constitutional right to hunt and fish (Ky. Const. § 255A) is subject to conservation laws. The General Assembly set the policy of the fish and game laws (KRS 150.015(1)) and gave the Department broad regulatory authority (KRS 150.025(1)(b), (i)), backed by various possession prohibitions (and Cummings v. Commonwealth, 255 S.W.2d 997 (Ky. 1953), affirming a conviction for possessing a raccoon). Seized wildlife must be impounded and taken before the court (KRS 150.120(1); "shall" is mandatory under KRS 446.010(39)), and only upon conviction may a court declare it contraband (KRS 150.120(2)); until then the court has jurisdiction over it (Wallace v. Sowards, 231 S.W.2d 10 (Ky. 1950)). KRS 150.399 shows the legislature can declare contraband without a court order when it chooses. The euthanasia exception is KRS 150.105 (animals causing damage or spreading disease). For rabies, KRS 258.085(1)(c) requires a biting or symptomatic animal to be destroyed and tested; KRS 258.075 gives the Cabinet administrative authority, but KRS 150.021(1) preserves the Department's wildlife-enforcement powers.
Citations and references
Constitution and statutes:
- Ky. Const. § 255A (right to hunt and fish)
- KRS 150.015(1), KRS 150.025(1)(b), (i), KRS 150.021(1) (Department policy and authority)
- KRS 150.120(1), (2); KRS 150.399; KRS 150.105 (seizure, contraband, destruction)
- KRS 258.085(1)(c), KRS 258.075 (rabies law); KRS 446.010(39) ("shall" mandatory); KRS 150.010(50) (wildlife defined)
Cases:
- Wallace v. Sowards, 231 S.W.2d 10 (Ky. 1950), court has jurisdiction over seized wildlife until rights determined
- Cummings v. Commonwealth, 255 S.W.2d 997 (Ky. 1953), conviction for unlawful possession of wildlife
Source
- Landing page: https://www.ag.ky.gov/Opinions/Pages/default.aspx
- Original PDF: https://www.ag.ky.gov/Resources/Opinions/Opinions/Opinion%20of%20the%20Attorney%20General%2024-08.pdf
Original opinion text
The full opinion as issued by the Office of the Kentucky Attorney General:
September 16, 2024
OAG 24-08
Subject: 1. Does the Department of Fish and Wildlife Resources (Department) have the legal authority to humanely dispatch (i.e., euthanize) and store native or inherently dangerous wildlife that is seized and may be used as evidence in a criminal case? 2. Does the Department have the legal authority to confiscate, seize, or take possession of wild or exotic mammals upon notification that a specific animal has bitten a person, so that the animal may be dispatched and tested for rabies as required by KRS 258.085(1)(c)?
Requested by: Rich Storm, Commissioner, Department of Fish and Wildlife Resources
Written by: Aaron J. Silletto, Executive Director, Office of Civil and Environmental Law
Syllabus: 1. The Department may euthanize and store any wildlife that has been seized as evidence in a criminal case before trial, but only if the animal is causing injury to persons, property, or animals or is spreading disease. 2. The Department may seize and euthanize any wild or exotic animal that has bitten a person, so that the animal may be tested for rabies under KRS 258.085(1)(c).
Opinion of the Attorney General
The Commissioner of the Department of Fish and Wildlife Resources asks two related questions, both of which concern the seizure and destruction of wild animals. The first question asks whether the Department may euthanize an animal that is seized as evidence in a criminal case before trial. The answer to that question is a qualified yes. The second question asks whether the Department may euthanize a wild or exotic animal that has bitten a person for purposes of having the animal tested for rabies. The answer to that question is yes.
- Dispatching native or inherently dangerous wildlife before trial
Kentucky has a rich sporting tradition, but even Kentuckians' constitutional right to hunt, fish, and harvest wildlife is subject to the General Assembly's power to enact statutes, and the Department's authority to promulgate administrative regulations, "to promote wildlife conservation and management." Ky. Const. § 255A. To that end, the General Assembly has declared that it is the policy of the Commonwealth's fish and game laws to "protect and conserve the wildlife of this Commonwealth," "promote the general welfare of the Commonwealth," and "provide for the prudent taking and disposition of wildlife within reasonable limits." KRS 150.015(1). And it has authorized the Department to regulate limits on possession of wildlife and to promulgate any administrative regulations "reasonably necessary to implement or carry out the purposes of" the fish and game laws. KRS 150.025(1)(b), (i).
To further promote wildlife conservation and management, the General Assembly has, for example, prohibited:
(a) Hunting, trapping, taking or possessing wildlife without a license, KRS 150.170(1); KRS 150.235(1);
(b) Buying or selling protected wildlife, KRS 150.180(1);
(c) Trafficking in endangered species of wildlife, KRS 150.183(1);
(d) Propagating or holding protected wildlife, KRS 150.280(1);
(e) Transporting or holding species of wildlife the Department determines are dangerous to native ecosystems, KRS 150.280(2); and
(f) Possessing any protected wildlife "except during the open season for the particular species," KRS 150.305(1). See also Cummings v. Commonwealth, 255 S.W.2d 997 (Ky. 1953) (affirming a conviction for violating KRS 150.305(1) for possession of a raccoon).
Based on its statutory authority, the Department's regulations allow certain permit holders to import, transport, or possess certain species of wildlife that otherwise would be illegal to import, transport, or possess. See 301 KAR 2:075 § 2 (providing for a wildlife rehabilitation permit); 301 KAR 2:081 § 3 (providing for commercial and noncommercial captive wildlife permits); 301 KAR 2:082 § 2 (providing for a transportation permit for exotic wildlife). Violations of the foregoing statutes and regulations are either misdemeanors punishable by fines or jail time, or both, or violations punishable by fines only. KRS 150.990.
The Department's first question concerns its options for handling native and inherently dangerous wildlife that are seized as evidence in a prosecution under the foregoing statutes and regulations for possession of such animals without a proper permit. Must the Department keep such animals alive through the conclusion of the criminal case, or may the Department instead euthanize the animals before trial and then store them (e.g., by freezing them) until the case is concluded?
The General Assembly has prescribed general rules for the seizure and disposition of evidence in prosecutions under Kentucky's wildlife conservation statutes. All law enforcement officers, including game wardens employed by the Department, "shall seize and take possession of any and all . . . wildlife . . . which have been taken, used, transported, or possessed contrary to any law or regulation adopted under" KRS Chapter 150. KRS 150.120(1) (emphasis added). [Footnote: As used in the statute, "shall" indicates a mandatory requirement. KRS 446.010(39).] The statute further prescribes what must be done with the seized wildlife: it "shall be impounded by the arresting officer and shall be taken before the court trying the person arrested." Id. (emphasis added). A game warden or other law enforcement officer therefore lacks any discretion about what to do with the seized wildlife; he must impound it and make it available to the court. "Until the rights of [the defendant] [are] finally determined, the courts . . . ha[ve] jurisdiction of" the seized wildlife. Wallace v. Sowards, 231 S.W.2d 10, 13 (Ky. 1950).
Only "[u]pon conviction" of the defendant does the court have discretion to declare that the seized wildlife is contraband. KRS 150.120(2). If the court so declares, it must enter an order to that effect and send a copy of its order to the Commissioner of the Department. Id. The contraband then "shall be placed in the custody of the arresting officer, to be delivered to the commissioner." Id. Only then—after the court declares the seized wildlife to be contraband and orders it to be delivered to the Commissioner—does the contraband become the property of the Department, to be disposed of as it sees fit. The general rule, therefore, is that the Department may not euthanize seized wildlife before the conclusion of the criminal case and the court declares it to be contraband.
To further highlight the necessity of first obtaining a post-conviction order declaring the seized wildlife to be contraband before the Department may euthanize it, compare KRS 150.120 to another statute in KRS Chapter 150. The General Assembly has required that illegal traps be seized as contraband, and that any improperly tagged trap "is hereby declared contraband and shall be so treated without any order of court so declaring." KRS 150.399. Thus, the General Assembly is well aware of how to draft a statute that allows contraband to be disposed of without a court order. But KRS 150.120 is not such a statute.
But that is not the end of the matter, because there is one circumstance in which wildlife seized as evidence may be euthanized by the Department before the conclusion of the criminal case. Under KRS 150.105:
Notwithstanding any other provisions of this chapter, the commissioner may, with the approval of the commission, authorize game wardens or any other persons to destroy or bring under control in such manner as he deems necessary any wild animal, fish or wild birds, protected or unprotected which are causing damage to persons, property or other animals, fish or birds or spreading diseases and which in his judgment should be eliminated or controlled to prevent further damage.
So, notwithstanding the requirements of KRS 150.120, the Commissioner may, with the approval of the Commission, authorize a game warden or another person to euthanize any wild animal that is either (a) causing damage to persons, property, or other animals, or (b) spreading disease. Under this statutory authority, the Department already has required the destruction of most rabies vector species that are trapped, 301 KAR 2:081 § 2(7), and native or exotic mammals that either bite a person or exhibit symptoms of a rabies infection, id. § 2(11)-(12); 301 KAR 2:082 § 6(8).
The Department also could use its authority under KRS 150.105, on a case-by-case basis, to euthanize and store any wildlife being held as evidence in a criminal case, but only if (a) the Commissioner determines the animal is causing injury to persons, property, or animals or is spreading disease and (b) the Commission concurs. But it is the opinion of this Office that the Department may not make or implement an across-the-board policy of euthanizing and storing all animals being held as evidence, for budgetary or convenience reasons or otherwise, and thereby attempt to skirt the requirements of KRS 150.120.
- Seizing and euthanizing an animal that has bitten a person
The Department's second question asks whether it may confiscate, seize, or take possession of wild or exotic mammals upon notification that a specific animal has bitten a person, so that the animal may be dispatched and tested for rabies. It may.
The Department points to KRS 258.085(1)(c), which states, "If a wild or exotic animal bites a human being or exhibits symptoms of rabies, that animal shall be destroyed and tested for rabies." That paragraph of the statute does not state who is responsible for euthanizing the animal. But see KRS 258.085(1)(a)-(b) (granting a health officer authority to quarantine an animal or order its destruction in lieu of quarantine). KRS 258.075 provides that the secretary of the Cabinet for Health and Family Services "may administer" the rabies law through local health departments and "may promulgate any administrative regulations and employ such personnel as are necessary to effectuate the purposes" of the rabies law. But the Cabinet's administrative regulation establishing the statewide rabies control program only states, as is relevant here, that "[a] wild animal suspected of rabies shall be sacrificed and its head submitted to the laboratory immediately," without specifying who must euthanize the animal. 902 KAR 2:070 § 5(3).
As KRS 258.075 makes clear, the Cabinet and local health departments may administer the rabies law, and therefore may euthanize a wild animal that bites a person under KRS 258.085(1)(c). But the Department's question essentially asks whether the Cabinet's and local health departments' authority is exclusive, or whether it too may euthanize such wild animals.
Nothing in the rabies law supplants the Department's statutory authority to "enforce the laws and regulations . . . relating to wildlife" and authorization to "exercise all powers necessarily incident thereto." KRS 150.021(1). A wild animal that bites a person has caused at least some damage to that person, and if a rabid animal, can spread disease to humans. It is therefore the opinion of this Office that the Department may euthanize such an animal under the authority of KRS 150.105, so that it may be tested for rabies under KRS 258.085(1)(c).
Russell Coleman
Attorney General
Aaron J. Silletto, Executive Director
Office of Civil and Environmental Law