Was Kentucky liable if elk it reintroduced damaged someone's property?

Plain-English summary

Kentucky began reintroducing elk in 1997. The Department of Fish and Wildlife Resources asked whether the state would be liable if those animals damaged private property. The Attorney General concluded in 1998 that the reintroduction itself did not create liability under the law and program described in the opinion.

The analysis had two parts. First, the opinion found no general legislative waiver of the Commonwealth's immunity for wildlife damage; it identified only an earlier, one-time waiver tied to a particular property. Second, a negligence claim before the Board of Claims would require a duty to prevent harm and a breach of that duty. The opinion concluded that the department had no such duty to control wild elk after release, even though it monitored and sometimes relocated them. It treated that management as comparable to its work with other native wildlife.

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did releasing elk make Kentucky automatically responsible for crop or property damage? A: The Attorney General said no under the reintroduction program described in 1998. The opinion treated the elk as wild after release and found no general waiver of immunity for damage they caused.

Q: Could a property owner bring a negligence claim against the state for elk damage? A: The opinion explained that the Board of Claims route required proof of state negligence, including a duty and breach. It concluded that the department had no duty to prevent damage by the released wild animals on the facts it examined.

Q: Did tracking or moving the released elk change the result? A: The opinion said those activities were wildlife management, not the kind of control that made the state responsible for the animals' later actions.

Background and statutory framework

The opinion tied the elk program to KRS 150.015's wildlife conservation policy. It discussed Kentucky's sovereign immunity and the limited negligence waiver administered through the Board of Claims under KRS Chapter 44. It relied on earlier AG analysis of native wildlife and decisions from other states involving reintroduced beavers and elk.

The Attorney General described its conclusion as a prediction of how a Kentucky court would treat this program. It did not decide a claim arising from a particular animal or injury.

Citations and references

Statutes: KRS 150.015; KRS Chapter 44; KRS 44.070.

Source

• Landing page: https://kdla.access.preservica.com/uncategorized/IO_ccfea178-52f1-4a7e-b7dd-ab248a5e5137/
• Original PDF: https://kdla.access.preservica.com/download/file/IO_ccfea178-52f1-4a7e-b7dd-ab248a5e5137

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

OAG 98-8

May 21, 1998
Subject: Liability for reintroduced wildlife Written by: Douglas Scott Porter, Assistant Attorney General

Requested by: | C. Thomas Bennett, Commissioner of the Kentucky Department of Fish and Wildlife Resources

Syllabus: The Department of Fish and Wildlife incurs no liabil- ity for damage done by reintroduced wildlife

Statutes construed: KRS 150.015, KRS 150.105, KRS Chapter 44; Ky Const § 231

OAGs cited: OAG 90-70 (f)

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 Depart- ment of Fish and Wildlife has inquired as to whether the KDFWR’s rein- troduction 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:

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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 furnish- ing 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 de- pends 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.? The KD- FWR has requested an opinion from this office concerning the potential liability of the Commonwealth for damage caused by the reintroduc- tion of certain species of animals.

The question concerning liability for wildlife damage was previ- ously 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.”

1Elk have also been reintroduced in Wisconsin, Michigan, Pennsylvania, Ar- kansas, 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 com- pensated for any damage caused to his property by wildlife for one year. Common- wealth v. Masden, 295 Ky. 861, 175 SW 2d 1004 (1943). The resolution of the Gen- eral 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.

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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 deter- mined by the Board that the Commonwealth was negligent. See KRS Chapter 44.

The second portion of OAG 90-70 reviewed the KDFWR’s poten- tial liability for a negligence action. Through KRS Chapter 44, the Gen- eral Assembly has waived state agencies’ immunity for acts of negli- gence 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 negli- gence claim one must establish a duty, a violation thereof, and a con- sequence 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 negli- gence and no liability.

OAG 90-70 reviewed a long litany of cases from other jurisdic- tions which analyzed the concept of state ownership of wildlife. How- ever, none is more persuasive than the United States Supreme Court ‘s decision in LaCoste v. Department of Conservation of the State of Louisiana, 263 US 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.’

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

3 See also Missouri v. Holland, 252 US 416, 64 L Ed 641 (1920), Mountain States Legal Foundation v. Hodel, 799 F 2d 1423 (10" Cir 1986), and Christy v. Hodel, 857 F 2d 1324 (9" Cir 1988).

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might fall into a different category because these species must be cap- tured, 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 cap- tivity must see to it, at his own peril, that they do no damage to oth- ers. 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 when- ever 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 Com- monwealth 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), in- volved 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 reintro- ducing the beaver into certain areas of the state and restocking exist- ing population. In one particular area, a small group of beaver de- stroyed 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

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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 de- struction of the animals already in the state. The New York court re- fused to recognize the argument that once an animal was relocated, even though it had been reduced to possession and control and relo- cated, it can no longer be considered wild.

The second case, Moerman v. State, 21 Cal. Rptr. 2" 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 na- tive 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 pro- gram, 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 Depart- ment 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 move- ments via ear tags and radio collars, establishing limited hunting of the species, and even moving them off private property when a prop- erty owner complained were nothing more than strategies of manage- ment of the animals. The court concluded that these efforts were not any different than the practice employed for managing its existing na- tive 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.

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The Moerman case is significant to this analysis because the KD- FWR’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 indi- cates 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 con- clude that the Commonwealth should not incur any liability for dam- age done by reintroduced wildlife absent a specific waiver by the Gen- eral Assembly. Without this waiver, the Commonwealth can only be sued for negligence in the Board of Claims. In order to prove negli- gence, 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 ani- mals which may result in damage. Therefore, it appears that the Com- monwealth should not be found liable even in the Board of Claims for damage done by animals which are reintroduced into the state. Ac- cordingly, the conclusion of OAG 90-70 is reaffirmed.

Albert B. Chandler III
Attorney General

Douglas Scott Porter
Assistant Attorney General

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