Background
Seven Catron County property owners and ranchers sued the New Mexico Game Commission and the Department of Game and Fish, alleging that state management of the Greater Gila elk herd — a Rocky Mountain elk population reintroduced by the state after native Merriam’s elk were hunted to extinction — had caused substantial damage to their private lands. At the time of suit, the herd numbered up to 27,000 animals. Plaintiffs described herds of up to 500 elk occupying their properties for months at a time, destroying fences, crops, and pasture.
Plaintiffs advanced two theories of liability: (1) an unconstitutional taking under Article II, Section 20 of the New Mexico Constitution, arguing both that the elk’s physical occupation of their land was attributable to the state and that state regulations deprived them of the right to control access to their property; and (2) public and private nuisance in fact, based on the agencies’ implementation of the Elk Rule, the EPLUS program, and depredation regulations. The district court granted summary judgment for the state on the takings claim but denied summary judgment on nuisance, finding factual questions about whether elk constituted a nuisance. Both sides sought interlocutory review.
The Court of Appeals consolidated the two appeals. The central legal questions were whether the state’s trusteeship and regulatory management of free-ranging wildlife could ground a takings claim and whether lawfully authorized wildlife management programs could expose state agencies to nuisance liability.
The Court’s Holding
On the takings claim, the court affirmed summary judgment for the state on both theories. First, the court held that the physical presence of elk on private property is not attributable to the state because the government holds wildlife in trust for the public rather than as an owner, and trusteeship does not create liability for the independent actions of wild animals. The court declined to apply the Electro-Jet “calculated risk” standard, reasoning that standard presupposes a government-caused occupation — here, it was the elk, not any government instrumentality, that occupied the land. Second, the court rejected the argument that state elk regulations effected a taking by depriving landowners of the right to exclude: the regulations do not authorize or require elk to enter private property, do not prohibit landowners from fencing their land, and create no formal entitlement for any physical invasion. Participation in EPLUS — which does require accepting elk — is entirely voluntary.
On the nuisance claim, the court reversed the district court’s denial of summary judgment and entered judgment for the state. Drawing on State ex rel. Village of Los Ranchos de Albuquerque v. City of Albuquerque (1994), the court held that when government conduct constitutes the discretionary implementation of a wildlife management system duly authorized by law, that conduct cannot be deemed wrongful or unreasonable for purposes of nuisance liability. Because the Commission’s and Department’s challenged acts — setting hunting license quotas, administering EPLUS, and enforcing depredation rules — all fall within their statutory authority and represent discretionary policy judgments about managing an inherently unpredictable natural environment, they carry a lawful-authority defense that bars the nuisance claim as a matter of law.
The court affirmed the district court in part and reversed in part, directing summary judgment for the state on all claims.
Key Takeaways
- State trusteeship over wildlife does not transform free-ranging wild animals into state instrumentalities; damage caused by elk on private property is not attributable to the state for takings purposes, even where the state reintroduced the species and actively manages population size.
- A wildlife management regulatory scheme does not constitute a physical taking of private property unless it affirmatively authorizes invasion of, or formally grants an entitlement to enter, private land — limiting how landowners may hunt or remove animals is not sufficient.
- Under the Los Ranchos III framework, discretionary acts that implement a wildlife management program duly authorized by law constitute a complete defense to nuisance liability; courts will not second-guess the policy judgments of agencies charged with regulating an unpredictable natural environment.
- Voluntary programs like EPLUS, which require landowners to agree to accept elk in exchange for hunting licenses, do not create a compelled appropriation of property rights for those who do not participate.
Why It Matters
This decision is a significant win for state wildlife agencies operating large ungulate management programs throughout the West. By rejecting both physical-taking and nuisance theories grounded in elk depredation, the court insulates New Mexico’s elk management regime — and by analogy, similar programs for bison, deer, wolves, and other species — from damages liability arising out of population-level policy decisions. Landowners who suffer genuine losses retain access to the state’s voluntary depredation assistance program, but cannot use takings or nuisance litigation to force changes in herd-size objectives or hunting license allocations.
The ruling also clarifies how Los Ranchos III‘s “duly authorized by law” defense extends beyond municipal public works projects to encompass state natural resource management. Future plaintiffs seeking to challenge wildlife regulations through tort or constitutional channels will need to identify a specific regulation that affirmatively appropriates a property right or that was not lawfully authorized — a significantly higher bar than alleging foreseeable damage from a growing, state-managed herd.