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“We think about it every day.  And I know a lot of our great fans do as well. But I’m obsessed with it, and I think our staff and I think certainly our players are obsessed with it, too. And we know the last two seasons haven’t gone the way any of us would like. But at the same time, we’ve made some progress, we’ve kind of put the foundation down, and now we’re ready to start getting going with more wins.”

Detroit News article

I was so pleased to see this ad on television recently.

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APPROVED by Governor June 1, 2009
EFFECTIVE June 1, 2009

S.B. 09-24 Game damage – eligibility for prevention materials – timeliness of response by division of wildlife – liability for claims – issuance of permits to take wildlife – annual report on game damage issues – appropriation. Makes every landowner in the state eligible to receive temporary game damage prevention materials from the division of wildlife in the department of natural resources (division). Allows a landowner to obtain permanent game damage prevention materials if the landowner does not unreasonably restrict the hunting of species likely to cause damage, and:

The landowner charges not more than $500 per person, per season, for big game hunting access on or across the landowner’s property; or

If the landowner charges in excess of $500, the landowner has requested and been denied permanent game damage prevention materials from the habitat partnership program administered by the division and the division determines that excessive game damage is occurring, and may continue to occur in the future.

Requires the division to contact a landowner who has submitted an inquiry related to game damage within 2 business days of receiving the inquiry. Mandates that, within 5 business days after receiving a request for game damage prevention materials, the division shall consult with the requesting landowner about sufficient and appropriate game damage prevention materials. Unless otherwise agreed to by the landowner and the division, requires temporary game damage prevention materials to be delivered within 15 business days of the consultation. States that permanent game damage prevention materials shall be provided to an eligible landowner within 45 days of the landowner’s request for such materials.

Clarifies that the state shall be liable for any damages attributable to insufficiency or unsuitability of the game damage prevention materials provided by the division or the inappropriate or insufficient erection of game damage prevention materials.

Increases to $500 the maximum amount of a fee, beyond which the state is relieved of liability for damage caused by wildlife, that a landowner may charge per person, per season, for big game hunting access on or across the landowner’s property.

Requires the division to consult with the property owner when determining whether the owner’s property has sustained excessive damage due to wildlife. Encourages the division to issue permits to take wildlife when the wildlife causing the damage exceeds the objective set for that geographical area for that year. Adds designees of property owners to the list of persons eligible to receive a permit to take wildlife when excessive damage occurs. Allows a property owner to request the wildlife commission to review a denial of a request for such permit to take wildlife. Prohibits such permits from being issued or used in violation of local firearms restrictions.

Commencing with the 2010 legislative session, requires the division to report annually to the senate agriculture and natural resources committee and the house agriculture, livestock, and natural resources committee on game damage and game damage prevention issues. Specifies the minimum information to be included in the report. Sets January 31 as the annual date by which the report must be made.

Appropriates $600,000 from the wildlife cash fund to the department of natural resources, division of wildlife, for the fiscal year beginning July 1, 2008. For the fiscal year beginning July 1, 2009, appropriates $1,450,000 from the wildlife cash fund to the department of natural resources, division of wildlife, special purpose, game damage claims and prevention, for implementation of the act.

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Yeah!  This is quite startling.  In this time of extreme budget and economic hardship–read, “every landowner,” “encourages the division to issue permits to take wildlife,” “clarifies that the state shall be liable for any damages.”  (Note:  firearms restrictions DO NOT apply to appropriate law enforcement (e.g., DOW) personnel.)  (LINK)

Wildlife Law:  A Primer

I have to paraphrase this because Google books won’t let me see the same thing I could read yesterday:

A state has no general or innate duty to be responsible for “game” damage.  Such liability is based in tort law and is either nuisance law or negligence, AND the state is responsible only it agreed to be liable under a (specific) tort claims statute or other law that waives sovereign immunity.

With respect to the state of Colorado I believe it has both created a nuisance situation and is negligent.  Potential sources of negligence are:

1. Responsibility to manage in the best interests of the people (33-1-104);
2. Responsibility to provide sufficient and appropriate game damage prevention materials to every landowner (33-1-103.5);
3. Failure to protect habitat (33-1-110);
4. Failure to maintain adequate and proper populations of wildlife to preserve the proper ecological balance of the environment (33-1-106); and
5. Provide required data to the Colorad general assembly (33-3-111).
6. Failure to meet herd management objectives–ANALYSIS PENDING.

Some more information on changes to requirements surrounding damage prevention materials:  a Google search on the law and a Google search  on Senate bill S-09-024.  This is important in that it shows 1) clear intention away from sovereign immunity and 2) a revised, current change of mood and intention.  Here, Colorado General Assembly “sesssion laws.”  Again, a key is a desire for change and greater accountability on the part of the DOW.  Budget appropriations are included.

The Evolution of National Wildlife Law (Third Edition)

American Wildlife Law by Thomas Alan Lund (1978)

Amendment 5 of the Constitution of the United States:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

As can be gleaned from this one, property rights are broader than what we may think of as “possessions.”  Indeed, they are about freedom.

38-1-01 

(1) (a) Notwithstanding any other provision of law, in order to protect property rights, without the consent of the owner of the property, private property shall not be taken or damaged by the state or any political subdivision for a public or private use without just compensation.

http://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1826&context=icwdm_usdanwrc

Montana

http://data.opi.state.mt.us/bills/mca/87/1/87-1-225.htm

http://fwp.mt.gov/habitat/landownersGuide.html#gameDamage

Oregon

http://www.dfw.state.or.us/

Idaho

http://fishandgame.idaho.gov/cms/wildlife/landowners/BGDamageClaims.pdf

Wyoming

New Mexico

Utah

Washington

This is a work in progress…

1. Okay, this will seem vain, but… My number one reason is beauty, comfort in my home and in my yard, and yes, prestige!
2. Shade, coolness in the summer, and protection for other foliage and plants.
3. Energy savings, cooler in the summer and, can one claim this, warmth in the winter?
4. Oxygen creation–uses carbon dioxide, makes oxygen, and helps with global warming.

Thursday March 4, 2010 I called the Denver office of the Division of Wildlife (the DOW) to request materials for protection from wild animals per article 33-3-103.5 of the Colorado Revised Statutes.  First I was asked if I have a 12 gauge shotgun.  I replied “No I do not, nor do I wish to shoot anything, and I believe it would be illegal in my neighborhood.”  The woman seemed distressed by my request.  I was immediately transferred to Liza Hunholz (303/291-7122), which was odd, particularly since these people are difficult to get a hold of.  Ms. Hunholz is the Area Wildlife Manager for DOW Region 5 in which my home in Evergreen is located.

Ms. Hunholz too seemed confused, even put off by my request.  Ms. Hunholz said that I am eligible for “temporary” materials (this is incorrect, I am also eligible for “permanant” ones).  Eventually, after several questions on my part, I was told that temporary materials are only “pyrotechnics” (presumably, blanks) and “elk panels” (i.e., 10 foot by 10 foot panes to drape over hay stacks).  Neither are “sufficient and appropriate” for a suburban home as required by the statute.

I know, because I have spent many years studying this (www.ThinkLikeABeast.com), that there are many helpful solutions.  These include fencing materials, sprays, plastic and metal tree protection devices, scare products, predator urine, and more.  The Colorado DOW should be expert at these.  But…  Seemingly, they do not abide by the law and they do not provide them.  I would expect these solutions to be promoted and proactively offered–I know they exist, I could do them myself, but I shouldn’t have to.  Plus, as a business owner who wants to grow the overall category, I want to see what the DOW has to offer.  Why don’t they do it?  Instead, they seem defensive, contentious, intransigent, and extremely difficult to deal with.

Here is a link to a DOW document that explains, briefly, some DOW programs.  The document is incorrect in stating “damage prevention materials are distributed to qualified landowners for the protection of their crops and livestock.”  The above-referenced statute does not say anything about crops and livestock.

This is the bigger issue.  Providing sufficient and appropriate damage prevention materials for  ALL affected landowners creates accountability.  It is a way to force more appropriate management of the animals, habitat preservation, controlling of numbers, etc. (all also required by law).  I was thrilled to see this expansion to the state laws.  Finally, there is supposed to be accountability.  To the DOW the implication is obvious:  If you don’t want to continuously hand out damage prevention materials you must do a better job of managing the animals.

(Approximately five years ago when I filed a damage reimbursement claim with the DOW I repeatedly requested damage prevention materials which, even then, before the law expansion, they were required to provide.  They refused, or more accurately, failed to respond at all.  The request, and the issue was simply avoided.  Incidentally, my damage claim was refused–I was never told ahead of time that it would be summarily denied due to appropriate and entirely unrelated firearms restrictions in area surrounding my home.)

My experience also suggests that data required by the Colorado General Assembly may be incomplete or misleading–apparently, all requests for protection materials are not logged and handled in a uniform, responsive way.  Friday of last week I called Ms. Hunholz and requested these data and I have not heard back.  Also Friday I called again, this time to the “main customer service number” and requested these data, a 5-year elk management report for my “DAU,” and repeated my request for damage prevention materials I still do not know how to receive the information I asked for.

Anyway, or finally, during our conversation on Thursday Ms. Hunholz said I would be hearing from Mr. Ty Petersburg, the DOW representative/field manager in my area.  Per my caller ID I received a (one) call promptly Friday afternoon and an e-mail from him, both in impressive and responsive fashion.  Mr. Petersburg informed me that he could provice elk panels, which I indicated would not be appropriate for protecting the young ponderosa pines that I have planted in my yard.  I also informed him that I am having a particular problem with, in addition to elk, a group of some thirteen, very hungry mule deer that are virtually living in my yard.  Mr. Petersburg indicated he would have to ask his supervisors about other, potential damage control options; again, in responsive fashion, he e-mailed them Saturday and copied me on the correspondence.  I have not received further word.

Mr. Petersburg is friendly and responsive, but, unfortunately, nothing seems to happen.  My yard, neighborhood, and indeed home town continue to be ravaged by deer and elk.  And I have been extremely disappointed by this process.  I don’t wish to argue and continuously request and complain.   I realize this is an awful lot to expect, but boy, if only if I was told… ‘we’re sorry you are experiencing problems, we will take care of it as soon as possible.’  I am far more knowledgeable than most and I absolutely believe that wild animal damage–I am loathe to use the terms “big game”–can be effectively managed and minimized.

Note:  Here is a link to damage control in Montana. Montana has the second largest elk population after Colorado.  This is about property rights.  It appears as if it is taken more seriously in Montana.

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Here is a key to the law change in Colorado, from the legislative representative who sponsored the house bill:

“The way I understand it right now, it’s nothing more than a preventative materials bill, which allows anybody that calls who has game damage issues to request preventative materials,” Sonnenberg said. “It also sets up a process for dealing with the issue of what’s permanent and what’s temporary.”

This post, in the form of an e-mail was sent to the following Colorado officials, elected representatives, and employees on Monday March 8, 2010.

1. Tom Remington (Director) and Ty Petersburg, Colorado Division of Wildlife;
2. Al White and Jerry Sonnenberg, state general assembly senate and house, repectively, sponsors of Senate Bill 24 which expanded the game damage duties of the DOW; and
3. Cheri Gerou (R, Evergreen) and Dan Gibbs (D, District 16), Colorado General Assembly house and senate, respectively, local/Evergreen representatives.

I’d like to wait a few days and then contact the governor and state attorney general as necessary.  Make no mistake, this is not about the trees in my yard because after years of research, experimentation, and expense I know how to protect them.  This is about all trees and personal property as well as the role and duty of government.  Legally, it is the will of the people and it is written into law.