DEBATE OF '98- responsibilities of forest land owners

mcour at telxon.com mcour at telxon.com
Fri Apr 24 07:55:27 EST 1998


In article <353fa1c8.0 at news.pacifier.com>,
  dhogaza at pacifier.com (Don Baccus) wrote:

> What is the constitutional arguement for agreeing that causing the
> demise of an endangered species is a nuisance, while causing the demise
> of individuals of an unendangered species is not?

In Ohio law, it is recognized that certain non-endangered wildlife species can
be nuisances.  Last year, I killed 21 nuisance deer and around 40 nuisance
raccoons.  Now if the state which owns these game animals defines them as a
nuisance in certain situations, they would be hard pressed to argue that
destruction of their habitat causing a drop in their population is a nuisance.

> The public owns ALL wildlife, and the government
> has long asserted its right to protect wildlife, endangered or not.
> The Migratory Bird Act comes to mind.

When the Migratory Bird Act was challenged on a constitutional basis, it stood
up only because it was a treaty.  It turns out that the US government can do a
lot of things through treaty that the constitution would prohibit them from
doing in other ways.

Even the government's right to protect wildlife has limits which are in the
process of being defined.  When Michigan farmers began losing too much of
their crops to the state deer herd, the farm bureau threatened a legal
challenge based on the 5th amendment to recover the financial losses from
feeding the state-owned deer if the deer population was not reduced by a
certain amount.  A compromise was reached before it went to court.  A similar
situation is currently brewing in WV.

I have personally mentioned the possibility of a 5th amendment based suit
against the Ohio DNR under similar circumstances of losing 50% of our crops to
deer and raccoon damage.  They have not yet offered to pay for damages, but
they have become very liberal in allowing the farm to kill nuisance animals.
Frankly, I don't think I'd frame a court case in terms of recovering damages.
In this case, all the DNR has to lose is a few thoussand dollars.  I would
simply catch a nuisance animal on videotape while its destroying a crop, kill
it in violation of state regulations, and use the 5th amendment as a defense
for the killing.  The state DNR has a lot more to lose if a precedent is set
allowing farmers to kill nuisance animals in a manner not allowed by the DNR.
The DNR fears this possibility much more than simply paying damages because
they would lose control of managing all game species that cause damage to
agricultural crops.  State owned wildlife simply do not have the right to feed
in farmer's fields.

Michael Courtney

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