Court Refuses to Weigh Claim of Rancher Over Elk Damage

If wildlife managers relocate a herd of hungry animals next to your property, which then begin paying you unwanted visits, you are out of luck.

That’s the message given a Mendocino County rancher who lost an appeal at the Supreme Court on Monday. The justices refused to consider his claim that the government is responsible for the damage caused by wild animals it has set loose.

In 1976, Robin Moerman bought a 200-acre ranch with the intent of raising sheep and cattle. For more than a century, no one had seen a tule elk in Mendocino County.

But in 1978, California fish and game officials began to capture elk in the Owens Valley and move them to Mendocino National Forest, only 15 miles from Moerman’s ranch.

Within a few years, the 700-pound animals had trampled Moerman’s barbed-wire fences and were foraging on his property. Because the elk were a protected species, the rancher was allowed to shoot only one per year. He tried to scare them off with helicopters, guns and firecrackers, but without success.

Faced with “daily attacks from 100 ravenous tule elk,” which cost him an estimated $8,000 a year, Moerman filed a lawsuit contending his constitutional rights were being violated. The 5th Amendment says the government cannot take private property for public use without paying compensation.

“Moerman is being forced to personally shoulder the cost of a social program implemented by the government,” his attorney said.

While a state judge said he was “sympathetic to (the rancher’s) plight,” a state appeals court flatly rejected his damage claim on the grounds that the elk, now running free, are “not controlled by the state.”

Despite the support of state farmers and sheep growers in his appeal, the high court refused to hear his case of Moerman vs. California. Five years ago, the justices turned down a similar claim from a Montana rancher whose farm animals were being ravaged by federally protected grizzly bears.

Property rights activists in the West have urged the court to breath new life into the 5th Amendment, but the justices have been wary of invoking the amendment except in cases where officials actually take possession of private property.