State v. Thompson
| Decision Date | 10 May 2001 |
| Docket Number | No. 26391.,26391. |
| Citation | 136 Idaho 322,33 P.3d 213 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Laura THOMPSON, Wendall P. Thompson, Eldon C. Palmer, Defendants-Appellants. |
| Court | Idaho Court of Appeals |
Daniel L. Hawkley, Boise, for appellants.
Hon. Alan G. Lance, Attorney General; William M. Loomis, Deputy Attorney General, Boise, for respondent. William M. Loomis argued.
Before SCHWARTZMAN, Chief Judge, LANSING, Judge, and HART, Judge Pro Tem.
Laura Thompson, Wendall Thompson, and Eldon Palmer appeal from their judgment of conviction for misdemeanor offenses related to killing a deer out of season. The defendants assert that their constitutional rights were violated. For reasons expressed below, we affirm.
Laura Thompson was troubled by wild deer eating plants in her garden. Four days before archery hunting season was to open in 1998, she saw a buck bedded down under a tree in her backyard. She knew that hunting season was not open, but nevertheless asked her son, Wendall Thompson, to shoot the deer. Wendall shot the animal, after which Laura and Wendall gutted and skinned the deer and then gave the head, hide and hooves to their neighbor, Eldon Palmer. In an effort to cover up the unlawful taking and possession of the deer, Palmer telephoned the Department of Fish and Game ("the Department") and requested a depredation permit that would authorize the taking of a deer out of season. After Department personnel informed Palmer that such a permit would not be issued so close to the opening of hunting season, Palmer disclosed that the deer had already been killed.
Laura, Wendall and Palmer were all charged in connection with the incident. Wendall was charged with unlawful taking of wildlife, Idaho Code § 36-1101(a); Laura with criminal solicitation of a crime, I.C. § 18-2001; and Palmer with aiding in the commission of a misdemeanor, I.C. § 18-304. Before their trial, the defendants filed a motion to dismiss the charges, asserting that § 36-1101(a) was unconstitutional because it impermissibly placed limitations on the constitutional right to protect one's property. The magistrate denied the motion. The defendants then filed a motion for reconsideration in which they argued that the statute prohibiting the killing of a deer out of season violated the defendants' rights to equal protection and was an unconstitutional taking by the government without just compensation or due process. The magistrate denied the motion for reconsideration. Thereafter, a trial was conducted and the jury found the defendants guilty of the charged offenses.
The defendants appealed to the district court, which affirmed the judgment of conviction. On further appeal to this Court, the defendants assert that there is a constitutional right to protect one's property against wildlife and that such a right supercedes the State's right to regulate wildlife; that they were denied their constitutional right to equal protection because Idaho law differentiates between livestock owners and all others with respect to the killing of wild animals for purposes of protecting property; and asserts that, through the deer's consumption of garden plants, the State took Laura's property without due process or just compensation.
The defendants first contend that I.C. § 36-1101, which prohibits killing deer out of hunting season, is in contravention of the constitutional right to protect one's property afforded by Article I, § 1 of the Idaho State Constitution. This constitutional right, they argue, supercedes the State's authority to regulate wildlife.
The constitutionality of a statute is a question of law over which this Court exercises free review. Meisner v. Potlatch Corp., 131 Idaho 258, 260, 954 P.2d 676, 678 (1998); State v. Branson 128 Idaho 790, 791, 919 P.2d 319, 320 (1996); State v. Casey, 125 Idaho 856, 857 n. 2, 876 P.2d 138, 139 n. 2 (1994); State v. Wood, 125 Idaho 911, 913, 876 P.2d 1352, 1354 (1993); Harris v. State, Dep't of Health & Welfare, 123 Idaho 295, 297, 847 P.2d 1156, 1158 (1992).
Article I, § 1 of the Idaho Constitution states: "All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety." This constitutional provision was discussed in Newland v. Child, 73 Idaho 530, 254 P.2d 1066 (1953), as follows:
The right to own and enjoy private property is fundamental. It is one of the natural, inherent and inalienable rights of free men. It is not a gift of our constitutions, because it existed before them. Our constitutions embrace and proclaim it as an essential in our conception of freedom. This right of property, though of such high order, is nevertheless subject to reasonable limitation and regulation by the state in the interests of the common welfare. Indeed, a statute imposing any limitation upon the right must be supported by such purpose.
Id. at 537, 254 P.2d at 1069 (citations omitted). Thus, this Court is presented with the narrow constitutional question of whether I.C. § 36-1101 promotes the common welfare and is a reasonable limitation upon an individual's right to protect her property.
The defendants, citing I.C. § 36-103(a), assert that the sole public purpose underlying the prohibition on killing a deer out of season is to provide continual supplies of deer for hunting. Therefore, according to the defendants, the statutory scheme promotes only the interest of hunters, which is a special interest, and the statute is not in the interest of the common welfare.
We disagree. The defendants selectively recite only the last phrase of I.C. § 36-103(a). The complete statute provides:
All wildlife, including all wild animals, wild birds, and fish, within the state of Idaho, is hereby declared to be the property of the state of Idaho. It shall be preserved, protected, perpetuated, and managed. It shall be only captured or taken at such times or places, under such conditions, or by such means, or in such manner, as will preserve, protect, and perpetuate such wildlife, and provide for the citizens of this state and, as by law permitted to others, continued supplies of such wildlife for hunting, fishing and trapping.
I.C. § 36-103(a) (emphasis added). Thus, the statute's plain language expresses that an underlying purpose of the State's wildlife policy, from which the prohibition on killing deer out of season stems, is the preservation, protection, and perpetuation of wildlife. There are diverse ways in which such a policy serves the common welfare of the citizens of Idaho. As the district court observed, "One reason to preserve wildlife is to provide a supply of animals for hunters and fisherman [sic], but there are many other reasons to preserve wildlife including maintaining biological diversity and encouraging tourism and wildlife viewing." Our Supreme Court has held that: State v. Medley, 127 Idaho 182, 186, 898 P.2d 1093, 1097 (1995). A similar sentiment was expressed by this Court recently in State v. Thurman, 134 Idaho 90, 996 P.2d 309 (Ct. App.1999), where we stated, "The wild game within our state belongs to the people as a whole in their collective, sovereign capacity and is treated as a common trust." Id. at 97, 996 P.2d at 316. Thus, we have no difficulty concluding that statutory limitations on the killing of depredatory deer out of season serve the common welfare of the people of this State.
We next examine this State's particular statutory scheme to determine whether it constitutes a reasonable limitation on the right of property protection. We find that Idaho Code § 36-1108 provides several means by which citizens may be protected from depredating wildlife without resorting to out-of-season killing. The statute provides that if a property owner makes a report that property is being, or is about to be, damaged or destroyed by wildlife, the Department must investigate the complaint within seventy-two hours. I.C. § 36-1108(a). If the complaint is determined to be well-founded, the Department may take any of several corrective measures. First, the Department may send a representative to "control, trap, and/or remove such animals as will stop the damage to said property." I.C. § 36-1108(a)(1). The Department may also grant to the complainant "properly safeguarded permission" to take those same measures. I.C. § 36-1108(a)(2). Third, when other means are unsuccessful, the Department may enter into an agreement with the property owner to allow continued use of lands by the animals, with financial compensation provided to the owner for crop damage caused by the wildlife. I.C. § 36-1108(a)(3), (b). The Department is also authorized "to provide support and assistance, including provision of materials to design, construct, and maintain fences for control of depredation." I.C. § 36-1108(b)(1). In addition to these broad remedies, the Department may authorize emergency depredation hunts, I.D.A.P.A. 13.01.08.800, and emergency feeding of depredating animals, I.D.A.P.A. 13.01.18.102.01.a.
In the present case, the record discloses that the Department had on several occasions advised Laura Thompson on methods to keep the deer away and also gave her depredation control supplies. During the year previous to these offenses, the Department had offered to have experienced hunters reduce the deer population around Laura's home, but this offer was refused.
Thus, Idaho law provides multiple methods of assistance to property owners to prevent depredation and to compensate for crop damage already done, and assistance had been made...
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