Collopy v. Wildlife Commission, Dept. of Natural Resources, 79SA43

• Decision Date: 16 March 1981
• Docket Number: No. 79SA43,79SA43
• Parties: Charles T. COLLOPY, Appellant, v. WILDLIFE COMMISSION, DEPARTMENT OF NATURAL RESOURCES of the State of Colorado, Division of Wildlife, Department of Natural Resources of the State of Colorado, Appellees.
• Court: Colorado Supreme Court

Page 994

625 P.2d 994

Charles T. COLLOPY, Appellant, v. WILDLIFE COMMISSION, DEPARTMENT OF NATURAL RESOURCES of the

State of Colorado, Division of Wildlife,

Department of Natural Resources of the

State of Colorado, Appellees.

No. 79SA43.

Supreme Court of Colorado.

March 16, 1981.

Fischer & Wilmarth, Elery Wilmarth, Stephen E. Howard, Fort Collins, for appellant.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Lynn B. Obernyer, Asst. Atty. Gen., Denver, for appellees.

DUBOFSKY, Justice.

Appellant Charles T. Collopy (Collopy) appeals from a district court order declaring that neither Wildlife Commission Regulation 520a.24 ¹ closing four square miles of Weld County to goose hunting nor state statutes prescribing specific remedies for wildlife-inflicted property damage ² is, as applied, an unconstitutional taking or damaging of his property without just compensation, Colo.Const., Art. II, Sec. 15, or in derogation of the due process and equal protection clauses of the state and federal constitutions, Colo.Const., Art. II, Sec. 25; U.S.Const., amend. XIV. Appellee Wildlife Commission, Department of Natural Resources of the State of Colorado (Commission) cross-appeals, contending that the district court should have dismissed the action on jurisdictional and justiciability grounds. We affirm the decision of the district court.

In 1973, Collopy purchased a 160 acre farm abutting Windsor Lake in Weld County. His tenants have cultivated beets, silage corn, barley and alfalfa on the farm. Cattle are pastured on crop residues left in the fields after harvests.

In 1968, the Commission promulgated Regulation 520a.24 completely prohibiting goose hunting within a four square mile area surrounding Windsor Lake. The boundaries of the closure coincide with several public roads while the closed area itself comprises the lake, several privately-owned farms and the Collopy property. Goose hunting is permitted on private farm land adjacent to, but outside, the closed area. The owners of these farms earn substantial incomes from the rental of "goose pits" to goose hunters.

The Windsor Lake closure was established as part of a network of closed areas scattered throughout eastern Colorado in accordance with the Commission's statutory authority to promulgate rules and regulations "clos(ing) seasons on any species of wildlife in any specific locality ... when it finds after investigation that such action is necessary to assure maintenance of an adequate supply or to preserve the proper ecological balance of the environment,"

section 33-1-110(1)(a), C.R.S.1973. The district court found that these closures are intended to improve local goose hunting conditions by promoting expansion of the native goose population and by attracting transient populations of migratory wild geese to the state. The court also found that the Windsor Lake closure is the "hub" of the system of closed areas located in Weld and Larimer Counties. It serves as a centrally located resting area for geese which fly to and feed in other closures in the vicinity. Maintenance of a buffer zone around the lake is necessary if the closure is to fulfill its intended purpose. Allowing goose hunting within the closed area would discourage geese from resting on the lake which, in turn, would severely impair the effectiveness of the Commission's goose protection and management program in northeastern Colorado.

The average peak flock at the Windsor Lake closure is approximately 7,000 geese. The geese begin to arrive in late November and are present in large numbers throughout December and early January. Although they rest on the lake and usually fly elsewhere to feed, many geese also forage on the farms within the closed area.

Since 1973, Collopy and his tenant have sustained goose-inflicted damage to their third cutting of alfalfa and to such crop residues as beet tops and corn stalks. ³ The trial court valued the crop damage caused by the geese in 1975 and 1976 at approximately $250 per annum.

Although Collopy corresponded with the Commission in 1975, demanding payment of compensation, permission to hunt on his own farm or closure of farms outside the area boundaries to goose hunting, he did not request the administrative relief authorized by section 33-3-106, C.R.S.1973, before commencing this lawsuit. ⁴

In October, 1976, Collopy filed a complaint in the Weld County District Court which, as subsequently amended, alleged that the Windsor Lake closure, in conjunction with the provisions of article 3 of title 33, C.R.S.1973, governing a property owner's remedies for wildlife-caused damages: (1) took or damaged his property for a public purpose without just compensation in violation of Colo.Const., Art. II, Sec. 15; (2) deprived him of due process of law in violation of Colo.Const., Art. II, Sec. 25; and (3) denied him equal protection of the laws in violation of Colo.Const., Art. II, Sec. 3. ⁵ The complaint sought a declaration that sections 33-3-104, C.R.S.1973 and 33-3-106 were unconstitutional, an injunction against continued closure of the farm to goose hunting without compensation for damages resulting from the closure, and compensatory damages for crop losses suffered between 1972 and 1976.

Collopy abandoned his claim for compensatory damages at trial. The district court then ruled that the issues to be tried would be confined to the constitutionality, as applied, of the statutes and regulations governing the Windsor Lake closure. Following a trial to court, the court held that the statutes and regulations in question had been constitutionally applied to Collopy's land.

Because we find that neither the closure nor the statutory scheme governing property owners' remedies for wildlife-caused damage unconstitutionally took or damaged Collopy's property or infringed his right to due process and equal protection of the laws, we affirm the trial court's declaratory judgment that the closure and statutory scheme are constitutional as applied to him. Similarly, because we are unpersuaded that either jurisdictional rules or justiciability principles dictated dismissal of the action, we uphold the trial court's denial of the Commission's motions to dismiss.

I.

A.

The gist of Collopy's complaint is that the regulation establishing the Windsor Lake closure and article 3 of title 33, C.R.S.1973, governing property owners' remedies for wildlife-caused damage, as applied to his farm, unconstitutionally took or damaged two property rights protected by the just compensation clause of the Colorado Constitution, Art. II, Sec. 15.

Section 33-3-102, C.R.S.1973 provides: "The state of Colorado shall be liable for certain damages caused by wildlife, but only to the extent provided in this article." Sections 33-3-103 and 33-3-104 ⁶ specify the circumstances in which the state may be compelled to respond in money damages for wildlife-caused injuries to property. Nothing in these statutes exposes the state to liability for crop and crop residue damage inflicted by wild geese not under the direct control of Division of Wildlife ⁷ (Division) personnel.

Section 33-3-106 authorizes the issuance of permits to kill specified numbers of wildlife if the Division concludes that they are causing "excessive damage" to property. ⁸ Although this remedy is nominally available to property owners seeking to curtail the damage caused by wild geese foraging in their crops and residues, it affords only prospective relief; no compensation is payable for the "excessive damages" which must be incurred before the Division may authorize the destruction of the offending geese.

Collopy complains that sections 33-3-104 and 33-3-106 are unconstitutional because the state cannot constitutionally disclaim its obligation to pay just compensation to one whose property has been taken or damaged for a public purpose. See Board of County Commissioners v. Adler, 69 Colo. 290, 194 P. 621 (1920) (Art. II, Sec. 15 creates an exception to the state's sovereign immunity from damages liability). It follows, however, that sections 33-3-104 and 33-3-106 can be unconstitutional as applied to Collopy only if it first is determined, as a matter of law, that the Windsor Lake closure constitutes a compensable taking or damaging of Collopy's property for a public purpose. ⁹ The district court resolved this pivotal question adversely to Collopy. We agree.

Collopy asserts that the closure is a compensable taking or damaging of either or both of two vested property rights protected by Art. II, Sec. 15: (1) an incorporeal hereditament, incident to his ownership of the underlying fee, to take wild game on his own soil (property ratione soli ¹⁰) and (2) a valuable property right in the growing crops or crop residues appropriated by the geese.

Collopy does not dispute the well-established rule that "(t)he ownership of wild game is in the state for the benefit of all the people ...," Maitland v. People, 93 Colo. 59, 62, 23 P.2d 116, 117 (1933); see section 33-1-104, C.R.S.1973; ¹¹ nor does he deny that the state has both the power and the duty to enact reasonable measures to protect and conserve wild game within its borders. Maitland v. People, supra. However, relying on Alford v. Finch, 155 So.2d 790 (Fla.1963) and Allen v. McClellan, 75 N.M. 400, 405 P.2d 405 (1965), Collopy argues that state ownership of wild game does not extinguish a landowner's independent common law property right to hunt such game upon his own land. Although the state may, if reasonably necessary, regulate public hunting of state-owned game by establishing closed seasons in specific localities, see section 33-1-110(1)(a), Collopy contends that its power to enforce closure regulations against private landowners is circumscribed by the constitutional prohibition against taking private property here property ratione soli without just compensation. ¹²

This constitutional claim is cognizable only if it is...