The salient features of New Mexico’s elk management program, including the state’s introduction and efforts to build up the population of elk, the EPLUS (“elk private lands use system”), the mitigation assistance program, and the introduced elk becoming a nuisance, to private property owners are common in these type of things.
But like a lot of what we call “wildlife” takings (like this and this, for example), the decision of the New Mexico Court of Appeals in Kiehne v. New Mexico Dep’t of Game and Fish, No. A-1-CA-42309 (June 3, 2026), does not go well for the owners.
The court rejected a claim that the state is liable for a physical taking because these elk have wrought damage. The elk are wildlife, not state actors. As the opinion puts it:
As we have explained, the occupation of the elk—even though the state reintroduced the elk and Defendants manage the elk population—is not generally attributable to Defendants because wildlife and the natural condition of the land is generally out of the government’s control.
Slip op. at 10.
Not our elk, not our problem. [Sidebar: if, as some argue, wildlife has property rights, would the elk here be liable? We hate to even go down this path.]
The court also concluded that even if the elk were to be deemed state actors, the invasions do not infringe on the fundamental right to exclude and control access to the owners’ land. The state doesn’t require the elk to be there, and (at least in theory) allows owners some avenues to keep the elk from going onto property, or getting them off once they’re there of their own accord.
None of these regulations generally require or authorize elk on private properties or prevent property owners from building fences to keep them out. See NMSA 1978, § 77-16-1 (1909) (requiring that “[e]very gardener, farmer, planter or other person having lands or crops that would be injured by trespassing animals, shall make a sufficient fence” to prevent the trespass). Though Plaintiffs’ right to
control access has been impacted by the elk, the regulatory program creates no entitlement for any physical invasion of private property and therefore, does not deprive Plaintiffs of any property right.
Slip op. at 13.
Fence ’em out or … (yum…just saying).
Kiehne v. New Mexico Dep’t of Game and Fish, No. A-1-CA-42309 (N.M. App. June 3, 2026)