I have to paraphrase this because Google books won’t let me see the same thing I could read yesterday:
A state has no general or innate duty to be responsible for “game” damage. Such liability is based in tort law and is either nuisance law or negligence, AND the state is responsible only it agreed to be liable under a (specific) tort claims statute or other law that waives sovereign immunity.
With respect to the state of Colorado I believe it has both created a nuisance situation and is negligent. Potential sources of negligence are:
- Responsibility to manage in the best interests of the people (33-1-104);
- Responsibility to provide sufficient and appropriate game damage prevention materials to every landowner (33-1-103.5);
- Failure to protect habitat (33-1-110);
- Failure to maintain adequate and proper populations of wildlife to preserve the proper ecological balance of the environment (33-1-106); and
- Provide required data to the Colorad general assembly (33-3-111).
- Failure to meet herd management objectives–ANALYSIS PENDING.
Some more information on changes to requirements surrounding damage prevention materials: a Google search on the law and a Google search on Senate bill S-09-024. This is important in that it shows 1) clear intention away from sovereign immunity and 2) a revised, current change of mood and intention. Here, Colorado General Assembly “sesssion laws.” Again, a key is a desire for change and greater accountability on the part of the DOW. Budget appropriations are included.
The Evolution of National Wildlife Law (Third Edition)
American Wildlife Law by Thomas Alan Lund (1978)