(Back) Into the Wild?
By Eric Roth
J.D., University of the Pacific, McGeorge School of Law to be conferred May 2005
There's a fascinating rumor going around the California Departments of Fish & Game and Parks & Recreation. It seems that some employees of those fine organizations are working under the belief that our state government is potentially liable in tort for harm done to citizens or their property by a certain class of wild animal. That class of animal is defined, according to the tribal lore, as those that have been identified to the rangers or other state employees as problem critters: Such an animal has been seen in a populated area or near a campground, or has been captured for some brief period and/or tagged for further study. The idea is once that such an animal-one hears in this context about bears, mountain lions, bobcats, and wolves-is released, should it subsequently return and threaten or harm a person, harm livestock, or cause some kind of property damage, the Golden State could then be liable to the private citizen so harmed. This has led to the belief that it's best, legally at least, that such animals be destroyed.
Where does this belief come from? The old common law concept of sovereign immunity is the large hurdle such a rule would have to overcome. The idea, to generalize a bit, is that any employee or agent of the government who acts in good faith and according to an official policy of the government is subsequently protected from any civil claim that might arise from his actions. Assuming that the release of an animal into the wild is part of a policy of a state agency, and that policy has been arrived at with some reasonable due diligence, then the government has nothing to fear with respect to possible civil claims arising from the animal's subsequent behavior.
A lack of any on-point California case law makes it hard to squelch in one swipe the fear of the state's supposed liability in such a situation. But there is some precedent in federal law. The Federal Tort Claims Act specifies when the U.S., and federal employees and agencies in general, can be sued. The Act waives in certain situations the sovereign immunity normally available to the government, yet creates an exception to such waiver (i.e. takes back the government's immunity) in what's called "discretionary function exception" which (again, simplifying a bit) says that you can't sue for harm caused by acts of federal government employees who are carrying out their obligations under statutes or regulations, or performing discretionary functions or duties on behalf of the government.
In Martin v. United States, 546 F.2d 1355 (1976), the Ninth Circuit Court of Appeals said, in a case of death by grizzly bear attack in Yellowstone National Park, "We do not believe it was the intention of Congress in enacting 28 U.S.C. § 2680(a) [the exceptions subsection of the Tort Claims Procedure section of the U.S. Code] to fasten liability upon the defendant [the U.S.] for its handling of bears.when such discretion is exercised reasonably, after investigation, consultation, and reports by qualified experts in the field."
So arguments can turn on what constitutes a "discretionary" function (as opposed to an "operational" one). Commentary from the National Institute for Trial Advocacy says the effect of this is that it "generally prevents plaintiffs from using state tort law to sue the government for damages caused by its policy decisions."
The interesting upshot of all this, and the hope of some environmentalists who have bee following the issue, is that it's possible to solve two problems at once: A well thought out policy governing what state employees should do about "problem" animals in the wild, or that come from the wild into human-visited or -populated areas, would satisfy those concerned with the humane treatment of those animals (assuming that such policy doesn't conclude that all such animals are better off dead). Furthermore, such a policy would almost certainly protect the state of California from any liability for harm caused by an animal that had been managed under the policy's dictates. Everybody wins.