State v. Vander Houwen

¶25

Schultheis, J.

(concurring) — At the outset, I acknowledge the statutory scheme enacted by the legislature to address damage caused by wildlife. Ch. 77.36 RCW. At trial, Jerrie Vander Houwen proffered two jury instructions regarding statutory defenses based on this legislation. The trial court refused to give one of the instructions but allowed the other. His RALJ appeal before the superior court embraced statutory defense issues, and he continued *816to argue them before our commissioner in his motion for discretionary review. The order granting discretionary review did not expressly limit the issues upon which review was granted. See RAP 2.3(e).

¶26 As to the issues addressed, analytically, I agree generally with the majority’s assessment of the law, but I am sympathetic to Mr. Vander Houwen’s predicament. In a similar case, a Pennsylvania judge ultimately held that “the owner of real estate has an indefeasible right to destroy a deer when necessary to protect his crop. Any legislation which undertakes to deprive him of that right contravenes the Constitution.” Commonwealth v. Gilbert, 5 Pa. D. & C. 443, 446 (1924). In so doing, the judge explained his or her reasoning and the inequity in holding otherwise:

A portion of this county has become a great fruit-growing district. Fruit here has become a valuable article of commerce. Great tracts of land that were practically untillable have been cleared and planted in fruit trees. Very large sums have been spent in providing these and they have yielded very abundantly and have been a source of very ample return to the owners. A large number of wild deer have been for years living in this mountain. They not only damage the fruit but the vegetables and the gardens and the crops in the fields as well. They have rendered it almost impossible to have a vegetable garden. They have driven fruit farmers from their farms and, if allowed to continue their maraudings, these farmers, who have made large investments and who year after year spend much time and labor in caring for the fruit trees, will be compelled to abandon them; and there will be, instead of blossoms and ripe fruit found in abundance, thistles, thorns and briars. Why should all this be allowed? Aside from the beauty of the deer as they are seen roaming about the mountain, they must necessarily be preserved for food and the entertainment of the sportsman. It is recognized by every one who knows anything of the subject that the value of the deer for food is very insignificant. Must, then, the orchardist and the farmer and laborer who owns and cultivates his own garden be deprived of their property in order to preserve the game that the lover of sport may for a few days, or weeks at most, each year enjoy the sport of deer hunting? Must they endure this without any hope of *817compensation? If a cow goes astray from its owner and wanders into the neighbor’s property and does damage, the person damaged has recourse to the owner of the cow for compensation. If swine enter upon one’s land and root out his potatoes or damage his corn, the owner of the swine is responsible for the damage, and this whether the land be fenced or not. If marauding men and night prowlers were to enter the orchard and commit the same depredations that the deer commit, the State of Pennsylvania would reach out its strong arm and compel payment of damages and punish them as well. But when wild deer commit depredations, the injured person is compelled to sit by and bear his loss in silence. If a citizen of the State must sit by and see the fruits of his labor destroyed by wild deer owned by the State, then is the guarantee of the Constitution, which reads, “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property,” a farce.

Id. at 445-46.

¶27 Unlike orchardists in Pennsylvania, those in Washington are not meant to be completely without redress for damage done by wild game. RCW 77.36.040 allows an orchardist to make a claim to the State for losses due to damage caused hy its game. But those damages are limited. Claims are limited to $10,000 each and embrace only the value of the crop. RCW 77.36.040(1). The statute excludes claims for “lost profits, consequential damages, or any other damages whatsoever.” RCW 77.36.040(1). Mr. Vander Houwen claims he has suffered economic damages of more than $236,000 over the past two years due to elk migration into his orchard. Because the damages were to his trees and not to the crop, the statute does not appear to benefit him.

¶28 I agree with the judge in Gilbert, but I am constrained to concur with the majority.

Reconsideration denied September 22, 2005.