The Yukon Supreme Court ruled on a conflict between the Yukon government and ranchers in the Takhini River Valley whose farm has been negatively impacted by the wild elk herd there.
A June 23 decision found the government owed no duty of care to the ranchers, who are unhappy with the decision and with the way the wild elk are managed in the valley.
Wayne and Alison Grove own the El Dorado Ranch, on which they raise captive elk and bison and grow hay and other crops. They launched a lawsuit alleging negligent misrepresentation and nuisance on the part of the Yukon government.
In particular, the ranchers claimed the government failed to implement their own elk management plan, specifically failing to keep the wild elk herd in the area down to 100 animals. They say this has resulted in damage to their property including broken fences and ruined hay and other crops.
The government applied to the court to have the petition struck.
Ranchers unable to secure duty of care for elk disturbance
Wild elk were introduced by the territorial government to the Takhini River Valley for the purpose of providing hunting opportunities. The lawsuit states that the herd has grown in size from 60 animals in the 1990s to over 200 now.
The Groves claim negligence because the government didn’t put measures in place to reduce the conflict between elk and agricultural interests. They claim that the government promised to promote agriculture in the Takhini River Valley and their failure to protect farms from the wild elk amounts to negligent misrepresentation.
A large part of the legal decision rested on the Groves’ ability to prove a “special relationship” existed between them and the government.
The Groves argued that the government zoned the land, sold them the ranch, and involved the Groves in elk management policy creation.
Chief Justice Suzanne Duncan found the interactions insufficient to establish a special relationship.
“There were no representations made by the Government of Yukon at that time about reducing or preventing the risks of harm to property from any wildlife, including elk,” the decision reads. The sale of the land alone to the plaintiffs allowing them to carry out agricultural pursuits, does not create a special relationship.
The court approved the government’s application to strike the Groves’ claim. The court granted leave to amend, allowing the Groves to return with further facts establishing a special relationship or another basis for a duty of care.
Elk causing substantial damage
Following the release of the Supreme Court’s decision, Wayne Grove maintains that the government’s management of the wild elk has put him under serious financial and personal duress.
He said the wild elk are on his property year-round now and their presence is destructive to his crops and in some cases dangerous to both his captive herd and people on the property.
He said they destroy his feed crops by chewing or pawing at the new growth leaving parts of his fields barren. A time- and labour-intensive process is required to make the fields productive again after they have been damaged.
Grove said the only solution available to him is fencing. Over the past years he and his family have built approximately 10 kilometres of eight-foot-high wire fencing fixed to sturdy metal posts.
After years of work, Grove has about 60 per cent of his production fields enclosed. The accompanying cost, in money and time, has been immense. He said the government compensation programs for the fencing and for damage caused by the elk has been inadequate.
According to a Yukon government representative, funding of up to $4.50 per linear foot of fencing is provided for game fencing that is at least seven feet high around crops on farms that can demonstrate commercial viability.
Compensation for elk damage to crops and fencing around high-value crops is also available but producers must provide records of their crop yield for verification and participate in the elk conflict hunt program.
Despite all the work that went into fences, Grove said it is far from a perfect solution. He said running elk have become tangled in the fences and died and bull elk will attack the fences during their early-fall breeding season in an attempt to mate with his domesticated cow elk.
Grove recently pleaded guilty to Wildlife Act charges related to the 2019 shootings of two bull elk out of season. He said the bulls were behaving very aggressively in or near the fenced pasture where he keeps the captive cow elk. One of them broke through the tall wire fence before he shot it.
He noted that section 86 of the Wildlife Act, which provides for the killing of wildlife to protect a person’s life, does not apply to the elk. It does not authorize the killing of herbivores except for moose and wood bison.
Grove said he cannot simply take no action when there is a risk of the wild elk breaching his fences because under section 99 of the Wildlife Act he can also face charges if his captive elk escape and roam free.
Grove detailed times where he and his wife have had to sleep in shifts in order to take turns scaring elk away from the fences and fields.
In June, the Yukon government’s departments of Environment and Energy, Mines and Resources told the News they were working on a two-year plan to reduce the wild elk herd by 85 to 90 animals and provide more money for fencing.
Grove said he thinks the population reduction is a good start but regulations also need to change in order to put him and the other farmers and ranchers in the elk zones on level footing with those in the elk exclusion zones where any Yukon hunter can get a permit to harvest them year-round.
Grove said he feels it is important for agriculture in the Yukon to continue to develop and the Takhini River Valley is one of the most productive places around Whitehorse for the sector to grow. He sees the Elk as a major barrier to farmers’ livelihoods and said the way they are managed has strayed beyond negligence and into malice.
“This isn’t an accident, they know what they’re doing,” he said.
Contact Jim Elliot at firstname.lastname@example.org