Ownership of Illegal Trophy Buck Spawns Public Trust Doctrine Challenge in Kansas Legislature

The following article ran in the St. Joseph News-Press:

Deer in target

Posted: Friday, June 12, 2015 11:30 pm

Poaching of record whitetail fuels Kansas legislation By Margaret Slayton St. Joseph News-Press St. Joseph News-Press & FOX 26 KNPN

A poaching incident of a record whitetail deer in Kansas is at the center of legislation drafted to alter the laws on ownership of wildlife in the state.

The deer in question is a record 14-point buck, that could be sold for thousands of dollars, and was reported to be poached on private property in Osage County in 2011.

In 2012, Kansas resident David Kent admitted in court to shooting the deer from his car using a spotlight, decapitating the head and abandoning the meat in a cornfield. He agreed to plead guilty to four of eight original charges including hunting outside of legal hours and using an illegal caliber firearm.

An officer from the Kansas Department of Wildlife, Parks and Tourism had notified Tim Nedeau, son of landowner Lois Shuck, that the antlers had been located. Nedeau then asked for ownership of the antlers.

Osage County Judge Taylor Wine sentenced Kent to 30 days in jail and $1,500 in fines. Wine also ordered Kent to pay $8,000 in restitution to Nedeau for trespassing and ordered Kent to forfeit the antlers to the Kansas Department of Wildlife, Parks and Tourism.

Nedeau said he had posted signs on his land that say he charges $4,000 per day per hunter in a lease. He said, however, he does not own a hunting preserve and only placed the signs to deter trespassing.

“He (Kent) had to pay two days of an illegal hunting lease because he never got a lease from us to hunt so the judge made him pay two days of violating our lease,” said Nedeau.

Nedeau said he approached Robin Jennison, Kansas Department of Wildlife Secretary, and asked for the antlers to be released to him. After Jennison refused, Nedeau said he contacted legislators with the goal of retrieving the antlers.

Jennison said at the time he was contacted by Nedeau for the antlers, it was illegal for the agency to hand over the set.

In response, a bill was passed by the Kansas legislature last year that stated that poached wildlife must first be offered to the landowner before the state agency can keep them. However, the antlers in Nedeau’s case remained with the state agency under the previous process.

Nedeau said the deer was shot on his property according to Kent, but died on his neighbor’s land. He said the antlers should be kept by him because under state law, if wildlife crosses property boundaries after being shot and dies, the hunter has the right to collect the deer.

He also said he has contacted the state agency since 2009 about poaching concerns on his property that were not addressed.

“I had KDWPT on our farm in 2009 begging them to help set-up deer decoys to catch road hunters,” said Nedeau. “I called them every year in the spring and the fall for turkey and deer both. That was in 2009, 2010 and 2011. I wanted them to come out and I gave them permission to set-up turkey decoys and not one time did I ever receive a phone call back from wildlife and parks.”

Jennison said the passage of the law draws into question the North American Model of Wildlife Conservation which serves as the foundation of conservation management. Under the model that was upheld by the U.S. Supreme Court in 1842, wildlife is not owned by landowners or by government officials. Instead, wildlife is held in public trust and belongs to all people.

He said even though wildlife agencies do not own the wildlife, they do have the authority to create laws regulating species.

Jennison said it is only after wildlife is harvested through legal means that the hunter gains ownership of the animal.

He said this model outlines why neither landowners nor wildlife agencies are liable for damage caused by wildlife in cases such as car collisions. In turn, it outlaws poaching because the act prevented all hunters from having the opportunity to legally harvest and possess the deer.

“You can pursue wounded game on someone else’s property, but that is if you shoot it legally,” said Jennison. “This wasn’t shot legally.”

In addition, he said the property is legally owned by Lois Shuck and the deer had been seen on at least two other properties.

“It was another neighbor up there that had the trail cam pictures on his property that showed the deer,” said Jennison.

He said the department reconstructed the crime scene and only have evidence that the deer was found south of Nedeau’s property.

“More violations were committed to the property south of where Nedeau was,” said Jennison. “We opted not to do anything because there had to be a clear determination of where that deer was shot given there’s no disagreement among landowners. Well, the landowners to the south don’t feel like there should be a bill passed, but they feel like if a bill is passed that says the landowner gets the deer, that they were certainly the ones that should have had it.”

During this legislative session, another bill was introduced that required the wildlife agency to give all poached wildlife to the landowner. In addition, it included a retroactivity clause that would require the agency to give all wildlife parts they’ve collected from poaching cases since 2009 to the landowner.

“Those are cases that have long since been adjudicated,” said Jennison. “If somebody had been guilty, we likely have already gotten rid of any of those animal parts.”

The Senate defeated the legislation with a 11-25 vote last week.

The state-record antlers are currently being held in evidence storage with the Kansas Department of Wildlife.