Chris Dodd Argues Wildlife Liability Before the New Mexico Court of Appeals

Can the State Be Sued When Elk Act Like Elk?

On April 28, 2026, Fayerberg Dodd partner Christopher Dodd argued before the New Mexico Court of Appeals in Kiehne v. New Mexico Department of Game and Fish, No. A-1-CA-42310, defending the Department and the State Game Commission against a novel — and far-reaching — nuisance claim.

What the Case Is About

New Mexico is a fence-out state. That's not just ranching custom — it reflects a foundational principle of how people and wildlife have always shared this landscape. Wild animals roam. Landowners fence their property. And under centuries of common law, the state is not liable when wild animals act like wild animals.

The plaintiffs — a group of private landowners in the Gila region — are asking the Court to change that. They claim that the Department's management of the elk population in the greater Gila area amounts to a nuisance, and that the state should be held responsible for the damage elk cause when they move across private land. Mr. Dodd argued that this theory has no basis in law, and that accepting it would have consequences well beyond this case.

The Argument

The core of the state's position is the ancient common law doctrine of ferae naturae — wild by nature. Wild animals are not owned, not controlled, and not the state's to answer for when they roam. The Department and Commission have never set foot on the plaintiffs' properties. Only the elk have. Under ferae naturae, that independent act by a wild animal severs any legal chain connecting state management decisions to private property damage.

The Court also pressed a harder question: what does it actually mean to hold the state liable here? The Game Commission manages elk through a rigorous, public rulemaking process — setting population targets across the state, issuing hunting licenses calibrated to those targets, and hearing from landowners, hunters, conservationists, and communities at every step. Plaintiffs have never participated in that process. What they are really asking, Mr. Dodd argued, is for a court or jury to decide how many elk should live in the Gila — a policy question the legislature has deliberately placed with the Commission, not the courts.

What's at Stake

The implications extend across the West. If nuisance liability attaches to wildlife management decisions, every state agency overse

eing game populations becomes a potential defendant every time a managed species interacts with private land. The mechanism for addressing conflicts between wildlife and private property interests is public participation in agency rulemaking — not litigation.

The Court of Appeals has taken the matter under advisement. We will update this post when a decision issues.

You can listen to the full oral argument here.