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In and around the village of Reserve in southwestern New Mexico, a thriving population of Rocky Mountain elk has created problems for property owners with irrigated land, streams and cattle 鈥� a problem intensifying as parched conditions drive the elk farther into populated areas looking for water and food.

For several years, a group of Catron County landowners the state Department of Wildlife (formerly known as Game and Fish) as well as New Mexico鈥檚 Gaming Commission in court over their management of the elk, arguing that their conservation policies amount to a taking of property and have created a nuisance.

The commission manages the Elk Private Lands Use System, or , which distributes a certain number of authorization codes that can be converted to elk-hunting licenses, known as tags. Hunting tags are accessible through a public lottery, while landowners who provide features such as tree cover or water for roaming elk can receive codes they can sell privately to hunters, fetching thousands of dollars, ostensibly to recoup some of their losses.

The cash value varies among New Mexico's three elk management zones, but upward of $25,000 per tag is not unheard of.

And yet Kalvin 鈥淶eno鈥� Kiehne, a Catron County rancher who says the elk are destroying his business, told the Journal he has resorted to shooting them even though it makes him ineligible for EPLUS. He said the program isn鈥檛 helping him.

鈥淚 have received one tag in 20 years 鈥� one bull tag 鈥� and my neighbors just down the road here have not even a quarter-acre of the land and water rights that I do, and they get one every year, sometimes two or three,鈥� Kiehne told the Journal.

Kiehne was among 10 landowners who sued the state in 2021.

The agencies argued in state district court that they cannot be held liable for the effects of wildlife on private property. In a pair of summary judgments, the court ruled there were not grounds for a claim of unconstitutional taking but found that the nuisance question should proceed to trial.

In a review of that decision, Judge Katherine Wray that neither claim was supported by the law. The appeals court found that 鈥渘o private property right has been appropriated鈥� in the way agencies manage elk herds and that they are not liable for nuisance or harm caused by the elk because the actions named in the lawsuit 鈥渁re duly authorized by law.鈥�

New Mexico Wildlife Federation Executive Director Jesse Deubel said the ruling could have significant legal implications for EPLUS, a program he said 鈥渋s not working the way it was intended for anybody, but especially not for the public.鈥�

From his reading of the appeals court decision, Deubel inferred that 鈥渢he state has no responsibility to compensate landowners for damage done by elk 鈥� but the EPLUS system is a compensation program, whether people want to call it that or not.鈥�

For instance, Deubel said private landowners reaped more than $83 million from the program in 2021, the most recent data year.

鈥淓lk don't do $83 million of damage in the state of New Mexico,鈥� Deubel added.

In April, 18 New Mexico lawmakers asked the New Mexico Department of Justice to review the legal sufficiency of New Mexico's system for distributing licenses for hunting on public lands, including elk hunts.

In a letter to Attorney General Ra煤l Torrez, the legislators reported that in the 2022 hunting season, more than 90% of the elk hunting permits set aside for private outfitters ultimately went to out-of-state hunters. They wrote that the state's practices are "creating a system where those with the greatest wealth from across the country have a better chance of hunting New Mexico's public lands than average New Mexicans." 

While the system is lucrative for some landowners and outfitters, Kiehne said smaller operations like his don鈥檛 have the same access and are left with the expense of protecting their property.

鈥淭hey want us to put up a fence, and they鈥檒l bring the fencing material, but it鈥檒l cost me a million dollars for me to fence it,鈥� he said. 鈥淚鈥檝e got 500 acres to fence. And then we鈥檝e got the river in the middle of it. How long is that going to last? The whole thing鈥檚 insane.鈥�

Algernon 顿鈥橝尘尘补蝉蝉补 is the Journal鈥檚 southern New Mexico correspondent. He can be reached at adammassa@abqjournal.com.