Moerman

Robin R. Moerman alleged the state had damaged his property by relocating tule elk which were destroying his fences and eating the forage intended for his livestock. The trial court granted the state’s motion for summary judgment. On appeal, Moerman contends the trial court erred, and that as a matter of law, there has been a taking of his property.

We find the tule elk are not instrumentalities of the state nor controlled by the state, and, therefore, there has been no physical taking of Moerman’s property. We will not consider Moerman’s regulatory taking argument because he did not advance it in the trial court. We affirm the judgment.

Background

In the 1970’s, in accord with legislative direction (Stats. 1971, ch. 1250, § 2, p. 2458; see Fish & G. Code, § 3951), the State Department of Fish and Game (DF&G) began a program of relocating tule elk to their native ranges. As part of this program, in 1978 through 1980, the DF&G relocated tule elk from the Owens Valley close to Lake Pillsbury in Lake County. Historically, tule elk could be found all over the state including Lake and Mendocino Counties, but by 1870 the animal was nearly extinct in California and could then…