Yukon government asks for Takhini elk herd lawsuit to be thrown out

The Yukon government was in court Thursday asking for a rancher's lawsuit over the Takhini elk herd to be tossed out. 

Government lawyer I.H. Fraser argued before Yukon Supreme Court Justice Suzanne Duncan that Wayne Grove never had a close personal proximity to the government's elk management decisions, which would be a prerequisite for him to pursue legal action in the first place.

Grove, who owns the El Dorado Ranch in the Takhini Valley west of Whitehorse, filed a statement of claim against the government in June 2020, alleging that the environment department has been negligent in its management of the Takhini elk herd.

The herd was introduced to the region in 1951 and was originally supposed to be kept to a hundred animals, but has since ballooned to about 200 and expanded beyond its original range.

Grove farms domesticated elk and also grows crops to feed his animals and alleges that the wild elk have wreaked havoc on his business.

According to the statement of claim, the Takhini elk herd has damaged fences, eaten crops intended to feed his farmed elk or that he was going to sell, destroyed his field and increased the risk of his animals catching diseases or getting impregnated. 

The lawsuit alleges the government was negligent in allowing the herd to grow both in size and in range or, alternatively, made negligent representations that the herd would be contained. 

Complainant hasn't established duty of care, argues gov't

In court Thursday, Fraser argued Grove hadn't laid out specific or special interactions he's had with the government that would establish a duty of care — a duty the government would then have had to violate in order for negligence to arise. 

That "agriculturists" have been impacted more by the Takhini elk herd than other members of the public wasn't at dispute, Fraser said. However, the government's elk-management measures aren't specific to Grove, he argued, but have a wider public application. 

Fraser also disputed Grove's claim that the government had failed to act on plans to reduce conflicts with wild elk, saying the government can't be sued for failing to implement public policy. 

"A statement of future intention is not an actionable representation," he said. 

Agriculturalists more impacted than public, says complainant

Grove's lawyer, James Vilvang, opposed the lawsuit being tossed out and also disagreed with Fraser's assertion that the government didn't owe his client a care of duty. 

He pointed to case law stating that "only the most hopeless claims" should be tossed out, and then to Grove's detailed statement of claim as well as additional relevant materials. 

"It's certainly far from a hopeless case," he said. 

Vilvang argued that the fact that Grove was an agriculturalist means he's impacted by elk-management decisions more so than the public, which means he has the "basics" of being in a "special relationship" with the government. 

He also said that the government had been aware of the problems elk could cause ranchers, knew that Grove had purchased his land to raise game animals, and had been getting complaints from Grove as well as other agriculturalists. It wasn't a surprise issue, he argued, but the government still failed to take steps to address it. 

Duncan reserved her decision.