So stupid you have to read it to believe the stupidity of it.
There was a tragic incident, a child was killed by a bear. But this court ruling makes a mockery of common sense in order to try to justify a payment to the parents.
Please take the time to read it, the ONLY way to understand the unbelievable logic used by the Utah Supreme Court is to fight your way though this article. You will be left shaking your head.
https://www.alaskadispatch.com/article/20131031/supreme-court-decides-bears-are-unnatural-utah
There was a tragic incident, a child was killed by a bear. But this court ruling makes a mockery of common sense in order to try to justify a payment to the parents.
Please take the time to read it, the ONLY way to understand the unbelievable logic used by the Utah Supreme Court is to fight your way though this article. You will be left shaking your head.
https://www.alaskadispatch.com/article/20131031/supreme-court-decides-bears-are-unnatural-utah
Once as a guest on a radio talk show, when I worked as a wildlife biologist who managed human-wildlife interactions in Anchorage, a guy called to ask me what bears were good for. While I cast about for an unassailable answer, he told me what he really thought. He believed civilization had trumped nature, and bears – bears in urban areas, like those I was talking about, and all bears really – were dangerous and no longer necessary. In short, he favored eradicating them all.
But even that guy didn’t have the audacity of the Utah Supreme Court.
In August, the Utah Supreme Court ruled that bears are not a “natural condition on the land.” Although their reasoning was legalistic and somewhat nuanced, the court essentially decided that bears were unnatural in wild country. To come to that conclusion, the court trampled on common sense, twisted the nose of plain meaning and ignored several relevant, well-known legal precedents.
In 2007, a boy was pulled from a tent and killed by a black bear in an unimproved campsite in the Uintah National Forest. His parents sued the State of Utah and the U.S. Forest Service. A U.S. District Court judge awarded the family a $1.95 million judgment, finding the Forest Service and the Utah Division of Wildlife Resources were respectively 65 and 25 percent responsible for the boy’s death. The judge assigned the remaining 10 percent of responsibility to the boy’s family because a granola wrapper and empty soda can were found in the tent. The family is pursuing a separate settlement in Utah state courts.
Obviously, this has been a horrific ordeal for the parents, and I’m not blaming them for seeking closure. But I do have a bone to pick with the Supreme Court justices who have committed a crime against nature.
The case
Although the attack occurred on land managed by the U.S. Forest Service, the lawsuit gained traction from the bear’s previous behavior and the actions of several employees of the Utah Division of Wildlife Resources, the agency responsible for managing wildlife. Earlier on the same day, the bear had raided coolers and slapped the head of a man sleeping inside a tent.
After the first incident, adhering to its written bear policy, the wildlife agency immediately deemed the bear a threat to human safety, which required the bear to be destroyed. Two state wildlife agents responded to the report of the attack within hours and tracked the bear with dogs for four or five hours unsuccessfully. Before calling it quits for the day, they revisited the campsite and found it unoccupied, with no bear attractants. Because it was 5 p.m. on a Sunday they assumed nobody would use the campsite before they could return the next day with a trap for the bear.
Unfortunately, driving out they met the boy and his family driving in and waved, not knowing that the family planned to spend the night at the same unsupervised campsite, one of several in the area. Nor did they warn the camp host at the nearest maintained campground, more than a mile away.
Shortly after the parents and their children went to bed, the bear pulled the boy from the tent and killed him. The food in the tent may have played a role.
Plaintiffs and defendants didn’t dispute the facts; however, they strongly disagreed over who was at fault. After losing to the state in a Utah District Court, the parents appealed to the Utah Supreme Court, which found in their favor and bounced the case back to the District Court. The state then claimed it was immune to liability under the “natural condition” exception to the state’s Immunity Act.
Everything seems to hinge on how one interprets the Immunity Act. It clearly states that government entities are immune from suit for any injury, with exceptions. This immunity can be waived for an injury caused by a negligent act or omission, except if the injury resulted from a list of specific conditions that most reasonable people would find difficult, if not impossible, for a government entity to control. One of these exceptions is “any natural condition on publicly owned or controlled lands.” The state argued, in essence, that a government entity cannot be held liable for failing to warn victims of a potentially dangerous bear in the same sense as it cannot be held liable for failing to warn victims a flash flood is on the way. The only way around the Immunity Act was to argue that bears are not natural, which is what the family’s attorneys did.
The District Court agreed with the state’s interpretation of the Immunity Act, which brought the case back to the Supreme Court on appeal. The Supreme Court disagreed with the lower court, deciding in a split decision (3-2) that bears were not a natural condition on the land.
Supreme Court’s semantic argument
In justifying its decision, the Supreme Court appealed to common sense, claiming, “It seems to us that if we were to ask a hypothetical ordinary person to describe a bear, that person would call it an ‘animal’ or ‘wildlife’ not a ‘natural condition on the land.’”
To make any sense of their argument, it helps to follow the justices’ reasoning step by step. In a previous case the court had defined “natural” to signify “present in or produced by nature.” It then noted, “the word natural modifies ‘condition,’ which is generally understood as a ‘mode or state of being.’” Further, “in context of the phrase ‘on publicly owned or controlled lands,’ the use of the word ‘on’ means a position above and in contact with a surface, regardless of position.” Following this line of thinking, “it follows that a natural condition ‘on’ the land must be topographical in nature.”
In demonstrating how wildlife is not topographical, the court compared a bear to a gust of wind. Honestly. According to the court, “the more ordinary meaning of a ‘condition on the land’ seems to connote features that have a much closer tie to the land itself, such as rivers, lakes, or trees.”
Let’s deconstruct the court’s line of reasoning. We might ask an ordinary person to describe a tree or rock. Without prompting would he or she call either of those objects a “natural condition on the land”? Because wild animals move about the landscape, the court believed they were less eligible for immunity under state law than well-grounded topographical features, features that may be depicted on a map. But rivers change course, lakes dry up, trees fall, rocks roll downhill, sand blows.
The court’s appeal to common sense makes no sense. I can’t imagine anything having a closer tie to the land than the native birds and mammals that evolved and lived on that land before humans arrived with their courts in tow. No ordinary person would describe any natural feature as a “natural condition on the land.” Which means it was probably a phrase concocted by a lawyer or legislator.
The plain-meaning rule
Absent any other compelling evidence, courts must attempt to discern legislative intent by interpreting statutes using the plain, ordinary, and literal meaning of the words.
Unfortunately, the Utah Supreme Court was predisposed to decide what the legislature meant to say: “It seems odd that the legislature would seek to include something so abundant and significant as wildlife in its retention of immunity by using the term ‘condition,’ which at best requires a strained interpretation to encompass wildlife.” Oddly, the court failed to explain how the legislature intended for the term “condition” to include trees, which are far more abundant and significant than bears, which number fewer than 3,500 in Utah.
On more than one occasion while reading the court’s decision I was reminded of “Alice in Wonderland,” where Humpty Dumpty told Alice, “When I choose a word, it means just what I choose it to mean – nothing more nor less.”
The court’s bias against bears seems to involve more than a little bearanoia. “While the legislature cannot anticipate every incident that may occur in our state’s vast public lands, it seems particularly obvious that injury will arise from the public’s inevitable confrontations with wildlife. Given this obvious risk, it seems somewhat unlikely that the legislature would use the term ‘natural condition’ to retain immunity from injuries arising out of or in connection with bears or other wildlife.”
That argument is blatantly flawed. Only one person has been killed by bears in Utah in recorded history. Compare that death toll with avalanches, which killed 72 people in Utah between 1991 and 2010. Floods killed 12 people, injured 41 others and caused nearly $370 million damage to property and crops in Utah from 1993 to 2011. Many more people die from falling trees, floods, forest fires ignited by lightning, and avalanches – natural calamities that the justices would consider subject to the immunity clause – than bear attacks.
Not including wildlife in the definition of a “natural condition on the land” leads to unintended consequences. According to the court’s rationale, Utah is liable whenever someone crashes their vehicle into a deer or is bit by a snake or goes into anaphylactic shock after being stung by a bee on publicly owned or controlled lands. The next time a porcupine quills a dog or a squirrel steals peanuts from a bird feeder, the state’s wildlife agency should expect a lawsuit.
So much for common sense and plain meaning. But the Utah Supreme Court committed a more egregious error. It didn’t even do its legal homework.
Towards the end of its written decision, the court finally admitted that wildlife could plausibly be considered a natural condition; nevertheless, it decided to “exercise caution when interpreting an inexact term like ‘condition,’ since its meaning could be stretched to include almost anything.” Well, not really. I shouldn’t have to be the one to remind the justices that precedence is important in legal decisions and many courts rely on the findings of previous court cases, particularly those that have stood the test of time.
Legal precedents
The majority opinion deliberately refrained from citing legal precedents, other than their own. While the court’s two dissenting justices referred to legal precedents from nearby states, the majority opined, “while cases from outside Utah can often be persuasive, we … decline to follow them.” That’s unfortunate, because the term “natural condition” is well defined in common law.
Utah’s law wasn’t written by a “hypothetical ordinary person,” it was written by legislators and their assistants, some of whom are attorneys, with advice from the state’s law department. How many times have you read a statute or regulation and thought it might have been written by an ordinary person?
According to “Nuisances from Land in Its Natural Condition,” a well-known legal analysis by D.W. Noel in 1943 in the Harvard Law Review, in the simplest terms, “land in its natural condition” means land which has not been changed by any act of a human being. The expression encompasses undisturbed soil and rocks, trees, weeds and other vegetation.
In common law this rule of thumb means that a landowner is not normally liable for sand blown into a neighbor’s pool, roots growing under a neighbor’s driveway, dandelion seeds drifting onto the neighbor’s lawn, or boulders rolling onto a neighbor’s house so long as he or she has not interfered with the natural conditions.
At odds with the Utah Supreme Court’s decision, Noel cited several legal precedents that considered wildlife a natural condition of the land. Noel used a definition of “natural condition” from the first American “Restatement of Torts,” which summarized the general principles of common law regarding torts up to 1939. “Natural condition” included “birds, animals, or insects which have not been brought thereon or attracted thereto by the act of man.” In fact, landowners may not be liable for damages even though animals have been attracted to the land by the owner’s activities, so long as they are wild animals and “nothing extraordinary and non-natural is done” to facilitate their presence.
An earlier court decision cited by Noel found for the defendant, stating “It is not he who injures the neighbor, it is nature, and he is not responsible for nature’s doings.” Similarly, another court ruled, “In the absence of special legislation, a man does not become a wrongdoer by leaving his property in a state of nature.”
It’s highly likely that the Utah Legislature chose the odd term “natural condition” because it was a well-known concept in common law.
Wild beastness
Calling bears unnatural wouldn’t have sat well with Aldo Leopold. The founder of professional wildlife management, Leopold proposed a new relationship between people and nature, a “land ethic,” which encouraged individuals to acknowledge responsibility not only for the land but also the natural living things the land supports. We are all in the same boat together.
In his book “A Sand County Almanac” Leopold exercised poetic license to explain his concept: “Everybody knows, for example, that the autumn landscape in the north woods is the land, plus a red maple, plus a ruffed grouse. In terms of conventional physics, the grouse represents only a millionth of either the mass or the energy of an acre. Yet subtract the grouse and the whole thing is dead.”
Leopold gets credit for coining the concept, but the idea that wild animals are a defining characteristic of natural landscape was alive well before the Norman conquest of England in 1066. The Old English word for wilderness was “wildeornes,” which meant “wild deerness” or, perhaps more accurately, “wild beastness.”
The two dissenting justices argued, “injury caused by native wildlife is one of many foreseeable risks that users may encounter in Utah’s unimproved wilderness.” But that common-sense observation didn’t sway the majority’s opinion. Perhaps they were following the same agenda as the caller who insisted that bears should be eliminated, only theirs was hidden. They aren’t the only ones who believe, contrary to all evidence, that humans have drawn the short straw. In William Faulkner’s short story “The Bear” the hirsute character is introduced as the “epitome and apotheosis of the old wild life at which the puny humans swarmed and hacked in a fury of abhorrence and fear, like pygmies about the ankles of a drowsing elephant.”
It’s difficult to say whether the Utah Supreme Court ruled that bears were not natural in abhorrence and fear of wild animal attacks, in deference to the suffering of the victim’s family, or through a churlish unwillingness to consider any legal opinions other than their own. It doesn’t appear to be a decision that will survive a lucid analysis by an unbiased legal scholar. But it’s just the kind of pygmaean thinking that nearly eradicated bears from most of the contiguous United States.
Rick Sinnott is a former Alaska Department of Fish and Game wildlife biologist. The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch. Contact him at rickjsinnott@gmail.com
But even that guy didn’t have the audacity of the Utah Supreme Court.
In August, the Utah Supreme Court ruled that bears are not a “natural condition on the land.” Although their reasoning was legalistic and somewhat nuanced, the court essentially decided that bears were unnatural in wild country. To come to that conclusion, the court trampled on common sense, twisted the nose of plain meaning and ignored several relevant, well-known legal precedents.
In 2007, a boy was pulled from a tent and killed by a black bear in an unimproved campsite in the Uintah National Forest. His parents sued the State of Utah and the U.S. Forest Service. A U.S. District Court judge awarded the family a $1.95 million judgment, finding the Forest Service and the Utah Division of Wildlife Resources were respectively 65 and 25 percent responsible for the boy’s death. The judge assigned the remaining 10 percent of responsibility to the boy’s family because a granola wrapper and empty soda can were found in the tent. The family is pursuing a separate settlement in Utah state courts.
Obviously, this has been a horrific ordeal for the parents, and I’m not blaming them for seeking closure. But I do have a bone to pick with the Supreme Court justices who have committed a crime against nature.
The case
Although the attack occurred on land managed by the U.S. Forest Service, the lawsuit gained traction from the bear’s previous behavior and the actions of several employees of the Utah Division of Wildlife Resources, the agency responsible for managing wildlife. Earlier on the same day, the bear had raided coolers and slapped the head of a man sleeping inside a tent.
After the first incident, adhering to its written bear policy, the wildlife agency immediately deemed the bear a threat to human safety, which required the bear to be destroyed. Two state wildlife agents responded to the report of the attack within hours and tracked the bear with dogs for four or five hours unsuccessfully. Before calling it quits for the day, they revisited the campsite and found it unoccupied, with no bear attractants. Because it was 5 p.m. on a Sunday they assumed nobody would use the campsite before they could return the next day with a trap for the bear.
Unfortunately, driving out they met the boy and his family driving in and waved, not knowing that the family planned to spend the night at the same unsupervised campsite, one of several in the area. Nor did they warn the camp host at the nearest maintained campground, more than a mile away.
Shortly after the parents and their children went to bed, the bear pulled the boy from the tent and killed him. The food in the tent may have played a role.
Plaintiffs and defendants didn’t dispute the facts; however, they strongly disagreed over who was at fault. After losing to the state in a Utah District Court, the parents appealed to the Utah Supreme Court, which found in their favor and bounced the case back to the District Court. The state then claimed it was immune to liability under the “natural condition” exception to the state’s Immunity Act.
Everything seems to hinge on how one interprets the Immunity Act. It clearly states that government entities are immune from suit for any injury, with exceptions. This immunity can be waived for an injury caused by a negligent act or omission, except if the injury resulted from a list of specific conditions that most reasonable people would find difficult, if not impossible, for a government entity to control. One of these exceptions is “any natural condition on publicly owned or controlled lands.” The state argued, in essence, that a government entity cannot be held liable for failing to warn victims of a potentially dangerous bear in the same sense as it cannot be held liable for failing to warn victims a flash flood is on the way. The only way around the Immunity Act was to argue that bears are not natural, which is what the family’s attorneys did.
The District Court agreed with the state’s interpretation of the Immunity Act, which brought the case back to the Supreme Court on appeal. The Supreme Court disagreed with the lower court, deciding in a split decision (3-2) that bears were not a natural condition on the land.
Supreme Court’s semantic argument
In justifying its decision, the Supreme Court appealed to common sense, claiming, “It seems to us that if we were to ask a hypothetical ordinary person to describe a bear, that person would call it an ‘animal’ or ‘wildlife’ not a ‘natural condition on the land.’”
To make any sense of their argument, it helps to follow the justices’ reasoning step by step. In a previous case the court had defined “natural” to signify “present in or produced by nature.” It then noted, “the word natural modifies ‘condition,’ which is generally understood as a ‘mode or state of being.’” Further, “in context of the phrase ‘on publicly owned or controlled lands,’ the use of the word ‘on’ means a position above and in contact with a surface, regardless of position.” Following this line of thinking, “it follows that a natural condition ‘on’ the land must be topographical in nature.”
In demonstrating how wildlife is not topographical, the court compared a bear to a gust of wind. Honestly. According to the court, “the more ordinary meaning of a ‘condition on the land’ seems to connote features that have a much closer tie to the land itself, such as rivers, lakes, or trees.”
Let’s deconstruct the court’s line of reasoning. We might ask an ordinary person to describe a tree or rock. Without prompting would he or she call either of those objects a “natural condition on the land”? Because wild animals move about the landscape, the court believed they were less eligible for immunity under state law than well-grounded topographical features, features that may be depicted on a map. But rivers change course, lakes dry up, trees fall, rocks roll downhill, sand blows.
The court’s appeal to common sense makes no sense. I can’t imagine anything having a closer tie to the land than the native birds and mammals that evolved and lived on that land before humans arrived with their courts in tow. No ordinary person would describe any natural feature as a “natural condition on the land.” Which means it was probably a phrase concocted by a lawyer or legislator.
The plain-meaning rule
Absent any other compelling evidence, courts must attempt to discern legislative intent by interpreting statutes using the plain, ordinary, and literal meaning of the words.
Unfortunately, the Utah Supreme Court was predisposed to decide what the legislature meant to say: “It seems odd that the legislature would seek to include something so abundant and significant as wildlife in its retention of immunity by using the term ‘condition,’ which at best requires a strained interpretation to encompass wildlife.” Oddly, the court failed to explain how the legislature intended for the term “condition” to include trees, which are far more abundant and significant than bears, which number fewer than 3,500 in Utah.
On more than one occasion while reading the court’s decision I was reminded of “Alice in Wonderland,” where Humpty Dumpty told Alice, “When I choose a word, it means just what I choose it to mean – nothing more nor less.”
The court’s bias against bears seems to involve more than a little bearanoia. “While the legislature cannot anticipate every incident that may occur in our state’s vast public lands, it seems particularly obvious that injury will arise from the public’s inevitable confrontations with wildlife. Given this obvious risk, it seems somewhat unlikely that the legislature would use the term ‘natural condition’ to retain immunity from injuries arising out of or in connection with bears or other wildlife.”
That argument is blatantly flawed. Only one person has been killed by bears in Utah in recorded history. Compare that death toll with avalanches, which killed 72 people in Utah between 1991 and 2010. Floods killed 12 people, injured 41 others and caused nearly $370 million damage to property and crops in Utah from 1993 to 2011. Many more people die from falling trees, floods, forest fires ignited by lightning, and avalanches – natural calamities that the justices would consider subject to the immunity clause – than bear attacks.
Not including wildlife in the definition of a “natural condition on the land” leads to unintended consequences. According to the court’s rationale, Utah is liable whenever someone crashes their vehicle into a deer or is bit by a snake or goes into anaphylactic shock after being stung by a bee on publicly owned or controlled lands. The next time a porcupine quills a dog or a squirrel steals peanuts from a bird feeder, the state’s wildlife agency should expect a lawsuit.
So much for common sense and plain meaning. But the Utah Supreme Court committed a more egregious error. It didn’t even do its legal homework.
Towards the end of its written decision, the court finally admitted that wildlife could plausibly be considered a natural condition; nevertheless, it decided to “exercise caution when interpreting an inexact term like ‘condition,’ since its meaning could be stretched to include almost anything.” Well, not really. I shouldn’t have to be the one to remind the justices that precedence is important in legal decisions and many courts rely on the findings of previous court cases, particularly those that have stood the test of time.
Legal precedents
The majority opinion deliberately refrained from citing legal precedents, other than their own. While the court’s two dissenting justices referred to legal precedents from nearby states, the majority opined, “while cases from outside Utah can often be persuasive, we … decline to follow them.” That’s unfortunate, because the term “natural condition” is well defined in common law.
Utah’s law wasn’t written by a “hypothetical ordinary person,” it was written by legislators and their assistants, some of whom are attorneys, with advice from the state’s law department. How many times have you read a statute or regulation and thought it might have been written by an ordinary person?
According to “Nuisances from Land in Its Natural Condition,” a well-known legal analysis by D.W. Noel in 1943 in the Harvard Law Review, in the simplest terms, “land in its natural condition” means land which has not been changed by any act of a human being. The expression encompasses undisturbed soil and rocks, trees, weeds and other vegetation.
In common law this rule of thumb means that a landowner is not normally liable for sand blown into a neighbor’s pool, roots growing under a neighbor’s driveway, dandelion seeds drifting onto the neighbor’s lawn, or boulders rolling onto a neighbor’s house so long as he or she has not interfered with the natural conditions.
At odds with the Utah Supreme Court’s decision, Noel cited several legal precedents that considered wildlife a natural condition of the land. Noel used a definition of “natural condition” from the first American “Restatement of Torts,” which summarized the general principles of common law regarding torts up to 1939. “Natural condition” included “birds, animals, or insects which have not been brought thereon or attracted thereto by the act of man.” In fact, landowners may not be liable for damages even though animals have been attracted to the land by the owner’s activities, so long as they are wild animals and “nothing extraordinary and non-natural is done” to facilitate their presence.
An earlier court decision cited by Noel found for the defendant, stating “It is not he who injures the neighbor, it is nature, and he is not responsible for nature’s doings.” Similarly, another court ruled, “In the absence of special legislation, a man does not become a wrongdoer by leaving his property in a state of nature.”
It’s highly likely that the Utah Legislature chose the odd term “natural condition” because it was a well-known concept in common law.
Wild beastness
Calling bears unnatural wouldn’t have sat well with Aldo Leopold. The founder of professional wildlife management, Leopold proposed a new relationship between people and nature, a “land ethic,” which encouraged individuals to acknowledge responsibility not only for the land but also the natural living things the land supports. We are all in the same boat together.
In his book “A Sand County Almanac” Leopold exercised poetic license to explain his concept: “Everybody knows, for example, that the autumn landscape in the north woods is the land, plus a red maple, plus a ruffed grouse. In terms of conventional physics, the grouse represents only a millionth of either the mass or the energy of an acre. Yet subtract the grouse and the whole thing is dead.”
Leopold gets credit for coining the concept, but the idea that wild animals are a defining characteristic of natural landscape was alive well before the Norman conquest of England in 1066. The Old English word for wilderness was “wildeornes,” which meant “wild deerness” or, perhaps more accurately, “wild beastness.”
The two dissenting justices argued, “injury caused by native wildlife is one of many foreseeable risks that users may encounter in Utah’s unimproved wilderness.” But that common-sense observation didn’t sway the majority’s opinion. Perhaps they were following the same agenda as the caller who insisted that bears should be eliminated, only theirs was hidden. They aren’t the only ones who believe, contrary to all evidence, that humans have drawn the short straw. In William Faulkner’s short story “The Bear” the hirsute character is introduced as the “epitome and apotheosis of the old wild life at which the puny humans swarmed and hacked in a fury of abhorrence and fear, like pygmies about the ankles of a drowsing elephant.”
It’s difficult to say whether the Utah Supreme Court ruled that bears were not natural in abhorrence and fear of wild animal attacks, in deference to the suffering of the victim’s family, or through a churlish unwillingness to consider any legal opinions other than their own. It doesn’t appear to be a decision that will survive a lucid analysis by an unbiased legal scholar. But it’s just the kind of pygmaean thinking that nearly eradicated bears from most of the contiguous United States.
Rick Sinnott is a former Alaska Department of Fish and Game wildlife biologist. The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch. Contact him at rickjsinnott@gmail.com
