June 13, 2008
Orchard owner wins in elk invasion case
By ANDREW BERGH
Special to the Journal
Do landowners have the constitutional right to protect their property from destructive wildlife? As
shown by the Case of the Marauding Elk, the answer is a definite yes.
Jerrie Vander Houwen owns cherry and apple orchards in the Tieton area of eastern Washington.
During the fall of 1998 and the winter of 1999, herds of elk repeatedly migrated through a 37-acre
block of cherry trees that Vander Houwen had grown in the westernmost portion of his land. The
invaders gained access because the fencing, built earlier by the state Department of Fish and
Wildlife to prevent damage to Vander Houwen's property, had fallen into a state of disrepair.
Like a swarm of hungry locusts, the migrating elk wreaked havoc on Vander Houwen's orchard. During
the fall of 1998 and the winter of 1999, the four-legged trespassers completely destroyed more than
400 cherry trees. Even more significantly, an appraiser hired by Vander Houwen pegged his future
cherry production losses at almost $250,000.
Hoping to prevent a recurrence, the orchard owner repaired the fences previously built by the
But during the fall of 1999 and the winter of 2000, the migrating elk returned, again feeding on
his cherry orchard. Four different times, Vander Houwen contacted the department to seek its
assistance in stopping the substantial damage being caused by the elk. But despite his repeated
requests, the department did nothing to address the problem.
In mid-January 2000, Vander Houwen again contacted the department, reporting to one of its officers
that 40 elk had been in his orchard the previous two days. He explained that shooting over their
heads had no deterrent value, and that the elk were still eating his trees. The officer said he
would try to get some help from the department, but that he couldn't do anything for a week because
of the upcoming Martin Luther King, Jr. holiday. Vander Houwen, probably a tad exasperated by that
point, replied that he couldn't keep waiting, and that he would have to start shooting directly at
Two weeks later, the department, which still had taken no action, received a report that dead elk
were seen in the vicinity of Vander Houwen's orchard. When two officers responded to the scene,
they found 10 deceased elk. Using a metal detector, they also found .270 caliber slugs in two of
the carcasses. Although he admitted shooting at the elk with a .270 caliber rifle, Vander Houwen
said he was “unable to tell” whether he had killed any of them.
The state later charged Vander Houwen in Yakima County District Court with 10 counts of waste of
wildlife, and 10 counts of killing game out of season.
When the case went to trial in April 2001, the orchard owner proposed a jury instruction that said
one who kills elk in defense of his property isn't guilty of violating the law if such killing was
reasonably necessary for the defense of his property. This was based on an earlier elk-slaying
case, decided in 1921 by our state Supreme Court, called State v. Burk.
Rejecting the defense request, the trial court instead gave a complicated, four-part “necessity”
instruction requiring Vander Houwen to prove certain items by a preponderance of the evidence. For
one thing, he was supposed to show there was “no reasonable legal alternative” to killing the elk.
A Yakima County jury eventually acquitted Vander Houwen on 18 counts, but found him guilty on two
counts of killing game out of season (presumably stemming from the two dead elk with the
The defendant first appealed to Yakima County Superior Court, which affirmed his conviction in
November 2003. After an intermediate appeals court did likewise in July 2005, our state Supreme
Court agreed the following year to hear Vander Houwen's case.
After yet more delay, the orchard owner‘s persistence finally paid off, as our high court recently
reversed his conviction by a 9-0 margin.
Consistent with State v. Burk, the prior elk-slaying case decided over 85 years ago, the justices
affirmed that Washington landowners have a constitutional right to protect their property from
destructive game. It was therefore error, they ruled, for the trial court to refuse Vander Houwen's
requested jury instruction that accurately reflected the earlier precedent.
The court also focused on how Vander Houwen, to no avail, had made “numerous good faith efforts” to
inform the department about the “emergency situation.” Given these circumstances, combined with the
department's prior failure to maintain its previously built fences, it was “reasonably necessary,”
said the court, for Vander Houwen to exercise his constitutional right to defend his property.
The justices also said the necessity instruction used by the trial court had wrongly shifted the
burden of proof to the defendant. Instead, once Vander Houwen presented sufficient evidence that he
had exercised his constitutional right to protect his property from the marauding elk, the burden
of disproving such justification should've shifted to the state.
So is Vander Houwen celebrating his victory? Hard to say since his legal battle undoubtedly didn't
The better question, in my book, is whether a certain elk herd in eastern Washington has altered
its migrant (or cherry-eating) habits.
© 2005 Law Office of Andrew Bergh. All rights reserved.