Another Appellate Loss for DNR

By Daniel J. Cragg

The Court of Appeals held on Tuesday in Swenson v. Holstein that Minnesota’s game and fish laws do not preclude the carcasses of wild animals that die naturally from becoming private property, delivering yet another appellate court loss to the DNR.

In his complaint, the plaintiff alleged that he found a dead bear on his property, which he then took to a taxidermist.  The plaintiff gave notice to the DNR of the find, and the DNR then seized the carcass without any judicial process.  The plaintiff made claims against DNR officials in their individual and official capacities, sought a declaratory judgment that he owns the carcass, and for conversion (damages for the value of the carcass), replevin (an order directing the return of the carcass to the plaintiff), due process violations under 42 U.S. C. § 1983, and a Fifth Amendment Takings claim.

The Court of Appeals reached its conclusion on statutory construction grounds, reasoning that the game and fish laws only apply to “wild animals,” and the term “wild animals” is defined as “all living creatures…”.  Since a bear carcass is not a living creature, it was not covered by the game and fish statute, and under common law principles, a private person could perfect ownership by taking possession of such a carcass.

The Court of Appeals reversed and remanded the case back to the District Court.  The plaintiff must still prove that the bear died of natural causes in order to win his case.


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