1
September 16, 2024
OAG 24-08
Subject:
1.
Does the Department of Fish and Wildlife Resources
(Department) have the legal authority to humanely dispatch (i.e.,
euthanize) and store native or inherently dangerous wildlife that
is seized and may be used as evidence in a criminal case?
2.
Does the Department have the legal authority to
confiscate, seize, or take possession of wild or exotic mammals
upon notification that a specific animal has bitten a person, so
that the animal may be dispatched and tested for rabies as
required by KRS 258.085(1)(c)?
Requested by:
Rich Storm, Commissioner
Department of Fish and Wildlife Resources
Written by:
Aaron J. Silletto, Executive Director
Office of Civil and Environmental Law
Syllabus:
1.
The Department may euthanize and store any wildlife that
has been seized as evidence in a criminal case before trial, but
only if the animal is causing injury to persons, property, or
animals or is spreading disease.
2.
The Department may seize and euthanize any wild or
exotic animal that has bitten a person, so that the animal may be
tested for rabies under KRS 258.085(1)(c).
Opinion of the Attorney General
The Commissioner of the Department of Fish and Wildlife Resources asks two
related questions, both of which concern the seizure and destruction of wild animals.
The first question asks whether the Department may euthanize an animal that is
seized as evidence in a criminal case before trial. The answer to that question is a
qualified yes. The second question asks whether the Department may euthanize a2
wild or exotic animal that has bitten a person for purposes of having the animal tested
for rabies. The answer to that question is yes.
1.
Dispatching native or inherently dangerous wildlife before trial
Kentucky has a rich sporting tradition, but even Kentuckians’ constitutional
right to hunt, fish, and harvest wildlife is subject to the General Assembly’s power to
enact statutes, and the Department’s authority to promulgate administrative
regulations, “to promote wildlife conservation and management.” Ky. Const. § 255A.
To that end, the General Assembly has declared that it is the policy of the
Commonwealth’s fish and game laws to “protect and conserve the wildlife of this
Commonwealth,” “promote the general welfare of the Commonwealth,” and “provide
for the prudent taking and disposition of wildlife within reasonable limits.” KRS
150.015(1). And it has authorized the Department to regulate limits on possession of
wildlife and to promulgate any administrative regulations “reasonably necessary to
implement or carry out the purposes of” the fish and game laws. KRS 150.025(1)(b),
(i).
To further promote wildlife conservation and management, the General
Assembly has, for example, prohibited:
(a) Hunting, trapping, taking or possessing wildlife without a license, KRS
150.170(1); KRS 150.235(1);
(b) Buying or selling protected wildlife, KRS 150.180(1);
(c) Trafficking in endangered species of wildlife, KRS 150.183(1);
(d) Propagating or holding protected wildlife, KRS 150.280(1)1;
(e) Transporting or holding species of wildlife the Department determines are
dangerous to native ecosystems, KRS 150.280(2)2; and
(f) Possessing any protected wildlife “except during the open season for the
particular
species,”
KRS
150.305(1).
See
also
Cummings
v.
Commonwealth, 255 S.W.2d 997 (Ky. 1953) (affirming a conviction for
violating KRS 150.305(1) for possession of a raccoon).
Based on its statutory authority, the Department’s regulations allow certain permit
holders to import, transport, or possess certain species of wildlife that otherwise
would be illegal to import, transport, or possess. See 301 KAR 2:075 § 2 (providing for
1
See 301 KAR 2:081 § 6 (listing certain “prohibited species” of native wildlife that a person generally
may not import, transport, possess); 301 KAR 2:082 § 4(2) (listing certain species of “inherently
dangerous” exotic wildlife that a person generally may not import, transport, possess).
2
See 301 KAR 2:082 § 4(1) (listing certain species of “exotic wildlife that are considered potentially
injurious to native ecosystems” that a person generally may not import, transport, or possess).3
a wildlife rehabilitation permit); 301 KAR 2:081 § 3 (providing for commercial and
noncommercial captive wildlife permits); 301 KAR 2:082 § 2 (providing for a
transportation permit for exotic wildlife). Violations of the foregoing statutes and
regulations are either misdemeanors punishable by fines or jail time, or both, or
violations punishable by fines only. KRS 150.990.
The Department’s first question concerns its options for handling native and
inherently dangerous wildlife3 that are seized as evidence in a prosecution under the
foregoing statutes and regulations for possession of such animals without a proper
permit. Must the Department keep such animals alive through the conclusion of the
criminal case, or may the Department instead euthanize the animals before trial and
then store them (e.g., by freezing them) until the case is concluded?
The General Assembly has prescribed general rules for the seizure and
disposition of evidence in prosecutions under Kentucky’s wildlife conservation
statutes. All law enforcement officers, including game wardens employed by the
Department, “shall seize and take possession of any and all . . . wildlife . . . which
have been taken, used, transported, or possessed contrary to any law or regulation
adopted under” KRS Chapter 150. KRS 150.120(1) (emphasis added).4 The statute
further prescribes what must be done with the seized wildlife: it “shall be impounded
by the arresting officer and shall be taken before the court trying the person
arrested.” Id. (emphasis added). A game warden or other law enforcement officer
therefore lacks any discretion about what to do with the seized wildlife; he must
impound it and make it available to the court. “Until the rights of [the defendant]
[are] finally determined, the courts . . . ha[ve] jurisdiction of” the seized wildlife.
Wallace v. Sowards, 231 S.W.2d 10, 13 (Ky. 1950).
Only “[u]pon conviction” of the defendant does the court have discretion to
declare that the seized wildlife is contraband. KRS 150.120(2). If the court so declares,
it must enter an order to that effect and send a copy of its order to the Commissioner
of the Department. Id. The contraband then “shall be placed in the custody of the
arresting officer, to be delivered to the commissioner.” Id. Only then—after the court
declares the seized wildlife to be contraband and orders it to be delivered to the
Commissioner—does the contraband become the property of the Department, to be
disposed of as it sees fit.5 The general rule, therefore, is that the Department may not
3
“Wildlife” refers to “any normally undomesticated animal.” KRS 150.010(50). “‘Native wildlife’
means wildlife species that have historically existed or currently exist in the wild in Kentucky without
introduction by humans or have naturally expanded their range into Kentucky without introduction
by humans.” 301 KAR 2:081 § 1(2). The Department defines “inherently dangerous exotic wildlife” to
mean one of 21 species of wildlife not native to Kentucky, plus any hybrids of any of those 21 species.
301 KAR 2:082 § 4(2).
4
As used in the statute, “shall” indicates a mandatory requirement. KRS 446.010(39).
5
For example, the Commissioner “may sell” the seized wildlife, with the approval of the Department
of Fish and Wildlife Resources Commission, and deposit the proceeds into the game and fish fund.4
euthanize seized wildlife before the conclusion of the criminal case and the court
declares it to be contraband.
To further highlight the necessity of first obtaining a post-conviction order
declaring the seized wildlife to be contraband before the Department may euthanize
it, compare KRS 150.120 to another statute in KRS Chapter 150. The General
Assembly has required that illegal traps be seized as contraband, and that any
improperly tagged trap “is hereby declared contraband and shall be so treated
without any order of court so declaring.” KRS 150.399. Thus, the General Assembly
is well aware of how to draft a statute that allows contraband to be disposed of
without a court order. But KRS 150.120 is not such a statute.
But that is not the end of the matter, because there is one circumstance in
which wildlife seized as evidence may be euthanized by the Department before the
conclusion of the criminal case. Under KRS 150.105:
Notwithstanding any other provisions of this chapter, the commissioner
may, with the approval of the commission, authorize game wardens or
any other persons to destroy or bring under control in such manner as
he deems necessary any wild animal, fish or wild birds, protected or
unprotected which are causing damage to persons, property or other
animals, fish or birds or spreading diseases and which in his judgment
should be eliminated or controlled to prevent further damage.
So, notwithstanding the requirements of KRS 150.120, the Commissioner may, with
the approval of the Commission, authorize a game warden or another person to
euthanize any wild animal that is either (a) causing damage to persons, property, or
other animals, or (b) spreading disease. Under this statutory authority, the
Department already has required the destruction of most rabies vector species6 that
are trapped, 301 KAR 2:081 § 2(7), and native or exotic mammals that either bite a
person or exhibit symptoms of a rabies infection, id. § 2(11)–(12); 301 KAR 2:082
§ 6(8).
The Department also could use its authority under KRS 150.105, on a case-by-
case basis, to euthanize and store any wildlife being held as evidence in a criminal
case, but only if (a) the Commissioner determines the animal is causing injury to
persons, property, or animals or is spreading disease and (b) the Commission concurs.
But it is the opinion of this Office that the Department may not make or implement
an across-the-board policy of euthanizing and storing all animals being held as
KRS 150.120(3). The use of “may” in the statute means that it is within the Department’s discretion
whether to sell the contraband. KRS 446.010(26).
6
The term “rabies vector species” refers to several species of mammals that most commonly
transmit rabies to other animals or people. See 301 KAR 2:081 § 1(3).5
evidence, for budgetary or convenience reasons or otherwise, and thereby attempt to
skirt the requirements of KRS 150.120.
2.
Seizing and euthanizing an animal that has bitten a person
The Department’s second question asks whether it may confiscate, seize, or
take possession of wild or exotic mammals upon notification that a specific animal
has bitten a person, so that the animal may be dispatched and tested for rabies. It
may.
The Department points to KRS 258.085(1)(c), which states, “If a wild or exotic
animal bites a human being or exhibits symptoms of rabies, that animal shall be
destroyed and tested for rabies.”7 That paragraph of the statute does not state who is
responsible for euthanizing the animal. But see KRS 258.085(1)(a)–(b) (granting a
health officer8 authority to quarantine an animal or order its destruction in lieu of
quarantine). KRS 258.075 provides that the secretary of the Cabinet for Health and
Family Services “may administer” the rabies law through local health departments
and “may promulgate any administrative regulations and employ such personnel as
are necessary to effectuate the purposes” of the rabies law. But the Cabinet’s
administrative regulation establishing the statewide rabies control program only
states, as is relevant here, that “[a] wild animal suspected of rabies shall be sacrificed
and its head submitted to the laboratory immediately,” without specifying who must
euthanize the animal. 902 KAR 2:070 § 5(3).
As KRS 258.075 makes clear, the Cabinet and local health departments may
administer the rabies law, and therefore may euthanize a wild animal that bites a
person under KRS 258.085(1)(c). But the Department’s question essentially asks
whether the Cabinet’s and local health departments’ authority is exclusive, or
whether it too may euthanize such wild animals.
Nothing in the rabies law supplants the Department’s statutory authority to
“enforce the laws and regulations . . . relating to wildlife” and authorization to
“exercise all powers necessarily incident thereto.” KRS 150.021(1). A wild animal that
bites a person has caused at least some damage to that person, and if a rabid animal,
can spread disease to humans. It is therefore the opinion of this Office that the
Department may euthanize such an animal under the authority of KRS 150.105, so
that it may be tested for rabies under KRS 258.085(1)(c).9
7
The statute requires the head of such an animal to be sent to a laboratory approved by the Cabinet
secretary to be tested for rabies. KRS 258.085(2).
8
A health officer is appointed by a local health department to oversee its employees and serve as
its chief administrative officer. KRS 212.170; KRS 212.230(1)(a); KRS 212.260; KRS 212.660; KRS
212.900.
9
The Department’s regulations already require Department staff to seize and euthanize any wild
mammal that bites a person or shows symptoms of a rabies infection, and to submit the animal’s head6
Russell Coleman
Attorney General
Aaron J. Silletto, Executive Director
Office of Civil and Environmental Law
for testing under KRS 258.085(1)(c). See 301 KAR 2:075 § 8; 301 KAR 2:081 § 2(10)–(12); 301 KAR
2:082 § 6(7)–(8). These regulations are authorized by KRS 150.105.