any DU legal types want to give me some free advice?

Border Patrol hit a cow of mine and refused to pay damages. Open range, chipsealed county road, got a sherrifs report, no denial - the guy hit it, pretty much totaled his vehicle but he wasn't hurt. They said it wasn't negligent so they won't pay. I don't give a shit about negligence they killed my cow on open range by HITTING her with a vehicle. WTF?

Of course at the time, everybody was cool - we got handed claim forms and plenty of reassurances that they would pay no problem just fill it out and send it in....

(trying really really hard not to go into a rant about the hassles these mofos cause to my life....:mad: :nuke:

(sheriffs estimate!)

They are magnificent animals. I used to work on a dairy farm and we had a cow named Kali - she had the most amazing horns and she always kneeled down to eat...she was a crazy bitch, one of my favorites.

Anyway, I know nothing about the legal side, I hope you get compensated

Peace

heh. This wasn't a pet, though I do have some that are (too damn many!)

so they all had names. Kali, Dali, Artemis, Barley - they would pick a theme every year, like artists or goddesses, so they all had pretty cool names.

range animals, at one time a LOT of them had names but it got too hard to keep records or tell any helpers anything (go find old Tomato Head, or the Yellow Cow and bring her in - of course there were several yellow cows, but only one Yellow Cow)

I have always wanted a dairy cow - to make homemade butter! but I like to be able to turn anything in the corrals out and leave for a few days if I want and you just can't do that with a milk cow!


Yes they have horns! We have about 20 texas longhorns and they REALLY have horns. And they are as smart, agile and indepentant as CATS - really different than other cattle.

Is this some kind of hybrid?

we let the cows keep them. They are beautiful. Most of our cows were brown swiss like this one:

I thought cows were naturally hornless.

And me living out in the country and all. I see cows every day.

they are naturally hornless - Aberdeen Angus, most likely - there are naturally polled red angus, and herefords as well. We call them muleys because they tend to have kind of pointy heads and it makes their ears look bigger, I guess.

I am sure there are other hornless breeds, but for the rest the calves are usually dehorned when they are young before the little horn-bud attatches to the skull. We don't do it because it is part of the way they protect themselves and their babies from dogs and coyotes etc.

Some Polled Herefords, too. One of the farmers here has a herd of those shaggy Scottish Highland cattle.

is open range. He is negligent, you are owed compensation. Damned fool should have been driving slower in open range. I would suspect you could sue him privately in small claims court, then let him figure out how to get his agency to reimburse him.

was on - but THANKS - hadn't thought of that, and the local court may be more sympathetic than federal court - where they implied I would have to go to apeal the decision.

I mean cows are HUGE and slow, how do you hit a cow?

I would call your congress folks

Jim Kolbe...or perhaps the good Senator McCain?

I used to live up against open range. The cattle ruled, the only way to keep them out was fence them out. Like the above poster, I don't quite know how you hit a cow either.

Sorry to hear about your loss Kali.

Which covers this type of incident but I believe you have to file a claim with the Federal Court of Claims in Washington DC (and pay the required Filing Fee and a bond equal to the claim you are making, yes you are the person claiming loss but you have to pay a bond to get to court, the bond is to "Protect" the Government from lawsuits with no merit, if you lose they get to keep the bond).

Given the problem of suing the Federal Government, the better approach is to sue the Agent himself in your local small claims court. Sooner or later the case will be transferred to a Federal Court (he is a Federal Employee and under the US Constitution can have the case heard in Federal Court if he wants to). Once in court you can show the Cow was killed do to the negligence of the Agent. Yes, you are looking at Attorney's cost in excess of the value of the Cow, cost you will NOT be able to recover (All the courts will give you is a Judgment for the Cow and the filing fees NOT the cost to hire an attorney to guide you through the process).

The best course of action is to contact your local Congressman. Congressmen and women LOVE helping their constituents (and it is done by their staff not the congressman or women themselves). The Congressmen can ask the agency about the situation and given Congress's power over the purse, the agency try to appease the Congressman or woman's staff. Thus my advice is to contact your congressman about the accident and see what he does.

I can't take the individual agent to local small claims?

I think they are trying to claim he WASN'T negligent, hence no citation...it was "just an accident".

You can take him to your local Court System, but as a FEDERAL AGENT he has the right (Unless Congress passed a law otherwise) to have the case transferred to Federal District Court. The Federal Court will then hear the claim based on State law. This was written into the Constitution to protect Federal Officials from the Actions of the States against such officials (Remember the Constitution was written in 1787 when the States were more powerful than the Federal Government, the opposite of the situation today).

My Advice is contact your Congressman. His Staff will ask questions about the Accident and may get the Agency to pay up.

Now as to the incident itself, accidents do happen and if no one is negligent than no one is liable. I believe you said this occurred during daylight but on the open range. The next question is this Negligent to be determined by a Finder of Fact (A judge or a jury) or is this Negligent per se (i.e. Negligent a a matter of law). The difference is important. Negligent per se means all you have to show is the Agent hit your Cow, the mere act of operating the Vehicle on the open range if Negligent per se, means the Agent is liable for any harm he caused by operating the Vehicle (including hitting your cow).

On the other hand if the Court would rule that it is reasonable for people to assume they will NOT hit a cow on the open range than the issue is when the Agent hit the cow was the agent Negligent? Unlike Negligent per se, negligent in this sense must be found by a finder of fact as a finding of fact (i.e. the Jury or Judge must find that the Agent was Negligent given the facts of the case).

Personally I believe that operating a Vehicle on the open range is Negligent per se (The Agent has to be careful NOT to hit anyone or anything). You expect to run across animals when you are going Cross-Country and in Cattle Country I would assume you will run across Cattle in such terrain (Unlike the open Highway where cows are NOT to be expected). Thus I believe just operating the Vehicle on the open range is negligent per se. On the other hand I do NOT practice in open range areas of the west, and thus a Legal opinion from a local attorney would be knowledgeable about how the local courts (including the Federal Courts) view such off-road accidents.

My position would be that given a Vehicle's speed in such terrain (Faster than by horse or foot but slower than on a Highway) I would argue that just operating the Vehicle is negligent per se (i.e. negligent as a matter of LAW in that the Agent assumed the risk of hitting cattle or other large animals when he decided to operate the Vehicle on the open range).

Again I point out I have NOT had to file any claim against the Federal Government in my practice. Your best bet is to contact a lawyer in your area who does this type of case. Given the location it has had to happen before, thus someone should know how to handle this agency and the State and Federal Courts. The problem is you will have to pay your attorney out of your own pocket, and that will exceed the cost of this cow. The Federal Agencies court on this and thus while if it happened to me I would see an Attorney who practices in this area of the law, I would also contact my Congressman or woman about the situation.

Please note, I would contact my Congressman or women no matter which party they below to. Remember it is their staff that will do the work and these tend to be professionals and while they want to make their congressman or woman to look good, they also want to help people.

I REALLY appreciate your taking the time to respond so fully. Thank you. I will talk to the congress-critters and try to find some local legal advice as well, this has got to be happening to others, althought I sometimes think we have more right-of-ways through this ranch than any other place I have ever seen! (an interstate, a major railroad, two county roads, three or four huge electric lines, three gas and oil lines, I don't even know how many underground cable anymore because they double up on other right of ways, a huge communication complex on mountain top, including military, an electric substation, even an old titan missile silo!) and the game between the migrants and the BP plays out on almost all of them!

Thank you.

raise chickens and ducks and let them roam and I've been told if you hit them you pay, period.

Was it Dick Cheney in a black SUV and did he claim he had just one beer at lunch?

On a serious note I am sorry that happened, for you (and for the cow)

And I am sorry I was a smart ass...I hope you get compensation of some kind!

That really is a load of crap.

City boy here, but to me open range says wide, open space for grazing. Cows lumber along...it's not like they dart out of the woods in a split second like deer and into the path of your oncoming vehicle.

cattle can move pretty dang fast! I think what happened is this: Several animals were getting ready to cross this road as the "suspect" went by, that probably caused a shift in their behavior and they may have acted erratically - anyway the report says the one that got hit ran between the two vehicles and the BP guy couldn't avoid hitting it. (going 50 to 55 mph)

Also there was a slope on either side of road and animals sometimes break into a faster pace when hitting level ground or going down hills.

they say they can be sued. Soveriegn immunity. There'd have to be a statue where Congress has made border patrol liable for their actions for you to be able to sue them. Then you'd have to address the issue of negligence. They might not be negligent.

Only a lawyer licensed to practice in your state can give you advice on this, however.

of business and damage property without some way for me to at least try to get compensation.