Fruit growers don’t get compensation for future harvests when deer damage their trees, Wildlife Board says

(Leah Hogsten | The Salt Lake Tribune) Fruit orchards in Perry, like this one photographed in April 2020, have been damaged by mule deer that come through and rub their bodies against young trees. The Utah Wildlife Board has rejected a request from one Perry fruit grower to be compensated for the reduced future harvests caused by this damage.

Unfortunately for Todd Eskelsen and other Box Elder County fruit growers, deer love to scratch their butts and antlers on young trees. These trees have some give, but they can’t take the animals’ weight without breaking, thus thwarting future fruit harvests while replacement trees are planted and nurtured to maturity.

Not only is this damage a big headache for Utah orchardists, but it impacts their bottom line for several years going forward, Eskelsen argued last week before the Utah Wildlife Board.

The fruit grower got no sympathy from the panel’s seven members, who unanimously rejected Eskelsen’s request for compensation connected to reduced harvests in the future.

“We believe the Legislature intended for the damages to be limited to the actual loss,” said board member Randy Dearth, citing Utah statutes that authorize DWR to compensate agricultural producers for losses from big game.

The board ordered the Division of Wildlife Resources to cut Eskelsen Orchards LLC a check for $4,187.61 to cover the cost of purchasing, transporting and replanting 260 nectarine, apricot and pluot trees that deer destroyed in 2020-21.

Using a model that predicted those trees would each yield .72 bushels of fruit, however, Eskelsen sought nearly $14,000 in compensation that would cover the value of harvests he would not see.

DWR characterized the demand as “crop insurance,” arguing Eskelsen’s model was too speculative to rely upon for calculating the orchard’s true losses.

“We can debate replacement costs and replacement value all day,” said Kyle Maynard, DWR’s lawyer. “Ultimately, what it came down to is what we saw he lost, actual losses, against the idea that we may never know if those trees would ever produce fruit or how much fruit.”

The law contains language referencing damages in the future, but there are too many variables for this provision to be applied consistently, according to the board’s findings.

“We interpret the statute discussing future loss to mean when the crop would have been taken to market in the year the damage occurred,” Dearth said. “We request the Legislature to clarify this statute for its inconsistencies.”

In response to Eskelsen’s petition, one Utah lawmaker sponsored legislation aimed at preventing such claims from ever being considered.

“The notion that a landowner should be able to take multiple years’ worth of damages is just asinine,” said Rep. Casey Snider, R-Paradise. “I’m trying to set the stage of what is realistic and fair to protect the state and its interests.”

Under HB62, growers would be barred from seeking claims based on “speculative damages or claims of future value.”

“I don’t think that the landowner’s [Eskelsen’s] petition was reasonable by any measure. We need to protect state resources and wildlife from some of those abuses,” Snider said. “I’m fully supportive of agriculture and am active agriculture myself, but I think that relationship between wildlife and landowners needs to be a partnership and when one potential partner abuses that, we have to step in.”

It is clear from Eskelsen’s Jan. 4 presentation to the Wildlife Board that he believes his claim for compensation is not only reasonable but doesn’t even fully reflect the extent to which big game damage is complicating his operation.

“There are orchards in the area where the deer decimate the foliage and so your orchard never fully develops. And if they take out individual trees, you then have a haphazard spacing so that you’re dealing with some mature trees, some old trees,” he told the board. “That just adds to the cost as your people go through and pick and have to move around and do different things on various pieces.”

Eskelsen’s father Richard acquired the orchard property in 1982 and it came with 125 mature apricot trees when Todd took it over a few years ago. In 2019, he added 3,000 fruit trees in the hopes of going into commercial production within the 7 years it takes such trees to bear fruit.

Fencing the orchard would solve the deer problem, but it would not be economical without the state’s financial support, according to Eskelsen.

Enclosing the entire 17 acres would take 4,000 feet of 10-foot-high fencing, which would cost at least $125,000, he said. DWR offered to provide some of the material but delivered a woefully inadequate amount of 4-foot fencing, which the agency wound up retrieving.

Located near Perry at the base of the northern Wasatch, Eskelsen’s and many other orchards are situated close to DWR’s Brigham Face Wildlife Management Area, which provides big game habitat. Deer migrate through Perry in late fall, and because of rapid residential development filling in open space, more deer wind up in the orchards.

DWR occasionally counts the deer in the Perry orchards and scares them out.

“If a deer was there, we would discharge a firearm to attempt to get them to move off the property,” Eskelsen said. “I went out multiple nights to count and to haze and [the deer] weren’t much troubled by the shotgun blast. I had to shoot three or four times and I tried to keep advancing on them.”

He stressed that he wants to operate in harmony with the deer, not eliminate them, but his orchard can’t turn a profit if trees can’t reach maturity on time.

“I lost three to four years of production. They are little trees that grow into big trees that produce fruit,” Eskelsen said. “The trees are a means for production, but the fruit are the revenue. Fruit trees are a huge upfront investment. There is a cost-shifting from DWR to the fruit growers. Deer are a good thing. I like them on my property, but if you make it unprofitable for farmers, they will sell out to developers.”

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