(1) Subject to the limitations contained in sections 33-3-103 (1) and 33-3-103.5, and in part 2 of this article, the state shall be liable only for: (a) Damages to livestock or personal property used in the production of raw agricultural products, which under this article shall be no more than five thousand dollars per head of livestock injured or killed, caused by big game; except that damages to livestock shall be limited to physical trauma resulting in injury or death; (b) Damages to real or personal property, when such damages are caused by wildlife that is being moved or is otherwise under the direct control of division personnel at the time the damage occurs; (c) Damage to real or personal property caused by the use of damage prevention materials if the use of such materials or equipment is under the control of any personnel who are under the direction of division personnel at the time damage occurs; (d) Damages caused by those species of wildlife enumerated in section 33-1-102 (2) to orchards, nurseries, crops under cultivation, and harvested crops, damages to lawful fences as defined in section 35-46-101 (1), C.R.S., when such damages exceed ten percent of the value of the specific fence involved, and damages to livestock forage in excess of ten percent of historic use levels for privately owned and fenced ranch or farm units which are specifically limited to hay meadows, pasture meadows, artificially seeded rangelands, and grazing land which is deferred to seasonal uses. Damages to aftermath on alfalfa shall be paid to the full extent of such damages without regard to historic numbers of wildlife. Historic levels shall be designated by the claimant at the time of making a claim. Historic levels shall be expressed in average numbers of wildlife present on the property in question based on the twenty-year period ending January 1, 1973. If the division does not agree with the claimant on normal historic levels or any element of a damage settlement, the matter shall be submitted to arbitration within ten days of notice by either party. The arbitration panel shall consist of one arbitrator chosen by the landowner, one arbitrator chosen by the division, and one arbitrator chosen by the other two arbitrators. If the two arbitrators cannot agree within ten days on a third arbitrator, a request by either party shall be made to the district court for the judicial district of the county in which the damage is located for appointment of a third impartial arbitrator. The division and the landowner shall equally share the cost of the use of the third arbitrator. Historic levels or any element settled by arbitration may be included in an appeal to a court of competent jurisdiction, and the court shall not be bound by the finding of the arbitration panel. (2) Repealed. (3) The burden of proof shall be with the claimant for all claims for damages enumerated in paragraph (d) of subsection (1) of this section, pursuant to rules established by the commission pertaining to wildlife damage. (4) If the commission has not promulgated rules relating to damage by wildlife, pursuant to sections 33-1-104 and 33-1-108, the division shall not refuse to pay a claim for wildlife damage. (5) If for any reason a pertinent rule of the commission relating to wildlife damage is declared void or suspended, the provisions of subsection (4) of this section shall not be applicable. (6) For the year 1979, any damage claims received by the division after June 21, 1979, shall not be denied until and unless considered under the rules promulgated by the commission relating to damage by wildlife. If such rules are not promulgated by January 1, 1980, the provisions of subsection (4) of this section shall apply. (7) Repealed. (8) All rules concerning damages by wildlife adopted or amended by the commission on or after July 1, 1979, are subject to section 24-4-103. (9) Reimbursement for wildlife damages shall be reduced by the amount of claim awarded by an insurance company for the same damages.
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