WA court: Farmer had right to shoot cherry-picking elk

[billythekidrock]

From here http://www.theolympian.com/northwest/story/359605.html

Published February 14, 2008
WA court: Farmer had right to shoot cherry-picking elk
CURT WOODWARD

A Yakima-area fruit farmer had a constitutional right to kill the pesky elk that were munching through his valuable cherry crop, the state Supreme Court ruled Thursday.

The decision tosses out Jerrie Vander Houwen's conviction on two counts of poaching, and reinforces the state constitution's strong protection of property rights against marauding animals - even when they're managed as public property.

Vander Houwen's run-ins with elk on his Tieton farm started in 1998, when the animals started feasting on his orchard, undeterred by a shoddy Department of Fish and Wildlife fence.

Vander Houwen started fixing the state's fence himself, and tried to lure the elk away from his valuable crops by leaving out hay for them to eat instead. It didn't work, and during 1999 and 2000 the elk kept mowing through the orchard, destroying 425 cherry trees, 56 bins of apples and 228 crop sprinklers.

The farmer repeatedly contacted Fish and Wildlife to seek its help in chasing off the elk, but "the Department did nothing to address the problem," the court said. In early 2000, Vander Houwen told a wildlife agent that the elk were still eating the trees, and weren't even scared off by gunshots fired over their heads.

The agent's response, as relayed by the court, reads like the punchline to a joke about sluggish bureaucracies: We'll try to help you out, but it has to wait a week or so because of the upcoming holiday weekend.

That wasn't good enough for a frustrated Vander Houwen, who told the agent that he couldn't wait, and would have to start actually shooting at the elk this time.

For two weeks, wildlife agents did nothing about the case. Then, after investigating a report of dead elk near the farm, the state charged Vander Houwen with 20 counts of wasting wildlife and poaching.

Vander Houwen had acknowledged shooting at the elk during the investigation, but said he didn't know whether he'd killed any of them.

Jurors convicted Vander Houwen on two of the poaching counts, throwing out everything else. But the verdict was irreparably tainted, the Supreme Court said, because Vander Houwen wasn't allowed to argue that he had a strong constitutional property right to shoot the elk.

Improper jury instructions also laid the burden of proof on Vander Houwen, instead of the state, and neglected to inform jurors that they must unanimously agree which of the alleged actions were the basis of the two convictions, Justice James Johnson wrote for the majority.

Under a 1921 court decision, property owners have the right to kill elk in defense of their property if the killing is deemed "reasonably necessary." That was certainly the case for Vander Houwen, the court said Thursday, because of the state's numerous failures to act on his problem.

Furthermore, the court said, a state program that pays landowners for losses from wildlife wouldn't have been close to making Vander Houwen whole: The cap on damage claims is $10,000, and his losses from the elk were estimated at nearly $250,000.

"A property owner's dilemma is apparent in this case: he can either exercise the constitutional right to protect his property and possibly face criminal charges, or he can file a claim and hope that elk do not inflict massive financial damage," Johnson wrote for the court.

Joining Johnson in the majority were Justices Charles Johnson, Richard Sanders, Susan Owens and Bobbe Bridge, and Chief Justice Gerry Alexander.

Justices Tom Chambers, Barbara Madsen and Mary Fairhurst agreed with the majority's result, but differed on the legal reasoning, saying a landowner's right to protect property should not be absolute. Instead, the concurrence said that right should be weighed in context with other laws and legal remedies.

---

The case is No. 77891-4, State v. Vander Houwen

[robb92]

Yet again a waste of wildlife, the state could have issued the guy some crop damage permits and that would have eliminated the waste of 20 animals whose meat could have gone to a shelter or into someones freezer. I wish the great game department would use some common sense and made good judgement calls on things.


This story is reminds me how I got permission to hunt on some land in Maryland. A group of 140 deer were destroying this guys yard and crops so he called the state and they told him that the deer were on his property so they are legally his to do with what he wants. So he told them he was going to bring in a hunter and thin them out.

[Slider]

Well that just opened up a can of worms!!!

[dbllunger]

The state used to allow farmers to shoot animals, but that stopped about 15yrs ago.  They used to also supply fencing but that stopped.  In tough times farmers will do what they have to do to make a living and pay the bills.  Unfortunatley game animals mainly deer and elk will be killed in that dilema.  I'm on both sides of that fence, and it is dang hard to live with. 

[Slenk]

Well if you guys want to really get pissed what about the charges being dropped for the guys that Poached the trophy elk at Tampico? Was on the news last night . The property owner was on the news and POd , said they were trespassing on their private property.

Slenk

[Cougeyes]

Wow, that is just B.S.!!!  What were the reasons why they dropped it? 

[KillBilly]

YAKIMA, Wash. -- Charges against three men accused of poaching a bull elk in Tampico were dropped Friday morning, but they may not be out of the woods just yet.

Charges against William Gunter, his son Christopher Gunter, and Jon Boiselle were "dismissed without prejudice". That means the Department of Fish and Wildlife has one year to press the same charges again.

The charges include second-degree criminal trespassing, illegal big game hunting, and second-degree big game spotlighting.

Joanne Umipig, whose property the elk was alleged to be poached on, says she has spoken with officials from the Department of Fish and Wildlife. They say it's likely the charges will be pressed again.

"We would like to see these people punished to the fullest extent of the law," says Umipig. "We would like to see them be an example, out in the county, that the law does prevail".

Two additional members of the hunting party were in Yakima Superior Court today, however their names have not been released. Their case was also turned back over to the Department of Fish and Wildlife for further review.

[boneaddict]

 

[Coasthunterjay]

SERVES THOSE ELK RIGHT! AND IM GLAD THE FARMER GOT AWAY. IT ONLY PROVES THAT WDFW REALLY DOESNT CARE ABOUT US AS PEOPLE.  if they would have helped that farmer out and addressed the situaation like they could ans should have, then this wouldnt have been a problem.............

IM SORRY THAT 20 ELK GOT WASTED BUT IN MY OPINION THAT WAS NOT CALLED POACHING! maybe waste but im glad that he got away.............THERE IS REAL POACHING AND WE NOW WHAT THAT IS......this is not!

i have alot of friends that are farmers and i have helped and worked for a couple of them and you wont trully understand there point of view on wild animals untill you sit down and talk to them....... animals be running crazy....... they want those deer and elk shot just as much as we want to shoot them come hunting season!

well take this into perspective  if you dont agrree...

we sometimes refer to hunting season and harvesting our one animal a year as food on our tables......

WELL THAT FARMERS CROPS THAT THOSE WILD ANIMALS DESTROY AND EAT ARE THE ONLY WAY THAT FARMER AND HIS FAMILY EATS AND IS ABLE TO LIVE AND THEN BEABLE TO CONTINUE ON FOR THE NEXT COMMING YEARS!

THINK ABOUT THAT.....

[Slenk]

Coasthunterjay
I have been on the Farming and Ranching end . And agree with you 1000%. Good post .
Slenk

[Coasthunterjay]

thanks Slenk...i was actually really worried about the reaction i might get for my post.....you know i am not against prosecuting poachers... and yes i feel bad that 20 elk had to die. but he wasnt targeting certain bulls of huge size and he wasnt selling or making lies up at the local bar about what he had done. he was simply keeping food on his table for his family!...but think of it this way....it took 20 elk to get the WDFW off there asses and do there Jobs! holy *censored*....you would think that 1 or 2 dead would stir something up, but obviously the coffee and donuts were just to good.....and with poaching, there is a line at which we can call poaching and a line at which it isnt poaching...the funny thing about it is we as hunters should all now what the difference between those two are. and by telling you all his standpoint....now you know! this farmer tried to his best abbility to do the right thing and if you read this article it shows and says that.......

[DOUBLELUNG]

CHJ - my only negative reaction to your post is the assumption in your follow-up, that the orchardist's complaints didn't get addressed due to "but obviously the coffee and donuts were just to good.....".  That's a low shot at the wildlife officers, and would be like me, as a non-military person, criticizing you as a military guy for screwing off stateside when all the terrorists haven't been caught yet.  That would be ignorant and uncalled-for; just like your slam on the wildlife officers.

WDFW enforcement officers in Eastern WA are a skeleton crew.  So are the bios, fish wildlife and habitat all.  They work hard, and it's not their call that higher-ups have pulled most of their workforce over to the west side to primarily work ESA fish issues; nor that they have been directed to prioritize law enforcement over wildlife damage.  As a military man (I think, forgive me if I'm wrong), I think you are aware of allocation of limited resources?  Don't rain sh*t on the grunts in the field, odds are they'd do their jobs differently if they set their own work priorities. 

WDFW does a really piss-poor job of managing game damage, and a lot of other things too.  I think the agency's priorities are really screwed up; especially when over half of the work force is in Olympia, with less than 1/2 actually working in the field.  But, don't assume the MINORITY of the outfit working in the field want it that way.  I'd love to see the outfit get back to its core mission of managing fish and wildlife - so would the WDFW employees in the field, so would a lot of the grunts in Oly too.  Direct the blame squarely where it belongs - at the political appointees.

I don't know Yakima Region enforcement well enough to speak of them, other than knowing there are some very good officers - probably the vast majority.  Here in Wenatchee, which is a 5-officer detachment on paper, there are two officers - and sometimes they get pulled over to the west side to work fish too.  Leavenworth hasn't had an officer since the last one retired in April 2002!  Wenatchee has had one position vacant for most of a year, and one position vacant for most of THREE years.  So, while on paper there are 5 officers for all of Chelan County and western Douglas County (Leavenworth, 3 in Wenatchee, and Chelan); the reality is there is one officer in Chelan, and one officer in Wenatchee.  Oh, wait - the guy in Chelan has to help cover for the Okanogan Detachment, because Brewster is vacant! 

Pend Oreille county just got one officer, finally, after having NONE since (?) ... it's the same all across Eastern Washington. 

I understand your frustration, and share it too - but don't assume the problem is the guys in the field!  I'd say 95% of the officers and bios are doing as best they can, and better than should be expected, with the limited resources they get.  And, as an added bonus, they have the constant joy of an unhappy public, each of who has their own idea of what that job's priority should be; and the knowledge they ARE part of a lousy outfit that will kick them loose in a heartbeat if doing their job gets politically unpopular. 

I'm glad the orchardist got off - he should.  But, don't blame the officers and bios in the field unless you know it's justified, they already have an unwinnable position.  Lay the blame squarely where it belongs, on Washington state government, and the elected and appointed officials who mis-allocate resources AWAY from core mission to make their own lives comfortable.  In this example, lay the blame on the Director, the Commission and the Governor.     

[Ray]

I agree with this ruling. If the farmer's concerns were not addressed it was because someone in the department or the agency in general neglected their duties to the public.

[sisu]

Coasthunterjay and doublelung both have good points. I know one warden and she has way too much territory for one person, but that is the way the sate does it.

Having more access for hunting farm land would be nice.

[Coasthunterjay]

CHJ - my only negative reaction to your post is the assumption in your follow-up, that the orchardist's complaints didn't get addressed due to "but obviously the coffee and donuts were just to good.....".  That's a low shot at the wildlife officers, and would be like me, as a non-military person, criticizing you as a military guy for screwing off stateside when all the terrorists haven't been caught yet.  That would be ignorant and uncalled-for; just like your slam on the wildlife officers.


I'm glad the orchardist got off - he should.  But, don't blame the officers and bios in the field unless you know it's justified, they already have an unwinnable position.  Lay the blame squarely where it belongs, on Washington state government, and the elected and appointed officials who mis-allocate resources AWAY from core mission to make their own lives comfortable.  In this example, lay the blame on the Director, the Commission and the Governor.     

first of all im not going to argue the difference between F&W officers between yakima, olympia, west, eastern, or anywhere......i Dont care....all i was stating was that i think its pathetic that we read that it took over 20 ELK to finnaly get noticed for this to finally go to court....I DONT CARE WHOS FAULT IT IS but some one was sitting on there asses doing nothing or hiding the paperwork under the rest on there desk when something could have been done to prevent 20 elk from being shot! put the blame on whoever makes you feel good but it wasnt the farmer......you can calm down and be rest assured that i wasnt accusing any individual officer......not one man can do everything......

And you couldnt possably understand the difference you put me and everyother serviceman in when you attack me saying that it would be my fault that as a military guy(because thats all i am) screw off all the time stateside when all the terrorists haven't been caught yet, even as an example....were the hell do you get off even saying stuff like that.....I personnally myself have saved half a dozen lives and have stopped over half a billion dollars(yes billion) in Drugs and probably close to 1000 migrants from comming into this state(so i actually probably saved a hundred lives with that said). and you want to even compare the work that the state is doing compared to what i do.......you are sadly confussed......thats like comparing apples and oranges with a watermelon and a nut............

This problem with not having the right amount of officers in the right places is bull......and most the people on this website now that. i wasnt saying that every WDFW officer is a bad guy....i wasnt stating that any are. i was stating that WDFW as a whole....the State itself!...yes there are a shortage of WDFW officers but there obviously not doing enough to fix that....three years and they still cant find a replacement.......

aaAAAAAAAHHHHHHHHHHHHHHH.......its exactly as Huntwa states......."somebody neglected their duties " i dont care who but they did........