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

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

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

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.

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

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. 

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.



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