From the pages of
Pinedale Roundup
Volume 104, Number 12 - March 22, 2007
brought to you online by Pinedale Online

Poaching penalties challenged in court
Defense attorney questions state ownership of wild animals
by Annie O’Brien

Efforts to prosecute poaching violations as felonies faced opposition in Sublette County’s District Court. On March 15, attorneys for Michael Meeks and Cody Post, who were charged with the Oct. 31, 2006 poaching of an antlered mule deer, argued that the state’s attempt to prosecute the men under a felony property destruction statute violated the defendants’ right to due process, protection against double jeopardy, and contradicted hundreds of years of national legal precedent that has found wild animals to be the property of no one.

According to his affidavit, Brad Hovinga, a Sublette County Game and Fish Warden, responded to the Rye Grass Draw area on Nov.1, 2006 after hearing a report of a poached mule deer. There he discovered a decapitated buck mule deer, as well as tire tracks, a coffee cup and shell casings near the carcass. The evidence found near the body “subsequently inculpated Michael J. Meeks and Cody R. Post in the killing of the deer,” Hovinga’s affidavit stated.

He located Meeks and observed the tread pattern on his truck was similar to that found near the deer’s body. Hovinga also noticed blood in the bed of the truck. In his affidavit, Hovinga said Meeks admitted he and Post shot the deer the previous night, after dark. Meeks allegedly said that Post shot the buck twice, and he shot it one more time to “finish it off.” Meeks produced the animal’s head, and Post later confirmed Meeks’ story. Hovinga’s statement adds that the monetary value assigned to a mule deer in Wyoming is $4,000. Post later pleaded no contest to three misdemeanor charges. He was sentenced to a year of unsupervised probation, a four-year suspension of his hunting, fishing and trapping privileges and fines and restitution costs totaling $8,540.

In November of 2006, the Sublette County Attorney’s office charged Post and Meeks with felony property destruction under Wyoming statute 6.3.201, dealing with property destruction. Another state statute, 23.1.103 declares:

For the purpose of this act, all wildlife in Wyoming is the property of the State. It is the purpose of this act and the policy of the state to provide an adequate and flexible system for control, propogation, management, protection and regulation of all Wyoming wildlife.

In a memorandum in support of a motion to dismiss the state’s charge of felony property destruction, Post’s attorney, Neal Stelting argued that wild animals belong to no person or entity, “in the proprietary sense” until they are captured. Stelting referenced case law extending back over 200 years. In 1805, the New York State Supreme Court deliberated on the case of Pierson v. Post. In that case, two hunters chased a fox, and when one hunter killed and retrieved the animal, his companion sued, claiming the fox was his property because he was in pursuit of it. The New York court established that the fox was not property until it came into one’s “occupancy,” or possession. Stelting also cited a 1994 Wyoming case, Clajon Production Corp. v. Petera. In that lawsuit, the state conceded that the government does not own wildlife in a proprietary sense, but rather acts as a trustee of the animals for the benefit and interest of the citizenry, Stelting argued. He alluded to a 1977 U.S. Supreme Court ruling that held, “It is pure fantasy to talk of owning wild animals.”

Thus, Stelting claimed, because the state is only a trustee, obligated to regulate and manage wild animals, but does not own them in a proprietary fashion, the prosecution could not prove an essential element of the felony charge, namely that the property of another was materially damaged. During the motion hearing, district court Judge Nancy Guthrie compared the issue to public water ownership. She asked if individuals who poisoned or damaged public water sources could be convicted of felony property destruction.

Stelting’s memorandum also contends that the felony charge violated his client’s right to due process because Post had “no notice that the conduct of killing a wild animal would violate [Wyoming statute] 6.3.201.” He argued that because wildlife is not property, a person of “ordinary intelligence” would not have enough prior notice to understand that killing a wild animal would violate the state’s property destruction statute.

Meeks’ attorney maintained that the felony charge violated Post and her client’s protection against double jeopardy because they had been punished after pleading guilty to the misdemeanor offenses Former Sublette County Chief Deputy County Attorney Mike Crosson told the Pinedale Roundup last fall that the state’s decision to prosecute poaching violations as felonies was intended to protect genetic variation in wild game species. Poachers, Crosson explained, often targeted bucks with large antlers. Over time, the unregulated killing of these large-antlered male animals depletes the species’ gene pool for those desirable traits.

Autumn of 2006 featured several high profile poaching charges. In November Landen Wisell, dubbed the “Pinedale Poacher” was convicted of felony property destruction for repeatedly violating several poaching rules. In early December, Michael May, John May and Jerry Harris, of Rock Springs were charged with poaching animals near the Big Sandy drainage area.

In his response to the dismissal motion, County Attorney Ralph Boynton asserted the state did own wildlife. Citing several earlier cases, he argued in his traverse that the government did function as a trustee for the “common benefit of all the people in the State.” Wild animals are then, property of the people. It does not matter, Boynton contended, whether or not the state owns wild fauna in a proprietary or trustee manner.

Boynton addressed the defense’s double jeopardy objection, claiming that a previous case Nowack v. State of Wyoming, in which a defendant was convicted of misdemeanor and felony charges stemming from the same drunk driving incident. Nowack, the county attorney’s brief maintains, found that if the prosecution could prove separate elements of the distinct offenses, it did not violate double jeopardy.

In this case, Boynton argued, that “to take” an animal can mean many different things, including hunting, chasing, capturing, shooting, fishing, killing, and could constitute different elements for different charges.

Sublette County Game and Fish Warden Brian Nesvik called Boynton’s record of prosecuting hunting violations “outstanding.” The Game and Fish typically investigates poaching incidents and then makes a recommendation to the county attorney on how they should be prosecuted. He said the Game and Fish rarely advises felony prosecutions, but will advise the county attorney if he feels a more serious charge is warranted. Felony charges, Nesvik said, have a dedeterrent effect on future poachers. Misdemeanor charges were often not strong enough to punish truly egregious hunting breaches.

“[Misdemeanor charges] aren’t severe enough in these really extreme cases where there’s a lot of intent,” he added. Nesvik said the Post and Meeks’ incident, committed after dark and several weeks after the end of deer hunting season, was a prime example of a serious, “very intentional” poaching crime. He speculated the defendants “were probably under the influence” when they shot the buck.

“This is probably about the most serious type of crime we deal with, with wildlife,” he said. Nexvik added that hunters travel to Sublette County, spending a great deal of money here, to pursue the area’s excellent wildlife. In a later interview Stelting said the notion that wild fauna could be considered property defied the spirit of fair chase hunting. A hunter himself, Stelting said he did not like to think he was pursuing animals “in a regulated field of state property.” “It takes away from the traditional notion of hunting,” he said.

Judge Guthrie took the motions under advisement and had not issued a ruling by press time.

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