Friday, March 18, 2011

Judge doesn’t dismiss poaching charge

Trial rescheduled in felony case against anti-wolf activist


By TERRY SMITH
Express Staff Writer

Deputy Prosecuting Attorney Matt Fredback shows a set of elk antlers to Idaho Department of Fish and Game Conservation Officer Merritt Horsmon at a preliminary hearing last fall for anti-wolf activist Tony Mayer, accused of illegally killing a trophy bull elk in Blaine County in 2009. Arguments over whether the elk is of trophy status continue as the case winds its way through Blaine County 5th District Court. Photo by David N. Seelig

Judge Robert J. Elgee declined this week to dismiss a felony poaching charge against an anti-wolf activist accused of illegally killing a trophy bull elk in northern Blaine County in 2009.

Elgee ruled Monday in Blaine County 5th District Court that contrary to claims made by 59-year-old Tony Mayer, the Idaho statute defining what constitutes a trophy animal is not ambiguous or contradictory.

In Idaho, the difference between illegally killing a trophy elk and a regular elk is the difference between being charged with a felony or a misdemeanor.

Mayer, a resident of Twin Falls, founded the anti-wolf website www.SaveElk.com, which protests the reintroduction of wolves in Idaho, Montana and Wyoming and argues that they are devastating elk populations in the region.

Mayer was charged in late 2010 with the felony crime of "flagrant unlawful killing and/or possession of a trophy bull elk" for allegedly killing the animal in the Alturas Lake area after the bow hunting season ended there on Sept. 30, 2009. He is also charged with the misdemeanor crimes of hunting without an elk tag, hunting without an archery permit and unlawful possession of protected wildlife.

The Idaho Department of Fish and Game began an investigation in 2009 after Mayer posted stories and photos about the kill on various sportsmen's websites. Fish and Game alleges that Mayer killed the animal illegally on Oct. 3, 2009.

While Elgee denied Mayer's motion for dismissal, he granted another request to reschedule a jury trial that was set to begin on April 12. Instead, the trial is now scheduled to begin on June 7.

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Jerome attorney John Lothspeich, who is representing Mayer, told Elgee that he needed more time to prepare his case and may want additional tests done on the antlers taken from the elk Mayer killed. Lothspeich said he may file additional motions prior to trial, including a request for a change of venue that could move the trial out of Blaine County.

Determining whether a bull elk is of trophy status is done by using measurement standards developed by the Boone and Crockett Club, a national sportsmen's organization named after famous Americans Daniel Boone and Davy Crockett. It was founded in 1887 by Theodore Roosevelt before he became U.S. president.

Using the Boone and Crockett system, antlers are measured in inches, with measurements of circumference, main beam and points. Deductions are made for imperfections, such as lack of symmetry, to arrive at a Boone and Crockett score.

Boone and Crockett defines a trophy American elk as a score of least 360 points, while Idaho law defines trophy status for an American elk at 300 points.

Roger Atwood, an official Boone and Crockett measurer from Rexburg, gave the elk killed by Mayer a score of 303 points.

Lothspeich argued in court Monday that Idaho code as written in 2009 is ambiguous because it first states that Boone and Crockett standards will be used to determine if an animal is of trophy status. In a second sentence, however, the code states that trophy status for an American elk is 300.

Lothspeich pointed out that Fish and Game recognized the ambiguity of the code and had it amended in 2010 to clarify that the Boone and Crockett measurement system should be used for scoring.

If the code as written in 2009 is ambiguous, Lothspeich argued, then the court should apply the principle of "lenity," which basically provides that when a statute is not clear, the court should use a definition most favorable to a defendant.

Blaine County Deputy Prosecuting Attorney Matt Fredback argued that the lenity principle is not applicable because the language of the code as written in 2009 is not ambiguous. Instead, he said, a complete reading of the code makes it obvious that the Legislature intended trophy status of an American elk to be at 300 points.

"The Legislature has defined it the way it intended it," Fredback said. "I would submit that it's 300 and that's why the Legislature put it in the statute."

The statute in question is Idaho Code 36-202(h).

Terry Smith: tsmith@mtexpress.com




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