http://www.dailyinterlake.com/...22/ARTICLE/161229951


HUNTER HIT WITH COSTLY PENALTIES AFTER MISHAP
December 22, 2016 at 8:00 am | By SAM WILSON Daily Inter Lake

Jeff Fleming wishes he could take back the most expensive three seconds of his life.

On Oct. 28, the Kalispell hunter was convicted by Thompson Falls Justice of the Peace Donald M. Strine of illegally killing two bighorn sheep during a hunting trip in the Knowles Creek area. He says that it was an honest mistake, but one that still wound up costing him more than $32,000 in fines after he self-reported the incident.

“Nobody draws a sheep tag you waited 30 years for and ends up killing three animals intentionally,” Fleming said in an interview Monday.

On Oct. 28, Fleming was tracking a herd of bighorn sheep at Knowles Creek with his friend and a fellow Kalispell hunter, Brad Borden, when he sighted on a trophy ram.

“I took a shot at my ram, but as soon as I shot that ram, I didn’t know it at the time, it fell into a depression where I couldn’t see it,” Fleming said. He reloaded, peered back through his scope and saw what appeared to be the same animal. “I’m sure he’s wounded, so I shoot him again. When I walked up the hill, I can’t tell you how shocked I was to see three bighorn sheep lying there.”

The second bullet had passed through the second ram and struck an ewe standing in the brush behind it, killing it with a shot to the throat.

Borden then called the game warden, who upon investigating the scene, told the two men that the evidence appeared to corroborate their story. Fleming said the warden even helped the hunters pack out the meat, allowing him to keep the first ram.

“He told me, ‘I gotta charge you for taking a ram, but I can’t charge you for taking an ewe’”, Fleming recalled. “I just thought I was going to pay a fine. I never thought I’d lose my license.”

Fleming pleaded guilty to the offenses. As restitution to the state, he must pay $30,000 for the second ram and $2,000 for the ewe, in addition to a $735 fine for hunting over the limit. He also lost his hunting, trapping and fishing privileges for 30 months.

Judge Strine said in an interview with the Daily Inter Lake that although the game warden corroborated Fleming’s account of the sheep killings, the law gives him no leeway on restitution for those convicted of illegally harvesting animals.

“The law says ‘shall,’ not ‘may,’ so that pretty much takes the discretion away from the judge,” Strine said. But he added that he could have suspended Fleming’s sportsman privileges for considerably longer than he did.

Strine also said he allowed Fleming to make the payments in installments, citing the accidental nature of the crime.

RELYING ON information from a story in the Sanders County Ledger, a Daily Inter Lake news brief in its Monday “Regional Roundup” referred to Fleming as “poacher,” which he said compounded his poor luck by tarnishing his reputation in his home town.

“Poaching” is not legally defined under Montana law, and is instead a more generalized term. Fish, Wildlife and Parks game warden Capt. Lee Anderson said he typically reserves the word for those who illegally kill wildlife with intent.

“I generally only use the term for folks that do it purposefully and knowingly,” Anderson said. “... We try to work with guys as much as we can, and then it’s up to the judge to decide what kind of penalty he wants to levy.”

Ultimately, Strine said the responsibility rests with Fleming, regardless of whether the circumstances were unfortunate.

“If you’re gonna go out in the woods with a rifle, you better know the law and what you’re going to shoot at, and what you’re not going to shoot at,” Strine said.

While Fleming disagreed with the charges, he said he appreciated the warden’s credulity after Borden called in the incident. Still, he feels that a judge should have some leeway when sentencing someone who had no intention to break the law.

“As a hunter, there should be an incentive for every hunter to do the right thing and the honest thing, which is to report yourself,” he said. “They shouldn’t throw the book at an honest hunter. I’ve never had a hunting violation in my life and I’ve never had a criminal history.”

Reporter Sam Wilson can be reached at 758-4407 or by email at swilson@dailyinterlake.com.

That's crazy! Would someone who accidentally shoots a human face a $30K+ fine? Most likely not.

There has to an appropriate punishment somewhere between a slap on the wrist and this.

Where's the incentive to do the right thing and report a unintended accidental kill? If this guy would have walked away and kept his mouth shut it's very likely that the wolves, coyotes and raptors would have eaten the evidence.

Not a surprising outcome.Kind of tells you how honesty pays off.Same thing happened to a woman about 10 miles from here who accidentally shot a moose.She reported it to the DNR and was rewarded with a big fine,and loss of hunting privileges .Her husband owns heavy equipment and she could have easily made it disappear.

He got the minimum fine.

I whole-heartedly agree with stiff penalties for poaching, but when the evidence and testimony of all involved parties indicates an honest mistake, which we are capable of, a more reasonable penalty should be applied. In this case, that does not appear to have happened. As pointed out, this case will only help to ensure that honest mistakes like this go unreported in the future. It's truly unfortunate that this fellow was punished so severely for doing the right thing after his screw-up.

If there were really two of these guys, Fleming and his buddy Brad Borden, and they were really together, it would be hard to believe that neither of them saw the first ram fall. Maybe not seeing the ewe in the bush, but the other is a tough one to believe with two sets of eyes.

Just my opinion.

It's a tough call but the Law is in place for a reason.

quote:

Originally posted by larrys:
If there were really two of these guys, Fleming and his buddy Brad Borden, and they were really together, it would be hard to believe that neither of them saw the first ram fall. Maybe not seeing the ewe in the bush, but the other is a tough one to believe with two sets of eyes.

Just my opinion.

Then why self report? If you are going to intentionally shoot two rams why not leave the smaller one lying in the ditch?

quote:

Originally posted by Kathi:



“The law says ‘shall,’ not ‘may,’ so that pretty much takes the discretion away from the judge,” Strine said.

Oh. Kind of like "Shall not" be infringed...?

It is just too bad that the rule of law doesnt apply so strictly when you are the former Secretary of State.

Shoot Shovel and Shut up seems to jibe with our Governments Hypocrisy better than honesty, unfortunately.

That's not a bad price to pay ($33K) for a couple extra sheep! Go book a bighorn hunt and see what they cost!

All kidding aside, the law is there to protect the resource and to keep the criminal element at bay. Too bad this guy got caught-up in the legal machine but there's a price to pay for every mistake.

I feel just as bad for the loss to future potential hunters as I feel for his predicament.

Zeke

I think Desert Ram said it most accurately.

The law should have some definition between poaching and an honest mistake that was voluntarily self reported.
If there was intention of wrongdoing then why did he voluntarily call the authorities.?

Judges always have discretion on whether and how to impose penalties. They may or may not choose to use it. In this case it appears that the JP is hiding behind the law in order not to have to take heat for using that discretion. Or maybe he doesn't fully buy the accident story.

But in most small communities the Justice of the Peace may or may not have completed high school, so . . .

quote:

I think Desert Ram said it most accurately.

The law should have some definition between poaching and an honest mistake that was voluntarily self reported.
If there was intention of wrongdoing then why did he voluntarily call the authorities.?

Agreed, action like this will convince others who make a mistake to walk away and remain silent.

He should have used the "Hillary" defense. Deny, Deny, Deny, then blame it on someone else, and finally get on TV and say "What's the big deal?" "Does it really matter now?"

Bummer for Jeff and the sheep population. I haven't seen Jeff in many years but knew him through work. Total stand up guy and not surprising at all that he'd self report and pay the price.

larrys: get real, get a life and think twice before you decide to go into the world of investigations.

"No good deed goes unpunished".

quote:

Originally posted by lee440:
"No good deed goes unpunished".

AMEN!!!

87-6-907. Restitution for illegal killing, possession, or waste of trophy wildlife. In addition to other penalties provided by law, a person convicted or forfeiting bond or bail on a charge of purposely or knowingly illegally killing, taking, possessing, or wasting a trophy animal listed in this section shall reimburse the state for each trophy animal according to the following schedule:
(1) mountain sheep with at least one horn equal to or greater than a three-fourth curl as defined by commission regulation, $30,000;
(2) elk with at least six points on one antler, as defined by commission regulation, or any grizzly bear, $8,000;
(3) moose having antlers with a total spread of at least 30 inches, as defined by commission regulation, or any mountain goat, $6,000;
(4) antlered deer with at least four points on one antler as defined by commission regulation, $8,000;
(5) antelope with at least one horn greater than 14 inches in length as defined by commission regulation, $2,000.

Letter of the law, for those interested.

quote:

Originally posted by Lapidary:
87-6-907. Restitution for illegal killing, possession, or waste of trophy wildlife. In addition to other penalties provided by law, a person convicted or forfeiting bond or bail on a charge of purposely or knowingly illegally killing, taking, possessing, or wasting a trophy animal listed in this section shall reimburse the state for each trophy animal according to the following schedule:
(1) mountain sheep with at least one horn equal to or greater than a three-fourth curl as defined by commission regulation, $30,000;
(2) elk with at least six points on one antler, as defined by commission regulation, or any grizzly bear, $8,000;
(3) moose having antlers with a total spread of at least 30 inches, as defined by commission regulation, or any mountain goat, $6,000;
(4) antlered deer with at least four points on one antler as defined by commission regulation, $8,000;
(5) antelope with at least one horn greater than 14 inches in length as defined by commission regulation, $2,000.

The monetary penalties are pretty signed out, but it's my understanding that even with strict sentencing guidelines the judge can deviate, he just needs to put in writing why he is deviating.

The judge just didn't want to do that for whatever reason.

We don't know all of it, but since this fellow now has the suspension on his name, he is liable to have issues hunting in a lot of places.

I do think that this is a bad precedent, that this guy gets hit harder than folks like Nugent with his wounded bear that he neglected in Alaska a while back.

There is no discretion allowed by the JP when the statute he pled guilty to reads SHALL in the restitution section! In testimony by the guy's buddy, according to what was stated on another site, it was stated that the guy was going to dispose of the evidence of the violation and the buddy talked him into self reporting. His mistake when he went into court was to plead guilty to the statute as it is written and not trying to ask for a plea bargain down to a lesser offense. That's where a good lawyer should have been consulted that would have known how to proceed to eliminate that $30K restitution fee based on testimony by the GW that felt it was an honest mistake.

"A person convicted of" . . . there are several ways for the judge to not enter a final conviction. Deferred adjudication, for example. Also, as Topgun mentions, conviction of lesser offenses.

I don't pretend to know all of the facts of the case, but if the offender deserved lesser punishment he could have been given lesser punishment.

it says shall in the restitution part.

before that it say's willingly knowingly.
the judge had his out right there in those words and could have just fined him some 'court costs'.

quote:

Originally posted by Lamar:
it says shall in the restitution part.

before that it say's willingly knowingly.
the judge had his out right there in those words and could have just fined him some 'court costs'.

Incorrect, because the guy pled to the original charge, which is "knowingly" and that's why the JP had no discretion in the case the way the charges were written. The mistake the guy made was not getting a lawyer who knows how to read statutes and they could have bargained the charge down so that the $30,000 restitution fee didn't come into play. It was not the fault of the JP, but rather the defendant himself! I dealt with many laws and regulations in my 30+ years in LE and see exactly why the guy got what he did.

It's looking like law enforcement is more about raising revenue than upholding the law.

Given the information provided in this case, what do YOU think an appropriate fine should be?

I'd say $5,000 and some 'community service' time doing conservation work with the WGF dept.

quote:

Originally posted by Bigasanelk:
It's looking like law enforcement is more about raising revenue than upholding the law.

Given the information provided in this case, what do YOU think an appropriate fine should be?

I'd say $5,000 and some 'community service' time doing conservation work with the WGF dept.

The problem is that people are mixing up what punishment he got with that mandatory restitution fee. If you look at the charges, the JP could have given him a much higher fine, court costs, etc. and didn't because he had discretion on that, but not on the mandatory restitution part.

I rarely agree with TG, but in this case he is dead-on the mark. As soon as the hunter pleaded guilty to the charges, he became subject to the MANDATORY CIVIL restitution -- AN AMOUNT PAID TO THE STATE GAME DEPARMENT -- for a TROPHY ram under the law. A non-trophy ram would have cost him $2,000. His FINE for the offense -- hunting over the limit -- was a 'mere' $765 and the license suspension, another standard penalty for game law violations.

The Montana law on restitution:

87-6-906. Restitution for illegal killing, possession, or waste of certain wildlife. (1) Except as provided in 87-6-907 and in addition to other penalties provided by law, a person convicted or forfeiting bond or bail on a charge of the illegal taking, killing, possession, or waste of a wild bird, mammal, or fish listed in this section SHALL reimburse the state for each bird, mammal, or fish according to the following schedule:
(a) mountain sheep and endangered species, $2,000;
ETC., ETC.

The following is the section of MT's law that pertains to the trophy aspect:

87-6-907. Restitution for illegal killing, possession, or waste of trophy wildlife. In addition to other penalties provided by law, a person convicted or forfeiting bond or bail on a charge of purposely or knowingly illegally killing, taking, possessing, or wasting a trophy animal listed in this section SHALL reimburse the state for each trophy animal according to the following schedule:
(1) mountain sheep with at least one horn equal to or greater than a three-fourth curl as defined by commission regulation, $30,000;
(2) elk with at least six points on one antler, as defined by commission regulation, or any grizzly bear, $8,000;
(3) moose having antlers with a total spread of at least 30 inches, as defined by commission regulation, or any mountain goat, $6,000;
(4) antlered deer with at least four points on one antler as defined by commission regulation, $8,000;
(5) antelope with at least one horn greater than 14 inches in length as defined by commission regulation, $2,000.


Arizona has a very specific mandate included in its law. See the first sentence in sec. B.

17-314. Civil liability for illegally taking or wounding wildlife; recovery of damages

A. The commission or any officer charged with enforcement of the laws relating to game and fish, if so directed by the commission, may bring a civil action in the name of the state against any person unlawfully taking, wounding or killing, or unlawfully in possession of, any of the following wildlife, or part thereof, and seek to recover the following minimum sums as damage:

1. For each turkey or javelina $500.00
2. For each bear, mountain lion, antelope or deer, other than trophy $1,500.00
3. For each elk or eagle, other than trophy or endangered species $2,500.00
4. For each predatory, fur-bearing or nongame animal $ 250.00
5. For each small game or aquatic wildlife animal $ 50.00
6. For each trophy or endangered species animal $8,000.00

B. No verdict or judgment recovered by the state in such action SHALL be for less than the sum fixed in this section. The minimum sum that the commission may seek to recover as damages from a person pursuant to this section may be doubled for a second verdict or judgment and tripled for a third verdict or judgment. The action for damages may be joined with an action for possession, and recovery had for the possession as well as the damages.

The law is the law and it is a tough sentence, but the hunter can hold his head high and look people in the eye and claim it was an honest mistake and that he did the right thing and paid the price...

I tip my hat to him!

It's been a long time since I wrote a column about it, but the impetus for these laws came from Colorado's Samson Law. It was passed in the late 1990s after some idiot used a crossbow to kill a huge bull elk that had become the "mascot" of Estes Park.

If I recall, it was the first law that raised the bar for restitution costs on trophy animals. I know for sure that MT, ID, UT, WY and AZ followed and use some form for defining a trophy to trigger the higher costs. I think a few other states other than those in the West also have systems in place that use B&C scores for deer, etc.

I must be missing something. I am having a hard time feeling much sympathy for the fellow. We preach that it is the hunter that has the responsibility and accountability for pulling the trigger and the ensuing consequences. In this case the hunter pulled the trigger . . . twice . . . without being sure of his target. Credit to him for stepping up and taking his medicine (although as they say the cover up is generally worse than the crime had his mistakes been discovered) but the law is clear and he is the one that pulled the trigger in both instances. Insofar as mistakes and errors go, I am confident that if the state made exceptions for errors and mistakes, all that ever happened to anyone would make an error or mistake.

There's allowance here in CO for such mistakes. Usually up to the investigating wardens disgretion.

Couple of us shot our elk from the edge of a herd, they ran a couple miles up a valley, around a hill or two into a bunch of hunters that had seen them coming and ambushed them. One killed a spike in a 4pt min area. Cost him $1500.

The next year another guy shot thru a cow and hadn't seen a spike behind her. Warden took the spike the guy had dressed out and gave him a written warning and no fine, or court. All within three miles of the same places. Second guy called it in, first guy just handled it like it was legal and got caught when checked.

Way back around 1960 or so. One of the young guys in our elk camp had been in AK on a survey crew and they got lost. He had a .375 along for bear protection. They nearly starved, couple weeks without food. He got a chance and killed a ??dall ram I think it was. Laws up there then didn't allow any tolerance even if it was to save their lives. They reported it once they got out and the whole crew vouched for the situation they were in. Daryl got fined real heavy for the times. Seems like $8000. That smoked a bunch of peoples ass that I know of. Doubtful any of that crew or many that knew the story would ever self report such things ever again.
There's got to be a better way to enforce such laws imo.

George

Like I said before he got the minimum fine. He could have been fine more plus lose all vehicles and gear involved and lose his license for much longer. Which by the way revokes your license in 48 states total.

The law is what the law is, it is as simple as that.

Things like this can and do happen. On my first safari, I was quite excited to kill my first ever zebra. I walked over to a tree to prop my gun up while waiting. I happened to notice a blood trail. To make a long story short, my bullet had exited and had hit a second zebra that no one had seen. We followed the trail and it was dead. This second zebra was missed by myself, the PH and two trackers.

and the lesson is.........

BE SURE TO PACK A SHOVEL!!

The lesson is, be a man and accept responsibility for your actions.

quote:

Originally posted by Pa.Frank:
and the lesson is.........

BE SURE TO PACK A SHOVEL!!

Really? So 'situational poaching' is okay.

I agree with what Bwanamrm said; the guy did the hard right thing rather than easy wrong thing. I too tip my hat to him.

"Situational poaching"? that's a new one. got a legal definition for that and not one you just made up?

Yes, He did the right thing and got punished unjustly for it by a broken system. An activist Judge would have had no problem increasing the penalties regardless of what the law states, so I see no reason why this Judge couldn't have reduced the penalties based on the unique circumstances. That is well within their power.

Personally, I would have spent the 32K in fines on appeals, counter suits, or a jury trial and dragged it out for years before just bending over and taking it up the arse.

Until the system is "fixed" I'll be packing a shovel and in the unlikely event I find myself in a similar situation, I tell you what, just to make you happy I'll make a commensurate donation to the NRA/ILA.

I guess there will always be cry babies that want to blame everything on someone else . . . it was unjust, it was unfair, the system is fixed, everybody is picking on me . . . the best advice is the advice above, man up. He pulled the trigger, twice, now he needs to accept the consequences (as he apparently did to his credit). Some just do not have any grasp of personal responsibility any more. If you do not like the result in this case, instead of whining, work to change the law but to complain about the result in this instance is disingenuous.

quote:

I guess there will always be cry babies that want to blame everything on someone else . . . it was unjust, it was unfair, the system is fixed, everybody is picking on me . . . the best advice is the advice above, man up. He pulled the trigger, twice, now he needs to accept the consequences (as he apparently did to his credit). Some just do not have any grasp of personal responsibility any more. If you do not like the result in this case, instead of whining, work to change the law but to complain about the result in this instance is disingenuous.

I don't see where anyone is suggesting the the sheep hunter shouldn't face consequences for his mistake. But for a majority of people in the US, a $30,000 penalty would essentially mean lifetime financial ruin. Under the circumstances presented is this really an appropriate punishment for a mistake involving wildlife? You can do great harm to a human being , either intentionally or through gross negligence, and not incur such a penalty. I'd have no problem if the guy were a serial poacher or it was a blatant act like the idiot who shot Samson the elk in Estes Park.

I was hunting cow elk at Vermejo Park Ranch with an outfitter who is a no-nonsense, law and order, ex-game warden. There was a large herd of elk about 200 yards away on the side of a ridge, partially obscured by some brush. I picked out a large cow and squeezed off a shot. The cow just stood there and the guide, looking through binoculars, said "you missed, shoot again." I wasn't so sure about missing because it was such an easy shot but the he insisted that I shoot again. I hesitated and the herd finally ran off. The guide ribbed me for passing up the chance to take a nice cow and I said "let's go have a look." We walked up to the ridge and, sure enough, there was a dead calf lying on the ground, hit in the spine. I never saw the calf prior to the shot, he dropped in his tracks and was obscured by brush. I happily put my tag on him and enjoyed some of the best wild meat I've ever had. (By the way, the calf elk was bigger and heavier than any deer I ever shot.)

What would have happened if I would have followed the guide's suggestion, shot the cow and had 2 elk down? Would the law recognize it as a legitimate mistake and respond appropriately or would New Mexico see it as chance to fleece an out of stater for more $$$? In this day and age I suspect the latter.

How do figure that $30K restitution penalty would "essentially mean lifetime financial ruin" when people are buying vehicles that cost more than that every day and not going bankrupt!