Judge: Anti-wolf activist Tony Mayer will face felony for poaching elk

Save Elk, Prosecute Anti-wolf Activists

You may recall that Blaine County Judge Ted Israel recently dismissed a felony elk poaching charge against anti-wolf activist Tony Mayer, the founder of SaveElk.com.

At that time, the court held that there was probable cause to pursue misdemeanor charges for the offense.  However, Mr. Mayer’s felony charge was dismissed without prejudice because to charge on a felony prosecutors needed to establish that he had poached an animal worth more than $1000 (“trophy” bull elk are valued at $5000).  At that time, the measurements prosecutors used to determine the “trophy” status of the animal were taken before it had dried at room temperature for 60 days, a Boone and Crockett protocol allowing for “shrinkage” (the antlers had been admittedly stored in a freezer for a period of time).

After the initial measurement of the elk Mayer killed, but by the time pre-trial rolled around and the court issued its dismissal on the felony charge, the antlers had been stored at room temperature for 60 days allowing prosecutors to immediately have the rack re-measured and determine that even with shrinkage it was still a trophy animal pursuant to statute.   The prosecutor re-filed the felony against Mayer.

Defendants have a right to a “pre-trial hearing” to demand demonstration of probable cause and contest the prosecution’s evidentiary basis for pursuing its charge.  In order to move a felony charge to trial, the prosecutor needed to establish that there is probable cause to believe that several essential elements of an infraction of law took place.

Today, Mayer stood pre-trial on the re-filed felony for “flagrant unlawful killing and/or possession of a trophy bull elk,” again arguing for a dismissal of the charge .

There was little debate about whether prosecutors had demonstrated probable cause as to the essential elements of poaching the elk.  After all, that question was largely settled in Judge Israel’s court with the misdemeanor charges.

However, the prosecutor resubmitted several compelling points to Blaine County Magistrate Judge Walker:

• The prosecution called a witness, an Idaho Department of Fish and Game Conservation Officer (CO), who testified as to Mayer’s publication of his experience on a bow-hunting website describing the kill after the season ended in the Sawtooth Zone.

• The CO testified that the investigation has considered what could possibly be a high-powered bullet wound in the animal, recovering metal shavings apparently taken from the surrounding tissue.

• The elk tag that Mayer acquired was purchased after close of the hunt (October 4) with notches cut out of the tag margins indicating that the tag was filled on October 4 (season ended September 30) with slits in the paper tag less conspicuously marking September 30.

• Mr. Mayer did not have an archery stamp/license during the season, and his time-line seems a bit far-fetched.  The IDFG officer testified that 4 days after the event, upon questioning, Mayer kept referring to his calendar despite the officers request that he not look at the reference.  Mayer claimed to officers that the reason the kill took place days after the close of the season was that he initially wounded it on September 30 (last day of season), pursued the animal for a day and a half at which point he had a “duty” to kill the animal on October 2nd, left the bull in the creek for another day and came back to claim “the trophy elk that I’ve been hoping for years!”

• Officers recovered photographs of the experience on Mayer’s personal computer at home with the image files being labeled by date, October 3, a dates subsequent to the close of season.  The files were held in a folder labeled “Alturas Hunt – 10/09”.

Rather than focus on the factual elements of the case establishing poaching had taken place, Mayer’s attorney set forth an aggressive defense challenging its elevation to a felony offense.

As mentioned before, in order to charge Mayer with a felony, prosecutors must demonstrate that the value of the wildlife exceeds $1000.  To do that, they need the elk to be a “trophy” specimen.  The prosecutor had previously laid the foundation for such by calling a seasoned Boone and Crockett Scorer who has been scoring elk racks for over 30 years as an expert witness.  Boone and Crockett standards set forth a generalized protocol or methodology by which to measure a bull elk’s antlers and relate those measurements to a point system.  That point system is counted in increments of eighths (1/8).  This Boone and Crockett appointed scorer had scored the rack submitted as evidence against Mayer at 303 and 1/8 points before it had been stored at room temperature for 60 days and taken a subsequent measurement on October 20, after 60 days, registering a score of 303 and 2/8 points.

(h) “Trophy big game animal” means any big game animal deemed a trophy as per Boone and Crockett standards. For the purpose of this section, the highest of the typical or nontypical scores shall be used, described as follows:

1. Mule deer: any buck scoring over one hundred fifty (150) points;
2. White-tailed deer: any buck scoring over one hundred thirty (130) points;
3. Elk: any bull scoring over three hundred (300) points; […]

Mayer’s attorney argued that the state definition of a “trophy” elk is unduly ambiguous and submitted to the court case-law (previous higher court decisions that guide lower court decisions) directing a trial court to err on the side of the accused when a statute is so unduly vague as to confuse a reasonable person.

The Defense laid the foundation for its claim that the statute was unduly ambiguous with the prosecutor’s Boone and Crockett expert witness’s testimony acknowledging it to be true that organizationally, Boon and Crockett sets a threshold score of 360 points or more to recognize a bull elk as a “trophy” animal for its organizational purposes.

Seizing on this testimony, Mayer’s attorney pointed out to the judge that the statute requires that a trophy be “deemed a trophy as per Boone and Crockett standards” but statutorily sets the threshold for “trophy” at 300 points  as per the subsequent sub-section ‘3’.  It seemed, he alleged, that Code 36-202(h) was at odds with itself at what constitutes a “trophy” animal – the Boon and Crocket score of 360 or the Idaho Code 36-202(h)(3) score of 300.

In addition, meeting notes contemplating legislation passed just earlier this year, after Mayer’s alleged offense, similarly supported the Defense’s contention that the statute was ambiguous.  Idaho Code 36 -202 now reads:

(h)  “Trophy big game animal” means any big game animal deemed a trophy as defined in this subsection (h)1. through 8. For the purpose of this section, a score shall be determined from the antlers of the mule deer, white-tailed deer or elk as measured by the copyrighted Boone and Crockett scoring system. The highest of the typical or nontypical scores shall be used for determining the total score.

1.  Mule deer: any buck scoring over one hundred fifty (150) points;
2.  White-tailed deer: any buck scoring over one hundred thirty (130) points;
3.  Elk: any bull scoring over three hundred (300) points; […]

This subsequently legislated change of language, more clear in its explicit intention that a score be determined “as measured by the copyrighted Boone and Crockett scoring system” with the threshold for “trophy” being statutorily set at 300 points, was only necessary because the Idaho legislature acknowledged the ambiguity of the previous language.  Because Mayer had not exceeded the Boone and Crockett threshold standard of 360 points as reasonably suggested by the language of the previous statute, the Defense argued, the judge should grant Mayer the benefit of that ambiguity as directed by the case-law relating to vagueness and hold that the prosecution failed in establishing probable cause that the animal Mayer had killed was a “trophy” bull elk.

The Decision

Before recessing to consider the parties’ argument, Judge Walker made clear his ruling for the record that the prosecution had made its case that there was probable cause concerning the elements of the charge demonstrating that Mayer had likely poached the elk in question.  However, the judge seemed interested in giving due regard to Mayer’s argument concerning the ambiguity of the statute and whether or not that meant the felony should be dropped in extending the accused a ruling that the prosecutor failed to demonstrate probable cause that the animal was a “trophy” bull.

After a short recess, the judge came back and explained to those in attendance his holding that the plain language of  Idaho Code 36-202(h), even prior to its change subsequent to the alleged offense, should  be read by a reasonable person to set forth that the Boone and Crockette methodology for scoring/measuring was to be used and that  “For the purpose of this section” the threshold score for a “trophy” bull elk was refined (not in conflict) by subsection (3).

Tony Mayer will stand trial for felony “flagrant unlawful killing and/or possession of a trophy bull elk.”

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