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United States v. Wallen

United States District Court, D. Montana, Missoula Division

July 10, 2018



          Jeremiah C. Lynch, United States Magistrate Judge

         This matter comes before the Court on remand for further proceedings after a decision by the Ninth Circuit Court of Appeals vacating Defendant Dan Wallen's conviction and sentence for taking three grizzly bears in violation of the Endangered Species Act.

         I. Procedural Background

         In December 2014, Wallen was charged by Information with three counts of unlawful taking of a threatened species in violation of 16 U.S.C. §§ 1538(a)(1)(G) 1540(b)(1) and 50 C.F.R. § 17.40(b)(1)(i)(A). Following a bench trial in March 2015, the Court found Wallen guilty on all three counts and sentenced him to a three-year term of probation. The terms of the sentence required Wallen to serve 60 days in pre-release center and pay $15, 000 in restitution. Wallen appealed the judgment and conviction to the district court, which affirmed in full. Wallen then appealed to the Ninth Circuit, which reversed on the ground that the Court erred by applying an objective standard to the self-defense element of the offense and remanded the case for further proceedings. United States v. Wallen, 874 F.3d 620 (9th Cir. 2017).

         On remand, the parties agreed to submit the case for decision based on the factual record established at the bench trial in March 2015, subject to the submission of any additional evidence. (Doc. 48). The Court established a deadline for the submission of any additional evidence, and ordered the parties to brief the issue of how the self-defense standard articulated in Ninth Circuit's decision applies to the existing factual record. Neither party submitted any additional evidence, and the court-ordered briefing is now complete. Because the parties have agreed to submit this case for decision based on the factual record established at trial, the Court finds no basis for changing its original findings of fact. Accordingly, the following findings of fact are substantively identical to those set forth in the Findings and Recommendation entered by the Court on March 30, 2015.

         II. Findings of Fact

         In April 2014, Montana's Department of Fish, Wildlife and Parks (“FWP”) began receiving reports of a female grizzly bear and three adolescent grizzly bears frequenting residential areas in Ferndale, near Bigfork, Montana. By mid to late May 2014, the adult female grizzly had apparently left the area and all subsequent reports were of the three adolescent bears. Grizzly Bear Management Specialist Tim Manley testified that FWP received approximately a dozen reports regarding the grizzly bears that spring. The bears had become habituated to human food sources and were reportedly accessing bird feed, dog food, chicken feed, and unsecured garbage at various residential locations. In addition, there were multiple reports of the bears accessing chicken coops and killing chickens. FWP set up electric fences around chicken coops at eight different properties, and set several culvert traps in the area in an attempt to capture and relocate the bears.

         On the morning of May 27, 2014, Wallen and his wife, Alison, woke to find that bears had accessed a chicken coop on their property during the night and killed several of their chickens. Wallen gathered the chicken carcasses, took them to the dump, and then went to work for the day.

         At around 6:30 p.m. that evening, Wallen and Alison were sitting outdoors on the deck of their house watching their two young sons (then ages 8 and 11), their teenage daughter A.B. (then age 16), and one of A.B.'s friends, playing baseball in the yard. While the children were playing, three bears approached the yard from the east on an easement road to a neighbor's property. As soon as the children noticed the bears, they ran to the deck and went inside the house. The bears ran directly to the chicken coop, which is located approximately 40 yards to the south of Wallen's house. Some of the chickens escaped from the coop, and the bears began chasing them in the area around the coop and a nearby shed. Wallen got in his pickup truck and corralled the bears back along the easement road until they reached the edge of his neighbor's property to the east. In the meantime, Alison called and left a message on Manley's cell phone, reporting their encounter with the bears and asking for assistance.

         When Wallen returned to the house, he and his family gathered on the deck. Approximately 10 to 15 minutes later, the bears came back down the easement road from the east for a second time and started chasing the chickens in the same area around the coop and shed. Wallen got back into his pickup and once again corralled the bears along the easement road to the edge of his neighbor's property.

         Not long after Wallen came back, he and his family could see all three bears a long distance away in a field. After watching the bears for awhile, Wallen retrieved a .22 caliber rifle from inside the house and escorted A.B.'s friend to his vehicle. Once A.B.'s friend had driven away, Wallen began cleaning up the chicken carcasses strewn about the yard as the remaining chickens wandered freely about.

         Wallen has given different accounts of the events that followed, the first of which was the subject of trial testimony by FWP game warden Charles Bartos. At around 10:00 p.m. on the night of May 27, 2014, Bartos received a call from Manley regarding a grizzly bear that had been shot and killed in the Ferndale area. Bartos responded to the scene and spoke with Wallen about the incident. Wallen explained that grizzly bears had been in his chicken coop more than once that day. He told Bartos that this particular bear came into the yard area while he was picking up chicken carcasses. Wallen said the bear approached from the highway to the west of the house, got into the chicken coop, and started eating chickens. Wallen stated that in an attempt to scare the bear away, he shot at it one time while it was in the chicken coop and again while it was walking away. Wallen said he did not think he hit the bear, and so was surprised when a short time later his neighbor immediately to the south, Tom Clark, called him to say there was what appeared to be an injured bear lying down in the driveway between their two houses. Wallen and Clark went to take a closer look and saw that the bear could only lift its head and was unable to get up, at which point Clark shot and killed it. A necropsy showed what appeared to be two bullet holes in the bear's left hind quarter, entering towards the stomach area.

         The next day, Bartos received another call from Manley who reported that a second grizzly bear had been found dead from a gunshot wound on the same property. Bartos responded to the scene, retrieved the bear, and advised Wallen that the United States Fish and Wildlife Service was taking over the investigation. Wallen then volunteered some additional information about what had happened the night before. He told Bartos that shortly before the single grizzly appeared, two other grizzlies came into the yard while he was picking up chicken carcasses, broke into the chicken coop, and killed a number of chickens. Wallen stated that he fired two shots at the two bears and they ran off. Approximately one week later, a third dead grizzly bear was found on neighboring property immediately to the east of Wallen's. The third grizzly was located approximately 50 yards from where the second dead bear had been found.

         Wallen described his encounter with the bears again on May 29, 2014, while being interviewed at his home by U.S. Fish and Wildlife Service Special Agent Brian Lakes. Wallen recounted the two times he corralled the bears with his pickup truck, and said he was in the yard gathering chicken carcasses when two grizzly bears crossed the highway to the west of the house and came running into the yard area from behind the detached garage heading for the chickens. Wallen explained that his family was outside in the basketball area near the deck, and indicated that he was standing in the driveway near his ...

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