United States District Court, D. Montana, Missoula Division
L. Christensen, Chief Judge United States District Court
10, 2018, United States Magistrate Judge Jeremiah C. Lynch
convicted Defendant Dan Calvert Wallen of three counts of
unlawfully taking a threatened species in violation of the
Endangered Species Act ("ESA") and the United
States Fish and Wildlife Service's ("USFWS")
special rule on the taking of grizzly bears. Wallen appeals
matter is before the Court on remand following the Ninth
Circuit Court of Appeals' determination that the wrong
standard was applied when previously deciding that Wallen did
not act in self-defense. United States v. Wallen,
874 F.3d 620, 623 (9th Cir. 2017). In Wallen's previous
trial, Judge Lynch determined, and this Court affirmed, that
Wallen's "good faith belief should be judged by an
objectively reasonable standard. The Ninth Circuit overruled
that determination, finding that the appropriate "good
faith" standard was the defendant's subjective state
of mind at the time he committed the offense.
sole issue for determination in this trial was if the
government proved, beyond a reasonable doubt, that at the
time of the offense Wallen subjectively believed, in
"good faith," that his actions were necessary to
protect himself, his family, or any other individual from
bodily harm from a grizzly bear. 16 U.S.C. § 1540(b)(3).
Judge Lynch concluded that Wallen did not have this requisite
belief when he shot and killed three grizzly bears.
Wallen's appeal asserts there was insufficient evidence
to prove, beyond a reasonable doubt, that he lacked the
subjective good faith belief.
appeal also seeks to preserve his argument that his Fifth
Amendment right to due process and Sixth Amendment right to
an impartial factfinder were violated. These arguments were
previously rejected by the Ninth Circuit on Wallen's
appeal of his first conviction. In light of this procedural
backdrop, the Court will not address these arguments further.
Rule of Criminal Procedure 58(g)(2)(B) states "a
defendant may appeal a magistrate judge's judgment of
conviction or sentence to a district judge within 14 days of
its entry." Judge Lynch had jurisdiction over this
matter pursuant to 18 U.S.C. § 3231 and § 3401.
This Court has jurisdiction over the appeal of Judge
Lynch's decision pursuant to 18 U.S.C. § 3231 and
§ 3402. On appeal, this Court considers questions of law
de novo and factual determinations for clear error. U.S.
v. Ziskin, 360 F.3d 934, 943 (9th Cir. 2003).
December 23, 2014, Wallen was charged by information with
violation of 16 U.S.C. § 1538(a)(1)(G), §
1540(b)(1), and 50 C.F.R. § 17.40(b)(1)(i)(A). A bench
trial was conducted on March 10, 2015 by Judge Lynch, and
Wallen was found guilty on all three counts on March 30,
2015. Judge Lynch sentenced Wallen to a $10 special
assessment, a three-year term of probation with 60 days in a
residential re-entry center, and $15, 000 in restitution.
Wallen appealed Judge Lynch's conviction and sentence to
the undersigned. This Court affirmed the conviction. Wallen
then appealed to the Ninth Circuit Court of Appeals. On
October 25, 2017, the Ninth Circuit filed its opinion
vacating Wallen's conviction and remanding the case for
the factual determination of "whether Wallen held a
subjective 'good faith belief that he was acting to
protect himself [or] a member of his ... family . .. from
bodily harm' from grizzly bears." Wallen,
874 F.3d at 634 (quoting 16 U.S.C. § 1540(b)(3)).
second bench trial was scheduled to begin on February 21,
2018 with Judge Lynch again presiding. However, the parties
agreed to submit the case to the Court on the factual record
established at Wallen's 2015 trial. (Doc. 48 at 1-2.)
Therefore, Judge Lynch's July 10, 2018 Findings of Fact
and Conclusions of Law (Doc. 56), which are the subject of
this appeal, are based upon the original trial record, the
parties' briefs, and Judge Lynch's contemporaneous
impressions of the witnesses at trial. On August 15, 2018,
Judge Lynch sentenced Wallen to pay a $10 special assessment
and $25, 000 in restitution as well as serve a three-year
term of unsupervised probation.
parties agree that the three adolescent grizzly bears that
Wallen shot were known problem bears, which had become
habituated to human food sources and had been frequenting the
Ferndale area near Bigfork, Montana between April 2014 and
May 2014. Montana's Department of Fish, Wildlife and
Parks ("FWP") was aware of these bears'
extensive activity in the area prior to May 27, 2014, the day
Wallen shot and killed the three bears, and had been
unsuccessful in their attempts to capture the bears.
Substantial evidence introduced at trial established that
these three bears were unlike previous bears the residents of
Ferndale had encountered. Tim Manley, FWP's human-bear
conflict specialist, confirmed that the bears had "lost
wariness of being around people, [and] that they fel[t]
comfortable around homes, around people." (ER at 27.)
Multiple witnesses at trial testified that this behavior made
them more concerned about and fearful of these three bears
than other bears that regularly passed through the
neighborhood. (Doc. 63 at 12.)
bears were at the Wallen residence at least four times on May
27. First, during the early hours of the morning, the bears
gained access to the Wallen's chicken coop and killed
several chickens. The bears returned around 6:30 in the
evening, while the Wallen family and a friend of their
teenage daughter were outside in the yard. The bears'
arrival caused everyone except Wallen to retreat to the
house. At this point, Wallen accessed his vehicle and used it
to chase the bears from his property. The bears returned for
a third time approximately 10 to 15 minutes later, and Wallen
again hazed the bears from his property in his pick-up truck.
When the bears had retreated, Wallen retrieved his .22
caliber rifle to escort his daughter's friend to his
did not return to his house at this point but began removing
the dead chickens the bears had previously killed from his
yard. The remaining live chickens wandered freely about the
yard and Wallen as he worked. During the time Wallen was
cleaning up the yard, the first two bears returned. Wallen
was surprised by the bears because their approach had been
hidden by the garage. At some point after these two bears
entered the yard, Wallen shot at the bears with his rifle and
the bears fled.
time later, as Wallen continued removing chicken carcasses
from the yard, the third bear entered the yard from the same
direction as the previous two. This bear's return was
also blocked from Wallen's view by the garage, and Wallen
was surprised by his arrival. The third bear's behavior
may have been erratic and unpredictable, as noted by trial
testimony from Wallen and his daughter. Wallen fired at ...