In October 2017 the U.S. Ninth Circuit Court of Appeals in Portland, Oregon vacated a Bigfork man’s conviction for killing three grizzly bears near Ferndale, however, prosecutors in Missoula are now trying again to convict him.
Dan Wallen was convicted and sentenced in May 2015 for illegally taking and endangered or threatened species. United States Magistrate Judge Jeremiah Lynch sentenced Wallen to three years on federal probation, 60 days of which were to be served at a pre-release center and $15,000 restitution.
Lynch stated in his judgement that Wallen’s stories about the grizzlies, getting into his chickens, had been inconsistent. Lynch convicted Wallen in a bench trial.
But Wallen appealed, arguing that he had a reasonable fear for his safety because of the food-conditioned bears.
The federal appeals court agreed.
“Applying the correct standard, we conclude a reasonable
factfinder could find the government failed to establish
beyond a reasonable doubt that Wallen lacked a subjective
belief he was in danger,” the high court found.
It also addressed concerns that Wallen’s story had changed more than once in the course of the investigation.
“We acknowledge the discrepancies
in the stories Wallen told in the aftermath of the killings,” the judgement reads. “But
regardless of whether the bears were eating chickens;
whether they were 40 yards or just 15 feet away; whether
Wallen grabbed his gun from the pickup truck or carried it
on his person; whether his family was inside or outside;
whether Wallen was surrounded by dead, live or no chickens
at all; whether the last bear ran toward or away from him; or
whether he immediately confessed to killing three bears as
opposed to one, a reasonable factfinder could find Wallen
acted to protect himself from what he subjectively perceived
as danger. ”
Wallen testified that he was only 15 and 28 feet from the bears when he shot them with a .22, after he had already tried to scare them off. His wife had already called more than once to try to get an Fish Wildlife and Parks representative to trap the bears.
The U.S. District Attorney’s office disagrees that Wallen was afraid enough to warrant the killing.
Prosecutor Megan Dishong argued Wallen should stand convicted in court documents filed in March. She re-iterated that Wallen’s stories changed multiple times in the course of the investigation.
“Further, the physical evidence on the bear carcasses indicates that Mr.
Wallen did not have a good faith belief he was acting in self-defense,” Dishong wrote. “At least one
of the bears had bullet holes in the left hindquarter of the bear.”
Even if Wallen was afraid, it did not meet the requirements of the law, Dishong argued.
“The immediacy of the threat is a particularly important factor in the context of the Endangered Species Act,” Dishong wrote. “Moreover, the regulation expressly distinguishes between grizzlies posing an
immediate threat where a killing done in good faith self-defense or defense of others, and one posing a ‘demonstrable but non immediate threat to human safety’ that can be taken only by proper authorities.”
But Wallen’s public defender believes there is an argument that Wallen thought he was in danger.
John Rhodes argues that in late April 2014 FWP had more than a dozen phone calls about the bears, which were in people’s yards and on decks.
Bear biologist Tim Manley of FWP testified that the calls noted that the bears had “lost wariness of being around
people, they felt comfortable around homes, around people” and had “obtained
unnatural foods like chicken feed, dog food, and they seek out those types of food.”
The bears in question were believed to be a sow, and three two-year old bears, according to the testimony.
Rhodes noted in court documents that four neighbors testified that the bears were not afraid of humans.
“Cindy Bissell explained ‘those bears were not scared of us at all,'” Rhodes wrote. “She
testified they were ‘definitely not intimidated by us at all.’Bissell
explained they had an electric fence installed on her property to repel the bears, but
it was still ineffective. She described the bears as ‘very persistent’ and said
she ‘felt they were aggressive and probably getting more so.’ She
testified,'[t]hey kept coming back and coming back and nothing we could do would
Rhodes argues that Wallen had good reason to be afraid.
“The government tries to paint the grizzly bears as docile, noting ‘there were no
reports of the bears acting aggressively towards humans,’ Rhoades wrote. “What was in Mr.
Wallen’s mind – that potentially deadly wild animals, that had been reported by another neighbor the night before, that returned to his chicken coop and yard what
became a total of five times in less than 24 hours, were running at and around him,
that he was surrounded by attractants (dead chickens), and that he was scared for his
safety, per his affidavit – frames whether the government has proven beyond a
reasonable doubt Mr. Wallen did not act in self-defense.”
Rhodes points out that Wallen’s wife, and minor daughter who saw him shoot the bear, also noted that they were afraid.
Both sides have briefed the court in the past month and the case is pending.