Wallen convicted of killing grizzlies again; set to be re-sentenced
By Moosetrack Megan

Posted: August 1, 2018

A federal judge in Missoula has again found a Bigfork man guilty of three counts of  unlawfully taking a threatened species for killing three grizzly bears in Ferndale in 2014.

Last year Dan Wallen’s previous conviction for killing the grizzlies, which he said had gotten into his chickens, was overturned by the Ninth Court of Criminal Appeals.

Wallen had been sentenced to pay $15,000 in restitution and serve three years probation for killing the bears.

The appeals court found that Wallen did have a reasonable fear of the animals, which had been killing his chickens.

“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. We acknowledge the discrepancies
in the stories Wallen told in the aftermath of the killings. 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. ”

The court sent the case back to Judge Jeremiah Lynch who wrote in a ruling in July:

“The Ninth Circuit remanded with instructions for this Court to  ‘decide
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 the grizzly bears.’
The Ninth Circuit made clear that ‘[i]n assessing the credibility of Wallen’s claimed belief
that shooting the bears was necessary,’ the Court “may consider any evidence that
it would have been unreasonable to believe the bears posed a danger to Wallen or
his family.”
Applying this legal standard to the findings of fact set forth above, the Court
concludes the government met its burden of establishing beyond a reasonable
doubt that Wallen lacked a subjective belief he was in danger. As set forth above,
Wallen gave three different accounts of the circumstances surrounding the deaths
of the grizzly bears. The Court finds that the inconsistencies between those
accounts severely undermine his credibility. The Court also finds it significant that
when Wallen spoke to Bartos at the scene that night, he only mentioned shooting at
the third grizzly. It was not until the next day, when Bartos told him that another
dead bear had been found, that he mentioned also shooting at the two bears. This
was a material omission, which the Court finds bears directly on Wallen’s
credibility. Based on the inconsistencies between Wallen’s trial testimony and his
prior statements, as well as his lack of candor when he spoke with Bartos on the
night in question, the Court does not find Wallen’s claim that he was actually
fearful and shot the bears in self-defense to be credible.
In attempt to bolster his claim of self-defense, Wallen points to evidence that
community members and local wildlife management had problems with the bears,
and many of his neighbors were afraid of the bears. But this evidence is not
relevant to Wallen’s credibility, which the Court finds lacking for other reasons.
Wallen also relies on Alison’s testimony that she and her family were all afraid of
the bears. But Alison’s testimony does not change the Court’s assessment of
Wallen’s credibility, which is undermined by the fact that he provided inconsistent
statements about the circumstances surrounding the shootings.
For the reasons set forth above, the Court concludes that Wallen’s lack of
credibility and inconsistent statements demonstrate that he did not in good faith
believe shooting the bears was necessary to protect himself or his family.

 

Wallen is set to be sentenced on Aug. 15.

 

The government’s previous press release on this incident is as follows:

Dan Wallen, 34, of Bigfork, Montana was sentenced today to $15,000 in restitution, and three years of probation for shooting three grizzly bears at his residence near Bigfork, Montana.  Wallen is also required to serve sixty days of his sentence in a pre-release center.  United States Magistrate Judge Jeremiah Lynch sentenced Wallen after finding him guilty following a bench trial in March 2015, of three counts of Unlawfully Taking a Threatened Species.

In spring 2014, several grizzly bears were reported in residential areas, which caused state wildlife officials to place electric wire around chicken coops and set traps to relocate bears in the Bigfork, Montana area.  The bears had become habituated to human food sources, including dog food, bird feed, chicken feed, and unsecured garbage cans in the area.  The bears that Wallen killed had attacked several of Wallen’s chickens the previous night and returned to the chicken coop on the evening of May 27, 2014.  When the bears initially returned, Wallen, his wife, children, and family friends were outside.  They retreated to the area in and around their house.  Wallen used his truck to scare the bears away.  He then spoke to a caretaker of a nearby house.  He told her that grizzly bears had been killing his chickens and returned to the residence.  The caretaker observed the grizzlies later that evening near the residence and scared them away by throwing rocks.  She later heard at least three shots from the direction of Wallen’s residence.

Later in the evening, when the bears returned, Wallen shot all three bears.  At the time, his family and friends were in or around the house, and the bears were only approaching his chickens.  Wallen fired several shots from his .22 rifle at the bears and they ran off.  Shortly after Wallen shot the bears, his neighbor discovered one of the bears lying in his driveway and unable to stand due to its injuries.  The neighbor contacted Wallen.  Concerned about the bear’s serious injuries, the neighbor shot the bear once with a .300 rifle, which killed it.  He then reported to law enforcement that he had shot the bear, and a Montana Fish, Wildlife and Parks (MFWP) Bear Biologist was notified.

The Bear Biologist contacted a MFWP Game Warden, who responded to the incident location.  Wallen admitted he had shot toward the grizzly with a .22 rifle, hoping to scare it away.  Wallen did not report shooting at the other two grizzly bears at that time.  On May 28, 2014, the biologist listened to a cell phone message from Wallen’s wife from May 27th.  In the message, she stated they were having problems with grizzly bears killing their chickens.  He then contacted Wallen’s wife and asked about setting traps to catch the other two grizzlies that were in the area.  On May 28, 2014, the biologist went to the Wallen residence to set a trap.  While inspecting the area to set a trap, he found another dead grizzly bear in tall grass near the location of the first dead grizzly.  Wallen was questioned about the second bear and admitted to firing multiple shots at the three grizzly bears.

On May 29, 2014, Wallen confirmed, in a recorded interview, that the bears had killed a number of his chickens on the night of May 26th and returned to the chicken coop the following evening while his family and friends were in the yard.  However, Wallen stated that the bears ignored the children and went to the coop.  Wallen drove the bears off in his truck twice and when the three bears returned again, his family and friends were in or near the house and not in immediate danger from the bears.  Wallen then used his .22 rifle to shoot in the direction of the bears.  He stated that at the time he shot the bears, his family was behind him near the house.  Wallen also acknowledged that he knew the bears were grizzlies when he shot them. Wallen testified at trial and provided a different account of the events than his previous statement.

On June 5, 2014, law enforcement agents were notified that the decomposed carcass of a third grizzly bear had been found by a neighbor.  Based on examination of the carcass, it was determined that the bear had been dead for approximately a week.

Assistant U.S. Attorney Megan Dishong prosecuted the case, which was investigated by U.S. Fish and Wildlife Service.