County judge rules bear-baiting initiative unconstitutional
June 9, 2004
A district court judge in Jefferson County says it's unconstitutional.
Does this mean it is once again legal to hunt bear using bait and hound?
The Department of Fish and Wildlife says no. This ruling comes from a district court with limited jurisdiction, but they do admit it will make prosecuting these cases much harder.
"We find bear bait sites constantly," said Capt. Jay Webster, U.S. Forest Service. "It's a big problem… even though it's illegal. It's very effective."
Voters outlawed bear bait 8 years ago, also making it illegal to hunt bear and cougar with dogs.
Near Quinault last fall, officers raided a camp of about a dozen hunters, charging ten of them with bear baiting: Thomas Durham, James Durham, Christina Stannard, John West, Douglas Klamm, John Speleers, Burgess Drake, Craig Stevenson, Cory Johnson and Dale Steinhauer.
The accused ring leader, Tom Durham, denied doing anything wrong, and the charges against him and the others were dropped this week after a district court judge in Jefferson County ruled the initiative to be unconstitutional.
"What's wrong with it is, it refers to both baiting bears, hunting bears with bait, and also tracking cougars with dogs or hunting cougars with dogs," said defense attorney Linda Callahan. "And that in itself is two subjects, so it violates the rule."
"Well, certainly in Jefferson County, I don't think the prosecutor will file any more cases," said defense attorney John Stanislay. "What it means outside of Jefferson County at this point I'm not sure."
KING 5 asked: "But if you were a defense attorney in a neighboring county with one of these cases, wouldn't you make this argument now?"
"I definitely would make the argument, but I would not advise my client to go hunting with bait," said Stanislay.
The state Department of Fish and Wildlife says it's disappointed at the ruling.
"We're going to continue to enforce it. It's a statewide law," said Chief Bruce Bjork, Washington Dept. Fish & Wildlife. "This is a district court decision in Jefferson County specific, so we'll continue to enforce it statewide."
But the prosecutor in Jefferson County who handled the case said he will not prosecute bear baiting cases if they are brought in because he believes the court ruling is clear and he does not intend to appeal.
Supporters of the initiative are calling the judge's ruling outrageous saying that 63 percent of the voters wanted to ban bear bait hunting as well as hunting with hounds, and they are hoping the state will appeal eventually.
The Attorney General's Office is still deciding whether to appeal the ruling. Bear hunting season opens August 1.
County judge finds bear-baiting initiative unconstitutional
"It's a fair hunt principle; baiting isn't fair play," said Craig Bartlett, Washington Department of Fish and Wildlife public information officer. "The [court] decision will make enforcing the law more difficult in Jefferson County."
Judge Pro Tem Karen Gates Hildt
WDFW officers investigated a hunting camp near Forks in West Jefferson County on Aug. 2, 2003, at the beginning of the bear-hunting season. The 12 hunters were allegedly attracting the bear with scent on their clothing and threw bread and honey on the ground. They hunted on foot and in tree stands with the bait below, according to court documents.
Three of the hunters were formally charged with a gross misdemeanor, but their cases were dismissed by Judge Hildt. Thomas Durham, owner of Sport Shack in Olympia and one of the three hunters, wrote that he had been baiting black bear for years and continued to do so after it became illegal, according to a handwritten statement to WDFW enforcement on Aug. 2, 2003.
The statewide voter-approved initiative passed in 1996. It restricts both black-bear hunting with bait, and using dogs to hunt black bear, cougar, bobcat or lynx. In 1997 the Thurston County Superior Court challenged the constitutionality of the just-passed law and upheld it in regard to the two subjects of baiting and hunting with dogs.
On one hand, the Washington State Constitution states "no bill shall embrace more than one subject." On the other, "using any bait to attract a bear to kill it, is illegal," WDFW's Bartlett said. "The bear-baiting law is still in effect, and it is our job to enforce the law in at least 38 counties."
WDFW investigates six to 12 cases of bear-baiting each year on the Olympic Peninsula. Only one or two cases per year are prosecuted statewide, according to the WDFW.
When the cases of hunters Thomas Durham, Craig Stevenson and Christina Stannard came to Jefferson County District Court, each of their defense lawyers filed affidavits of prejudice against Judge Mark Huth. According to court records, none of the defendants has been tried in Jefferson County. When Judge Huth is either asked to recuse himself or is unavailable to hear a case, Judge Hildt automatically takes the case, according to court procedures. Hildt then heard the hunting cases in a non-jury trial.
Port Townsend attorney Chuck Henry represented Durham. "It was a tactical decision I don't care to discuss," Henry said of the effort to have Judge Huth not hear the cases.
Defense attorney John Stanislay of Tumwater, representing Stevenson and Stannard, wouldn't comment on the affidavit of prejudice either. Stanislay did state that the initiative is restrictive in nature and must contain only one subject to be constitutional in Washington. Otherwise it violates the 14th amendment of due process and fair notice.
"Judge Hildt did an excellent job analyzing the law and making a decision," Stanislay said June 14.
"The two [initiative] subjects don't have to do with the same thing," Henry noted. "You can't tell which subject the public intended to enact" – restrictions against baiting or restrictions against hunting with dogs.
Contacted Monday, Judge Hildt and Durham both declined comment.
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