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Cattlemen ask Supreme Court to grant them jury trials

BISMARCK, N.D. -- The North Dakota Supreme Court May 6 heard a joined appeal from two cattle producers who earlier were convicted of illegally shooting deer in winter 2009 and '10. The men justify their actions by saying they were protecting feed...

BISMARCK, N.D. -- The North Dakota Supreme Court May 6 heard a joined appeal from two cattle producers who earlier were convicted of illegally shooting deer in winter 2009 and '10. The men justify their actions by saying they were protecting feed from destruction by deer.

The court took the case under advisement, and a decision may take several weeks, lawyers speculate.

Bill Dethloff, who lives just north of Bismarck, N.D., along Missouri River bottomlands, was convicted of shooting 17 deer and was fined $8,500 in South Central District court. Harlan Kleppe of rural Dawson, N.D., was convicted of shooting two deer and was fined $1,000. Both made "conditional" guilty pleas in lower courts so they could appeal the cases to the Supreme Court, in an attempt to force local jury trials. The Supreme Court hearing was timed in 15-minute arguments, not allowing new information, but conversational in style. Dethloff and Kleppe sat quietly in the audience among several friends and relatives.

Dethloff, through attorneys Robert Bolinske Jr. and Daniel Oster, claimed that the North Dakota Game and Fish Department officials had been looking the other way at his deer shooting for several years and that he should be allowed to explain this and the damages to a jury. Dethloff argues he was protecting his cattle feed from deer feeding and damage from urination, as well as his herd from deer-borne disease.

According to Dethloff, the Game and Fish personnel in past interviews had asked him "on the record" if he had a problem with deer, and the answer was "No," and off the record, and the answer was "Yes." "You've got to do what you've got to do," the officials told him, and that there was no doubt that the officials knew he had been shooting deer.

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Bryan Denham, a Burleigh County, N.D., assistant state's attorney, argued the case for the government. Denham said NDGFP officials have said Dethloff had other options for reducing his deer problem. They say they'd delivered materials to Dethloff that he could have used to protect his hay yards, but that he failed to install it properly. They note he'd been convicted of a similar charge in 1997.

'Strict liability'

Bolinske argued his clients were convicted on "strict liability," meaning that they were convicted because they actually did the shooting, but not given a chance to explain why. He likened their actions to a person who drives a motor vehicle without a license, but justifying it because there is an emergency or other extenuating circumstance.

"These guys weren't just rogue hunters," Bolinske says.

Denham said the only reason a person can shoot a deer without a license is if they're being attacked by a deer. Chief Justice Gerald VandeWalle asked Denham if that meant that if a deer is attacking property there is "not a thing you can do about it."

On the other hand, VandeWalle also told Bolinske that there was a "slippery slope" in shooting animals to protect property, offering the hypothetical that he might want to protect "my arborvitae" or that someone might want to shoot a deer to protect "someone's petunias." The question is whether the state Constitution allows protection of "life and property" and whether this "line-drawing" is a legislative issue, said Justice Daniel J. Crothers.

Among the points were that the GFD officials levied fines of $500 per head per animal, based on the "value" of a doe, while fawns are valued at $250 and bucks are $750. Denham conceded there is no specific documentation on age and sex of the animals, but that it might not make much difference.

The justices asked if the defendants would be in trouble today if the state already had passed S.B. 2227, passed in the 2011 North Dakota Legislature -- in the House 97-0 and the Senate 47-0.

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The bill allows the Game and Fish Department director -- if other methods fail -- to authorize an emergency doe season from Dec. 1 to March 15 in areas affected by severe winter deer depredation. Hunters with unused doe tags could take deer in that period. The bill authorized $1 million per biennium for the department for deer-proofing hay and forage supplies, adding construction cost-share costs. It includes $100,000 per biennium for food plot planting, to help protect livestock feed. Oster says the bill says landowners may "not willfully" shoot deer without a license, which appears to allow them to justify their actions to a court.

The five-member court did not include Justice Dale Sandstrom, who had a conflict but would be involved in the decision, using filed documents.

In an unintentionally humorous exchange before the May 6 hearing, lawyer Dan Oster greeted rancher Kleppe and shook hands. Oster off-handedly noted that he was familiar with Kleppe's home area.

"Shot a few deer up your way," he said.

Kleppe thought Oster was talking about Kleppe's shootings and earnestly responded, "I I wouldn't have shot them if I wouldn't have had to."

The two laughed when Oster explained he was talking about his own hunting, not the matter in court.

Related Topics: LIVESTOCKNORTH DAKOTA
Mikkel Pates is an agricultural journalist, creating print, online and television stories for Agweek magazine and Agweek TV.
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