June 13, 2008
Orchard owner wins in elk invasion case

By ANDREW BERGH
Special to the Journal

Do landowners have the constitutional right to protect their property from destructive wildlife? As shown by the Case of the Marauding Elk, the answer is a definite yes.

Jerrie Vander Houwen owns cherry and apple orchards in the Tieton area of eastern Washington. During the fall of 1998 and the winter of 1999, herds of elk repeatedly migrated through a 37-acre block of cherry trees that Vander Houwen had grown in the westernmost portion of his land. The invaders gained access because the fencing, built earlier by the state Department of Fish and Wildlife to prevent damage to Vander Houwen's property, had fallen into a state of disrepair.

Like a swarm of hungry locusts, the migrating elk wreaked havoc on Vander Houwen's orchard. During the fall of 1998 and the winter of 1999, the four-legged trespassers completely destroyed more than 400 cherry trees. Even more significantly, an appraiser hired by Vander Houwen pegged his future cherry production losses at almost $250,000.

Hoping to prevent a recurrence, the orchard owner repaired the fences previously built by the department.

But during the fall of 1999 and the winter of 2000, the migrating elk returned, again feeding on his cherry orchard. Four different times, Vander Houwen contacted the department to seek its assistance in stopping the substantial damage being caused by the elk. But despite his repeated requests, the department did nothing to address the problem.

In mid-January 2000, Vander Houwen again contacted the department, reporting to one of its officers that 40 elk had been in his orchard the previous two days. He explained that shooting over their heads had no deterrent value, and that the elk were still eating his trees. The officer said he would try to get some help from the department, but that he couldn't do anything for a week because of the upcoming Martin Luther King, Jr. holiday. Vander Houwen, probably a tad exasperated by that point, replied that he couldn't keep waiting, and that he would have to start shooting directly at the elk.

Two weeks later, the department, which still had taken no action, received a report that dead elk were seen in the vicinity of Vander Houwen's orchard. When two officers responded to the scene, they found 10 deceased elk. Using a metal detector, they also found .270 caliber slugs in two of the carcasses. Although he admitted shooting at the elk with a .270 caliber rifle, Vander Houwen said he was “unable to tell” whether he had killed any of them.

The state later charged Vander Houwen in Yakima County District Court with 10 counts of waste of wildlife, and 10 counts of killing game out of season.

When the case went to trial in April 2001, the orchard owner proposed a jury instruction that said one who kills elk in defense of his property isn't guilty of violating the law if such killing was reasonably necessary for the defense of his property. This was based on an earlier elk-slaying case, decided in 1921 by our state Supreme Court, called State v. Burk.

Rejecting the defense request, the trial court instead gave a complicated, four-part “necessity” instruction requiring Vander Houwen to prove certain items by a preponderance of the evidence. For one thing, he was supposed to show there was “no reasonable legal alternative” to killing the elk.

A Yakima County jury eventually acquitted Vander Houwen on 18 counts, but found him guilty on two counts of killing game out of season (presumably stemming from the two dead elk with the incriminating slugs).

The defendant first appealed to Yakima County Superior Court, which affirmed his conviction in November 2003. After an intermediate appeals court did likewise in July 2005, our state Supreme Court agreed the following year to hear Vander Houwen's case.

After yet more delay, the orchard owner‘s persistence finally paid off, as our high court recently reversed his conviction by a 9-0 margin.

Consistent with State v. Burk, the prior elk-slaying case decided over 85 years ago, the justices affirmed that Washington landowners have a constitutional right to protect their property from destructive game. It was therefore error, they ruled, for the trial court to refuse Vander Houwen's requested jury instruction that accurately reflected the earlier precedent.

The court also focused on how Vander Houwen, to no avail, had made “numerous good faith efforts” to inform the department about the “emergency situation.” Given these circumstances, combined with the department's prior failure to maintain its previously built fences, it was “reasonably necessary,” said the court, for Vander Houwen to exercise his constitutional right to defend his property.

The justices also said the necessity instruction used by the trial court had wrongly shifted the burden of proof to the defendant. Instead, once Vander Houwen presented sufficient evidence that he had exercised his constitutional right to protect his property from the marauding elk, the burden of disproving such justification should've shifted to the state.

So is Vander Houwen celebrating his victory? Hard to say since his legal battle undoubtedly didn't come cheap.

The better question, in my book, is whether a certain elk herd in eastern Washington has altered its migrant (or cherry-eating) habits.