Updated Wednesday, June 28, 2000 11:00 PM MDT
Outfitter claims he was target of DOW official
Russell Smyth / Montrose Daily Press / June 29, 2000
MONTROSE A local outfitter lost his bid Wednesday to have hunting-related charges dismissed because of alleged mistreatment from a wildlife officer.
Kirt Darner, a big-game hunting guide who has authored hunting books, served as president of the Western Colorado Safari Club International and is a former columnist for the Daily Press, faces six charges related to a Nov. 2, 1999, incident.
The incident occurred when Louisiana hunter Jeff McClelland, one of Darner's clients, fired a rifle outside the window of Darner's pickup along South Dave Wood Road after seeing a four-by-four elk standing in Game Management Unit 61 west of Ridgway. Stuffed with Styrofoam, the elk was a decoy set by Colorado Division of Wildlife officers.
Darner argued in Montrose County Court Wednesday that the charges against him stem from alleged vindictive behavior from DOW Area Wildlife Manager Mike McLain. Based out of the DOW's Montrose office, McLain oversees wildlife law enforcement for the area.
"I've been picked on here unnecessarily, I think," Darner said during testimony.
Darner testified he has helped the DOW with numerous operations, including transporting moose. Although not mentioned in court Wednesday, he also said he helped secure $10,000 through the Western Colorado Safari Club International for research into declining mule deer populations.
Attorney Frank Woodrow, representing Darner, asked the court to delay his criminal trial until a civil trial can be completed.
Woodrow said during a court recess that a civil suit, filed against McLain and agents of the DOW, was amended last week to focus on McLain. Woodrow amended the suit because of a recent U.S. Supreme Court ruling that questions whether the government can be considered a person. Under the ruling, a person can seek damages if they can prove mistreatment through a vindictive action, illegitimate animus or ill will, Woodrow said.
Woodrow also alleged McLain acted vindictively toward Darner on several occasions during the 1990s, including the decoy incident.
In one incident, Darner testified he kept a young elk on his property for a Texas logger he hired to work for the summer. When the logger and his family returned to Texas after the season, Darner eventually sold the elk for the family. Darner said he came home one night and McLain was waiting for him.
"He said that I was in illegal possession of wildlife and he was gonna cite me for that," Darner said. "I said, It's not even my elk.'"
Darner said he entered a plea bargain for that charge and paid a $2,000 fine to the DOW. An outfitter in Colorado and New Mexico since 1962, Darner was placed on probation with the state Guides and Outfitters Board. He said he depends on outfitting for roughly half of his income.
In cross examination, Deputy District Attorney Myrl Serra asked Darner who wrote the elk citation.
"I believe it was Mike McLain," Darner said.
Serra said he had a copy of the ticket, which was written by DOW District Wildlife manager Dale Coven.
McLain was not present in court Wednesday.
Another incident involved trespassing on a private ranch where Darner guides hunters, he said. A hunter and a local man acting as a guide bagged an elk on the property; the two men were trespassing. McLain came out to Darner's camp after the DOW was contacted.
Darner said McLain cited the hunter approximately $135 dollars but did not cite the guide as Darner was cited in the decoy incident.
Ken Miller, the DOW's district wildlife manager for the Ridgway area, testified he cited McClelland on the scene following the decoy incident.
McClelland paid a $274 fine for unlawfully hunting wildlife from a motor vehicle and a $342 fine for unlawfully hunting big game without a proper license for Game Management Unit 61, McLain has said.
Several days later, the DOW cited Darner for complicity use of a motor vehicle in hunting and for complicity hunting big game without a proper and valid license for Game Management Unit 61, according to DOW records.
Following a March 3 amendment to the charges, Darner now faces charges for complicity taking wildlife from a vehicle, complicity hunting or fishing without a license, complicity possession of a loaded weapon in a vehicle, complicity shooting from the road, eluding a wildlife officer and reckless driving, according to court records. Complicity involves acting as an accomplice to a crime.
The decoy case revolves partially around whether or not Darner helped his client hunt from a vehicle otherwise known as "road hunting."
Darner said he and two hunters were returning to their camp from another ranch when the decoy incident occurred.
"Jeff (McClelland) was riding shotgun right in the front seat, and (another hunter) ... was in the back seat. ... It was about 5 o'clock in the afternoon, and Jeff said, There's an elk.'"
Darner said he stopped and turned around.
"When I finally came around the corner, there's a little alcove, ... I said, Jeff, that's not an elk. It's a decoy.'"
Darner testified McClelland had his rifle in a vertical position.
"He instantly bolted one (shell into the chamber) and stuck" the rifle out the window in the 10 o'clock position, Darner said. "He said, those tricky (DOW) sons-of-bitches,' and bang,' shot out the window. ... It scared me to death."
Darner said he was driving when McClelland shot and continued to drive until he saw lights flashing in the road ahead of him.
"I pulled over to stop for the pickup that was coming, and it was (DOW biologist) Bruce Watkins," Darner said. "Bruce said, Hi, Kirt.' I apologized to them. I said (to McClelland), This is just like getting a speeding ticket, Jeff.'"
Miller testified that Coven and another district wildlife manager, Maurice Potter, were stationed north of the decoy and that Watkins was stationed south of the decoy. Miller was stationed just across the road from the decoy. Wildlife officers remain out of sight during the operation. The decoy is a full-body elk mount, but is not capable of moving parts of its body mechanically.
"A lot of cars went by, and none of them stopped," Miller said. "Well, one of them stopped and hollered and said, I know you're there.'"
Miller said he was about to wrap up the operation when a vehicle drove past then turned around and drove back.
"They stopped, and I mean immediately when the truck stopped the gun went off, and the vehicle went off at a high speed," he said. "The pedal was to the metal."
A DOW case report of the incident states: "He (Watkins) said the truck was coming at a high speed and he swerved to miss them. He said they went by him, but quickly pulled over. The driver and registered owner of the pickup was Kurt (sic) Darner, an outfitter out of Montrose. ... At first Darner and the defendant said the shot was just to scare the elk."
Referring to the charges of eluding a wildlife officer, Woodrow asked Miller if he really thought Darner would run off from the scene.
"He did it," Miller said.
McLain later asked Miller if Darner should have been charged, Miller said. "I said yes." However, Miller added that as a district wildlife manager, he makes his own decisions regarding whether or not he should charge people.
Darner denied the allegation that he eluded an officer.
"I did not see anyone to get away from," he said. "Bruce Watkins was the first person I saw, and I stopped immediately."
Darner said that before he and his hunters left, Coven told him he could have been cited for complicity.
"That was Tuesday," Darner said, "and Friday morning when we came in from our hunt our cook ... said Mike McLain called. ... He said, I'm really (upset) that you didn't get a ticket up there. I want you to come to town and get your ticket.'"
Through testimony, Woodrow argued that other alleged acts of vindictive behavior from McLain could have included the following:
Having Glenn Smith, a criminal investigator with the DOW, ask Mike Knight, who works at Darner's hunting camp and owns the Buck Stop Pawn & Gun in Montrose, if the theft of two ram heads from a local taxidermist's shop could be connected to Darner.
Asking Darner's cook about Darner's hunting clients while McLain waited for Darner to return to camp after the trespassing incident.
Forwarding information to the Daily Press that led to articles, in Woodrow's words, "accusing you of molesting people and being a crook."
Woodrow, who originally requested Wednesday's hearing to ask the court to hold the criminal trial until the civil trial is over, amended his motion and asked the court to dismiss the criminal trial.
Serra argued there are no grounds for Woodrow's request.
"There's been no law enforcement misconduct," Serra said, adding that "two tickets in six years does not rise to the level of harassment."
Judge Charles Greenacre denied Woodrow's request to hold or dismiss the criminal trial.
"It appears ... officer Miller wrote the citation in this case, and it was his decision," Greenacre said, noting Darner testified there was no animosity from Miller. "The fact that the vehicle approached and passed the decoy, turned around (and then shots were fired) ... is consistent with complicity."
McLain's actions regarding the baby elk and trespassing incidents did not indicate vindictive behavior, and law enforcement officers need to be able to ask probing questions to conduct their jobs, Greenacre said.
The criminal trial was set for Sept. 28-29, but Woodrow may file for a continuance because Darner has hunting clients on those days.
...hmmmmm.... I see another illegal possesion of wildlife charge, as well as being a suspect in the theft of the rams head for a long time now....if anything he's got quite a history against him.
Ben Johnson has always claimed Darner as his friend but now that his coach is implicated in the elk drugging incident, that has probably killed Ben's final comeback. Tayna Harding will have Kirt's back in Prison and Mike Tyson has already set up a Bubba date for him.
