Nez Perce hunters found guilty of game misdemeanor

Attorney Ron Schenck and defendants Irvin Watters Sr. and Irving Watters Jr.listen to closing arguments by the prosecution during the Watterses' trial last week. Staff photo by Elane Dickenson

Two members of the Nez Perce Tribe were found guilty of taking elk during closed season Wallowa County Circuit Court Friday morning in a treaty rights case that the defendants said would be appealed to the Oregon Court of Appeals.

Irving Curtis Watters Sr., 77, of Lapwai, Idaho, was found guilty of killing two cow elk in July 2003 on Boise Cascade property in the Smith Mountain area north of Wallowa, while his son, Irving Curtis Watters Jr., 38, also of Lapwai, was found guilty of aiding in that misdemeanor offense.

The crux of the conviction is that the men were hunting on private rather than public land, and the judge used appellant case law from other states supplied by Wallowa County District Attorney Dan Ousley to support the guilty verdict.

Though not a factor in the case, the Watterses hunted the elk in question for the friendship feast of the 2003 Tamkaliks Celebration, held annually in July by the Wallowa Band Nez Perce Interpretive Center Inc. on its property outside Wallowa.

While both sides agreed that the Nez Perce hunters had the right to hunt in Wallowa County at any time under the Nez Perce treaties of 1855 and 1863, Wallowa County District Attorney Dan Ousley argued that right existed only on federally-owned land. Defense attorney Ron Schenck of Wallowa argued "there is no closed season for these Nez Perce hunters." He also tried to establish that the forested Boise Cascade property on which the elk were killed would have been considered "open and unclaimed" in the Nez Perce eyes when the treaties were written.

Throughout the case Schenk also made the argument that the Nez Perces' treaty rights should take precedence over Oregon game laws.

The evidence of the case was heard Thursday morning without a jury before Circuit Court Judge pro tem Dan Hill of Umatilla County, and after taking the case under advisement Friday night Judge Hill announced his decision - accompanied by an 18-page written opinion - Friday morning.

"This is not a 'facts' case," Judge Hill said in announcing the verdict. "There is the greater issue of treaty rights and the application of these rights to these defendants." He said he'd taken a lot of time to analyze the evidence, and in the end followed the precedent of applicable cases in Idaho, Washington and Montana, which basically state, "land which is privately owned is not open and unclaimed." There are no appellant cases in Oregon dealing with this treaty right issue.

"I think that the judge considered all the facts, all the law that is applicable and reached the right decision," Ousley said.

After the verdict, Schenck asked the judge to delay the sentence until an appeal could be heard. Ousley objected, saying he was ready with a recommendation and felt this case should be treated like all other misdemeanor game cases. The judge said he would consider a motion from Schenck to stay the sentence, but unless he approved it would sentence the defendants within the required 30 days.

Watters Sr. was also found guilty of littering within 100 of a waterway in connection with beer cans discovered in the vicinity of where the elk were killed, while Watters Jr. was found not guilty.

Witnesses called to the stand in the case were Oregon State Police trooper Mark Knapp, former Wallowa County district attorneys Rahn Hostetter and Bill Kirby and chief forester John Warness of Boise Cascade Corp. for the prosecution; and the two defendants and Lewis-Clark State College anthropology professor Alan G. Marshall for the defense.

Hill was brought in as a visiting judge to hear the case after Ousley made a motion to disqualify Union/Wallowa County Circuit Court Judge Mendiguren of La Grande and the judge agreed to step down. Mendiguren had once already dismissed the case at a Sept. 29 demurrer hearing in October - feeling the charge should have involved trespass rather than hunting out of season. Mendiguren then reversed himself Oct. 20 after Ousley filed a motion to reconsider and convinced the judge that dismissal was legally inappropriate at that point in the case and would probably be overturned on appeal.

However, Mendiguren stated he felt the results would be the same when it came to trial, a statement Ousley used in his motion to disqualify the judge.

Schenck subsequently moved to disqualify two other judges, Russ West of La Grande and Baxter of Baker City, without cause before Hill was scheduled to hear the case.

The Watterses, who earlier applied for a change of venue from Wallowa County, had signed a waiver to have the case heard without a jury following a suggestion by Mendiguren.

"We're going to appeal," Watters Sr. said after the verdict.

"The cases in Idaho and Montana don't apply here," Schenck said. "That reasoning can be used by the judge, but I think that reasoning was wrong."

Not surprisingly, the prosecutor had another viewpoint. "I think that the judge considered all the facts, all the law that is applicable, and reached the right decision," Ousley said.

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