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Doing Everything by the Book

by William Perry Pendley

On a snowy September night in 1989, John Shuler stepped out of his ranch house in northern Montana when he heard grizzly bears attacking his sheep. Clad only in his shorts and socks, but carrying his rifle, Shuler saw three bears near the sheep pen and frightened them off with shots over their heads. Thinking the danger was over, Shuler turned toward his house. Suddenly a grizzly bear appeared a mere 30 feet from him, stood up on its hind legs, spread its mighty forepaws, and roared a frightening roar. Shuler realized he was in mortal danger, swung his rifle in the direction of the bear, and fired. With that shot, Shuler saved his life, but he also unleashed a legal battle that is having repercussions almost a decade after he escaped death in his own yard.

Within hours of Shuler’s rifle shot, the U.S. Fish and Wildlife Service (FWS) decided to bring a legal charge against him, accusing Shuler of violating the Endangered Species Act (ESA) which protects grizzly bears as "threatened." The FWS brought the charge despite the fact that the ESA contains a "self-defense" exception. According to the FWS, Shuler was at fault for a variety of ever-changing reasons: Shuler was not in real danger, Shuler was at fault for going into his yard, Shuler provoked the bear by going into his yard, Shuler’s dog provoked the bear, Shuler shot the bear in the back, etc. The FWS ordered Shuler to pay a $7,000 fine.

When this happened I made a prediction. I predicted that somewhere, someday, a rancher, a hunter, or a hiker would have the type of encounter Shuler had and that, in the nanoseconds between being safe and being sorry, the person facing the most deadly killing machine in North American would think about what happened to John Shuler, would hesitate, and would pay an awful price. I didn’t want that to happen but I feared it would. And it did!

On September 27, in Wyoming’s Bridger-Teton National Forest south of Togwotee Pass, an elk hunter spotted a grizzly bear 25 yards from him. The hunter started to move away, but spooked one of the sow’s three yearlings. When the cub "whined," the grizzly charged the hunter. Armed with a powerful rifle, the hunter could have killed the bear. Instead, he threw his rifle at the bear and pulled out a can of pepper spray, which he emptied into the bear’s face. But the bear charged through the spray, in an attack the hunter described as "more violent than you can imagine." "She had every intention of killing me," remembered the hunter from his hospital bed. "I knew I was going to die."

The hunter didn’t die because his partner rushed to his aid by killing the 475 pound bear. Within an hour, the hunter was airlifted to Idaho to undergo emergency surgery for multiple injuries, from which he is now recovering. But the most incredible aspect of this story is why the hunter threw down his rifle. Said the hunter "I actually had a rational thought process. I knew I didn’t want to shoot [the bear] because I didn’t want to go to jail and lose my hunting privileges." Instead, he wanted to do "everything by the book."

Fear of federal prosecution, fear of failing to do "everything by the book," and fear of "go[ing] to jail" nearly cost the hunter his life. Thus the events set in motion by the FWS in northern Montana in the late summer of 1989, claimed another victim in Wyoming nine years later. Yet as incredible as it sounds, perhaps what the hunter did was the result of "rational thought."

After all, it took John Shuler nearly nine years to clear his name and to get out from under the $7,000 fine the FWS wanted him to pay. Had he been required to pay for the free legal services he received from Mountain States Legal Foundation, he would have paid more that $225,000! He certainly couldn’t look to the federal government to pay his legal fees. For despite losing the case, the government refuses to pay, saying its position was "substantially justified." Obviously, if this is the cost of preserving the self-defense provision of the ESA, for all intents and purposes, that provision does not exist.

Doing "everything by the book" should not require people to allow grizzly bears to kill them. But until the federal government plays "by the book," that is what it will mean.

William Perry Pendley is President and Chief Legal Officer of Mountain States Legal Foundation 707 Seventeenth Street, Suite 3030 Denver, Colorado 80202-3408 PHONE 303-292-2021 FAX 303-292-1980