SUBLETTE COUNTY – Longtime Black Butte-area elk feeder John Fandek was found guilty Tuesday of violating two Wyoming Game and Fish regulations and fined $450 for each violation.
Fandek represented himself in his bench trial before 1st Circuit Court Judge Thomas Lee, of Cheyenne, who presided via video into the Pinedale courtroom. In a bench trial, a defendant asks a judge instead of a jury to determine innocence or guilt.
Wyoming Game and Fish North Pinedale Game Warden Bubba Haley cited Fandek with possessing antlers on April 26 on the Game and Fish’s winter-closed Black Butte Wildlife Habitat Management Area, before the area’s May 1 opening for public antler collecting.
Fandek was also cited for being an unauthorized presence that day on the Black Butte wildlife habitat management area, where he has fed elk for 40 winters.
Judge Lee’s ruling after finding Fandek guilty on both counts could set a precedent that contracted elk feeders must immediately leave a feedground if they are not actually feeding. It could also be seen as a warning shot
Fandek represented himself against Sublette County Deputy Attorney Adrian Kowalski.
Kowalski called Haley to the stand. Big Piney Warden Adam Hymas also waited to testify.
Haley testified he had an anonymous call April 26 about two elk antlers possibly being moved and he drove into the Black Butte feedground. He walked the management area fenceline to see if someone had walked into the closed area.
He found a bootprint and two small elk antlers “stacked” by the fence, “not how elk typically shed their antlers.”
He kept walking along the fence and saw a person climbing over the fence onto private property.
He identified Fandek as the elk feeder at Black Butte since Haley began working with him. Fandek said he went to look for antlers on the private property, Haley said. Moving antlers is not part of an elk feeder’s job unless they are in the way of a tractor or horse team pulling a load of hay, Haley said. Elk feeders are only authorized to feed elk and care for their horses, he said.
Haley marked the antlers and went back April 27 with Warden Adam Hymas to set up trail cameras to watch the antlers. The antlers were moved 10 to 15 feet away under a pile of rotten wood, Haley said.
“This was beyond the scope of (Fandek’s contracted) operations,” he said.
Fandek testified when he was leaving private property with the antlers, he saw Haley, dropped the horns and went back to the private property because he knew “it would turn into a mess. And it has.”
He said he and his son went to the feedground April 26 and saw the elk had leftover hay so they decided not to feed more. His son left to run errands and planned to return in about two hours.
Fandek said he decided to check the private property, walked from the feedground across the management area about 100 yards and crossed the fence onto private property. He found the two antlers and as he returned, saw Haley and tried to avoid him.
He claimed he found the antlers legally and they were his to keep; however, Kowalski and Judge Lee agreed it didn’t matter if he found them on private property because they were illegal to possess on the closed public area.
“On the day of this incident I asked you where we would go from here,” Fandek said, referring to his 40-year elk-feeding contract. “You said you had to think about it. He sat in my dog’s favorite chair and said (he) had decided not to pursue this.”
Two days later, Fandek said, Haley cited him with stockpiling antlers before May 1 and entering the closed Black Butte management area.
Haley denied telling Fandek the charges would not be pursued. “I said I would need to think about it.”
Fandek said Haley told him he “pondered over it thoroughly” and decided not to press charges.
Judge Lee said whether or not Haley said that was irrelevant.
‘Very limited role’
Kowalski closed by saying Fandek’s contract gave him “a very limited role” and he had no reason to be there “because he didn’t even have to feed that day.”
“I am totally baffled how I can be charged with illegally entering the property,” Fandek said in closing. “I have responsibilities there every day and I’ve fulfilled those responsibilities daily for 40 years.”
He found the antlers legally and “no malice was intended,” he said.
Judge Lee told Fandek, “You’re walking from the corrals and … jumping the fence is not part of your duties.”
Having any antlers on the closed area was illegal, he said. “It doesn’t matter where those antlers came from.
Fandek should have taken them to the road, the judge said, and he had no difficulty finding Fandek guilty of that charge.
“I appreciate your argument in regard to the second charge (unauthorized presence),” the judge said.
“You were outside your job description” by hiking across the area to private property. “That has nothing to do with your duties as a feeder. You casually strolled through, not checking anything, feeding. It had nothing to do with your job duties.”
He gave Fandek 25 days to pay the two $450 fines and 30 days to file a notice of appeal.
“Given the unique facts of this case, I believe the Game and Fish Department acted appropriately and that precedent was not set that would reasonably have a chilling effect upon the legitimate activities of those who feed elk,” Sublette County Attorney Mike Crosson said of the judge’s ruling.
His office and area Game and Fish officials are two layers of oversight that work together.
“I would always give the feeders the benefit of the doubt when making charging decisions, and I believe Game and Fish consistently does this in practice as well.”
Game and Fish Pinedale Region Manager John Lund said the ruling does not set a precedent “regarding elk feeders and their activities on feedgrounds (or) how we enforce human presence closures, antler hunting regulations, etc.”
Fandek’s case is “extremely uncommon,” Lund said, calling elk feeders “extremely dedicated and use their judgment and experience to get their work done effectively and efficiently.”
They granted access to the feedground for feeding, elk monitoring, horse and equipment care, etc. This does not give them free access to an entire (wildlife habitat management area) for personal or recreational use when it is closed to human presence.
Feeders do not have authority to violate antler hunting regulations, Lund said. “We have always made this clear with feeders and will continue to do so, and they have done an excellent job understanding and respecting this.”