James Blaine Hayton is shown on his property where he shot an elk without permission.

A hay bale on the property of James Blaine Hayton filled with punctures caused by elk.

James Blaine Hayton is shown on his property where he shot an elk without permission.

A hay bale on the property of James Blaine Hayton filled with punctures caused by elk.

On Jan. 8, 2020, Sedro-Woolley farmer James Blaine Hayton shot and killed an elk calf on his property.

He told officers with the state Department of Fish and Wildlife he had a Constitutional right to protect his property, according to an affidavit of probable cause filed in Skagit County District Court.

Hayton said that two Skagit County prosecutors, including Prosecuting Attorney Rich Weyrich, told him they would not pursue charges related to the killing of elk on his property.

Yet Hayton was charged in February 2021 with second-degree unlawful hunting of big game.

About 1,200 elk of the North Cascades herd live in the thousands of square miles between Whatcom and Skagit counties, according to a 2018 Fish and Wildlife estimate.

The department manages the herd in partnership with regional tribes. Together, they aim to grow the herd’s population to 1,700 to 2,000 elk, according to Fish and Wildlife’s 2018 elk herd plan.

As the herd’s population grows, the elk have moved into agricultural areas of the Skagit Valley, resulting in an increase in elk-related damages to property and crops, according to the herd plan.

Fenner Yarborough, wildlife regional program manager for Fish and Wildlife, said the department addresses elk-related damages and conflict in a variety of ways.

The department reimburses landowners for damages, helps landowners put up fencing, and uses a range of control methods ranging from nonlethal to lethal.

“There’s a lot of tools out there. Obviously, it’s still a problem,” Yarborough said. “We have permanent full-time staff that are always trying to work with the landowners to find solutions.”

Hayton said he was only trying to haze the group of elk on his property, not kill any of them.

He said with his new WinMag 300 improperly sighted for the distance he was shooting, he accidentally struck the elk calf.

This September, 75 to 100 elk traversed Hayton’s fields every night for four weeks, eating the grass Hayton grows for hay to ground level, he said.

Puncture marks caused by elk horns pepper the plastic-wrapped hay bales on his farm. The elk like to play with the bales as if they are toys, rolling the bales with their horns, Hayton said. The hay inside the punctured bales will now spoil and become unsellable.

Hayton lost his organic certification license — provided by the state Department of Agriculture — 10 years ago as a result of elk on his property being infected with treponeme associated hoof disease.

According to Fish and Wildlife’s website, scientists believe treponeme bacteria may persist in moist soil and spread to new areas on infected elks’ hooves.

Without an organic certification license, Hayton has to sell his hay at a lower price.

Hoof rot can affect livestock as well.

Hayton no longer has livestock on his farm, he said. He had them slaughtered after they became infected.

He estimates elk have caused hundreds of thousands of dollars in damages on his property over the years.

Hayton dealt with such damages since the 1980s, he said.

According to a 2018-19 report from the Skagit County Assessor’s Office, elk cause an average of $1.4 million in damages to farmland in east Skagit County annually.

Hayton said the efforts of Fish and Wildlife have done little to alleviate the damage the elk cause to his property.

The elk aren’t fazed by rubber bullets provided by the department, and even if Hayton manages to get them to leave, they return within the hour to continue eating, he said.

Hayton said Fish and Wildlife promised him a protective fence.

He said Fish and Wildlife set up three wooden posts, two steel posts, and two strands of white string, “the size of lead in a pencil,” a quarter of a mile in length. Then the department gave the materials for fencing to his neighbor down the road.

None of the department’s efforts — bringing hunters onto the property, hazing the elk, providing special permits to shoot the elk — have deterred the elk from entering and wreaking havoc on his property, Hayton said.

“The game department hasn’t ever paid me one cent, and … they don’t like me because I’ve been vocal against them,” Hayton said. “They won’t help me at all.”

A sense of pride filled Scott Schuyler, natural resources director for the Upper Skagit Indian Tribe, as he watched his son harvest his first elk.

It was the first harvested elk for the tribe in 10 years because the tribe had temporarily stopped hunting to protect the size of the herd.

Schuyler’s son gave the elk to the tribe to process for use in blessing ceremonies, funerals, gatherings and sustenance. It is a tradition within the tribe to give away the first animal a tribal member harvests, Schuyler said.

Historically, elk have provided for the Upper Skagit tribe’s sustenance and ceremonial needs, Schuyler said.

Settlers eradicated elk from the region in the late 1800s, Schuyler said.

In 1912, Skagit County released 46 elk from Yellowstone National Park in the area in an attempt to reintroduce elk, according to the herd plan. Later, poachers eliminated the population.

Successful introductions of elk by Fish and Wildlife in 1946 and 1948 have led to the current population of the North Cascades herd.

In addition, Fish and Wildlife in partnership with the Point Elliott Treaty tribes introduced an additional 98 elk to the herd from 2003-05, according to the herd plan.

“From Upper Skagit’s standpoint it’s a good thing that there (is) wildlife here in Skagit County because … not having these populations would just be an indicator of how poor the habitat and how degraded the areas of these wildlife populations (are),” Schuyler said. “It would be a sad day for us to see these populations that should be here (gone).”

The tribe understands and respects the perspectives of property owners who consider the elk a nuisance, but the tribe believes no species should be eradicated, Schuyler said.

“We will defend wildlife and fish populations where we can, but we also as community members in Skagit County, we live here,” Schuyler said. “We understand the needs of our neighbors. We try to be sympathetic and (don’t) want to be adversarial.”

From the tribe’s standpoint, the elk belong in Skagit County, and it’s a goal of the tribe for residents to coexist alongside the elk.

The Upper Skagit have torn down all fences surrounding their tribal lands to allow the elk to enter the reservation.

Schuyler frequently sees the elk outside his office window in the spring and fall, he said.

Four Skagit County farmers will testify in Hayton’s case that Weyrich told them he would not pursue charges against them if they shot elk to prevent further damage on their property, Corbin Volluz said.

Volluz is the lawyer for Hayton and John Jonasson, another Skagit County farmer charged with second-degree unlawful hunting of big game for the shooting of an elk.

Volluz filed a motion to dismiss the charges against Hayton and Jonasson.

The motion alleges that in December 2013 and January 2014, Weyrich provided a verbal grant of immunity to Hayton and three other farmers — William Schmidt, James Hinton and Larry Jensen — promising that if the farmers shot elk on their property to prevent further damages, Weyrich would not pursue charges.

Prosecutors have asked the court to deny the motion.

Weyrich did not return phone messages seeking comment, but his office has submitted a written declaration from Weyrich in which he denies granting immunity to Jonasson or anyone else.

“I have never promised to dismiss any charges for shooting elk if they indeed were charged,” Weyrich wrote. “I do not specifically recall the meetings with the individuals on two occasions in my office.”

In his declaration, Weyrich states that he does not believe he ever granted immunity to a potential crime that might be committed in the future. He stated that to promise immunity for a crime that had not been committed would be unethical and he would have never done that.

Weyrich writes in the declaration that he may have told the farmers that a jury “very well may find them not guilty for defending their property.”

Hayton said Weyrich told him and the other farmers, “‘If you shoot one or two (per night), that’s fine. And if the game department gives you a tag, … as soon as the citation hits my office, I’m going to dismiss (it).”

Volluz later filed a motion to disqualify the Skagit County Prosecuting Attorney’s Office from the cases of both Hayton and Jonasson because it filed the declaration from Weyrich.

Volluz claims the declaration is not admissible at a trial, and as such Weyrich, for whom those prosecuting the case work, may be called as witness.

Additionally, the motion claims Weyrich represented Hayton in a divorce case in the early 1990s.

“The elected prosecutor of Skagit County has a conflict of interest with this case, so Mr. Weyrich should not be prosecuting this case and nobody in his office should prosecute the case either,” Volluz said.

According to an affidavit of probable cause, Hayton told responding Fish and Wildlife officers he would continue to kill the elk on his property because nothing else works.

He told officers he had worked with Fish and Wildlife over the years but had lost respect for the department over how it has dealt with elk in the valley.

After speaking with Hayton, the responding officers headed into Hayton’s fields to the site where Hayton killed the calf.

“I was also looking for any material damage to the field from elk traffic,” Clinton Lucci, a Fish and Wildlife officer, writes in the affidavit. “There was an occasional gouge in the dirt, but nothing that I considered worthy of mention.”

Hayton said Fish and Wildlife officers excluded important information from the affidavit.

“They’re making a big example out of me,” he said.

Volluz said the government has failed to protect property owners such as Hayton time and time again on the issue of elk-related property damages.

“The government is now officially charging my clients … because the government is not doing its job,” Volluz said. “... It doesn’t want to be embarrassed that it’s not doing its job, so (it’s) just going to cover it up by charging innocent people with crimes.”

Fish and Wildlife provided a written statement to the Skagit Valley Herald regarding Hayton’s case.

“(The North Cascades elk herd) is an important resource providing recreational, aesthetic, and economic benefits to Washington citizens,” the statement said. “The (Washington Department of Fish and Wildlife) Police and conflict staff are committed to their conservation and coexistence with landowners, Tribal Co-managers, and others in this community.”

— Reporter Benjamin Leung: bleung@skagitpublishing.com, 360-416-2156, Twitter: @goskagit

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