Craig About 40 Craig residents filled the seats behind Rodney Culverwell at his Wednesday morning pretrial motions hearing in Moffat County District Court.
Culverwell, a 42-year-old Moffat County rancher, is charged with 90 felony and misdemeanor poaching charges stemming from a DOW investigation in the winter. Officers allegedly confiscated spent shell casings and elk carcasses with bullet wounds Feb. 22 from Culverwell's property.
He faces 18 counts of willful destruction of big game, a Class 5 felony; 18 counts of illegal possession of wildlife, a misdemeanor; 18 counts of hunting big game without a license, a misdemeanor; 18 counts of hunting out of season, a misdemeanor; and 18 counts of failing to dress wildlife, a misdemeanor.
According to a search warrant affidavit filed in District Court, a DOW wildlife officer received an e-mail from Culverwell on June 12, 2007, asking for permission to kill wildlife eating his cattle feed and damaging his property.
"If I have not heard from you within two weeks, I will assume that you do not care, and these matters must be taken care of by other means," the affidavit states Culverwell wrote in his e-mail.
Pamela Mackey, Culverwell's Denver-based defense attorney, said the crux of Culverwell's defense is that he had no choice but to defend his property - including hay and fencing - by other means than the DOW provided.
However, Mackey also stated at Wednesday's pretrial hearing she and her client would not concede that Culverwell shot or otherwise killed the 18 elk allegedly found on his property.
Some of the bullets retrieved from elk carcasses in the case do not match firearms confiscated from Culverwell, Mackey said.
Mackey declined to comment further after the hearing.
Colorado Sen. Jack Taylor, R-Steamboat Springs, attended part of Wednesday's hearing, as well. He said he is interested in seeing which direction Culverwell's case will go because it could set precedents for private property rights.
He added he would not be happy about a ruling that diminished someone's right to defend his or her property.
"If they come back and say that any rancher doesn't have the right to protect their property with a common sense approach, I would have a problem with that," he said. "Ranching is hard enough without state agencies (such as the DOW) coming in and making it harder."
At the conclusion of Wednesday's hearing, Chief District Court Judge Michael O'Hara ruled that Mackey would be allowed to proceed with a defense argument based on Culverwell's defense of his property.
Mackey argued that a person's defense of property is an "inalienable" right in both the Colorado and U.S. Constitutions.
O'Hara ruled Mackey will not be allowed to pursue a "choice of evils" defense, which is allowed under Colorado statutes.
Under a choice of evils defense, the defendant is required to show he or she prevented "imminent public or private injury" by choosing the lesser of two evils, O'Hara said.
"The truth is, frankly, the court doesn't find an imminent threat of injury here," O'Hara said.
O'Hara said he found, based on evidence presented Wednesday, that Culverwell did not exhaust all legal avenues to prevent property damage from wild animals. He also said the defense failed to demonstrate that Culverwell faced an emergency situation only avoidable by killing elk on his property.
O'Hara granted Mackey the right to pursue a case based on Culverwell's right to defend his property, but said the 14th Judicial District Attorney's Office would be free to object to any testimony based on its relevancy to Culverwell's charges.
If the prosecution should object, O'Hara said he would consider the relevancy of Culverwell's defense of property at that time, after hearing more evidence.
O'Hara also dismissed 18 additional sentence enhancer charges filed by the District Attorney's Office.
By state law, a person convicted of three or more counts of illegal possession of wildlife faces increased penalties for each charge.
O'Hara ruled the eventual jury in the case will decide whether Culverwell is guilty of three or more counts of illegal possession and there was no need to list separate sentence enhancer charges.
Culverwell's trial is set to begin Aug. 25.
In a similar case, Moffat County rancher Kenneth Wolgram, 43, is charged with 51 felonies and misdemeanors relating to another DOW investigation of alleged elk poaching this winter.
Wolgram is charged with 16 counts of willful destruction of wildlife, a Class 5 felony; 16 counts of illegal possession of wildlife, a misdemeanor; 16 counts of aggravated cruelty to animals, a Class 6 felony; and three counts of tampering with physical evidence, a Class 6 felony.
Wolgram is scheduled to appear in District Court at 11 a.m. and 1 p.m. today. This afternoon has been set as a deadline for Wolgram to accept a plea agreement or decide to go ahead with a trial.