Duck ID determined by Wisconsin DNR

Mark W

Mark W

Well-known member
Well, here are the results.

They are fairly certain it is a hen. They also needed to "sex the bird" to determine it was a female and not a male. Fine can be upwards of $2000 but the CO wrote it for the minimum which is $274. CO also set a court date for 11/12/2008 and said he would reccomend that the Judge reduce this to around $125 (to cover court costs etc....) due to me not hiding the bird, being honest about the situation (first bird I shot, not last one by mistake), providing information on intentional illegal activity occurring the same day etc... Also said he believed me when I said I was 100% certain it was not a hen, much less a mallard duck. The issuance of a ticket will not affect my hunting rights.

So anyway, I'm going to court. Any advice to get this further reduced or should I let well enough alone? If the biologist had to "sex the bird" to determine it was a hen (he mentioned some technique I can't recall), how am I suppose to be able to do this in the field? I had my 2 duck ID books with me and the one that the State of MN prints in it's waterfowl supplement and they all pointed to it not being a mallard.

Any suggestions welcome. I have learned one thing, if in doubt, err on the safe side.

Mark W
 
Mark - Thanks for the update and for sharing your situation honestly.

I'd probably explain my case to the judge as you've described, pay my $125, and move on. You may even get lucky and have the whole thing dropped. Good luck and keep us posted.

Joe Lane
 
Mark,

Sorry to hear this. If they can't make a positive ID I'd think they'd drop it and give you your birds back. I don't know what I'd do in your situation. I don't have $2000 but if I did and it was going to cost me my hunting previliges I would ask for an independent evaluation since they are only Fairly sure it's a hen. Once you do contest it, the fine will surely go to the max dollars allowed. Since my mother retired from the Illinois State police I know the politics here and that's what usually happens. With that said if it won't go against your hunting previlges which in my mind you wouldn't be acknowledging any guilt I'd pay the fine and be done with it. JMHO mind you.

Good luck with your decision.

Ed L.
 
This is the kind of thing that some COs do that makes me crazy. The time and effort this guy and his agency have spent on this case could have been better spent on more pressing law enforcement issues. This guy is telling you all the things he is "going to do for you" since you were a straight up guy. What he could do is make it go away.
You should go to court, I bet the judge will toss it.
 
Hey Mark, hats off to you for being honest and up front. FAIRLY sure it was a hen....... Sounds like a typical government decision.... HA HA

Good luck

Jeff
 
if you are going to court to defend yourself then you should be allowed "access" to it....at the least you should get some pictures of it and post them here....if the majority of people here say..."Mark-hen Mallard"...then you know you made a mistake and you can act in that manner.....if the feeling is that it isn't a "hen Mallard" then you may decide to act in another fashion...

Personally I'd want to know if I had made a mistake or not and I sure wouldn't accept "fairly certain" that it was a hen when its so easy to sex them positively by exposing the genitals. Any Biologist that does that should know, without doubt, the sex of the bird....

Like I said I'd request access to the evidence and get your own assessment as to what it was. If its not available then I'd hammer the "almost certain" comment, take a pair of birds into the Court, a hen and a drake and show the Court how to sex them, (you could most likely get someone competant to do thatt), and then point out that if it "that easy" to determine sex then how can the States Biologist be only "fairly certain"....

Steve
 
It sounds to me like the officer wants this to go away. Coercing you into a guilty plea makes it go away. Have you considered having the bird sexed by an independent source, such as a Ducks Unlimited biologist? If you no longer have the bird can you request to have this done? I'm sure the court will side with the state biologist, but going through the trouble of involving another "authority" may help your case considerably. The DU biologist could also provide a statement as an expert witness describing how difficult it is for a hunter to properly sex and/or identify birds like this. If nothing else, it will illustrate to the judge that this is a "shades of gray" question, rather than a simple case of being caught "doing a crime" by a law enforcement officer.

I would also read the legal code to see how one is supposed to identify a duck. Go with the legal description of a "hen mallard", rather than what we know as a hen mallard. In many cases, wildlife code is written in a way that considers natural anomalies, such as an antlered doe. As a matter of principle, it would be worth the difference in court costs to see my name cleared and force the authorities to consider their actions. This is the ONLY way they're going to take notice, and it might provide some valuable perspective for the game officer in question (not all hunters are "perps").

I too, support your actions and forthrightness. Everyone on this site should take heed of your circumstances and realize that if the shoe was on the other foot, any one of us could be facing the same dilemma. Good luck and keep us posted. The lessons aren't over yet.
 
Mark

Did they comment on whether it was a hybrid or mallard? How to count hybrids seems to vary so that might weigh in your favor. Personally, if it is a hybrid androgynous looking duck I'd hope you could shoot a full limit of them :)

If you had shot the hen first and then the oddball duck second I could see how the CO might press this one as it could be argued you were shooting indiscriminately. But since you had the oddball in hand first, did not view it as a hen mallard, and then proceeded to fill your bag, I'd say the case is weak given they can't ID it with sufficient certainty. I wish the CO would save his energy for clear cut violations that certainly abound.
 
"fairly certain it is a hen" ...a hen what? Does your law only allow one hen period? Or can you have a hen teal, GE,Mallard, Woody.....I thought guilt was "Beyond a reasonable doubt?" If you can get in writing that "fairly certain" statement, I can't see any other outcome than a dismissal. Since he can't prove that it was your first one, that is moot. I would say Principal is what will drive this, I wouldn't plead guilty to anything....just because the CO say's that this or that will happen doesn't mean that you won't get a judge that will go the max on a guilty plea. The burden of proof is on them.
 
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Seems that there needs to more for the judge to say 'beyond a reasonable doubt' that this was a hen.

From what I've read, there is much to the ID of this bird that raises the doubt level. Moreover, the new CO is exerting his presence in the new area, and was trying to press for information on the potentially illegal activities.

Thanks for the Education on the problem anyway, and see if you can get the parts of that bird to an independent lab for ID - will DU, Delta, or the USDA help here?
 
Thank for the recommendations. The big dilemma, at least for me, is that I hunt this area all the time. It is far and away my favorite place to hunt and I do all I can to keep other hunters legal so this place remains open to hunting. I knew the previous CO well enough that he would call me to see if I had witnessed such and such activity when it occurred. I liked that relationship and the new guy appears to be an equal in this regard. I hate to win the battle and loose the war so to speak. While the guy is new, he is not new to being a CO. In my judgement, he is one of the good ones and I'd like to stay on his good side.

I am going to go to court and point out the statements made by those who are more knowledgeable than I as to the uncertain ID'ing of this duck. I'll also look up the definition of what a hen mallard is. They should be bringing the ducks to court I assume so I can point out where an average hunter would not ID the duck as a hen mallard much less an experienced hunter and other experts in the field. I'll also look into DU and see what if anything they can do to help me.

This really isn't about the money but more about me as a hunter. I was with my Dad when he got a ticket once (30+ years ago) and I personally have never been in trouble with any CO ever and I have been stopped many times. I am proud of this as I work hard to do the right thing. It is not my nature to break a game law.

Interesting situation isn't it.

Mark W
 
if you are going to court to defend yourself then you should be allowed "access" to it....at the least you should get some pictures of it and post them here....if the majority of people here say..."Mark-hen Mallard"...then you know you made a mistake and you can act in that manner.....if the feeling is that it isn't a "hen Mallard" then you may decide to act in another fashion...

Personally I'd want to know if I had made a mistake or not and I sure wouldn't accept "fairly certain" that it was a hen when its so easy to sex them positively by exposing the genitals. Any Biologist that does that should know, without doubt, the sex of the bird....

Like I said I'd request access to the evidence and get your own assessment as to what it was. If its not available then I'd hammer the "almost certain" comment, take a pair of birds into the Court, a hen and a drake and show the Court how to sex them, (you could most likely get someone competant to do thatt), and then point out that if it "that easy" to determine sex then how can the States Biologist be only "fairly certain"....

Steve
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Guess I wasn't clear. They did "sex it" to ensure it was a female as the other available means to do so weren't so obvious (that's my guess at least). In my opinion, all outward appearances did not conclusively look like a hen mallard. The "fairly certain" comment was in reference to the outward appearance and the biologist "sexed it" to ensure it really was female, not male. Make sense?

I'll see if I can get pictures.

Mark W
 
I'd still fight it....or at least get some other opinions to supprot your claim that "you were certain that it wasn't a hen Mallard" and that that dictated your actions afterwards...

After all how many hunters know how to positively identify the difference of a ducks ovaries and a penis by exposing them? Or even how to expose them? That the Biologist was only "reasonably sure it was a hen" without resorting to a scientific procedure inserts enough "doubt" into the i.d. that even he had to qualify it with "reasonably certain"...and that doesn't even take into account the thought that the bird was potentially a hybrid.

I hear you on not wanting to win the battle but lose the war but I'd still want to "be right" if, in fact, I was "right" and I wouldn't hesitate to pursue that rather than to let something go just to foster good will with a new CO....heck contact him and tell him that you think the assessment is wrong and that while you respect him you are going to pursue complete dismissal....if he's any good he'll appreciate the fact that you aren't arguing just disagreeing and there is certainly nothing wrong with that....plus he'll learn something about not only your integrity but also duck identification as well...

Steve
 
Best of luck, Mark. I'd go to court and explain the situation. You will feel better that you at least had your say before paying any fine. Better than having it gnaw at you.


Ed
 
I saw that you wrote this in your original post

Soon after this, I had a loner circling the dekes. It looked like a black duck but was a little on the small side. I shot it and brought it back to the boat and it was a cross of something and a mallard. Head was real small, wing looked like a drake mallard, head also had some slight coloration, not much but some, bill looked like a hen mallard and the body was 2/3 the size of a typical hen mallard and the belly was much darker than a hen mallard. Even the back feathers were darker.

Could this be an old domestic hen call duck that has more testosterone than estrogen? I would fight it all the way and have them PROVE to you that this was indeed a mallard and indeed a female. Have them PROVE to you and the court that this is a WILD hen mallard that has no hybridization in it whatsover. It will cost them more to do this than the fine. Also, anyone ever participate in the "Wingbee" studies? Anyone ever have a "domestic mallard" rather than mallard show up on the survey report when the bird looked like a regular mallard? Did they do DNA analysis - I highly doubt it.


 
Mark,

When you posted originally I thought you were hunting the MN side of the river. Since you were in Wisconsin, what county were you hunting in? Is the CO not only new to the area, but also new to the job?

If you can get pictures then you should be able to bring in some expert testimony of your own to the court. We have a retired DNR wildlife biologist serving on the La Crosse County Conservation Alliance, and I can see if he'd be willing to provide an opinion on identification.

Rick
 
I'd go to court. My one game ticket was for 2 unattended tip ups that were labeled with the guy I was staying with name and address. They were his and he had run to the party store for some steaks. The C.O. hit them with his atv, How he missed seeing them I don't know but he wrote me the tickets because"I was the one Home" I fought it, he didn't show up, Judge tossed it "In the interests of Justice" He also told off the Prosecutor in court and the C.O. on the phone in my presence something fierce.
 
Mark,

When you posted originally I thought you were hunting the MN side of the river. Since you were in Wisconsin, what county were you hunting in? Is the CO not only new to the area, but also new to the job?
Rick
Click to expand...


The CO is certainly new to the area and I'm making an assumption that he has been at this awhile based on how old he looked. Younger than me but then again, only Dave, WizBiz and Wicker T are older than me.

I was hunting St. Croix county if that means anything to you Rick. Hunting the Willow Rvier to be more specific.

Mark W
 
Just a thought. If the duck in question was a domesticated duck or came from a pen and escaped the rear nail should/could have been removed. I know pen raised ducks are supposed have their rear nail removed, if it has been removed it is not a wild bird. So it wouldn't even mater then.

Did it look like any of these "Mallards"
http://10000birds.com/manky-mallards-domestic-feral-or-just-plain-odd-mallards.htm

I would fight it. If he gets mad at you for doing so he isn't much of a peace officer. If you were wrongly fingered for theft by a witness who wrongly identified you and the prosecuter offered you a deal would you take it?

If the CO couldnt ID on the spot and had to defer IDing to another and that guy couldnt definativly ID it.

I'd say see you in court!

Good luck
 
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