Rules Tricky To Avoid Being Legal Roadkill

My brain nearly overheated as it calculated all the factors associated with the herd of elk trotting along the side of the Forest Service road.

Should I or shouldn’t I?

That was the question as I reached behind the seat for my rifle.

I had been hunting in the Blue Mountains for five days during the Washington elk season. On three different occasions in the timber, branch-antlered bulls or cows had been in the crosshairs on my rifle within a range of 50 yards. But they walked free because my general tag allowed me to shoot only a spike bull.

Like thousands of other hunters who have suffered the same frustration in recent years, I packed camp and started driving home empty-handed.

Elk have a reputation for being unpredictable, so I shouldn’t have been surprised to drive around a bend and see a dozen elk. They were on a gravel road in the Umatilla National Forest a short way from the junction with the Tucannon River Road.

I had stumbled onto the proverbial needle in a haystack.

At least three of them were spike bulls.

My first reaction was to keep driving, assuming the elk would stampede away. Instead, they trotted off the road and milled around at the base of a ridge about 100 yards away.

I’m not a road hunter, and I wasn’t prepared for suicidal elk. But I began to smell elk steaks on the grill.

I stopped on the side of the forest road, reached behind my seat, brought out my rifle and slipped it out of its case. I grabbed my hunter-orange vest from the passenger-side floor and opened the glove box to get a handful of cartridges.

I slid out my door, loaded my .30-06 and walked around the back of the pickup. Several of the elk, including two of the spikes, were facing me, standing broadside.

This could have been the easiest elk in the history of Landers family hunting.

The animals were standing on public land with a safe background. Should I have taken the shot from the edge of a secondary Forest Service road?

I didn’t take aim because I knew that laws in Washington, Idaho, and most other states prohibit shooting from roadways.

If I could have sneaked off the shoulder of the road and up the other side, maybe I could pull it off. But as I made my move, the elk bolted into a tangle of brush and over the ridge. With no clear shot, I watched my one and only chance of the season vaporize.

However, a hunter who carefully reads the Washington big-game hunting regulations pamphlet might just as easily be convinced that taking a shot from the road would have been legal under wording adopted two years ago.

Don’t be confused. Washington Fish and Wildlife Department officials say it’s still illegal to shoot from a public road. And you’ll certainly be cited if caught shooting across a roadway or toward any vehicles or buildings.

But anyone who reads item No. 6 on page 17 of this year’s regulations pamphlet will understand why the department is getting complaints about misleading terminology.

Some background: The comparable law in Idaho reads: “It is unlawful to shoot a firearm from or across a public road.”

Through 1998, Washington’s law said, “Discharging a firearm from, across, or along the maintained portion of any public highway, regardless of surface, is prohibited.”

However, beginning in 1999, the Washington regulation reads, “Negligently discharging a firearm from, across, or along the maintained portion of any public highway, regardless of surface, is prohibited.”

The current wording seems to leave a lot of latitude. Why add the word “negligently?” And what do they mean by the word “highway?”

Sen. Jim Hargrove (D-Hoquiam) was on the legislative committee that handled game-law revisions.

“We cleaned up several little catches in the law,” Hargrove said Wednesday. “For instance, it was formerly illegal to carry a flashlight and a gun in the woods at the same time. How silly. A well-prepared hunter should have both.”

The change in the rule on shooting from roads was based on a few cases in which decent hunters seemed to be cited unnecessarily, he said.

“`Negligently’ is a very low-standard legal term,” he said, meaning that negligence is not difficult to prove in court. Yet the term gives a bit of legal wiggle room to field officers who might, in certain cases, need to make rational interpretations of the law’s intent.

“If you’re in the middle of nowhere with no traffic or buildings or livestock in any direction, it would be silly to say you are legal if you walk 10 feet off a road and shoot and illegal if you stay put,” he said.

Evan Jacoby, legal advisor for the Washington Fish and Wildlife Department, basically agrees with Hargrove, but says a hunter could still be cited for shooting from a road in a rural area.

“The problem is that the wording in the pamphlet is legal jargon,” Jacoby said. “Everyone in the courts knows what it means, but it’s not apparent to the layman.”

Not exactly, said Mike Whorton, department regional enforcement chief in Spokane.

“We’ve had some prosecutors tell us that having the word negligently in that description is confusing,” he said. “It seems to indicate that if you’re very careful, you can shoot from a road. But you can’t.”

Said Jacoby, “It’s confusing at best. I’m recommending they reword the rule in next year’s pamphlet.”

The wording he suggested Wednesday would say: “Negligently, recklessly, knowingly or intentionally shooting a firearm from, across or along a maintained portion of a public highway, regardless of surface, is prohibited.”

But what would the phrase “along a maintained portion of a public highway” mean? Is the barrow pit considered maintained?

“Hunters probably don’t want the law to be too specific,” Whorton said. “Get off the road and you’re probably OK in most cases.”

In rural areas, you’d better get across the fence and get permission to be there, he said.

“But it’s a nightmare in states that say you have to be 100 feet from this or that. A 5-foot miscalculation makes you illegal.”

And don’t be confused by the term “highway.” In Washington, highway is legal jargon for the word “road.”

Personally, I’m playing it safe by making sure I do all my driving to and from hunting areas in the dark. I know for sure that it’s illegal to hunt outside the hours designated on page 72 of the regulations.

Or at least I think I do.