July 14, 2013

Open access is flashpoint for hunters, landowners

A shooting in Starks last October highlights the tenuous -- and tense -- relationship when it comes to hunting on private property.

By Rachel Ohm rohm@centralmaine.com
Staff Writer

STARKS - Kerry Hebert had dropped his wife and two children at a Halloween party at the Starks Community Center last Oct. 31. It was approaching dusk as he drove back home.

On Mount Hunger Road, which serves as his driveway, he stopped the van and got out to speak with a group of hunters.

Among the five were two brothers -- Burpey Pond, 72, and Robert Pond, 76 -- who were tracking a deer they had shot in nearby woods.

Hebert asked the hunters not to hunt near his home, and they began arguing. The argument turned into a fight. Burpey Pond and Hebert grappled and Pond lost three teeth. Robert Pond intervened and Hebert appears to have grabbed Robert Pond's rifle.

Hebert was shot in the side, the bullet breaking two ribs. He said, "You shot me," and drove off, Burpey Pond told police afterward.

Those details about the Oct. 31 shooting are from newly released police interviews and reports that for the first time publicly name the hunters and describe what happened that afternoon. The reports, from the Somerset County Sheriff's Department, were released this month after the Morning Sentinel filed Freedom of Access Act requests.

The confrontation itself wasn't unusual in a state where hunter access to private land is a tradition, but the shooting was. The new information details just how difficult it was for authorities to determine what happened and who was at fault.

In the nine months since Hebert was shot, neither he nor police have said much about it. More questions were raised last month after the police investigation was brought before a Somerset County grand jury, which decided not to indict the Ponds or Hebert. Grand jury proceedings are private.

Somerset County District Attorney Maeghan Maloney said she decided to take the case to the 23-member grand jury because police couldn't determine who was at fault, even though Hebert was shot from close range and authorities knew who was involved.

"There were two very different accounts and ultimately that is why we felt a grand jury should decide this case," Maloney said.

The case was also unusual because both parties were injured and because forensic evidence, twice submitted to the Maine State Police Crime Laboratory, corroborated pieces of both their stories, Maloney said.

Hebert, 57, a self-employed contractor and husband of Town Clerk Jenn Hebert, declined to comment on the new information.

In a prepared statement to the Morning Sentinel, Hebert said he was disappointed that the District Attorney's Office didn't pursue criminal charges against the Ponds and that there were "a number of discrepancies and inaccuracies" in the police reports.

Neither he nor his attorney, John Alsop, would explain further.

AN UNEASY RELATIONSHIP

The shooting highlights the tenuous relationship between Maine hunters and property owners when it comes to the centuries-old tradition of open access to private land.

Doug Rafferty, spokesman for the Maine Department of Inland Fisheries and Wildlife, said that in the past people have been accidentally killed by hunters who misidentify targets, fail to consider whether anyone is in their line of fire, or fire a weapon too close to a home or camp.

In one of the state's best known cases in November 1988, 37-year-old Karen Wood of Hermon was hanging laundry in her backyard when she was shot by hunter Donald Rogerson, who said he mistook her white-palmed mittens for the tail of a whitetail deer.

Rogerson was found not guilty of manslaughter, but paid $122,000 to Wood's family in the settlement of a wrongful-death civil lawsuit.

In 2007, Timothy Bean of South Paris pleaded guilty to manslaughter after fatally shooting 18-year-old Megan Ripley near her family's farmhouse in Paris. He was sentenced to two years in jail, with all but 30 days suspended. Ripley's family agreed to the plea deal and reports at the time suggested Bean's willingness to take responsibility and the family's willingness to forgive him played a part in the sentence.

Rafferty said that while hunters are not required to check with landowners before hunting on private property, the warden service strongly recommends it.

Landowner disputes happen more often than most people think, although it's rare for them to become violent, said Tom Doak, executive director of the Small Woodland Owners Association of Maine.

In most states, hunters are not allowed on private land without permission and in some they must pay landowners for access.

"Maine has some of the most open land policy rules in the nation and I think a lot of people forget that or take it for granted," Doak said.

DETAILS EMERGE IN POLICE REPORT

According to the police report, Robert Pond of Hartford was hunting with his brothers Burpey Pond of Naples and Philip E. Gendreau Sr., 79, of Casco. The brothers have a camp in Starks and have been coming to the area for about 30 years, according to their attorney, Woody Hanstein.

Also hunting with them were Robert's son Cary Pond, 42, of Cocoa, Fla., and Gendreau's son Philip E. Gendreau Jr., 43, of Beavercreek, Ohio.

Robert Pond told police he heard his brother Burpey Pond yell, ran over and saw Hebert holding him in a headlock. Blood was coming from his brother's mouth. Burpey Pond, with his gun slung over his shoulder, was holding onto Hebert's belt, Robert Pond told police.

Robert Pond said he was carrying a Remington .30-06 semi-automatic rifle at his side. He said Hebert grabbed the barrel of the Remington and pulled it toward him.

Pond tried to hold onto the gun but one of his fingers "must have pulled the trigger and the gun went off," he told police. He said he wasn't sure whether Hebert had been shot. He didn't remember seeing any blood.

DIFFERENT VERSION OF EVENTS

Hebert told police he had stopped three times that night to tell different hunters from the party to be careful where they were shooting. He said he was concerned because he has children and pets and didn't want anyone hunting near his house or his sister's, which is nearby.

His land is not posted against hunting.

Hebert said Burpey Pond "went ballistic" when asked not to hunt near the houses, and said, "I have been hunting here for 25 years and nobody is going to tell me I can't."

That made Hebert angry and he told Pond to get off his property. Hebert said when he pointed a finger at Pond, the hunter lunged at him and bit it, leaving an "inconsequential" injury. Hebert said he punched Burpey Pond in the nose -- "a light punch that caused no damage."

The two wrestled, Hebert said, but he did not remember Burpey Pond losing any teeth and said that he never had Pond in a headlock. Hebert said he thought things had calmed down by the time Robert Pond arrived.

Hebert said Robert Pond kicked him and hit him with the barrel of his rifle.

Then a single shot hit Hebert in the side. He fell into a mud puddle, got up and said to Robert Pond, "You shot me." He placed his hand over the wound and showed the hunters the blood. He said Robert Pond replied, "No I didn't."

Hebert drove himself home and called 911. He was later taken by LifeFlight helicopter to Central Maine Medical Center, where he underwent multiple surgeries.

Jennifer Hebert told police that her husband also suffered two broken ribs and significant lung and tissue damage, although his injuries were not considered life-threatening.

Hanstein, the lawyer for the Pond brothers, said they called 911 to report what happened and to seek treatment for Burpey Pond and Hebert.

In an interview with police, Burpey Pond said he was punched in the mouth. He said he grabbed hold of Hebert's belt because he was afraid of being thrown to the road.

He said he believed Hebert was crazy and yelled to his brother for help.

Hebert said he did not reach for -- or ever touch -- the rifle that shot him.

'NOT A SIMPLE CASE'

Maine State Police and the Somerset County Sheriff's Department both went to the scene. Officers interviewed the hunters, Hebert and searched the hunters' vehicles, seized their guns and took DNA swabs.

But they made no arrests.

A Nov. 1 incident report lists the offenses from the encounter: elevated aggravated assault, hunting an antlerless deer without a permit, and aggravated assault.

Burpey Pond was charged with the hunting misdemeanor and paid a fine, according to Maloney.

According to the police report, Hebert was a victim of elevated aggravated assault and Burpey Pond was a victim of aggravated assault.

During the investigation, Hebert asked police whether Robert Pond was considered justified in shooting him because of Hebert's fight with Pond's brother.

"This would depend upon the man who'd shot him('s) perception of the events as he interpreted them at the time of the incident," Detective Matthew Cunningham of the Somerset County Sheriff's Department wrote in the police report. "I advised (Hebert) that Burpey Pond reportedly had teeth knocked out so the matter was not a simple case of (Hebert) being shot by another person."

Forensic evidence from the crime lab didn't offer much clarity.

While Hebert's DNA was found on the gun he was shot with, Burpey Pond's blood and DNA were not found on Hebert's clothing. Maloney said that if Hebert had knocked out Pond's teeth, the clothing would likely have had traces of the hunter's DNA or blood.

She also said that Robert Pond said he didn't shoot Hebert.

"Robert Pond did not have the intention of pulling the trigger. The gun was jerked out of his hand. It was (Hebert's) movement that caused the gun to go off," Maloney said.

A second round of forensic testing confirmed, through gunshot residue on his T-shirt, that Hebert was shot from close range. Maloney said this second piece of evidence was key to the decision to take the case to the grand jury.

"When this came back we knew part of (Hebert's) story simply wasn't true," she said.

Hanstein, the Ponds' lawyer, said that both brothers feel terrible about what happened, and that the experience has potentially ruined hunting for them. Neither brother had a criminal record and Hanstein said the case was concluded fairly.

Both Hebert and the Pond brothers testified before the grand jury on June 6.

"Everybody talked to the grand jury," Hanstein said. "They told the grand jury their side of the story and the jury decided there would be no charges."

Both Hebert and the Ponds say they're considering filing civil claims against each other.

Rachel Ohm can be contacted at 612-2368 or at:

rohm@mainetoday.com

 

Were you interviewed for this story? If so, please fill out our accuracy form

Send question/comment to the editors




Further Discussion

Here at PressHerald.com we value our readers and are committed to growing our community by encouraging you to add to the discussion. To ensure conscientious dialogue we have implemented a strict no-bullying policy. To participate, you must follow our Terms of Use.

Questions about the article? Add them below and we’ll try to answer them or do a follow-up post as soon as we can. Technical problems? Email them to us with an exact description of the problem. Make sure to include:
  • Type of computer or mobile device your are using
  • Exact operating system and browser you are viewing the site on (TIP: You can easily determine your operating system here.)