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Layne Spence finds himself in a place no dog owner ever wants to be.

An unidentified hunter shot and killed one of his three malamute dogs on Sunday as he was cross-country skiing in the woods west of Lolo. Because of the way events played out, it’s likely the shooter may never be charged with a crime, or even identified.

The man told Spence afterward he thought he was shooting a wolf, and asked if there was anything he could do. Spence said he was distraught and screamed at the man to go away. The man did, and Spence carried his dead dog back to his truck.

What happened next exposes some gray area where hunting, recreation, law and justice tangle together. In the end, the only thing certain is that Spence’s 2-year-old dog, Little Dave, will be in a cremation urn.

“I don’t want vigilante justice,” Spence said Tuesday. “I don’t want anything bad to happen to this guy – I just don’t want this to ever happen again. I just want my dog. I want an apology. I want to take away his guns and I want his license taken away.”

The facts as Spence recalls them: He was skiing up a closed road above the Lee Creek campground near Lolo Pass around noon on Sunday with his three malamutes. The older two, Rex and Frank, were running together while Little Dave was separate, some 15 or 20 yards ahead of him on the road. He heard a gunshot and saw the bullet hit Little Dave’s rear leg.

Spence is studying respiratory therapy and paramedic medical training in college. After the first shot, he said he saw the hunter and screamed at him to stop.

“I saw my dog’s leg get blown off but I’m thinking, I can fix that,” Spence recalled. “And then he just kept shooting. I’m screaming, ‘No, no, no,’ and he can see me. The shots are going ‘tak, tak’ – not the loud booms like a hunting rifle, but like he had an assault rifle with a suppressor.”

There’s some dispute about what Spence saw. The report he gave to a Missoula County sheriff’s deputy Sunday states he said the weapon was not an assault rifle. Spence maintains that was a mistake, and he went back to the sheriff’s office on Tuesday to amend his statement. Sheriff’s department officials declined to change the record.

Semi-automatic military-style rifles like AR-15s and AK-47s are legal for public hunting and require no special permits or licenses to own, as long as they aren’t capable of fully automatic firing. They can shoot the same caliber bullets as more traditional hunting rifles.

Nevertheless, Spence said he thinks the rifle and its rapid-fire capability contributed to the tragedy.

“I have nothing against hunting – I’ve hunted myself with a bow and rifle,” Spence said. “I just have something against irresponsible hunters who aren’t focused enough to know what they’re shooting at and keep shooting. I think we should ban assault rifles as hunting rifles. If you have to shoot something five or six times, and you’re that close and you can’t tell it’s a dog with a skier behind it, you shouldn’t have a license. You shouldn’t have a ... gun.”

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Hunting writer and occasional legislative advocate Ben Lamb of Helena said the firearm is not the issue.

“Personally, that kind of a weapon is not what I want to carry in the woods,” Lamb said. “I’m perfectly happy toting around a bolt-action rifle. I think that’s a personal choice. But it’s the old adage, ‘It’s what you do in the woods when nobody’s looking’ that defines your ethics.”

It is illegal to fire from a road or at something on a road, but there are exceptions if the road is closed to motorized traffic. Because Spence and the dogs were beyond a closed gate and because the victim was a dog and not a game animal, the Montana Department of Fish, Wildlife and Parks had no jurisdiction to investigate or file charges in the incident.

FWP spokeswoman Vivica Crowser said the incident raises concerns about hunter ethics and safety, but failed to break laws.

“For someone to have done that – make multiple shots, kill the wrong, non-target animal and then leave the scene – that all raises issues,” Crowser said. “To take responsibility for a mistake and help with the situation is one of the key things we stress in hunter education classes.”

If your car collides with another, Montana law requires you to exchange contact information before leaving the scene. No such law exists for accidents not involving motor vehicles. So the hunter was under no legal requirement to give Spence his name, assuming a conversation could have taken place under the traumatic circumstances.

Little Dave and the other two malamutes wore collars with lights on them to identify them as pets. However, the deputy who took Spence’s report said he thought the dog could be mistaken for a wolf.

And when the shooter made peaceful contact with Spence, that affected the legal situation. Sheriff’s Capt. Brad Giffin said officers must constantly test the boundary between criminal and civil activity.

“We as deputies have to go out and prove the elements of a crime we’re investigating,” Giffin said. “One of the most common challenges is to determine if it was purposely or knowingly or negligently committed. To reach criminal negligence can be exceedingly hard. Proving civil negligence is much easier. And every situation is a little bit different.”

By speaking with Spence, the man indicated he had no criminal intent – he said he mistook Little Dave for a wolf, which is a legal game animal with an open hunting season now in Montana.

“We’re still looking to talk to the guy who did the shooting and get his side of the story,” Giffin said. “I’m not saying the guy who lost his dog was to blame. This was a horrible thing. But is it criminal? Based on the story the victim himself gave us, I don’t believe it could be. He could still say, ‘I lost my dog because of your action,’ but that’s something that could happen in civil court.”

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Taking pets in the woods has been a growing point of tension in Montana. As trapping has grown in public awareness, many pet owners have objected to how their animals’ safety takes a lower priority to a hunter’s or trapper’s right to pursue their pastime.

“It looks to me like the general public, who does not kill wildlife on public lands, has no right when it comes to encounters with hunters or trappers,” said Anja Hester, a campaign director for the Missoula-based In Defense of Animals organization. “This incident really brings this lack of existing policy or regulations to light.”

Lamb said the hunting community feels equal pressure.

“You have a very real conflict that will grow as the population grows – the public use of these lands,” Lamb said. “The most important thing for the hunter is to recognize there are other people with legitimate uses on that land. And if you’re out recreating during hunting season, you have to take responsibility for your own actions. Does the dog owner have an obligation to make sure it does not look like a wolf? My dog has a blaze orange collar and still gets mistaken for a bear or wolf by hikers.

“The (hunter) who was out there was completely legal,” Lamb continued. “Whether he made solid choices is up for debate, but that’s not a basis for more gun control or kicking hunters off public land. The hunting community is not giving the hunter a pass on this.”

But Montana law might. Neither the sheriff’s office, Fish, Wildlife and Parks nor the U.S. Forest Service could find a statute to bring criminal charges from Little Dave’s death.

“I’m known all around town for my dogs,” Spence said. “I don’t have family here. I just have my dogs. If there’s a law I can change, I want something to happen. I’d give everything I own just to have my dog back.”

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Reporter Rob Chaney can be reached at 523-5382 or at rchaney@missoulian.com.

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