Friday, May 28, 2010

Memorial Day weekend outdoor notes (This and that)

Oh, great, just what Ohio's sidewalks, parking lots and school grounds need: More geese.

In its annual survey of resident Canada goose production, the Ohio Division of Wildlife notes a 3-percent increase in the specie's population this year over last year.

Estimates are that Ohio now has 102,441 resident nesting Canada geese. Last year that figure was 99,652 resident nesting geese.

Actually, Ohio's resident Canada goose population has remained fairly stable over the past few years, seeing minor declines in 2003 and again in 2006. The peak came in 2001 with an estimated population of around 140,000 resident nesting Canada geese.

For lovers of peregrine falcons, the nest on the side of FirstEnergy's Eastlake coal-fired power plant contains three eggs. Their mother sports a leg band but officials have been unable to identify whether it is Starbright, the female falcon which has used the nest in the past.

Last year Starbright and her mate, Jerry, raised three chicks also. These chicks were fitted with their own leg bands and then returned to their nest.

The Eastlake falcons typically are the last in the state to nest, likely the product of setting up a home along Lake Erie. Such a setting keeps the near-shore area much colder than other nests located further inland, Wildlife Division officials say.

At some point after the eggs hatch the young falcon chicks will be fitted with their own metal leg bands.

- Jeffrey L. Frischkorn

Thursday, May 20, 2010

Brown County wildlife officer back on job

Allan Wright - state wildlife officer assigned to Brown County - can again strap on his service pistol and wear his Ohio Division of Wildlife badge.

Wright has been reinstated to his post late this afternoon (Thursday), following dismissal of charges earlier this month by Brown County special prosecutor David Kelly.

Ohio Department of Natural Resources Director Sean Logan made the reinstatement effective Monday, May 24, said ODNR spokesman Mike Shelton.

Wright had been placed on paid administrative leave as had five other Wildlife Division officials. These other officials remain on the paid administrative leave status.

The dismissal of charges came at the request of Kelly who informed the Brown County Common Pleas Court that he intends to conduct an independent investigation and presentation to the Brown County Grand Jury.

Should charges again be bought against Wright then the ODNR will place Wright back on paid administrative leave, pending the resolution of all legal issues, Shelton said Thursday.

Wright was originally charged with two counts of tampering with records (third-degree felonies) and one count of falsification for allegedly altering official Natural Resources Department records (a first-degree misdemeanor).

The question arose in Kelly's mind whether the so-called Garrity Rule applied to Wright since he was questioned by the Ohio Inspector General during an official investigation. This rule spells out a civil servant's 5th Amendment rights against self incrimination if that person believes his job is threatened for failure to answer questions.

In Wright's case, Kelly believes, the Garrity Rule applies, hence the dropping of charges and separate investigation and possible presentation to the Brown County Grand Jury.

- Jeffrey L. Frischkorn

Weekends bits and pieces

As small as the world's become through the Internet and high-speed travel there are still some big out there to discover and explore.

Scientists with the Conservation International ventured to Indonesia's New Guinea island. There, they discovered - among other things - a bizarre spike-nosed frog, an over-sized though very tame new woolly rat species, a gargoyle-like bent-toed gecko with yellow eyes, a new pigeon species, and the world's smallest member of the kangaroo family, a tiny forest wallaby.

Finally some good news about the highly invasive gypsy moth. In Pennsylvania that state's Department of Conservation and Natural Resources reports a virtual collapse in the moth's population during 2009.

In some counties moth egg mass densities were so low that suppression treatment was not needed. This, after decades of the moth killing billions of trees; defoliating 4.3 million acres in 1990 alone. Last year "only" 239,700 acres of forests were hit; down considerably from the 766,500 acres reported destroyed in 2008.

Retired Willoughby patrolman and former state wildlife officer assigned to Lake County Tim Kerzisnik reports that the Mercer County Sportsmen Club will host its 5th Annual Vintage Skeet Shoot. Required is the use of either side-by-side or else pump-action shotguns.

For further information, visit web site

Would-be boaters and anglers can take in the annual North Coast Harbor Boating and Fishing Fest, June 5 and 6 at Voinovich Park and the North Coast Harbor, both at the end of East 9th Street in downtown Cleveland.

On tap are free rides aboard powerboats and sailboats. The festival also will feature free fishing for yellow perch aboard party (head) boats.

Other activities will include demonstrations, displays, entertainment, food, Capt'n Willy, the Great Lakes Pirate, and give-aways.

This festival annually brings together various industry-related businesses, boating organizations as well as local, state and federal agencies devoted to pleasure boating.

For more information, visit

- Jeffrey L. Frischkorn

Wednesday, May 19, 2010

Acting Wildlife Division chief keeps old salary

Jim Marshall should be holding an iced tea in one hand and relaxing with a fishing pole in the other. Instead, the now-retired assistant chief for the Ohio Division of Wildlife remains the agency’s acting chief.

And he gets to keep his old salary which is more than that for David Graham, the Wildlife Division’s chief who is on paid administrative leave.

Graham and several other Wildlife Division officials are under paid administrative leave pending the outcome of indictments against them and charged in Brown County Common Pleas Court.

Marshall was to have retired beginning April 30 but volunteered to serve as the agency’s acting chief until that date.

He since has extended his mission until the legal matter involving the other Wildlife Division officials is resolved, said Mike Shelton, The Ohio Department of Natural Resources’ chief spokesman.

Graham’s hourly rate is $47.19 and he is being paid that amount during his period of administrative leave.

“Interestingly enough, Marshall’s hourly rate is $47.76. The chief’s rate does not include longevity. I guess it’s not always so good being on top,” Shelton said.

Also of interest to the Natural Resources Department is the matter of Allan Wright, the state wildlife officer assigned to Brown County and one of the agency officials involved in the legal matter.

However, a legal theory of law led to at least a temporary suspension of the charges brought against Wright. The special prosecutor assigned to the case requested a voluntary dismissal of the charges, pending an independent investigation and presentation to the Brown County Grand Jury.

Even so, Wright remains on paid administrative leave, Shelton said.

“Right now we are trying to determine what steps to take given the prosecutor’s dropping of the case at least temporarily,” he said.

- Jeffrey L. Frischkorn

Tuesday, May 18, 2010

Turkey kill soars, locally and statewide

Ohio's estimated 70,000 did their part by calling in 21,909 gobblers during the recently concluded spring season.

That figure is a 16 percent increase over the disappointing 2009 spring season kill of 18,936 birds.

Once again Ashtabula County led the state with a kill of 923 birds and compared to the 831 birds shot there during the 2009 spring season.

Added to this year's Top 10 list was Adams County with a kill of 606 birds. That is a huge increase from the 394 birds shot there during the 2009 spring season. State wildlife biologists projected before this year's April 19 to May 16 season that several of the Ohio River counties - such as Adams will enjoy an especially solid spring season due to the appearance last year of a large cicada hatch that provided superior forage for poults.

Trumbull County also made the Top 10 list with 588 birds (ranking seventh). In 2009 Trumbull County saw a kill of 568 birds.

Here is a list of selected counties and their 2010 spring wild turkey kill with their spring 2009 kills in parentheses: Adams County - 606 (394), Ashtabula County - 923 (831), Coshocton - 563 (454), Cuyahoga - 22 (20), Erie - 81 (88), Geauga - 483 (422), Guernsey - 618 (560), Huron - 183 (175), Lake - 209 (200), Lorain - 199 (175), Medina - 149 (145), Ottawa - 12 (7), Sandusky - 18 (11), Scioto (an Ohio River county) - 407 (279), Trumbull County - 588 (568), Tuscarawas - 621 (609).

- Jeffrey L. Frischkorn

Monday, May 17, 2010

More hearings scheduled for indicted Wildlife Division officials

A hearing held this afternoon for several indicted Ohio Division of Wildlife officials has led to at least one more judicial meeting in Brown County Common Pleas Court.

This next hearing is scheduled for 1 p.m., June 18 and will explore what's called the Garrity Rule. This legal term protects - broadly - a civil servant's Fifth Amendment rights against self incrimination when making comments during an investigation if that individual feels threatened with job loss if he doesn't speak.

The attorney representing indicted Wildlife Division chief David Graham filed court documents supporting applying the Garrity rule for the official.

However, Brown County prosecutor Jessica A. Little contends that this rule does not apply to Graham or to a number of the other indicated agency officials.

The June 18 hearing is to determine if the Garrity rule applies in at least Graham's case, Little said today.

"If it does apply then the judge will ask for evidence supporting my position and for another hearing. It's better this way because if the Garrity rule does not apply then we don't have to go further with the question," Little said.

Little said she accepted having the burden of proof on whether to go forward regarding the Garrity question.

"I said I didn't care," Little said.

Little said also she expects up to a five-day jury trial if the matter goes that far. That is because of the issue's legal complexities, the large number of expected witnesses and the voluminous amount of evidence with at least 43 exhibits.

However, former five-term Ashland County prosecutor and now retired practicing attorney Robert DeSanto believes that no crime has been committed.

DeSanto is following the case and was recommended by Graham's attorney Gary A. Rosenheoffer for comment and analysis.

"When I see the law stretched to this point that tells me one of two things has happened. Either there is an ulterior motive or else someone wants a trophy to hang on the wall," DeSanto said.

"It took me about an hour and one-half to come to understand the charges that were brought (but) I didn't see how any crime was committed, even if you believe everything the (Ohio Inspector General) says. You have to stretch the law, split legal hairs and cobble up a crime in order to figure out how the grand jury acted. This is a mountain out of a molehill; absolutely," DeSanto said

- Jeffrey L. Frischkorn

Wednesday, May 12, 2010

Temporary suspension of case against one Wildlife official

A legal theory of law has given a temporary reprieve for embattled Ohio Division of Wildlife officer Allan Wright.

The special prosecutor in Wright’s matter has requested voluntary dismissal of his case.

At core issue is an allegation that Wright - state wildlife officer assigned to Brown County - was said to have allowed a South Carolina wildlife officer to use his Ohio address in order to obtain an Ohio hunting license on Nov. 5, 2006.

It is alleged as well that five high-ranking Wildlife Division officials should have handled the Wright incident differently as a criminal matter and not as an administrative matter that resulted in a verbal reprimand for Wright.

Special prosecutor David Kelley - also Adams County’s assistant prosecutor - presented to the court on Tuesday a terse, two-sentence statement that reads: “Now comes the State of Ohio, and hereby respectfully enters a Nolle Prosequi in the above matter. The Special Prosecutor intends to conduct an independent investigation and presentation to the Brown County Grand Jury.”

Nolle Prosequi is a legal term that simply means “please do not prosecute.”

Brown County prosecutor Jessica A. Little had requested that Brown County Court Judge Scott Gusweiler appoint Kelley as a special prosecutor just for the Wright matter.

The object was to segregate Wright’s case from those of his superiors, said Little who is handling the other five cases.

All six defendants were investigated by an attorney with the Ohio Inspector General’s office.

Little said also the Ohio Inspector General did not have the authority during the interview portion of his investigation to say to Wright “Hey, tell me or you’re fired.”

Thus, Wright enjoyed a greater degree of legal protection. This is due to the legal concept of what’s called Garrity rights, Garrity rule or Garrity warning that protects - broadly - a civil servant’s Fifth Amendment rights against self incrimination when making comments during an investigation if that individual feels threatened with job loss if he doesn’t speak.

“(But) the potential is not there for the others, but it is potentially there for Wright,” Little said.

- Jeffrey L. Frischkorn

Tuesday, May 11, 2010

Marshall still Wildlife Division's sheriff

Jim Marshall was to be enjoying retirement right now, sleeping in and doing "honey do" chores for his wife.

Instead, the former Ohio Division of Wildlife assistant chief remains at the helm of the agency as the agency's acting chief. That is because Ohio Department of Natural Resources Director Sean Logan had asked Marshall to fill in for embattled Wildlife Division chief Dave Graham.

Graham was placed on paid administrative leave following his indictment last month on two fifth-degree felony charges stemming from an alleged incident that included five other agency officials.

Mike Shelton - the Natural Resources Department's chief spokesman - said Marshall has volunteered to continue in his temporary leadership capacity until the various legal issues are resolved. That process, says lawyers dealing with the case, could take a number of months.

- Jeffrey L. Frischkorn

Monday, May 10, 2010

Poached Adams County buck would have set record

Ohio’s Adams County is known nationally as a big buck go-to destination. Now the southwest Ohio county has a much more dubious title.

A 37-year-old Scioto County man was ordered to pay $23,572.05 in restitution as well as $1,500 in fines and $134 in court costs for the illegal killing of an Adams County buck with a score of 197 2/8 inches. This was the largest white-tailed deer killed in North America in 2009 and would have ranked forth all-time in the Ohio Buckeye Big Buck Club records.

But Johnny B. Clay of Minford, won’t get that honor, though he’ll pay dearly for his crime on top of the fine, court costs and restitution. He also received a life-time suspension of hunting privileges in Ohio along with 33 other states enrolled in the Wildlife Violator’s Compact.

Clay’s serious penalties is due in large measure because he had 10 prior wildlife convictions doe deer-hunting violations and had spent time in jail for several of these offenses, the Wildlife Division said in a press statement.

His charges this time included taking a deer in a closed season, hunting without permission, no hunting license, and no deer permit.

Clay attempted to check in his animal as a Kentucky archery kill but two concerned citizens prompted the Wildlife Division to investigate the matter.

- Jeffrey L. Frischkorn

UPDATED Two other Wildlife Division officers under investigation

In an incident reminiscent of the situation now facing six Ohio Division of Wildlife officials, two other agency commissioned officers are facing their own investigation by the Ohio Inspector General’s office.

Arron Ireland - state wildlife officer assigned to Butler County - and Josh Zientek - state wildlife officer assigned to Huron County - were given verbal reprimands in 2008 for helping Indiana wildlife officers obtain Ohio resident fishing licenses in 2007.

Having discovered the two-incidents the Ohio Department of Natural Resources turned the case over to the OIG office for further review. This follows the path taken for six Wildlife Division defendants in which the state wildlife officer assigned to Brown County - Allan Wright - was said to have allowed a South Carolina wildlife officer to use his Ohio address in order to obtain an Ohio hunting license on Nov. 5, 2006.

It is alleged that five high-ranking Wildlife Division officials should have handled the Wright incident differently as a criminal matter and not as an administrative matter that resulted in a verbal reprimand for Wright.

In the cases of Ireland and Zientek, they also were said to have allowed use of their home addresses, a stater official said.

“We went through the records and saw there were fishing licenses that may have been issued under similar circumstances (and which) occurred in 2007 with verbal reprimands presented in 2008,” said Natural Resources official Mike Shelton.

Typically, investigations of this sort are not made public but because the verbal reprimands are public record the Natural Resources Department choose to release the results and subsequent OIG work, Shelton said also.

New Natural Resources Department policy prohibits state agents from receiving complimentary licenses elsewhere or to aid out-of-state persons from obtaining resident hunting or fishing licenses, Shelton said as well.

“We will work with the OIG office in any way necessary,” he said also.
Zientek said he “trusts the system and has to let it work” but declined further comment.

Ireland declined to comment. Ohio Inspector General Thomas P. Charles did not respond as of this Blog posting.

- Jeffrey L. Frischkorn

Thursday, May 6, 2010

UPDATED Attorneys seek dismisal of charges against Wildlife Division officials

The Batavia, Ohio, attorney representing Ohio Division of Wildlife chief David Graham is seeking dismissal in Brown County Common Pleas Court of the two felony charges brought against the state official.

Attorney Gary A. Rosenhoffer says the indictment against his client “...relies solely upon an investigation that was conducted by the Office of the Ohio Inspector General (OIG)...”

Rosenhoffer filed the document on April 29 with another similar motion filed a few days later.

Also filing a similar motion today was Michael Cassity, attorney for James Lehman, the Wildlife Division law enforcement administrator and one of the defendants.

Rosenhoffer argues that such dependence abused Graham’s Fifth Amendment rights against self-incrimination. That is because the Wildlife Division chief had no alternative but to cooperate with the Inspector General.

To do otherwise, Rosenheoffer argues in his petition, Graham could have faced being fired by not cooperating.

“...The public employee’s choice between asserting the Fifth Amendment privilege or answering questions under the threat of discipline and/or prosecution is no choice as it places the employee ‘between the rock and the whirlpool,’” Rosenhoffer says in his petition.

“... the prosecution has the burden of proving affirmatively that the proposed evidence is derived from a legitimate source wholly independent of the compelled testimony.”

Graham and Lehman are charged with one count each of obstructing justice and one count of complicity of obstructing justice. Both are fifth-degree felonies.

The indictment against Graham, Lehman and four other Wildlife Division officials stems from an alleged incident in which the state wildlife officer assigned to Brown County - Allan Wright - was said to have allowed a South Carolina wildlife officer to use his Ohio address in order to obtain an Ohio hunting license on Nov. 5, 2006.

It is alleged that Graham, Lehman and three of the other high-ranking Wildlife Division officials should have handled the Wright incident differently as a criminal matter and not as an administrative matter that resulted in a verbal reprimand for Wright.

Cassity said he and Rosenhoeffer “pretty much cite the same cases” in their parallel motions.

“Gary and I have been working on this together; as have the other attorneys. We’re all on the same page. (And) if the court doesn’t dismiss then we have also filed a motion for the courts to determine if the evidence should be suppressed; in other words not have admitted as evidence in trial,” Cassity said.

Cassity said he believes that Jessica A. Little - the Brown County prosecutor who brought the charges - “simply made a mistake.”

“I disagree with the indictments. I feel the motion is on sound legal ground,” Cassity said.

The next pre-trial court hearing for Graham, Lehman and the other defendants is scheduled for May 17 where the dismissal motions may be considered.

Little said she believes the defense attorney’s efforts to dismiss the charges are a stretch, however.

“I don’t believe (the arguments are) applicable in these cases. It is too broad of an interpretation. For that reason I’ll be filing a memorandum opposing the motions to dismiss,” Little said.

Little said also that it is her belief that the defendants must be present at the May 17 hearing.

“It wouldn’t surprise me if some of these issues end up in the court of appeals,” Little said.

- Jeffrey L. Frischkorn

Saturday, May 1, 2010

Turkey kill way up (Just shows you what good weather can do)

Sorry for the delay in getting this out but I was busy on my vacation, catching salt-water fish and shooting wild hogs in Florida.

Ohio's 2010 spring wild turkey hunters have done exceedingly well. Much better, in fact, than they did a year ago.

First week results show that a preliminary 11,152 wild turkeys were shot. That compares to the weather short-sheeted 9,054 birds that hunters killed during the first week of the 2009 spring turkey-hunting season.

Not surprising was that Ashtabula County keeps a firm grip on first place in the county-by-county count. In Ashtabula County, 397 birds were taken in the first and compared too the 343 birds shot during the first week of the 2009 season.

Of keen interest is that Clermont and Adams counties were ranked Number 2 and Number 3, respectively. Clermont saw 378 birds show (compared to 278 in 2009), and Adams County recorded 354 birds killed (compared o 201 turkeys during the first week of the 2009 season).

Mike Reynolds - the Ohio Division of Wildlife biologist in charge of the state's wild turkey management program - had predicted that Adams and Clermont counties would do very well. This belief was predicated on the fact that southwest Ohio experienced a good hatch of 17-year locusts which provided much-needed protein to young turkeys, increasing their ability to survive.

Tom Cross, outdoors writer from Adams County, said he's never seen more turkeys than he has this year.

Remember as that beginning Monday, hunters can stay afield until sunset and not be required to quit at noon. This is Ohio's first-ever try at an all-day spring wild turkey-hunting season.

Here are a selection of counties with the 2009 first week results in parentheses: Ashtabula - 397 (343), Coshocton - 296 (247), Cuyahoga - 9 (6), Erie - 26 (29), Geauga - 171 (131), Gurnsey - 318 (314), Harrison- 315 (351), Huron - 84 (63), Lake - 112 (94), Lorain - 102 (94), Medina - 61 (67), Sandusky - 11 (9), Tuscarawas - 268 (308), Trumbull - 260 (209), Vinton - 140 (85).