Story last updated at 2:47 p.m. Thursday, October 2, 2003

Loose stallions harass riders near Fox River
by Michael Armstrong
Staff Writer

photo: news

  Homer News file photo
Mark Marette leads a group of horse riders at the head of Kachemak Bay in a trip he led in July 2002.  
Two weeks ago Atz Kilcher and his brother-in-law, Cornelius Klingel, rode their horses out the Fox River Flats toward the head of Kachemak Bay. Kilcher said he rode a green gelding and led a mare just out of heat and Connie rode a gelding. As they neared Fox Creek, past the village of Kachemak Selo, Kilcher said he saw two stallions coming out of the Fox Creek area, a black Percheron draft horse and a young paint.

Kilcher got off his gelding, handed it and the mare to Klingel, and threw rocks and sticks at the stallions, holding them off until the horsemen got through a gate leading into the Fox River Cattlemen's Association grazing lease area.

"Fortunately, the mare wasn't in heat," he said. "They (the stallions) were just heckling us."

Kilcher's experience was one of many encounters this summer and fall that horse riders have had with loose stallions and horses in the Fox Creek area and one of the least scary.

Alaska State Troopers and other officials said the options for controlling loose stallions and horses are limited under state law. Trooper Tom Dunn said he discussed the issue with Jean Stein, Kenai assistant district attorney. Stein advised him Alaska law doesn't cover loose stallions except in a situation where livestock is on state roads. The area where most people have encountered loose stallions is about five miles from East End Road.

The first weekend in September, a hunter leading pack horses ran into three stallions, and had to spend several hours rounding up his horses. The weekend after Kilcher's encounter, a couple ran into stallions and a herd of about 30 horses running loose. The stallions teased their horses and kicked and ran toward them, but didn't cause injuries. That same weekend another horse rider encountered the same group of loose horses.

Mark Marette, owner of Trail's End Horse Adventures, leads guided horse trips up the Fox River Flats. He said he has frequently encountered loose horses and stallions this summer and fall. He said the first weekend in September he encountered a young Arabian cross stallion he guessed to be about 2- or 3-years-old and a Percheron stallion.

Marette said last weekend on a ride with four local women he encountered a young stallion that "proceeded to coyote us on the trail ride."

"I had to ride my butt off," to keep the stallion away from the group, he said.

Marette described the situation as "too many horses, too many problems, no fences."

Shirley Shollenberg, a Happy Valley horse owner and the leader of the 4-H Trailblazers Club, said she cancelled a planned day ride to the head of the bay last weekend with eight girls ages 11 to 16 because she worried about the loose stallions and horses.

"I'm frustrated that I have to make this decision," she said.

Shollenberg did ride without the girls and said she did not encounter any loose horses.

Kilcher, Marette and others said the loose stallions and about 30 other horses belong to Frank Martushev, who lives on a 64-acre agricultural plat on Fox Creek he is acquiring from the state.

Telephone calls to a phone number listed for Frank Martushev were not answered. A message was left with Mr. Martushev's lawyer asking for comment. By press time, neither had returned calls.

"In a good world," Marette said, "his horses would be in a fence, contained. We wouldn't have loose dogs, loose horses."

"It's not an isolated issue for Mr. Martushev," Trooper Dunn said. "Other horses have been running loose. It's a two-sided fence."

Earlier this week, it appeared the situation with loose horses might start to be resolved. Chris Rainwater, who grazes cattle on the leases out of his family's ranch at the end of East End Road, said he heard on the radio that the Martushevs were selling 7-10 horses. On a helicopter trip over the area, Rainwater said he didn't see any loose studs.

Kilcher, Marette and other people experienced with horses said a loose stallion can be extremely dangerous. Kilcher, who considers Martushev a friend, said he empathizes with the difficulty Martushev might have in controlling his stallions. At the same time, Kilcher said, it's an awesome responsibility.

"A stallion getting to a mare in heat can be a deadly weapon," he said. "I've never felt as afraid as I was riding a mare with a stallion (encounter)."

"It's not uncommon to have stallions," he said. "The more stallions you have, the more responsibility it is."

Kilcher said when he has owned stallions, he has kept them behind three-strand cable. His brother Otto use sseven strands of cable.

Rainwater said not everyone understands the danger of loose stallions.

"I've been attacked by studs," he said. "It's like a brown bear attack. They're like brown bears. They'll come right at you."

Shollenberg said, "I would rather be attacked by a brown bear than a stallion. Stallions bite, kick. It's really, really scary."

Shollenberg said most horse owners don't want to risk the danger of having a stallion in their stable, even for breeding purposes. If they need to breed a mare, they either hire a stud or arrange for artificial insemination. She doesn't keep stallions in her stable of six horses.

"If you have more than one, you're asking for trouble," she said.

The weekend Marette encountered the Arabian cross stallion, he said it followed him and his horses up the switchback trail to the top near Mile 25 East End Road. He roped and captured the stallion and brought it back in a horse trailer to his stables on East End Road and then called the Alaska State Troopers.

"I was going to take the horse to the cop shop," Marette said. "I was not going to leave a hormonal stallion where someone could get hurt. It's like leaving a loaded gun where someone could get hurt."

Trooper Dunn responded and told Marette he did not have a legal right to capture the loose stallion. If the owner called and reported the stallion stolen, Dunn told him, Marette could be charged with felony theft. He advised Marette to return the stallion to where he found it.

"I can understand the frustration," Dunn said. "(But) taking an animal is theft."

"I'm told I'm the perpetrator when I am the victim," Marette said.

Dunn said unless troopers can show reckless endangerment, where someone knowingly allows a dangerous situation to occur, the troopers cannot take action.

"It's very hard for me to tell the district attorney it's a danger when someone ropes it (the stallion)," Dunn said.

Dunn said he advised Marette and other horse riders encountering loose stallions or horses that they have three options. First, try talking with the horse owners and asking them to control their loose animals. Second, if they encounter a loose horse, tie it up. Third, in a worst-case scenario where a stallion threatened someone, shoot the horse.

"It should only be a last resort," Dunn said.

Kilcher said he knows of at least one and possibly four of Martushev's stallions that have been shot. Reportedly, villagers in Kachemak Selo have also shot horses running loose.

"Apparently Mr. Martushev is not being receptive," Dunn said.

Marette said he has had many talks with Martushev about the loose horses. In the past he worked with him to geld stallions and care for his animals. He said in 1992 when the Kachemak Selo villagers kept horses for transportation and some horses were starving, Marette bought about 20 horses from Martushev and helped him get his herd down to about 10 horses. That controlled the problem for a while, Marette said, but Martushev has let his horses breed up to the current number.

Marette said Martushev quit talking to him after he testified in a case this summer in which Martushev was acquitted on charges of possessing illegal game and his sons were acquitted on charges of moose poaching.

In 1992, Marette said he did tie a problem colt to a fence. When someone found it, the horse had hung itself, and Marette had to compensate the owner. "I'm gun shy," he said of tying up horses and leaving them for the owner.

As for destroying an animal, Marette said such a solution doesn't fit in with the experience he offers his clients.

"On my trail rides we're out for an Alaska adventure," he said. "The last thing I want to do is shoot horses."

Dunn said in talking to the assistant district attorney, the situation now is a civil matter. "We're watching it," he said. "If it flags a criminal area, we'll do our job."

"We're looking at it, we're trying to monitor it. It's frustrating," Dunn said. "We do want to keep people safe."

Aside from the danger of stallions running loose, another issue for people in the area is horses or other livestock grazing on land leased by the Fox River Cattlemen's Association. Kilcher and Marette are members, as are Mossy Kilcher, Bruce Willard and Chris Rainwater. The cattlemen pay for the right to lease about 16,000 acres in the Fox River Flats and nearby uplands, said Steve Trickett, a natural resource specialist with the Alaska Division of Agriculture, Department of Natural Resources.

Trickett said his understanding of Alaska court rulings is that Alaska has no open range. That is, owners of livestock have the responsibility to keep their animals from trespassing on private property or causing damage to landowners, such as trampling gardens or grazing in lease areas.

Trickett cited a decision in a 1984 Homer case, Michael O'Meara and Janet O'Meara vs. Elton Anderson and Edna Anderson, where the court ruled the O'Mearas could recover damage to their garden from the Andersons' cattle wandering loose in the North Fork area.

The cattlemen have fenced in some of their grazing leases to keep animals from entering the land as well as keep their cattle from damaging a buffer along Fox Creek and other drainages. Marette said last fall's storms damaged fences in their area, including the cattlemen's fences and Martushev's. Marette said he and some other cattlemen repaired their fences this month.

One solution to the problem of loose horses and stallions would be to adopt a law similar to those in other Western states, Marette suggested.

In Montana, for example, the law allows officials to capture trespassing livestock and seize it if the owner does not claim it and pay the cost of caring for the animals. It is also illegal to allow stallions to run at large, and such animals are considered a public nuisance. Anyone may capture a loose stallion and, after posting a notice of its capture, castrate the stallion if not claimed within five days and charge the owner for the cost of gelding. Loose stallions that cannot be captured can be killed legally. Owners can be held liable for damages if their livestock breaks into a legal fence or trespasses. Property owners can also petition officials to round up abandoned animals.

Under a section of Alaska law regarding grazing districts, a judge can establish controlled livestock districts, which regulates livestock within that district. If established, an owner of livestock may not be criminally negligent and allow a domestic animal to graze or run at large.

Trickett said with the end of open range in Alaska after legislative action in 1977 and court rulings in 1984, this section became moot. In a conference with Jane Alberts, legislative aide to Sen. Gary Stevens (R-Kodiak), Trickett and John Torgerson, acting commissioner of the Division of Agriculture, Torgerson suggested one solution to the problem of loose livestock would be to apply the grazing district law to all of state land.

"It looks like we're going to have some work to do legislatively," he said.

Trickett said municipalities and boroughs could also regulate loose animals under animal control ordinances, as is done in the city of Homer. The Kenai Peninsula Borough has not adopted boroughwide animal control laws.

Torgerson said a grazing lease would be a transfer of a right to a private party in this case the cattlemen's association. Speaking as a lawyer, he said the cattlemen could pursue legal action in the civil court and get a judgment against a livestock owner who let his or her animals graze on a lease area.

"That's why I encourage the civil process where it's not meeting criminal wrong," Dunn said.

"The quickest fix is for the cattlemen to step up and do something," Torgerson said.

Chris Rainwater, secretary of the board of directors of the Fox River Cattlemen's Association, said, "I don't anticipate the cattlemen filing a civil suit."

He said he felt the best way to solve the problem for the long term was through the Legislature. The cattlemen have been working on changes to the law regarding branding and identifying livestock. He said Rep. Beth Kerttula (D-Juneau) agreed to introduce such changes and they would probably ask her to consider the loose stallion situation.

"We're trying to figure out all sorts of avenues," Rainwater said. "I think it's our duty to pull something together for the next poor fellow who comes along."

Alberts said she, Sen. Stevens and Torgerson would get together and see what could be done legislatively.

"We can if people are calm and take a deep breath resolve this," Dunn said,. "We're just going to have to be patient."

"There should be some type of enforcement as law to protect us," Marette said. "It should not be us taking care of the problem. There should be some way legally that this can be taken care of.

"We should not have to worry about not a once a continuing problem like this."

Marette recalled another loose horse and stallion situation that unfortunately got out of control. In September of 1987, Ron Grimshaw exchanged gunfire with Dan Jerrel Sr. and his son Dave Jerrel on Ohlson Mountain. Grimshaw died of his wounds and the Jerrels were injured. The shootout came about after Grimshaw accused the Jerrels of taking his stallion and he took their horses. No one was ever charged in the Grimshaw's death. "The goal is that people don't shoot at each other," Dunn said.

Marette agreed. "I ain't gonna be shooting anybody," he said, "and I don't want to shoot horses."

Michael Armstrong can be reached at michaela@homernews.com.

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