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FRIDAY, FEBRUARY 8, 2013

Wagner Continued from page 1 Park County Sheriff’s Office is entitled to seek restitution for “overtime wages for peace offers or other government employees, the operating expenses for any equipment utilized, and the costs of any property designed for onetime use, such as protective clothing.” The four counts Wagner was charged with pertained to one count per pasture at four pastures where Wagner ran his cattle operation in South Park. He was found guilty of class 1 misdemeanor animal cruelty with regard to treatment of at least one cow in the Thousand Peaks pasture and not guilty of class 1 misdemeanor animal cruelty with regard to treatment of his animals at three other pastures: South Park Ranches, Nine Mile Heights, and Salt Works Ranch. That one Thousand Peaks cow was identified as cow 132, an animal reported to the Animal Control unit of the Park County Sheriff’s Office. Testimony was given that Wagner reported he would take care of the cow, but in May, deputies found that cow dead, dragged behind a rock. Wagner told The Flume on Feb. 5 that he thought Green did a good job in his trial. Wagner had previously been before Judge Stephen Groome in district court in Fairplay. He said he felt the jury came to the right conclusion based on the information they were presented, but he said they were given some misinformation by the prosecution during the trial. “I think the jury rendered the right decision with the wrong information,” he said. “If they wanted to retry the case, I would have loved to have the jury retry the whole case.” Wagner said he chose not to testify on Feb. 1 based on advice from his attorney, because he felt he would have needed another week for Wagner’s testimony. He said he wasn’t sure yet if he would appeal the verdict, and he would likely wait until after sentencing to make that decision. Wagner said it was likely he would make a statement to the court during the sentencing hearing. The prosecution wrapped up its case on Jan. 28 with experts who testified about the best practices for ranching on open range. The testimony included witnesses from the Park County

PARK COUNTY REPUBLICAN AND FAIRPLAY FLUME Sheriff’s Office, including Animal Control Sergeant Bobbi Priestly and Animal Control Officer Becky Bramlett. Eberling also called witnesses from the Colorado Department of Agriculture regarding the investigation conducted on Wagner’s business practices. (See story in the Feb. 1 Flume.) Closing arguments Eberling said during her closing arguments that the case was about a rancher who didn’t properly manage his herd. She described Wagner as a rancher who left the cattle to fend for themselves during a harsh winter, who subjected the animals to unjustifiable risk, allowed them to starve, and bred them so they would give birth during harsh weather conditions. “It’s our position that that’s not acceptable animal husbandry,” she said. Eberling went over the two weeks of testimony that the jurors sat through, highlighting a death rate higher than the industry norms, and a rate of “open” or unbred animals higher than industry standards. She said cows don’t tend to get pregnant if they are not getting adequate nutrition. She said the jurors weren’t supposed to focus only on the number of animals that died, but also how the surviving animals appeared. “Those animals were in miserable shape,” she said. Public Defender Daniel Zettler told the jury during his closing arguments that the case was about the type of winter you see twice in 62 years. “The winter of 2010 was brutally cold, brutally windier, and brutally long,” he said. He said the prosecution had failed to prove beyond a reasonable doubt that Wagner was guilty of the crimes he was charged with. “It’s time to let Mr. Wagner go back to his livestock and his family,” he said. Zettler said the actions Wagner took while managing his ranch weren’t the actions of a man who would ignore the needs of his cattle. He said the care Wagner gave to his range was because he cared about feeding his cows. “A rancher who cares about feeding cows is going to care about his range,” he said. Zettler cited a letter from Leon Kot, a now-retired district conservationist for the Natural Resources Conservation Service, that said Wagner’s ranchland was well-maintained and filled

CARL HECKENDORF Colorado Department of Agriculture veterinarian Carl Heckendorf was a rebuttal witness for the prosecution in the Vern Wagner animal cruelty trial. He testified on Feb. 1. (Photo by Mike Potter/The Flume)

with healthy grass. In addition, Zettler also said that Wagner was able to put up 262 tons of hay from the Saltworks Ranch in the fall of 2009. Zettler also said that Wagner wouldn’t consciously disregard the risks to his herd. “It’s not who he is. It’s not what he is,” Zettler said. “He’s a cattleman, through and through. It’s who he is, it’s what he is, and it’s what he spends every minute of his life doing.” Financials Judge Green ruled on Jan. 30 that Eberling wouldn’t be allowed to bring up Wagner’s financial records, including a 2010 bankruptcy filing, during the examination of testimony. The issue of Wagner’s past financial dealings was raised during the testimony of James Wagner, Vern Wagner’s son, on Wednesday, Jan. 30. Zettler argued successfully that the prosecution’s case has always been whether or not Wagner fed his animals. “Attacking whether he’s bankrupt? That’s pure character assassination,” Zettler said. Green ruled that introducing the financial evidence could serve to confuse jurors when the decision before them is whether or not Wagner’s cattle were in a suitable condition, and not where the money came from to care for the cattle. “Where the money came from is irrelevant,” Green said from the bench. “Whether Mr. Wagner was borrowing the money, stealing the money, it doesn’t matter … to the issue of: were the cattle being cared for properly.” Green told Eberling that she could bring up a lack of evidence being presented on the financial viability of Wagner’s ranch. Jim Wagner was the last witness called that day. He testified about the harsh weather conditions the cattle had to endure during the winter of 2009-2010, and about his father’s ranching practices. Defense continues to make case Kim List, owner of the Over the Top Hair Care and Nail shop in Fairplay, who owns a home in the Thousand Peaks subdivision, a place where Wagner grazed his cattle, testified that after the winter of 2007-2008, she and her husband moved from their home into town. She said the roads in the Thousand Peaks subdivision were continuously drifted shut during February 2008. “The roads were a huge problem,” she said. “There was an extreme amount of snow and an extreme amount of wind that winter.” List said she still kept horses at her property in Thousand Peaks, so she would have to go back during the 2009-2010 winter a couple of times each month to care for the animals. She said during that winter, she wasn’t able to get to her property sometimes. Wagner’s defense was building a case that Wagner was hindered by impassable roads during the winter of 2009-2010. It was during early 2010 that the Park County Sheriff’s Office began an investigation into Wagner’s herd, eventually finding 143 dead animals on land

hereby notified that the covenants of the deed of trust have been violated as follows: failure to pay principal and interest when due together with all other payments provided for in the evidence of debt secured by the deed of trust and other violations thereof. THE LIEN FORECLOSED MAY NOT BE A FIRST LIEN. The property to be foreclosed is: SEE ATTACHED LEGAL DESCRIPTION Legal Description ALL THAT PARCEL OF LAND IN THE CITY OF FAIRPLAY, PARK COUNTY, STATE OF COLORADO, AS MORE FULLY DESCRIBED IN DEED BOOK 537, PAGE 887, ID# 38512, BEING KNOWN AND DESIGNATED AS LOT 996, VALLEY OF THE SUN FILING NO. 21. BY FEE SIMPLE DEED FROM MICHAEL L. BUTLER AND KERRY M. HARRIS AS SET FORTH IN BOOK 537 PAGE 887 DATED 12/12/1994 AND RECORDED 12/16/1994, PARK COUNTY RECORDS, STATE OF COLORADO. Also known by street and number as: 595 SACRAMENTO DRIVE, FAIRPLAY, CO 80440. THE PROPERTY DESCRIBED HEREIN IS ALL OF THE PROPERTY CURRENTLY ENCUMBERED BY THE LIEN OF THE DEED OF TRUST. NOTICE OF SALE The current holder of the Evidence of Debt secured by the Deed of Trust, described herein, has filed Notice of Election and Demand for sale as provided by law and in said Deed of Trust. THEREFORE, Notice Is Hereby Given that I will at public auction, at 10:00 A.M. on

PAGE 25 Wednesday, 04/03/2013, at The Office of the Public Trustee, 501 Main St., Fairplay, CO 8044, sell to the highest and best bidder for cash, the said real property and all interest of the said Grantor(s), Grantor(s)’ heirs and assigns therein, for the purpose of paying the indebtedness provided in said Evidence of Debt secured by the Deed of Trust, plus attorneys’ fees, the expenses of sale and other items allowed by law, and will issue to the purchaser a Certificate of Purchase, all as provided by law. IF THE SALE DATE IS CONTINUED TO A LATER DATE, THE DEADLINE TO FILE A NOTICE OF INTENT TO CURE BY THOSE PARTIES ENTITLED TO CURE MAY ALSO BE EXTENDED; DATE: 12/10/2012 Michelle Miller, Public Trustee in and for the County of Park, State of Colorado By: § Shirley A. Kint, Chief Deputy Public Trustee The name, address, business telephone number and bar registration number of the attorney(s) representing the legal holder of the indebtedness is: JOAN OLSON #28078 ARONOWITZ & MECKLENBURG, LLP 1199 BANNOCK STREET, DENVER, CO 80204 (303) 813-1177 The Attorney above is acting as a debt collector and is attempting to collect a debt. Any information provided may be used for that purpose. First Publication Date: 2/8/2013 Last Publication Date: 3/8/2013 As published in the Park County Republican and Fairplay Flume. (2012-0199)

RAY LYONS Ray Lyons, who owns a home in the Thousand Peaks subdivision, said he saw cowboys running Vern Wagner’s animals hard during the May 2010 cattle roundup where 372 cattle were seized. (Photo by Mike Potter/The Flume) he owned or leased, according to the Sheriff’s Office. List said she had the opportunity to see Wagner’s cattle nearly every day while she lived in Thousand Peaks, and she saw them occasionally when she went back to her property to care for her animals. “They looked fine,” she said. “They looked like they always had.” Livestock market manager Jim Odle, the general manager of Brush-based Superior Livestock Auction, testified that when he saw Wagner’s ranchland in July 2010, the amount of old grass he saw led him to believe there would have been enough during the winter of 2009-2010, if the animals had been able to get to it. He said the cattle he saw in July 2010 were in “range condition,” meaning they looked like animals who had been wintered on the open range. He also testified that he would expect to see an increase in the mortality rate of a herd during severe winters, and the defense argued that it was indeed a severe winter that hit South Park in 2009-2010. NRCS Kot, who was cited by Zettler in his closing arguments and is now-retired district conservationist for the Natural Resources Conservation Service, testified that Wagner had contracts with the NRCS to improve his ranchland. Those contracts were awarded to Wagner based on his “commitment to proper grazing management” and other actions he took while ranching. The NRCS would reimburse Wagner for certain types of

improvements made on his land that improved the condition of the range, he said. Kot also performed a visual assessment of some of Wagner’s ranges on May 17, 2010, days after half of the cattle Wagner managed had been seized pursuant to a court order. That assessment found that much of Wagner’s pasture was beginning to green up. Responding to questioning by Zettler, Kot said he would agree with a statement that sometimes academic opinions on the best cattle management practices weren’t always the best options for working ranchers. Kot said during cross examination that he didn’t see many of Wagner’s cattle when he was out on the range, and in fact he wasn’t looking for cattle. Wagner’s cattle management The defense team brought forth more witnesses who testified as to the conditions of Wagner’s herd, his management practices, and the weather conditions during the winter of 2009-2010. Ray Lyons, who lives in the Thousand Peaks subdivision, an area Wagner leased for cattle grazing, said he saw Wagner’s animals and they were in good condition. Johnell Halt, another resident who lived in Thousand Peaks, testified that the winter weather was bad enough during the 2009-2010 winter that she had to stay home many days because she couldn’t get out. “That winter was really cold, to the point where I stayed home quite a few days,” she said. She said snow drifted over her See CATTLE, Page 27

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