Conflicting claims in mountain lion kill at Tucson-area park

2013-07-28T00:00:00Z Conflicting claims in mountain lion kill at Tucson-area parkTony Davis Arizona Daily Star Arizona Daily Star
July 28, 2013 12:00 am  • 

A predator-calling device was used to lure a mountain lion shot to death at Colossal Cave Mountain Park, records show.

Two of three men facing charges in the June incident say they shot the female lion in self-defense and did so after an official at the county-run park told them taking the animal would be OK.

But seemingly incongruous and conflicting statements underscore the complexity of what looms as a hotly contested criminal case over the lion killing. In an interview with the Star, Richard "Rick" Dailey and Martin Melvin Foesterling maintained their innocence.

"In our minds, we were acting under the direction of Game and Fish. We truly believed that we had permission from the Game Department," said Foesterling,

They said Thayne Lefevre, the park's property manager, essentially gave them the OK when he repeated something he said he'd been told. Lefevre's message was that an Arizona Game and Fish Department official told him, "If you have to put it down, put it down." Colossal Cave is a county park, run by a nonprofit corporation, Escabrosa Inc., under contract with the county.

Repeated efforts by the Star to talk to LeFevre about the case were unsuccessful.

"He's a manager at the park," Foesterling said of Lefevre. "He has care, custody and control. When he tells me the Game Department felt the animal was a danger and should be shot, why would a reasonable man doubt that?"

Dailey, a rancher, also holds the horse-riding concession subcontract at the park through Escabrosa. He leases a house on park property from Escabrosa.

Foesterling is a friend of Dailey's and a retired police officer.

Martin Guerena, a Game and Fish official, is quoted in a state investigative report on the case, however, as having told Lefevre that he didn't have permission to kill the lion unless the animal posed an immediate threat or displayed clear rabies symptoms, such as foaming at the mouth. And Lefevre is quoted in the investigative report saying he told Dailey that he didn't give him permission to kill the lion unless it was causing or threatening harm.

Guerena, a wildlife manager, added that Dailey and Foesterling should have known that Lefevre's permission, if it was granted, wasn't enough to make the shooting legal.

"They manage the park. They don't manage the wildlife," Guerena said of Colossal Cave officials. "Wildlife is managed by the state of Arizona."

Dailey, Foesterling and Lefevre face misdemeanor charges in connection with the June 10 shooting, and could face fines and/or jail.

park sightings

The evening of June 9, park visitors saw a mountain lion lounging in the butterfly garden, the Game and Fish investigative report shows. Maintenance manager Lefevre told Game and Fish's Guerena that his brother, Bert Lefevre, reported that visitors saw the lion near a series of shallow irrigation canals and it walked past and within a few feet of them. Bert and another park employee threw rocks at the lion to drive it away.

The next morning, Thayne Lefevre, standing near the garden, saw the animal turn and stop for a few seconds, its back end shaking, then walk into a neighboring creek, looking drunk and swaying back and forth. Lefevre told the officer that he thought the lion had rabies, the report says, although his brother was quoted in the state report as disagreeing on that point.

At noon, Guerena came to the park and found lion tracks just north of the garden. Guerena told Lefevre to report future lion-human interactions and advised him to post warning signs, the state report says.

Dailey, the horse concession operators, told state investigators that he heard about the lion on Monday afternoon from a park wrangler, and that another wrangler told him of seeing the lion in Dailey's yard at the park at 9 that night. Dailey then drove to a corral at the park where he keeps a few calves and horses, saw lion tracks and contacted Lefevre.

Lefevre told him that a Game and Fish officer had said something was wrong with the lion, that it shouldn't be hanging around that close to civilization, and that "if he had to, to put it down," the Game and Fish report says. Soon afterward, Dailey enlisted Foesterling's help.

The shooting

The killing took a few seconds.

The two arrived at the park at about 5:30 p.m. June 10, Foesterling said. Starting at the butterfly garden, thinking the lion might be hiding in the park's roughest, thickest brush, they took about an hour to bust through mesquite stands to the El Bosquecito Campground, which adjoins a wide wash.

Sitting at a picnic table, Foesterling blew softly for about three minutes through a hand-held predator-calling device that makes the sound of a distressed rabbit. Dailey then whispered, "Martin, Martin." Foesterling turned and saw Dailey, on his knee, about 30 feet away, pointing his .22 caliber rifle, Game and Fish's report says.

Foesterling, standing behind a mesquite tree at the edge of the wash, couldn't see where Dailey was pointing his rifle, he recalled later.

Dailey's shot hit the lion on the side of her head.

"It went down and it was going to leap," Dailey said of the lion. "Before it could leap, I shot it in the head."

Foesterling stepped to the right, the lion stood, and Foesterling said he saw her outline through the brush. He shot the lion once on her side with his 12-gauge shotgun. The animal turned, ran out into the open and started uphill. Foesterling said he fired a second time, killing the lion instantly.

"It happened bang, and then bang, bang," Foesterling said.

"Rick Dailey shot it because it was running directly at me. It was within perhaps 10 yards of me - that was two leaps. He had a split second to make a decision to protect me."

Four days later, Dailey told Game and Fish investigators, "I shot it, if that's what you want to know. I shot the son of a bitch right between the eyes."

No report of kill

After the shooting, Dailey told investigators, he dragged the animal into a catclaw bush, because he didn't want anyone to see it. He called Lefevre that night and told him to contact Game and Fish, according to the state report.

Lefevre, however, acknowledged that he didn't report the killing to the state, the investigative file says. It also quotes another Colossal Cave employee, George Heslin, as saying Thayne Lefevre drove him to the campground the morning after the shooting and showed him the dead lion. Lefevre fended off efforts from Heslin to remove the carcass, with Lefevre saying twice, "Let nature take its course," the report says.

Game and Fish didn't get wind of the shooting until June 12. That's when a caller to the department's Operation Game Thief program said Thayne Lefevre admitted to fellow park employees that he had killed two adult mountain lions near park campsites within the past week, the state report says.

The next day, Game and Fish's Guerena got similar information from several other confidential sources. On June 14, Foesterling called a second Game and Fish officer to report that Dailey lost two calves to another mountain lion. Foesterling went on to report that he had shot the Colossal Cave lion.

Later that day, Thayne Lefevre met with Guerena at the park, and said he had told Dailey "If the lion was bothering them or looking unhealthy, they could go ahead and put it down, but they couldn't go hunt (the lion)," the state report said.

"Thayne stated that he was sorry and that he was just afraid to call the AGFD. Officer Guerena asked him what he was afraid of. Thayne replied, 'Because I think they went out and hunted it down when I told them not to,' and he felt bad."

The body was retrieved, but Game and Fish learned that because the lion had been shot in the head and had been allowed to decompose, there was no way to tell if it had rabies.

No game hunt

Foesterling's use of a predator-calling device clearly undercuts his and Dailey's claims of self-defense, Guerena said last week.

"They're lowering that line when they use a predator call," Guerena said. "It sounds like a dying rabbit, which is prey for a lion. That's what triggers them to come in for a meal."

Foesterling, however, said that if the lion shooting was part of a legal, predator-control operation as he and Dailey claim, their use of a predator caller plays no role in determining legality.

"If it wasn't legal, if it was a sport hunt, which it was not, it would be a violation," Foesterling said.

John Kaufmann, the attorney for the two men, added that when Guerena allegedly told Lefevre to go ahead and shoot the lion, that gave Lefevre authority to get whoever he wanted to do it.

Mountain lion sightings on Tucson's east side are common; the department gets 80 such reports annually from the Sabino Canyon area, says Game and Fish spokesman Mark Hart. But there's been no human-lion encounter in this region that was considered grounds for killing a lion since 2009, he said.

"The mere presence of a lion even near a kid, that can happen any day at Sabino," Hart said. "That doesn't mean we can go out and take the lion."

"In our minds, we were acting under the direction of Game and Fish. We truly believed that we had permission from the Game Department."

Martin Melvin Foesterling, one of three people accused in connection with the killing of a mountain lion at Colossal Cave Mountain Park

The charges

• Richard "Rick" Dailey is charged with taking a mountain lion without a hunting license or a lion tag, taking wildlife by an unlawful method and taking wildlife in a closed area, since Colossal Cave is closed to hunting. The charges carry maximum penalties of four months in jail and a $750 fine.

• Martin Melvin Foesterling is charged with taking a mountain lion without a lion tag and taking wildlife in a closed area.

• Thayne Lefevre is charged with false reporting to law enforcement, a charge carrying maximum penalties of six months in jail and a fine up to $2,500.

• The three men could also incur another $1,500 apiece in civil penalties imposed by the Game and Fish Department. The three face an initial appearance on Aug. 8 in Pima County Animal Welfare Court.

Contact reporter Tony Davis at tdavis@azstarnet.com or 806-7746.

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