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Milton Dean Cockerham, 2 ("Two Plus"), LLC v. Robert Sellers

February 17, 2011

MILTON DEAN COCKERHAM, 2 ("TWO PLUS"), LLC,
PLAINTIFFS,
v.
ROBERT SELLERS, JEFF DAY, BRIAN FLATTER, JOHN DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

The Court has before it Defendants' Motion for Summary Judgment (Dkt. 16). The Court heard oral argument on February 11, 2011, and took the motion under advisement. For the reasons explained below, the Court will grant the motion.

BACKGROUND

In October 2006 Plaintiff Mickey Cockerham and his business partner Kenny Anderson purchased 70 acres and a ranch house along the Snake River in Hammet, Idaho and formed the company 2("Two Plus") LLC. Cockerham Aff., Exhibit C at 1, Dkt. 20-6. Cockerham and Anderson intended to sell shares of Two Plus and create a hunting club for duck and other game along the river habitat. Id. In the course of purchasing this property, Cockerham and Anderson learned that several of the river islands in front of the ranch house were privately owned by Lucille Wilson. Id.

Beginning in November 2006 and continuing throughout the following year, Cockerham made improvements to the land and began advertising for the hunting club. Id. at 1-2. Cockerham used the Idaho Statesman to advertise, as well as two websites where prospective buyers could review the suggested club format and the available ownership fractions for sale. Id. at 2.

The opening of duck season in October 2007 brought with it several incidents in which hunters, while boating in the river or traveling along the private islands, shot their guns towards Cockerham's property. Id. at 3-5. On several occasions hunters fired shots at the property, towards him or his family members, without the presence of ducks in flight. Id.

Near the end of October 2007, Cockerham and his brother went to the Jerome, Idaho Department of Fish and Game to talk to the local Conservation Officer about the shooting and harassment incidents. Id. at 5. The officer told Cockerham and his brother that any hunter who shot towards the property was trespassing and that they needed to call the local sheriff immediately the next time it occurred. Id. The officer also told the brothers that he would call the Elmore County district to report the problem and have the County contact the brothers. Id. However the brothers never heard from Fish and Game regarding the matter. Id.

On November 13, 2007 Cockerham and his brother phoned Ann Wilson, Lucille Wilson's daughter and manager of her mother's properties, in order to inform her of the shooting and harassment issues. Id. at 6. Cockerham asked Wilson for permission to post Wilson's islands as private in an effort to curb the trespassing and shooting. Id. Wilson agreed. Id.

During mid-November 2007, Defendant Robert Sellers, a Conservation Officer with the Idaho Department of Fish and Game, received a phone call from a person who reported that someone had posted public land near Hammett as privately owned. Sellers Aff., ¶ 3, Dkt. 16-3. A few weeks later Sellers received another similar phone call, prompting Sellers and a Bureau of Land Management Ranger to go out and examine public property that reportedly had been posted as private. Sellers Aff., ¶ 4, Dkt. 16-3. During this investigation Sellers discovered that several public islands in the Snake River had been marked as private. Sellers Aff., ¶ 5, Dkt. 16-3. A larger island ("Sparlin Island"), which Elmore County Assessor Records indicated was owned by Lucille Wilson, was also posted as private property. Sellers Aff., ¶ 6, Dkt. 16-3.

A few days later Sellers telephoned Ann Wilson in order to ask her about the posting of Sparlin and the other nearby islands. Sellers Aff., ¶ 7, Dkt. 16-3. Wilson informed Sellers that her mother owned Sparlin Island, but that she did not know who owned the other nearby islands. Sellers Aff., ¶ 8, Dkt. 16-3. During that conversation Wilson stated that Cockerham had recently contacted her to request permission to post her mother's islands as private property so as to prevent errant shots towards Cockerham's property. Sellers Aff., ¶ 9, Dkt. 16-3.

On November 23, 2007 Cockerham took his nine year-old son, Clancy, and his fifteen year-old friend, Jake Davis, to the ranch in Hammet to work on cleaning and repair projects. Cockerham Aff., Exhibit C at 6, Dkt. 20-6. Around 12:30 PM, Cockerham, his son, and his son's friend heard a shot from the island approximately one hundred yards away and directly across from the ranch house. Id. Cockerham ran to the edge of the lawn and observed a boat, a dog, and four men dressed in camo gear walking around the island nearest him. Id. Cockerham saw that at least one of the men had a shotgun. Id. He yelled over to the men to inform them that they were trespassing and they had fifteen minutes to leave. Id. One of the men responded by questioning "or what?" and Cockerham said "or I will call the Sheriff." Id. One of the men yelled back, "call the sheriff" and then fired a shot. Id.

Upon hearing the shot fired, Cockerham crouched down and heard what he thought sounded like pellets hitting the roof of the house, trees, and windows facing the direction of the men. Id. Cockerham then told his son and friend to take cover, to which the friend responded "they are shooting at us." Id. Cockerham directed the children to run down to the shop and stay there, and told the boys he was going to call the sheriff. Id. Cockerham also noticed that the men's black lab had jumped into the river and began swimming in his direction after the shot had been fired, until one of the men called the dog back, by yelling "no bird." Id. 5-6.During this commotion Cockerham's own dog jumped into the river and followed the other lab to the men on the island.

Cockerham immediately called the Elmore County Sheriff's department to request an officer. Id. at 7. While waiting for a deputy to arrive, Cockerham observed the men walking through the brush on the island until they were out of sight, taking Cockerham's dog with them. Id. Cockerham then heard two additional shots taken. Id.

When the deputy sheriff arrived, approximately twenty-five minutes after the call, Cockerham told him that there were men on the island shooting at him and the children, and that he thought the men killed his dog. Id. The deputy walked over to the dock and called over to the men asking them if they knew they were trespassing. Id. The men then asked who owned the island. Id. The deputy relayed to the men, via Cockerham's response, that Lucille Wilson owned the island. Id.

Next, the deputy and Cockerham observed as one of the men on the island removed a no trespassing sign and threw it into the brush. Id. The officer then asked the men to boat over to the dock so that he could speak with them, but the men turned away and ignored the deputy. Id. The officer asked again, this time louder, and the men still did not respond. Id. The officer then told Cockerham that he needed to call for backup. Id. About fifteen minutes later the Glenns Ferry Sheriff arrived. Id. Cockerham told the Sheriff that the islands were owned by the Wilsons and posted as private. Id. When the men on the island saw the second officer they climbed into their boat and headed for the dock. Id.

As the men headed towards the dock, Cockerham left to check on the children inside the house. Id. at 8. When Cockerham returned the deputy informed him that the men were Idaho Department of Fish and Game Conservation Officers, and that they wanted to talk to him. Id.

Outside of the ranch house Cockerham met with the deputy, the Glenns Ferry Sheriff, and three Fish and Game Conservation Officers: the aforementioned Robert Sellers, as well as Jeff Day, and Brian Flatter. Id. The three Conservation Officers questioned Cockerham about the posting on the nearby islands as well as the connection between Cockerham's hunting club and the use of the islands. Cockerham Aff., Exhibit C at 8, Dkt. 20-6. Cockerham denied posting the islands, and told the officer he thought his brother had posted the islands. Id. He also told the officers that Ann Wilson had given Cockerham and his brother permission to post on her islands. Id. Sellers then accused him of including Lucille Wilson's island on the Two Plus website as part of the hunting club. Id. Cockerham denied this. Id.

Cockerham next claims that "the five men had surrounded me and interrogating(sic) me in a Gestapo type manner," and that "[s]everal time the three F and G officers were moving towards me and then away in a taunting manner." Id. During this questioning Sellers yelled at Cockerham, their faces just inches apart, and Sellers screamed "so loud and hard that he spit on [Cockerham]." Id.

In the course of questioning, the deputy asked the Defendants about the shot fired towards Cockerham's property, and the Defendants denied shooting in his direction. Id. The deputy found no probable cause to think that the Defendants had committed a crime and did not charge any of them for their actions. Sellers Aff., ¶ 24, Dkt. 16-3; Day Aff., ¶ 16, Dkt. 16-4; Flatter Aff., ¶ 19, Dkt. 16-5. The deputy did however chastise Cockerham for allegedly misleading him about gunshots being directed towards his property. Sellers Aff., ¶ 25, Dkt. 16-3; Day Aff., ¶ 14, Dkt. 16-4; Flatter Aff., ¶ 17, Dkt. 16-5, see also, Cockerham Aff., Exhibit C at 8, Dkt. 20-6. Cockerham felt harassed, and told the officers that he was not comfortable with the line of questioning at that he wanted to consult his attorney. Cockerham Aff., Exhibit C at 8, Dkt. 20-6. The officers ignored his requests and continued questioning him. Id.

After thirty to forty minutes of questioning, Cockerham asked the Defendants if they planned to issue him a citation for illegally posting public lands. Id. at 9. One of the Defendants told him that there would likely be state and federal charges for illegally posting on public land as soon as they completed their investigation. Id. Cockerham then asked the Defendants why they chose to investigate the area rather than call Cockerham directly. Id. The Defendants did not directly answer this question, but admitted speaking to Ann Wilson, researching Two Plus at the county assessor's office, and viewing Cockerham's websites. Id. Shortly thereafter all five officers left. Id. Ultimately, the Idaho Fish and Game cited Cockerham for unlawfully posting public property as private. Sellers Aff., ¶ 26, Dkt. 16-3; Day Aff., ¶ 15, Dkt. 16-4; Flatter Aff., ¶ 18, Dkt. 16-5.

Cockerham believes the Conservation Officers chose not to contact him directly in order to set up a sting operation designed to provoke him. Cockerham Aff., Exhibit C at 10, Dkt. 20-6. Cockerham also believes that Sellers manipulated Ann Wilson, and defamed Cockerham, by insisting that Cockerham was attempting to sell her mother's island as part of the hunting club. Id. at 10-11. Finally, Cockerham believes the Defendants caused defamatory ...


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