The Missoula filmmakers who pleaded guilty in a plea agreement to almost 50 federal and state violations that occurred while they were producing commercial videos about bull trout fishing have blamed faulty information from other people for their legal problems.
In a weekend posting on Facebook, Montana Wild owners Zack and Travis Boughton noted that the Montana Film Office told them they didn't need to obtain a permit to film in and near the Bob Marshall Wilderness in 2013 – a charge the film office commissioner denied Monday.
The brothers also said in the months leading up to their trip into the Bob, they sought advice from many people, “including fly shop owners, outfitters and past guides about where to fish during our trip. Not once were we ever told that fishing for bull trout in the tributaries was illegal.”
Nor were Montana Fish, Wildlife and Parks bull trout regulations clear, they argued, saying that the agency added wording to its 2014 regulations to clarify rules that were easy to misunderstand.
FWP Warden Capt. Lee Anderson and criminal investigator Brian Sommers say the 2013 regulations were “very clear” about where and how anglers could legally target bull trout, listed as a threatened species under the Endangered Species Act.
Fisheries managers only re-emphasized those rules by repeating some of them in another part of the 2014 regulations, Sommers said, and “The reason it was added was just because of these guys.”
The Boughtons called their violations an “honest mistake” on Facebook.
“In our minds we did everything legally during this trip,” they wrote.
Zack and Travis Boughton pleaded guilty to 11 federal citations involving illegal commercial filming in and near the Bob Marshall Wilderness. The Boughtons and a third companion on the 2013 trip, Anthony Von Ruden of Missoula, pleaded guilty to 38 more state violations for intentionally fishing for bull trout in closed waters, failing to immediately release bull trout and failing to report a bull trout on the required FWP bull trout catch card.
The three were fined a total of $5,950, and avoided the potential loss of fishing, hunting and trapping privileges by entering into the plea agreement in Powell County.
The Boughtons said that even though they felt they had an “advantageous” case to make in court, they entered into the plea agreement because they wanted to begin work on their next feature film.
“(W)e are filmmakers and not lawyers – we feel more comfortable behind a lens than in a courthouse,” they wrote.
Although they did not respond to interview requests last week, the Boughtons posted their side of the story on Montana Wild’s Facebook page on Saturday night.
They said they spoke multiple times with Montana Film Office Commissioner Deny Staggs, although they did not identify Staggs by name, and “were advised that a special permit would not be necessary for our production.”
“This was our first year filming as a business and (we) naively believed that the Film Office was the best source for this guidance,” they wrote. “We later found out that the advice we were given was not true to the law.”
“I remember the conversations specifically,” Staggs said Monday. “Their main issue was, would they be considered a commercial production?”
Staggs said he asked the Boughtons if they were receiving financial compensation for the filming they did, and when they told him they received gear from outdoors companies in exchange for exposure in the videos, he told them that would be considered a commercial venture and require a commercial filming permit from the U.S. Forest Service.
“If you’re just going up in the backcountry and documenting your trip so friends and family can watch it, you can show it on YouTube,” Staggs said. “But if you’re monetizing it on a YouTube channel, and accepting money or merchandise from clients, that’s commercial, and you have to go through the permitting process.”
The Boughtons never told him they also intended to produce a fly-fishing film from the trip for film tours and to enter in film festivals, Staggs added, which would also make it a commercial venture.
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“From my point of view, they were trying to find a way to not get a permit,” said Staggs, who noted his office is a promotional entity, not a permitting one. They also didn’t tell him they had a YouTube channel where some of their videos received hundreds of thousands of views, according to Staggs.
The only commercial filming the U.S. Forest Service has ever allowed in the Bob Marshall Wilderness that he’s aware of, Staggs said, is “3 Miles an Hour,” a Montana PBS documentary about legendary outfitter and guide Smoke Elser that is offered for $19.95 on the Montana PBS website.
An FWP news release announcing the plea agreement last week indicated bull trout had been mishandled by the Boughton brothers and Von Ruden during the trip, including an instance where one of the fish was caught, reeled in, netted, handled, and then released with the hook and line still attached so they could film it under water being reeled in, netted and handled again.
Some bull trout were over-handled by the three men for periods of 12 minutes or more, Sommers had charged, and FWP Region 1 fisheries manager Mark Deleray said what the men did with the fish after catching and before releasing them “will no doubt have negative impacts on the bull trout fishery.”
“We believe some of our practices could have been handled better during this trip with what we now know,” the Boughtons wrote, “but we believe FWP misrepresented this part of their case in their press release about our handling practices. Never was a fish out of water for more than a few breaths and then back into the net quickly. We feel strongly that we had no negative effects on the fishery and we never intentionally released a fish to replay it for the camera. That practice would violate the fish-handling ethos we hold dear.”
“They can deny it all they want,” Sommers said Monday. “I have the videos.”
Sommers said the men were not charged for any instance where video evidence showed a bull trout was released within four minutes of being netted.
But there were times that unedited video – FWP obtained via a search warrant for more than 2,200 videos shot by the Boughtons during the Bob Marshall trip – showed the three “messing with the fish for 15, even 20 minutes,” Sommers said. “There were some they’d release, that would just go right to the bottom and lay there.”
“Each and every fish handled during the filming of this project was carefully released to see another day,” the Boughtons maintain.
A map of the South Fork Flathead in the regulations that showed the tributaries may have confused the Boughtons and Von Ruden.
“In our mind, the tributaries were located in an area of the drainage that was open to bull trout fishing,” Zack and Travis Boughton wrote.
FWP’s Anderson and Sommers said showing the tributaries on the map is necessary to give anglers a way to physically identify the portion of the main stem of the river where bull trout can be targeted. The written regulations make it clear the tributaries are off limits, they said.
Text next to the map was added in 2014 that reads “Angling for bull trout is NOT allowed in South Fork tributaries or Big Salmon Lake.”
In announcing the plea agreement last week, FWP also said the Boughtons and Von Ruden intentionally and illegally fished for bull trout on the Spotted Bear River and North Fork Blackfoot River during the trip.
The Boughtons did not address those statements in their social media response.
“We are sorry if we’ve disappointed any of our supporters and we are excited to put this behind us,” the filmmakers concluded. “Our hope is that a look at our body of work and actions will speak louder about our intent and values as outdoorsman (sic) than a simple and honest mistake.”
Sommers, the FWP criminal investigator, said he was not surprised the Boughtons were pointing to FWP regulations, the film office and outfitters, guides and fly-fishing shops as the reasons they wound up charged with 49 federal and state violations.
“From day one, it’s always been somebody else’s fault, according to them,” Sommers said.