Penalties Too Stiff For ‘Mistaken Identity’ Grizzly Shooting, Hunter Says

A Cody hunter whose son shot a grizzly they had both mistaken for a black bear said it was an easy mistake to make, and the stiff penalties he faced could have a chilling effect on hunters reporting similar mistakes.

Mark Heinz

November 07, 20238 min read

Mix Collage 07 Nov 2023 02 43 PM 9240
(Cowboy State Daily Staff)

It was one of those moments every sportsman father dreams of when Joel Proffit watched his son, Fisher, make a solid shot on a dark-colored bear while they were hunting together on the North Fork near their hometown of Cody.

It was during the spring bear season last year and Fisher was 13 at the time.

As soon as the bear fell dead, father and son excitedly approached their prize. But the pride and joy of the moment dissipated when they realized that Fisher had shot a grizzly bear.

Stiff Penalty

They did the right thing, Joel said, and immediately reported the mistaken identity killing to the U.S. Fish and Wildlife Service (USFWS) and the Wyoming Game and Fish Department.

However, Joel said he thinks that the penalty he ended up with was too stiff for an honest mistake that was reported immediately. He was ordered to pay $10,000 in restitution to the state of Wyoming and put on a year’s probation, which ends in March 2024.

There should be lighter penalties for those who shoot a grizzly completely by accident rather than through deliberate intent or gross negligence, Proffit said.

‘I Wasn’t Uncertain’

Joel is hardly new to bears. He’s frequently in the backcountry and has observed countless bears of both species. And right up until the moment his son pulled the trigger, everything he observed about that bear as it approached them told him it was a black bear, the species for which Fisher had a hunting tag.

“I don’t see a major shoulder hump, I’m not looking at as dished face,” he told Cowboy State Daily as he recalled the hunt. “I wasn’t uncertain. I was looking at that bear and thinking, ‘That’s a black bear.’”

But one look at the fallen bear’s paws, with long claws, clearly proved that the bear, a male weighing roughly 150 pounds, was a grizzly.

Claws Are The Deciding Factor

They’d made a mistake that anyone who hunts black bears in grizzly country dreads. Mistaking a grizzly for a black bear can be an easy mistake to make, depending upon the circumstances, some experienced bear hunters have told Cowboy State Daily.

Fur color isn’t a good determining factor. Despite the species’ name, black bears come in a variety of shades. Grizzlies also come in a variety of colors, including black.

And although grizzlies are generally larger than black bears, there can be some crossover in size between the species depending upon their age, sex, diet and other factors.

The general distinguishing features for grizzlies include the telltale shoulder hump, a dish-shaped face and ears that appear to be smaller in proportion to the head than a black bear’s. The dead giveaway are the grizzly’s claws, which are much longer than those of black bears. But under field conditions, it can be difficult to see a bear’s claws.

‘It Was An Accident’

That was the case during his son’s hunt, Joel said.

They’d already seen, and passed up, grizzly bears that day, he said.

Then they met some other people who swore they’d seen a black bear cross the road, so he and Joel headed in the direction they’d been told that bear had gone.

As the bear approached them, Fisher was set up for his shot while Joel took video — confident that the animal was a black bear.

It was relatively small, fitting of a Wyoming black bear. It had facial features typical of a black bear, including large-looking ears, and no evident shoulder hump, Joel said. So, he gave his son the go-ahead to shoot.

“It was an accident, and I can prove it was an accident,” Joel said.

The Proof Is On Video

The strongest proof that shooting the grizzly was completely unintentional is the video he took of Fisher’s shot and the moments leading up to it, Proffit said. He showed it to authorities and has also included it as part of a longer video he posted on YouTube.

Joel has been a hunter education instructor. As part of those classes, students must take a quiz that challenges them to distinguish black bears and grizzlies, based upon photos of both species. The quiz is available online.

In his YouTube video, Joel precedes the footage of Fisher’s shot with a similar “quiz,” using photos and video of grizzlies and black bears. The first part of the hunt footage, before the bear was shot, is included in that quiz section.

Joel said numerous experienced hunters and outdoors enthusiasts have watched his video and taken his version of the quiz, and all of them failed to properly identify the bear in the hunt video as a grizzly.

Even A Bear Biologist Was Fooled

As another example of just how difficult it can be for hunters to distinguish between the two bear species, Joel referenced a 2013 case involving Game And Fish Bear Management Specialist Luke Ellsbury.

While hunting black bears in the Cody region that year, Ellsbury mistakenly shot a grizzly after observing the animal and being convinced that it was a black bear.

Ellsbury pleaded guilty and, like Joel, was ordered to pay $10,000 in restitution to the state for the grizzly’s death.

If even a professional bear expert could make such a misidentification, the penalties shouldn’t be so stiff for those who mistakenly kill a grizzly, even after making a reasonable effort to identify the bears’ species, Joel said.

Feds Back Off

Joel said that after they reported mistakenly shooting the grizzly, it looked at first as if Fisher was going to be nailed with maximum federal penalties, which could have included fines of up to $25,000. Grizzlies in Wyoming and the rest of the Greater Yellowstone area remain under special Endangered Species protection, so UFSWS agents usually have the first crack at prosecuting cases of grizzlies being wrongfully killed.

However, because the Poffits reported the incident immediately and cooperated fully, the USFWS opted to hand the case over to Game and Fish, Joel said.

He said they hired an attorney and reached a plea agreement with prosecutors. Joel agreed to enter a plea of no contest for being an accessory to killing the grizzly in exchange for Fisher being cleared of any possible charges.

Joel said that neither he nor his son lost hunting privileges in connection to the case.

 However, his penalty was handed down under the section of Wyoming wildlife violation statutes that sites “strict liability” for the unlawful death of an animal, he said. He thinks it would have been more just to have used the statute section that hinges upon whether a person “knowingly” killed an animal illegally.

He added that he thinks Wyoming should consider restructuring its penalties for killing grizzlies. That could include a lesser fine and/or restitution of “$1,000, $1,500 or even $2,000” when a bear killed because somebody made an honest mistake, as he, his son and Ellsbury did.

Stiffer penalties could be reserved for hunters who kill grizzlies deliberately or out of sheer negligence, he added.

Chilling Effect

Even though he thinks the penalty was too heavy-handed, Joel said he remains on good terms with most of the Game and Fish personnel he knows. He blames problems “with the system” and not any particular people.

Even so, he said cases like his could cause a rift between Game and Fish and rank-and-file hunters. That in turn could make people less likely to report grizzlies being killed, or other wildlife violations.  

Game And Fish Stresses Education

Game and Fish can’t comment on the specifics of any legal case, Breanna Ball, the agency’s public information officer, told Cowboy State Daily.

Game and Fish policy holds hunters responsible for properly identifying bear species, she said.

“Wyoming is home to both black and grizzly bears. It is the hunter's responsibility to be aware of the species before deciding to harvest an animal,” she said.

That’s why Game and Fish places emphasis on the bear identification quiz and similar educational materials, Ball said.

“To ensure hunters are educated, the Wyoming Game and Fish Department encourages black bear hunters to test their bear observation and identification skills on the Game and Fish website,” she said. “The educational identification course is intended to reduce grizzly bear mortalities by mistaken identity. Additionally, the black bear hunting brochure which is available to hunters when they buy a license contains a helpful pictorial identification guide.”

Mark Heinz can be reached at

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Mark Heinz

Outdoors Reporter