A full day of testimony by witnesses for the defense filled the third day of the Vely versus Brown jury trial in District 11 Court with Judge Patrick Murphy presiding. Witnesses included a sound expert, the former executive director of the Master of Foxhounds Association, a former rugby associate of Chris Vely from Westchester County, Pa., neighbors and members of Headwaters Hounds foxhunting club.
Plaintiffs in the case, Chris Vely and Laura Barton, filed a noise nuisance claim against next-door neighbor Alison Brown. A counterclaim by Brown alleges that the Velys’ tactics were defamatory to her personally and to her foxhunt club, Headwaters Hounds LLC.
The jury, allowed to ask questions of the witnesses throughout the trial, began the day with questions for Barton, the prior day’s last plaintiff witness. Asked why she and Vely had not accepted Brown’s offer to buy out their house, she responded, “This is our home, our dream.” Asked about why she would post something on social media that she didn’t know was accurate (referring to other Change.org petitions she posted, but said she hadn’t researched), she said, “I took it for granted that, if a thing came through Change.org, it is reputable.”
Jeff Kwolkoski, a certified sound engineer, testified about the sound study he conducted in January 2018 for Brown. Kwolkoski said he has done hundreds of sound studies and noise tests that satisfy Colorado state statute requirements.
In addition to recording the level of noise for a seven-day period with two sound locations and one weather location, Kwolkoski said noise incidents over 45 decibels triggered his recording equipment to capture actual audio of the noise so the source could be identified. Wind is a factor, said Kwolkoski, and procedure must account for it.
During the study period Jan. 18-24, Kwolkoski documented noise that exceeded 45 decibels 12 times and included multiple sounds, including tractors, airplanes and automobiles. “It’s nine times if you apply the standard of 15 minutes each hour the level can go over 45 (decibels),” said Kwolkoski.
“While there were spikes where multiple noises contributed, the highest sound spike recorded just for dog barking was 40 decibels on a Sunday night. On Sunday, Jan 21., at 6 a.m. we had an airplane, a vehicle and a sharp dog noise. That’s one of the louder spikes we measured – roughly 52 decibels on the property line. There was no noise attributable only to dogs that exceeds state statutes of 45-50 decibels.”
“So to clarify, we are talking about nine minutes (in a week) exceeding those limits, which weren’t all dog. There were tractor noises, etc., unrelated to dogs,” said Murphy.
Kwolkoski answered affirmatively and added, “We deal with people affected by noise on a daily basis. Everyone’s sensitivity to noise is different. Some may object at 30, others, 40 or 50 decibels. The intent of the statute is what is reasonable to most people. We work with how can you regulate that.”
Donald Jefferis Jr. testified that he knew Vely due to their rugby involvement in Westchester County, Pa., a rural foxhunting area with eight to 10 hunt clubs and two farmers’ packs.
“I was president of Brandywine Rugby Club, and Vely played and coached. My family has foxhunted for generations. Our rugby field was surrounded by foxhunting property. Our benefactor, who gave us our playing field, is a fox hunter. There is no way Mr. Vely doesn’t know about foxhunting.”
Jefferis said he was personally offended and shocked by Vely’s petition, adding that, when the Brandywine Rugby Club benefactor heard about it, he issued a ban on Vely ever returning to the field.
“I finally read the petition last year, and I was offended that there was so much misconception in this petition. In layman’s terms, cubbing is pre-season foxhunting. I’ve been foxhunting since I was five. We have never on purpose harmed an animal.”
Neighbors Larry Payne and Carla Gershenoff testified that they have no problem with Brown’s fox hounds and that she is a good neighbor. Asked directly if they received monetary compensation from Brown, Gershenoff answered, “No!”
Payne said, “That’s really disturbing to me. I had an experience with Chris right after they bought the place. He called, asking if I knew that Brown was planning to put in high, unshielded lights around the arena. He wanted names and phone numbers of neighbors so he could tell them. I was uncomfortable doing that and said I would look into the light thing. I met Alison a few days later and asked her about unshielded lights, and she assured me she wouldn’t ever do that.”
Headwaters Hounds club members also took the witness stand.
“It was forwarded to me by a Facebook friend,” said Eliot Jackson, referring to the Vely petition. “I clicked on the link. I was shocked and deeply offended. I am still mad about it because it is a misrepresentation of the truth. The practices described in that petition are not only illegal, not only unethical, but disgusting. The thought that anyone who knew me or pretended to know me thought I would take part in something like that … I responded it wasn’t true, and she unfriended me.”
I had my nine-year-old granddaughter with me marching as Headwaters Hounds in the Parade of Lights,” said Sandy Hobbs. “There were other children – we had puppies – and the crowds were so happy. Then we came to between Second and First street, and that group booed – booed children. We had no idea who they were.”
The past executive director of the Master of Foxhounds Association, Col. Dennis Foster, testified that not only are the practices described in Vely’s petition not true now, they have never been true in the U.S., nor for hundreds of years anywhere.
Foster, a certified foxhunting expert, has participated in hundreds of hunts in the U.S. and in other countries. He literally wrote the book on foxhunting, authoring two, and wrote all the Masters of Foxhounds pamphlets and rulebooks. Judge Murphy asked him to clarify the interrelationship between foxhunting and predator control.
“This is a chasing sport in the U.S., not a killing sport. We hunt coyote and fox, mostly coyote now because coyote have spread all across the country, especially here in the West, and they have adapted everywhere. Ireland and England have overpopulation of foxes so there you may see culling of old and sick animals. Coyotes can run five times faster than hounds.
“Foxhunting is hundreds of years old. George Washington was a fox hunter. The terminology is old – I think people use old terms and don’t realize that words and meanings change. Here, cubbing is also called autumn hunting. These are short, casual early morning hunts, training young dogs with older experienced dogs. In England, where they have sheep, the hounds are used in early morning to sweep around the herds to keep the foxes from taking the baby lambs – same thing for cattle and baby calves.
“We don’t do hunts to kill animals – this has never happened in America. We do chase and predator controlling. Especially here in Colorado where you have large ranches, the ranchers have problems with predators. If a ranch is hunted regularly, it tends to keep the coyotes out. This is true throughout the West. We don’t mistreat the quarry. If there was an allegation, it was my job to check that out, to determine substance.
“(Brown’s) operation was inspected by the regional director. I’ve inspected Brown’s property – horses, stable, kennels,” said Foster. “I couldn’t give you a better report on her operation and adhering to our rules and regulations.
“Training in early season is so important for horses and foxhounds to get to the point where you can ride out so there is benefit for the rancher. The cubbing definition he (Vely) gave absolutely does not match what this is. … You can’t get more horrible than making an accusation that is an outright lie about a club and a person and our organization too. There is no part of that definition that was correct ‒ nothing.”