State v. Brogan

• Citation: 261 Mont. 79,862 P.2d 19
• Decision Date: 15 October 1993
• Docket Number: No. 92-322,92-322
• Parties: STATE of Montana, Plaintiff and Respondent, v. Welch BROGAN, Defendant and Appellant.
• Court: United States State Supreme Court of Montana

Page 19

862 P.2d 19

261 Mont. 79

STATE of Montana, Plaintiff and Respondent, v. Welch BROGAN, Defendant and Appellant.

No. 92-322.

Supreme Court of Montana.

Submitted on Briefs Aug. 19, 1993.

Decided Oct. 15, 1993.

Richard L. Kalar, Boulder, Joe Gary, Bozeman, for defendant and appellant.

Joseph P. Mazurek, Atty. Gen., John Paulson, Asst. Atty. Gen., Helena, Tara DePuy, Deputy Park County Atty., Livingston, for plaintiff and respondent.

HARRISON, Justice.

Defendant Welch Brogan (Brogan) appeals his convictions for failing to maintain fences on his game farm and illegally capturing wild elk for use in his game farm business, following a bench trial in the District Court of the Sixth Judicial District, Park County. We affirm.

Brogan raises eight issues and numerous sub-issues on appeal, which we consolidate and rephrase as follows:

1. Did the District Court err by denying Brogan's motion to dismiss on the grounds that the complaints failed to adequately set forth violations of Montana law?

2. Is there sufficient evidence in the record to support Brogan's convictions?

Brogan, 85, has owned and operated an elk game farm in Corwin Springs, Montana, since 1946. Known by some as the "granddaddy of all elk farmers," Brogan buys and sells elk in the local, national and international markets. At times, he has had up to 250 head of elk in his inventory.

From 1946 until 1983, Brogan operated an elk farm on the west side of Highway 89, approximately ten miles north of Yellowstone National Park. In 1983, he relocated the farm next to his home on the east side of the highway. The Montana Department of Fish, Wildlife and Parks (Department) approved an expansion of Brogan's elk farm and his use of electric fence to contain his elk and prohibit access of wild game.

The elk farm is comprised of approximately 400 acres, most of which is rugged, mountainous terrain. Behind Brogan's house to the northeast is a rectangular pen, which generally houses bull elk (bull pen). To the north of his house, adjacent to the bull pen and joined by a corral, is a triangular pen. To the northwest, adjacent to the triangular pen, is a cow pasture, which generally houses cow elk (cow pen). North of the triangular pen and cow pen is a large mountain pasture (upper mountain pasture), and east/northeast of the upper mountain pasture is Forest Service land. At the northernmost point of the triangular pen, a series of non-electric gates connects the triangular pen, the cow pen, the upper mountain pasture and Forest Service land.

Electric fence separately encloses the upper mountain pasture, the triangular pen, the cow pen and the bull pen. The electric fence, which emits 5,000 to 6,000 volts of electricity, has transponders which remit signals to a shed near Brogan's home if the fence malfunctions. The fence is broken down into sections, which Brogan can monitor from his home and control from a panel in the shed. The panel allows Brogan to identify which, if any, section of fence is malfunctioning.

Brogan has enjoyed a good relationship with the Department. In 1946, the Department approved Brogan's elk farm. In 1984, the Department approved Brogan's expanded elk farm and electric fencing. Over the years, various Montana game wardens have inspected Brogan's elk farm, counted his elk, checked for disease, reviewed his record books, and helped him trap and remove wild deer from his elk farm.

On December 5, 1988, Game Wardens Randy Weurtz, Jim Kropp and Hank Fabich inspected Brogan's elk farm. During this routine inspection, they counted 90 elk: forty-five cows and calves in the cow pen and forty-five de-antlered bulls in the bull pen (bulls are de-antlered so as not to injure their handlers or one another). On December 5th, the wardens' count matched Brogan's records.

On February 6, 1989, while patrolling the late season elk hunt near Gardiner, Montana, Weurtz was checking hunters on Cinnabar Mountain. From that vantage point, he noticed unusual movement across the river on Brogan's elk farm. Though his view of the lower triangular pen was partially obscured, Weurtz observed about forty elk--cows, calves and antlered bulls--running back and forth in Brogan's triangular pen. The elk in that pen were apparently wild, spooked and entrapped by a closed gate. According to Weurtz, Brogan's cow elk in the cow pen and de-antlered bull elk in the bull pen remained calm, yet watched the wild elk with curiosity.

Based on his suspicion that Brogan was harboring wild elk, Weurtz contacted his supervisor, Warden Bud Hubbard. Hubbard suggested a reconnaissance flight over Brogan's elk farm. On an early morning flight of February 7, 1989, Weurtz observed elk in the upper mountain pasture, animal tracks through that gate preserved in snow-covered ground, and hay just inside the gate.

Weurtz, Hubbard and Kropp visited Brogan early that afternoon. Fabich and fellow warden, Terry Hill, watched from the Ranch Kitchen, a Corwin Springs restaurant from which they could partially observe the elk farm. Hubbard informed Brogan that they wished to inspect his elk. Brogan asked if the wardens would mind returning in an hour and a half, when one of Brogan's hired hands would be available to assist with the count. Hubbard agreed.

The wardens drove across Highway 89 to Cinnabar Mountain to observe the elk in Brogan's pens. The weather was clear. They observed calm cow elk in the cow pen, calm bull elk in the bull pen, and mixed wild elk--cows, calves and antlered bulls--running in the triangular pen. All gates were closed. Minutes later, the wardens saw Brogan and an assistant drive to the series of gates and open the gate connecting the triangular pen to Forest Service land. Brogan and his assistant then drove to the bottom of the triangular pen and herded the wild elk up through the open gate. The wardens counted at least 80 head of wild elk being forced from the triangular pen. Scurrying to escape, one cow elk attempted to jump the fence leading to the upper mountain pasture. She became entangled in that fence, eventually freed herself and, injured, limped off into the upper mountain pasture.

The wardens immediately drove to Brogan's ranch. They met Brogan and his assistant, Blake Romey, who were walking down from the triangular pen. Hubbard asked Brogan what had just taken place. Brogan replied that he was attempting to remove some wild deer from his elk farm. Hubbard challenged that claim, explaining that the wardens had just watched him run wild elk from his farm onto Forest Service land. Brogan then stated that he was trying to recapture one of his bull elk, which he may have lost back in January. Brogan had not reported the lost bull, as required by State law.

Hubbard told Brogan that he had violated Montana law. The wardens then secured further evidence. They photographed the elk tracks and noted that hay was spread just outside and inside of the triangular pen. They observed a doe deer and a healthy, wild cow elk in the upper mountain pasture; not the injured cow elk they had seen jump the fence.

The wardens saw elk and deer tracks leading to and from Forest Service land and the upper mountain pasture, through the electric fence. When Weurtz's dog, which was along for the ride, ran out and back in through the electric fence unaffected, the wardens concluded that the electric fence was turned off.

The wardens and one of Brogan's assistants then counted Brogan's elk. The cow count matched what was documented in Brogan's records. The bull count yielded one less bull than was documented in Brogan's records.

On May 30, 1989, the Department cited Brogan for three violations of Montana law under § 87-1-201, MCA (1989):

1. Failure to maintain fence on a game farm in such a manner as to prevent entry of wild game animals to the triangular pen in violation of Department regulations.

2. Failure to maintain fence on a game farm in such a manner as to prevent entry of wild game animals to the upper mountain pasture in violation of Department regulations.

3. Unlawfully capturing over 80 wild elk in violation of Department regulations.

Following a bench trial on November 27, 1989, the Park County Justice Court found Brogan guilty on all three counts. Brogan was notified of the verdict on December 12, 1989, and he appealed to the Park County District Court.

On April 12, 1991, Brogan filed a motion to dismiss on the grounds that the complaints failed to adequately set forth violations of law. The District Court denied the motion and a bench trial was held on April 15, 1991, and May 1, 1991. After receiving post-trial briefs from the parties, the District Court entered its findings of fact and conclusions of law on September 6, 1991. The District Court fined Brogan $500 on each of the three counts. Brogan appeals.

I

Did the District Court err by denying Brogan's motion to dismiss on the grounds that the complaints failed to adequately set forth violations of Montana law?

Brogan challenges the sufficiency of the charging documents. He first argues that by charging him under § 87-1-201, MCA (1989), the Department failed to provide him adequate notice of the offenses charged. That statute, he argues, merely sets out the Department's powers and duties.

Brogan received one citation for failure to maintain the upper mountain pasture fence and another for failure to maintain the triangular pen fence. He suggests that he should have been charged for these violations under 12.6.1503 A.R.M. (1989). That rule on game farm fencing requirements provides in pertinent part:

(3) The fence shall be maintained in a game-proof condition at all times. If cloven-hoofed game are able to pass through, under, or over the fence because of any local topographic or other conditions , the licensee shall supplement the fence so as to prevent such passage.

Brogan received a third citation for unlawful capture of 80 wild elk. He suggests that he should have been charged for this...