State v. Gatts

• Decision Date: 01 November 1996
• Docket Number: No. 95-402,95-402
• Citation: 928 P.2d 114,279 Mont. 42
• Parties: STATE of Montana, Plaintiff and Respondent, v. William E. "Bill" GATTS, Defendant and Appellant.
• Court: Montana Supreme Court

Page 114

928 P.2d 114

279 Mont. 42

STATE of Montana, Plaintiff and Respondent, v. William E. "Bill" GATTS, Defendant and Appellant.

No. 95-402.

Supreme Court of Montana.

Submitted on Briefs April 11, 1996.

Decided Nov. 1, 1996.

Palmer Hoovestal, Helena, for Appellant.

Joseph P. Mazurek, Attorney General, Paul D. Johnson, Asst. Attorney General, Helena, Valerie Wilson, Jefferson County Attorney, Deborah Butler, Deputy Jefferson County Attorney, Boulder, for Respondent.

John M. Morrison; Meloy & Morrison, Helena, for Amicus Curiae Richard and David Fertterer.

GRAY, Justice.

William E. "Bill" Gatts (Gatts) appeals from the final judgment entered by the Fifth Judicial District Court, Jefferson County, on his guilty pleas to the felony offense of criminal mischief and five misdemeanor offenses, having reserved the right to appeal the court's denial of his motion to dismiss the felony criminal mischief charge. We reverse and remand.

We restate the dispositive issue on appeal as follows:

Does § 87-1-102(1), MCA (1993), limit penalties for fish and game-related violations to those provided in Title 87 and, thereby, preclude charging Gatts with the offense of felony criminal mischief under § 45-6-101, MCA?

The underlying "facts" relating to this case are taken from the affidavit in support of the State of Montana's (State) motion for leave to file an information. According to the affidavit, Frank Rasmussen (Rasmussen) and Gatts placed bear baits in various locations in the Whitetail Pass area of Jefferson County, Montana, during the summer of 1994. They checked the bear baits on a frequent basis and, when it appeared that a bear had been at the location, they loosed dogs with radio collars after the bear's scent. When the dogs located a bear, Rasmussen or Gatts shot it. At least four bears were taken in this manner from June 1 through August 17, 1994, after the bear hunting season in the area had closed.

On the basis of the State's motion and supporting affidavit, the District Court authorized the filing of an information charging Rasmussen and Gatts with seven criminal offenses. As subsequently amended, Gatts was charged with five misdemeanor offenses contained in Title 87, Fish and Wildlife, of the Montana Code Annotated (MCA): unlawful use of dogs for chasing or hunting bear, in violation of § 87-3-124, MCA; hunting bear during closed season, in violation of § 87-3-104, MCA; using devices (bait lures) to entice bear, in violation of § 87-3-101(3), MCA; possession of parts of unlawfully killed bear, in violation of § 87-3-112(2), MCA; and failure to report harvest of black bear, in violation of § 87-1-304, MCA, and administrative regulations thereunder. In addition, Gatts was charged with felony criminal mischief (common scheme) in violation of § 45-6-101, MCA, in that he knowingly or purposely injured, damaged or destroyed at least four black bears, alleged to be public property; alternatively, Gatts was charged with felony criminal mischief (common scheme) by accountability in violation of §§ 45-6-101, 45-2-301 and 45-2-302, MCA, for soliciting, aiding, abetting, agreeing or attempting to aid Rasmussen in the planning or commission of the felony criminal mischief.

Gatts pleaded not guilty to all of the charges and subsequently moved to dismiss the felony criminal mischief charge on the basis that the charge was precluded by the plain language of § 87-1-102(1), MCA (1993). The State responded that this Court had held to the contrary in State v. Fertterer (1992), 255 Mont. 73, 841 P.2d 467, and that Fertterer was dispositive. The District Court denied Gatts' motion.

Thereafter, Gatts and the State entered into a plea agreement. Pursuant to the agreement, Gatts entered guilty pleas to felony criminal mischief and the five misdemeanor offenses, reserving the right to appeal the denial of his motion to dismiss the felony criminal mischief charge. In exchange for the guilty pleas, the State recommended that the "by accountability" criminal mischief charge be dismissed and that all jail and prison time be suspended.

The District Court deferred imposition of sentence for three years subject to certain terms and conditions, including suspension of Gatts' hunting, fishing and trapping privileges for three years, and joint and several liability with Rasmussen for $2,000. Gatts appeals.

Does § 87-1-102(1), MCA (1993), limit penalties for fish and game-related violations to those provided in Title 87 and, thereby, preclude charging Gatts with the offense of felony criminal mischief under § 45-6-101, MCA?

In denying Gatts' motion to dismiss, the District Court implicitly concluded that the felony criminal mischief charge was not precluded by § 87-1-102(1), MCA (1993). We review a trial court's denial of a motion to dismiss for abuse of discretion. State v. Fuller (1996), 276 Mont. 155, ----, 915 P.2d 809, 811 (citations omitted). Where the denial is based on a legal conclusion, however, we first review that conclusion to determine whether it is correct. See Fuller, 915 P.2d at 811.

Because our analysis of § 87-1-102(1), MCA (1993), necessarily falls within the context of Title 87, we begin with an overview of that Title of the Montana Code Annotated, entitled Fish and Wildlife. Title 87 constitutes the legislature's enactment of a comprehensive and wide-ranging body of law regarding fishing, hunting and trapping in Montana. It encompasses and controls such diverse fish and game-related matters as licensing requirements, regulation of game farms, cooperative agreements regarding federally owned land, and criminal penalties for activities relating to fish and game. See, e.g., §§ 87-2-103, 87-4-407, 87-1-703 and 87-1-102, MCA. To this extent, Title 87 is similar to other titles of the MCA which are comprised of various regulatory statutes, and corresponding duties and powers, relating to a specific subject matter.

With regard to criminal penalties and related enforcement matters, however, the provisions of Title 87 represent a significant departure from those contained in most other titles--with the exception of Title 45, entitled Crimes--of the MCA. Both misdemeanor and felony fish and game offenses are contained in Title 87. See §§ 87-1-102 and 87-3-118, MCA. The Department of Fish, Wildlife, and Parks (Department) specifically is authorized to "enforce all the laws of the state respecting the protection, preservation, and propagation of fish, game, fur-bearing animals, and game and nongame birds within the state." Section 87-1-201(2), MCA. In discharging that duty, the Department possesses all powers necessary "to bring actions in the proper courts of this state for the enforcement of the fish and game laws...." Section 87-1-201(1), MCA. Costs associated with prosecutions of fish and game violations, such as the costs of boarding prisoners, may be paid from fish and game moneys in the state special revenue fund to the county treasurer in the county where the costs were incurred. Section 87-1-104, MCA. These provisions, while not necessarily unprecedented in other titles of the MCA, are certainly uncommon.

Other provisions contained in Title 87 also depart significantly from those generally contained in other titles. For example, the Department is a "criminal justice agency" for purposes of obtaining technical assistance and support services provided by the board of crime control. Section 87-1-502(7), MCA. In addition, authorized officers of the Department are expressly granted peace officer status with concomitant powers of search, seizure and arrest. Section 87-1-502(7)(a), MCA. State fish and game wardens may undertake certain searches, without a warrant, and may arrest fish and game misdemeanants. Sections 87-1-506(2) and (6), MCA.

Against this backdrop regarding the encompassing nature of Title 87 and the enforcement authority of the Department and its officers and wardens thereunder, we turn to § 87-1-102(1), MCA (1993), the proper interpretation of which is at issue in the present case. There is no question but that § 87-1-102(1), MCA (1993), generally provides the sentencing parameters for fish and game-related violations. The precise issue before us, however, is whether that statute limits penalties for fish and game-related violations to those provided in Title 87 and, thereby, precludes charging, convicting and sentencing Gatts for felony criminal mischief under § 45-6-101, MCA. We conclude that it does.

Section 87-1-102(1), MCA (1993), provides in pertinent part:

A person who purposely or knowingly violates any provision of this title, any other state law pertaining to fish and game, or the orders or rules of the [fish, wildlife, and parks] commission or department is guilty of a misdemeanor, except if a felony is expressly provided by law, and shall be fined not less than $50 or more than $500, imprisoned in the county jail for not more than 6 months, or both, unless a different punishment is expressly provided by law for the violation.

(Emphasis added.) Our role in construing statutes is clear: we are "to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Section 1-2-101, MCA. The intention of the legislature is to be pursued. Section 1-2-102, MCA. Where we can determine that intent from the plain meaning of the words used in a statute, we may not go further and apply any other means of interpretation. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088 (citation omitted).

At the outset, it is clear that the first and third clauses of the statute--referencing violations of any provision of Title 87 or of orders or rules of the commission or department--refer specifically and only to what commonly may be called fish and game violations. "Provisions of this title" are statutes contained within Title 87, entitled Fish and Wildlife, which is the comprehensive statutory body of...