*1 OF STATE MONTANA, Respondent, Plaintiff v.
WILLIAM E. “BILL” GATTS, Appellant.
Defendant
No. 95-402.
April
on
Submitted
Briefs
1996.
Decided November
1996.
St.Rep.
For Palmer Appellant: Attorney Law, Helena. P. Respondent: Joseph Mazurek, Attorney For Hon. General, Johnson, Attorney General, Helena; Paul D. Ass’t Valerie Wilson, County Attorney, Butler, Jefferson Deborah Deputy Jefferson County Attorney, Boulder. Morrison; John M. Meloy Morrison,
For Amicus Curiae: & Fertterer) (for Helena; Richard David Opinion GRAYdelivered the of the Court. JUSTICE (Gatts) appeals judgment E. “Bill” from the final William Gatts County, Court, entered the Fifth Judicial District Jefferson on his felony guilty offense of criminal mischief and five misde- pleas offenses, having right appeal meanor reserved court’s charge. of motion to denial his dismiss criminal mischief and remand. We reverse on as dispositive appeal
We restate issue follows: Does limit for fish and penalties game- and, thereby, pre- related to those in Title 87 violations mischief charging clude with the Gatts offense MCA? underlying relating “facts” to this case are taken from the (State) the State of Montana’s motion for leave support affidavit in affidavit, information. According file an Frank Rasmussen (Rasmussen) in the placed and Gatts bear baits various locations Montana, during sum- County, Pass area of Jefferson Whitetail They a frequent checked the bear baits on basis mer location, they loosed it that a bear had been at appeared when the dogs collars after the bear’s scent. When located dogs with radio bear, it. At four were taken in or Gatts shot least bears Rasmussen 17, 1994, after bear through August from June 1 this manner area closed. hunting season had affidavit, the supporting motion On the the State’s basis Ras- filing charging of an information District Court authorized As subsequently Gatts with seven criminal offenses. mussen and charged offenses con- amended, Gatts was with five misdemeanor *3 87, Wildlife, of Code Annotated in Title Fish and the Montana tained (MCA): bear, dogs in violation chasing hunting unlawful use of for or season, 87-3-124, hunting closed in violation MCA; during bear of § (bait lures) bear, in 87-3-104, MCA; using to entice devices of § 87-3-101(3), unlawfully MCA; possession of of parts of § violation MCA; 87-3-112(2), report of and failure to bear, in violation § killed 87-1-304, MCA, and adminis- bear, in violation of § harvest of black addition, with charged In Gatts was thereunder. regulations trative (common scheme) 45-6-101, of felony § violation criminal mischief de- injured, damaged or MCA, knowingly purposely he or to bears, public property; be stroyed alleged at least four black (com- felony criminal mischief alternatively, charged was with Gatts scheme) 45-6-101, accountability of 45-2-301 by §§ in violation mon at- agreeing 45-2-302, MCA, soliciting, aiding, abetting, for and of the planning the or commission aid Rasmussen in tempting to felony mischief. criminal charges subsequently all of the and guilty to pleaded
Gatts criminal on the basis felony charge mischief the moved to dismiss 87-1-102(1), of plain language charge precluded § was
45 (1993). responded MCA this State Court had held to contrary in State v. Fertterer 255 Mont. P.2d and dispositive. that Fertterer was The District Court denied Gatts’ motion. Thereafter, and a plea agreement. Gatts the State entered into the agreement, guilty pleas felony Pursuant Gatts entered offenses, criminal mischief and the five misdemeanor reserving right to the denial his appeal felony of motion to dismiss the criminal charge. exchange mischief In for guilty pleas, the State recom- “by accountability” mended that criminal mischief be charge jail dismissed and that all prison suspended. and time be The District Court deferred imposition sentence years for three subject conditions, to certain terms and including suspension of Gatts’ hunting, fishing trapping privileges years, and joint for three liability $2,000. several with Rasmussen for appeals. Gatts 87-1-102(1), Does limit penalties and game- fish related violations those in Title thereby, pre- charging clude Gatts with the criminal offense of mischief 45-6-101, MCA? denying dismiss, Gatts’ motion to implic District Court itly concluded that charge mischief was not (1993). precluded by § We review a trial court’s denial a motion to dismiss for abuse of discretion. State v. Fuller (citations omitted). Where a legal conclusion, however, denial is based on we first review that conclusion to determine whether it is Fuller, correct. See P.2d analysis
Because our (1993), necessarily falls within the context begin of Title with an overview of that Annotated, Title the Montana Code entitled Fish and Wildlife. Title legislature’s constitutes enactment of a comprehensive and body wide-ranging regarding fishing, hunting of law trapping encompasses Montana. It and controls such diverse fish and game- licensing requirements, regulation related matters as game farms, cooperative agreements federally regarding land, owned and crimi- See, nal for activities penalties relating game. e.g., 87- 2-103, 87-4-407, extent, 87-1-703 and MCA. To this Title 87 comprised is similar to other are titles MCA which of various *4 regulatory statutes, powers, relating and duties and corresponding subject specific to a matter. regard penalties to criminal and related enforcement mat-
With however, ters, provisions represent significant of Title 87 excep- those contained in most other titles —with the departure from 45, entitled Crimes—of the MCA.Both misdemeanor and tion ofTitle game fish offenses are contained in Title 87. See and 87-1- 87-3-118, Fish, Wildlife, MCA.The and Department 102 and Parks (Department) specifically is authorized “enforce all laws of the offish, respecting protection, preservation, propagation and state animals, nongame fur-bearing game and and birds within the game, 87-1-201(2), discharging duty, MCA. In De- state.” Section necessary all “to in the powers bring actions partment possesses game courts of this state for the enforcement the fish and proper 87-1-201(1), prosecu- MCA. Costs associated with laws. ...” Section violations, boarding such as costs of game tions of fish and game moneys special in the state may be from fish prisoners, paid county county treasurer in the where costs revenue fund provisions, MCA. These while not were incurred. Section MCA, certainly necessarily unprecedented in other titles of the are uncommon. provisions depart significantly contained in Title also
Other example, the contained in other titles. For generally from those justice agency” obtaining Department purposes is a “criminal for by the board of support services technical assistance addition, 87-1-502(7), authorized MCA. crime control. Section granted peace are officer status of the Department officers search, seizure and arrest. Section 87-1- powers concomitant with may 502(7)(a), undertake certain game MCA. State fish and wardens warrant, fish and misde- searches, may arrest without 87-1-506(2) and MCA. meanants. Sections nature of backdrop regarding encompassing Against this authority Department and its the enforcement Title 87 and 87-1-102(1), thereunder, we turn and wardens officers present in the of which is at issue interpretation the proper gener but that is no question case. There game-related sentencing parameters ally provides us, however, is whether precise issue before violations. violations those game-related for fish and penalties limits statute charging, convicting and and, thereby, precludes Title 87 provided in 45-6-101, MCA. criminal mischief sentencing Gatts for that it does. We conclude part: (1993), provides pertinent
Section any knowingly provision violates purposely who person A game, or pertaining state law title, other this *5 [fish, of wildlife, orders or rules the parks] and commission or department misdemeanor, is a guilty of a ex- except felony is if law, by pressly provided and shall be fined not less than or $50 $500, imprisoned county more than the jail for not more than 6 both, months, or unless punishment is expressly pro- different law the by vided violation. added.) (Emphasis Our in construing role statutes is clear: we are “to ascertain and declare what is in or in terms substance contained therein, to not insert what has or been omitted to omit what has been 1-2-101, legislature inserted.” Section MCA. The intention the is pursued. 1-2-102, to be Section MCA. Where we can determine that the plain meaning statute, intent from of the may words used in go apply further and other means interpretation. Clarke v. (citation Massey (1995), 412, 416, 1088 omitted). outset,
At the is it clear that the first and third clauses referencing any provision violations of ofTitle 87 or of orders statute — or rules of the commission department only specifically and —refer game commonly may to what be called fish and violations. “Provisions this title” are statutes contained within Title entitled Fish and Wildlife, is comprehensive statutory body which of law enacted by legislature regulate fishing, to hunting trapping and in Mon- Likewise, tana. phrase “orders or rules of the commission or Wildlife, to department” Fish, refers orders or rules of the and Parks Department, or the statutorily charged Commission both ofwhich are regulating with matters relating to fish and wildlife under 87. Title See, 87-1-102, e.g., 87-1-101 and MCA. 87-1-102(1), MCA(1993),
The second clause of “any references § to pertaining game[,]” other state law and language this points one of the focal of the dispute presently before us. As noted above, pursue we must intent of a statute looking initially statutory plain meaning language. Clarke, at the 897 plain meaning, reasonably P.2d the search for we must logically interpret language, giving and that words their and usual ordinary meaning. Werre v. Mont. 913 David (citations omitted). P.2d “pertaining” commonly mean,
The word understood and as, defined reference to.” Webster’s Ninth “having Collegiate New (1988). Thus, 87-1-102(1), MCA(1993), Dictionary language § game” “any pertaining clearly other state law to fish and means that may specifically game other laws to fish and be referring found and, indeed, game in the MCA such other fish and laws do elsewhere 37, MCA, example, chapter For of Title addresses outfitters exist. therefore, pertaining statutes guides and contains other state legislature’s game. Nothing “pertaining use of to fish sentencing game” suggests charging an intent to authorize or offense under MCA. game-related a fish and violation conclude, therefore, plain language of these three initial legislature’s manifests the clauses of § (1993), encompass provide intent sentencing game for all fish and violations. course, those say, is not clauses —with addition
This immediately following them in 87- language of the “misdemeanor” (1993) 1-102(1), all fish and violations misde- —limit *6 felony goes charges on to authorize specifically The statute meanors. provided “expressly fish and violations where game and sentences for legislature expressly provided. so law,” and the has by MCA, felony it to 87-3-118, purposely is a offense or Under § to unlawfully purposely knowingly taken wildlife or or knowingly sell having $1,000. of more than unlawfully taken wildlife a value possess in imprisonment can result for of either of these offenses A conviction addition, both; $50,000, hunting, in years, up to a fine of to up privileges person license of a con- trapping permit and fishing and years, must be revoked for a minimum of 3 of these felonies victed 87-3-118, The lifetime revocation. Section MCA. a maximum with felony game as of part of these fish and offenses enactment in 1991 statutory program encompassing comprehensive legislature’s legislative indication express matters is a clear and of game and fish may subject be game-related fish and conduct regarding which intent legislature Had the intended author- felony charges in Montana. offenses, would have felony game it could and fish and ize additional body Thus, comprehensive a of so; it faced with such did not. done legislative such clear intent matters, and game on fish and law conduct to those game-related for fish and charges felony limit MCA, interpret 87-3-118, properly cannot in set forth expressly § by language in provided law” expressly if a “except (1993), additional or different 87-1-102(1), permit MCA § Title MCA. See under game-related fish and conduct charges for 1-2-102, MCA. 1-2-101 (1993), 87-1-102(1), requires which of MCA portion § The final “ex “misdemeanor” and language following is the attention our provided expressly punishment a language: “unless different cept” by for the law violation.” State contends this language charge, authorizes conviction and sentence for criminal mischief 45-6-101, MCA, punishment expressly provided as different § disagree. law for violation. We First, language be must read in the context of both the com- prehensive body statutory regulating law all of manner fish and game matters contained in Title 87 the language precedes which 87-1-102(1), (1993), it in MCA which we § have discussed above. The “felony” “unless” like language, language, refers specifically to game fish and violations and set laws as forth Title 87. In this (2)(a) (2)(f) regard, subsections through 87-1-102, (1993), MCA § provide punishments for certain misdemeanor game violations which differ from the general penalties misdemeanor (1993). provided 87-1-102(1), MCA § Moreover, 87-1-102(5), (1993), MCA expressly provides § also the penalties provided therein any penalties to be cumulative to chapter 87, chapter 4, Title and Title part 2. The 87-1-102(5), (1993), enactment of MCA which expressly references pertaining to game statutes which are outside the confines Title further reflects 87-1-102(1), intent that § MCA (1993), penalties limits the available for fish and violations. 87-1-109, MCA expressly provides
Section also for differ- ent punishment game-related for fish and pursuant conduct (1993). language 87-1-102(1), “unless” Under § any violation of Title 87 “is an purposes offense for of attempt, solicitation, crimes conspiracy set out in Title 4.” chapter Like specifically this statute refers out of Title 87. Importantly though, and unlike § *7 87-1-109, (1993), MCA fish § renders and game-related subject conduct to specific provisions of Title 45. Had legislature the charging punishment intended to authorize the and game-related of fish and other regards conduct in outside of Title criminal example, pursuant 87—for to the mischief statute —it could here; Instead, legislature and would have done so it did not. the expressly provided, parameters within the of the charg- Title for ing game-related pursuant only of fish conduct to three —but 45, namely three —statutes contained in Title 45-4-101 through 45-4-103, Thus, 87-1-109, MCA. the of enactment § an of legislative constitutes additional indication intent to limit penalties for those game-related fish conduct to contained or expressly provided for in Title 87. that, by plain MCA(1993), its language,
We conclude game-related for fish and conduct to those penalties limits concluded, go Having may apply for in Title 87. so further and interpretation legislative history. of such other means as See Clarke, passing, however, at 1088. do note in that the P.2d history Chapter felony of 1991 Mont. Laws in which the created, Depart- that game appears clarify offenses were to the felony charges game-related ment understood that for fish and conduct only parameters the brought could be within of Title 87. arguments opposition advances a number in
The State
initially
It
argues
conclusion we have reached.
Fertterer
addition,
authority
which
controlling
correct
that Fertterer
importance
fundamental
of stare
should be reaffirmed because
disagree
propositions.
rule of law. We
with both
decisis
investigation
large-scale poaching
on
of a
Based
an undercover
were
with numerous misdemeanor
operation,
charged
the Fertterers
felony
Title
pursuant
under
87 and
criminal mischief
game violations
MCA;
criminal
charges
premised
were
on
mischief
elk, deer,
killing
antelope
the Fertterers’ unlawful
a mountain
They
convicted of several Title 87 misdemeanors
and two
lion.
were
felony
Fertterer,
51 decision in argument or address State’s stare decisis the context clear, however, doing given analysis of so. It is our of § (1993), above, that allowing Fertterer to stand would result in apparently authority inconsistent lines of from a rationale perspec- tive, if the perspective analyzing precisely not from identical Thus, argument we turn statutes. State’s that Fertterer should importance be reaffirmed because of the of stare decisis. by, to, “[t]o
Stare decisis means
abide
or adhere
decided cases.”
(6th
1990).
Dictionary
Black’s
1406
It
Law
ed.
is of fundamental and
central
rule of
importance
law. Patterson v. McLean Credit
164, 172,
2363, 2370,
Union
491 U.S.
109 S.Ct.
105 L.Ed.2d
omitted).
(citation
132,
Indeed,
there is no question but that
“[v]ery weighty considerations underlie the principle that courts
past
should not lightly
Moragne
overrule
decisions.”
v. States Marine
403,
375,
1772,
Lines
U.S.
1789,
339,
S.Ct.
26 L.Ed.2d
held,
358.
in
regard,
Wehave
this
that
“stare decisis is fundamental
doctrine
reflects
stability,
which
our concerns for
predictability and
Formicove,
equal
Northern,
treatment.
...”
v. Burlington
Inc.
Inc.
673 P.2d
472.
sacrosanct, however,
Court decisions are not
and stare decisis
is “not a mechanical formula of
adherence
the latest
[.]”
decision
Patterson,
Indeed,
For the reasons dissent Fertterer more case, present however, set forth in the context of the we above holding provide conclude Fertterer that Title 87 does not remedy for manifestly the exclusive violations was portion is, therefore, That wrong. Fertterer overruled. herein, on our resolution of that issue need Based not address or *9 the in the holdings overrule Fertterer —or State’s and amicus curiae’s “public here —which relate to wild animals as arguments property” purview within the 45-6-101 and “property” MCA, respectively. argues, involving,
The State also and cites to numerous cases the the prosecutor rule in Montana that has discretion to long-standing to charge determine which offense when conduct violates more than statute, long differing require as as the offenses have one elements (1996), 94, See, e.g., Smaage State v. 276 915 proof. different Mont. Arlington (1994), 127, 165, 192, 194; P.2d State v. 265 Mont. 875 P.2d 290, 295-96, 307, 330; Brady (1991), 413, State v. 249 Mont. 816 P.2d (1978), 405, 416; State v. Booke 178 Mont. 408. It the applies out that this rule even when one of offenses is a points general application specifi of more than misdemeanor more cally addressing See, e.g., Smaage, 194-95; the 915 P.2d at conduct. Brady, 816 P.2d at prosecutorial general specific discretion and versus
The
cases
directly
here,
principles
appli
are
implicated
not
however. Those
are
charges
Here,
a matter of law.
cable where several
are available as
legislature
that
intended otherwise with
we have concluded
words,
In
enacting
to fish and
violations.
other
in
regard
(1993),
87-1-102(1),
legislature intended to
preclude
being charged
except
from
under Title
where
game violations
regard,
authorized in Title 87. In this
State’s citation
(1993),
Court
859
ex rel. Fletcher v. District
Mont.
State
case,
992, is,
part, appropriate.
in
that
addressed the
P.2d
county attorneys
but
authority
generally,
noted
responsibility
discretionary
“are not
powers
broad
without
prosecutor’s
P.2d at 995. We
that a
Fletcher,
prosecutor’s
observed
limit.”
“ ‘limited only by such
of a criminal action is
restrictions as
control
”
(citation omitted).
Fletcher,
By
P.2d at
imposes.’
the law
criminal mischief
our
above that
virtue of
conclusion
present
case
charge
precluded
legal
prosecu
rare
restrictions on
exceedingly
one of those
imposes
referenced
Fletcher.
generally
torial discretion
“directly
asserting
Smaage
correct in
Nor is
State
Smaage
present
case.
appeal”
to the
issue on
pertinent
central
endangerment
involved a criminal
charge and conviction in which an
appeal
issue on
was whether the defendant should have been charged
under the driving under the influence of alcohol statutes. Smaage,
To the extent Smaage has application present case, that application is limited to our focus on the question of legislative intent. Smaage While we concluded in there was no clear intent prohibit the use of the criminal endangerment statute in drinking situations, and driving we have concluded in this case that legislature clearly intended preclude charging Gatts with criminal mischief under Title 45. argues State also that State v. Duncan
593 P.2d
State v. Moore
570 P.2d
580, both of which involved an offense defined in the Crimes title of
the Montana statutes and an offense defined in
title,
another
man-
date a
prosecutorial
conclusion that
discretion controls even when
the
defining
statute
the less serious offense is contained in a compre-
body
particular subject.
hensive
of law on a
We disagree.
Duncan,
In
the State charged the defendant with four criminal
investigations by
offenses after
both the federal Securities Exchange
Office;
Commission and the state Auditor’s
two of the charged of-
fenses were set forth in the
title,
Crimes
and two were contained in
Regulation title,
the Securities
of the Revised Codes of Montana.
Duncan,
After
supported
sufficient evidence
the defen-
dant’s conviction of the offense of deceptive practices,
briefly
his
charged
addressed
contention that he should have been
with the
specific
practices
fraudulent securities
offense rather
gen-
than the
practices
deceptive
eral
offense contained in the
Dun
Crimes title.
can,
P.2d at
previously
1034. We observed that we
had declined
in criminal
the
apply
“specific
cases
controls over the
rule
general”
statutory
utilized
construction
in civil cases. We also
from
quoted
21, 30-31,
910, 915,
Lagerquist
State v.
Mont.
445 P.2d
legislature provides
the
that when the
proposition
for a course of
through
statute,
prosecution may
more than one
action
choose
Duncan,
applicable
Noting
either
law.
Duncan of whether Regulation under title precluded charge Securities title the Crimes defendant’s was neither nor in Duncan. for the acts raised addressed however, is the important, Lagerquist language, quoted Equally Duncan, prosecution charging has discretion when Duncan, charges provides for under several statutes. See legislature above, legislature at 1034. discussed has not so As Rather, provided has provided legislature in this that all case. prosecuted pursuant provisions violations be Thus, point. on 87. Duncan is not Title There, us. closely presently
Moore more
resembles the case
before
charged
felony deceptive practices
was
with
under the
the defendant
charged
Code and moved to dismiss on the basis that he was
Criminal
view,
statute; in the
he should have been
wrong
under the
defendant’s
Code.
with misdemeanor welfare fraud
the Welfare
charged
Moore,
P.2d at
The district court dismissed the information
appealed.
the State
specific
and concluded that the
first addressed the two statutes
preclude
for the acts under
prosecution
Code offense did
Welfare
Code,
supported
Criminal
facts
general
the more
statute;
so,
previous
we relied on our
doing
under either
charge
statutory
rule of
construc-
general
versus
apply
specific
refusal to
Moore,
P.2d at
Lagerquist.
and on
in the criminal context
tion
prose-
Lagerquist permitted
particular,
we observed
582-84.
*11
a clear and manifest
either
statute absent
applicable
cution “under
contrary.” Moore,
utes at issue in Moore. for the Welfare specific authority Code at issue in Moore vested no law enforcement therein, department public any in the welfare created or in of its employees, department justice and did not render the a criminal Moreover, agency purpose. for the Welfare Code defined only one misdemeanor offense—the one at issue in Moore—and only general penalty otherwise contained making any statute knowing violation of the Code a Furthermore, misdemeanor. unlike case, at issue in the penalty present general penalty statute statute in the Moore Welfare Code did not contain language other bringing all welfare-related violations within its purview. For these reasons, appropriate it was for us to conclude in Moore that neither general penalty the Welfare Code nor the statute contained therein legislative preempt application evidenced intent to of statutes in the above, As Criminal Code. discussed detail Title 87 does evidence a intent occupy regarding the field viola- and, therefore, preclude charges Therefore, tions under Title 45. inapposite Moore is here. concluding hold that the District Court erred in 87-1-
102(1), preclude charging did not Gatts with the offense basis, criminal mischief under MCA. On that that the its in denying further hold District Court abused discretion charge. motion to dismiss that Gatts’ entry vacating remanded of an order Reversed and Gatts’ mischief and dismissing of the offense of conviction light for reconsideration of Gatts’ sentence in of that charge, dismissal.
56 NELSON, and TRIEWEILER concur. HUNT
JUSTICES LEAPHART, dissenting. JUSTICE 87-1-102(1), MCA(1993), provides The Court holds that §
I dissent.
any
Title 87 or of
for violation of
punishment
the exclusive
I fail to see a clear and manifest
in the State of Montana.
game laws
87-1-102(1), MCA,
language
intent
that Title 87 or the
person
states that a
who
remedies. The statute
sets forth exclusive
any
relating
game
guilty
other law
to fish and
is
Title 87 or
violates
punishment
expressly pro
a different
a
unless
of misdemeanor
can violate
It is axiomatic that conduct
by law for the violation.
vided
Code. A declaration
or title to the Montana
more than one statute
laws,
game
it is
conduct violates
that,
the extent such
saying that such conduct cannot
misdemeanor,
is not the same as
a
criminal
Title 45. Unless
statutes
a violation of
also constitute
contrary, the
legislative intent
manifestation of
there is a clear
Lager
statute. State v.
charge
applicable
under either
can
prosecutor
910, 915;
Evans
21, 31, 445
State v.
(1968), 152 Mont.
P.2d
quist
842,
prosecutor
has
303, 306, 456 P.2d
844.
(1969), 153 Mont.
more
the conduct violates
charge
determine the
when
discretion to
differing elements. This
as the statutes have
long
statute as
than one
general
a
of more
of the statutes is
even when one
applies
rule
more specifically
statute which
than a misdemeanor
application
part
statute is
if the misdemeanor
the conduct and even
addresses
subject. State v.
particular
on the
body of law
comprehensive
a
1026,
382, 395-96, 593 P.2d
Mont.
Duncan
(Motor Vehicles), like Title
though Title 61
By way
analogy, even
(Fish
that “it is a misde-
Wildlife),
provides
comprehensively
&
chapter
of this
provisions
to violate
person
for a
meanor
MCA,
felony,”
is declared to be
the violation
unless
in Title 61 are not
the traffic code
provisions
misdemeanor
the elements
driving if the conduct satisfies
remedy for drunk
exclusive
homicide, 45-5-104, MCA, for
felony crime, negligent
of a more serious
455,
I nothing 87-1-102, MCA, see in § which states that the penalties “only” Title 87 are the penalties allowed for such conduct they are “exclusive” of all other I titles. would reaffirm our holding in State v. Fertterer provide
Title 87 does not remedy the exclusive for conduct which constitutes both a fish violation and a violation of the code, Title 45. best,
At Title 87 is aimed at controlling the hunting game. of wild *13 The defendants here were not “hunting.” They were engaged in a calculated slaughter of bears. months, Over two and half the defen- bears, dants baited chased them with equipped hounds with radio collars, purposely provide wounded bears to sport for the dogs, and bears, killed smaller cut their open bellies and used their carcasses as bait for other bears. clearly This conduct is more egregious than simply “unlawfully taking, killing, possessing, or transporting a ... black bear ...” under Title 87. Section 87-l-102(2)(a), MCA. The slaughter four clearly least black bears exceeds the scope defined offense in Title 87. conclusion, plain language MCA, does
purport to be exclusive. Secondly, I fail to see the clear and manifest legislative intent to have Title 87 completely “occupy the field.” The provisions misdemeanor of Title 87 should no more be the exclusive remedy this senseless baiting slaughter of wild animals than it would be if someone were to mow down a herd of antelope with a machine gun.
CHIEF JUSTICE ERDMANN, TURNAGE and JUSTICE join in the foregoing dissent.