NO. 95-402

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

WILLIAM E. "BILL" GATTS,

Defendant and Appellant

APPEAL FROM: District Court of the Fifth Judicial District,

In and for the County of Jefferson,

The Honorable Frank M. Davis, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Palmer Hoovestal, Attorney at Law, Helena,

Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Paul D. Johnson, Ass't Attorney General,

Helena, Montana

Valerie Wilson, Jefferson County Attorney,

Deborah Butler, Deputy Jefferson County Attorney,

Boulder, Montana

For Amicus Curiae:

John M. Morrison; Meloy & Morrison, Helena,

Montana (for Richard and David Fertterer)

'y&

Submitted on Briefs: April 11, 1996

Clerk
Justice Karla M. Gray delivered the Opinion of the Court.

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-l-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

2
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 5 87-3-101(3), MCA; possession of parts of

unlawfully killed bear, in violation of § 87-3-112(Z), MCA; and

failure to report harvest of black bear, in violation of § 87-l304, 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-z-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-l-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

3
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-l-102(1), MCA (19931, 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-l-102(1), MCA (1993). We review a trial

court's denial of a motion to dismiss for abuse of discretion.

State v. Fuller (Mont. 1996), 915 P.2d 809, 811, 53 St.Rep. 325,

326 (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 5 87-l-102(1), MCA (19931, 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

4
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.s., §§ 87-2-103, 87-4-407, 87-l703 and 87-l-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-l-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-l-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. . .'I Section 87-l201(l), 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-l-104, MCA. These provisions, while not necessarily

5
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-l-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-l-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-l-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-l-102(1), MCA

(1993) I the proper interpretation of which is at issue in the

present case. There is no question but that § 87-l-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 5 45-6-101, MCA. We conclude that it does.

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

A person who purposely or knowingly violates any

provision of this title, anv other state law uertaininq

to fish and qame, or the orders or rules of the [fish,

wildlife, and parks] commission or department is guilty

6
of a misdemeanor, exceut if a felony is exwresslv

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 exoresslv 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 l-2-101, MCA. The intention of

the legislature is to be pursued. Section l-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 law enacted by the legislature to

regulate fishing, hunting and trapping in Montana. Likewise, the

phrase "orders or rules of the commission or department" refers to

orders or rules of the Fish, Wildlife, and Parks Commission or the

Department, both of which are statutorily charged with regulating

matters relating to fish and wildlife under Title 87. a, e.q.,

§§ 87-l-101 and 87-l-102, MCA.

The second clause of § 87-l-102(1), MCA (1993), references

7
"any other state law pertaining to fish and game[,]" and this

language is one of the focal points of the dispute presently before

us. As noted above, we must pursue the legislative intent of a

statute by looking initially at the plain meaning of the statutory

language. Clarke, 897 P.2d at 1088. In the search for plain

meaning, we must reasonably and logically interpret that language,

giving words their usual and ordinary meaning. Werre v. David

(1996), 275 Mont. 376, 385, 913 P.2d 625, 631 (citations omitted).

The word "pertaining" is commonly understood to mean, and

defined as, "having reference to." Webster's Ninth New Collegiate

Dictionary 878 (1988). Thus, the 5 87-l-102(1), MCA (1993),

language "any other state law pertaining to fish and game" clearly

means that other laws specifically referring to fish and game may

be found elsewhere in the MCA and, indeed, such other fish and game

laws do exist. For example, chapter 47 of Title 37, MCA, addresses

outfitters and guides and, therefore, contains other state statutes

pertaininq m fish and game. Nothing in the legislature's use of

"pertaining to fish and game" suggests an intent to authorize

charging and sentencing a fish and game-related violation or

offense under § 45-6-101, MCA. We conclude, therefore, that the

plain language of these three initial clauses of § 87-l-102(1), MCA

(1993), manifests the legislature's intent that § 87-l-102(1), MCA

(1993), encompass and provide the sentencing for all fish and game

violations.

This is not to say, of course, that those clauses--with the

addition of the "misdemeanor" language immediately following them

8
in § 87-l-102(1), MCA (1993) --limit all fish and game violations to

misdemeanors. The statute specifically goes on to authorize felony

charges and sentences for fish and game violations where "expressly

provided by law," and the legislature has expressly so provided.

Under § 87-3-118, MCA, it is a felony offense to purposely or

knowingly sell unlawfully taken wildlife or to purposely or

knowingly possess unlawfully taken wildlife having a value of more

than $1,000. A conviction of either of these offenses can result

in imprisonment for up to 5 years, a fine of up to $50,000, or

both; in addition, the hunting, fishing and trapping permit and

license privileges of a person convicted of these felonies must be

revoked for a minimum of 3 years, with a maximum lifetime

revocation. Section 87-3-118, MCA. The enactment in 1991 of these

felony fish and game offenses as part of the legislature's

comprehensive statutory program encompassing fish and game matters

is a clear and express indication of legislative intent regarding

which fish and game-related conduct may be subject to felony

charges in Montana. Had the legislature intended to authorize

additional felony fish and game offenses, it could and would have

done so; it did not. Thus, faced with such a comprehensive body of

law on fish and game matters, and such clear legislative intent to

limit felony charges for fish and game-related conduct to those

expressly set forth in 5 87-3-118, MCA, we cannot properly

interpret the "except if a felony is expressly provided by law"

language in § 87-l-102(1), MCA (1993), to permit additional or

different felony charges for fish and game-related conduct under

9
Title 45, MCA. See 5s l-2-101 and l-2-102, MCA.

The final portion of 5 87-l-102(1), MCA (1993), which requires

our attention is the language following the "misdemeanor" and

"except" language: "unless a different punishment is expressly

provided by law for the violation." The State contends that this

language authorizes a charge, conviction and sentence for criminal

mischief under § 45-6-101, MCA, as different punishment expressly

provided by law for the violation. We disagree.

First, the language must be read in the context of both the

comprehensive body of statutory law regulating all manner of fish

and game matters contained in Title 87 and the language which

precedes it in § 87-l-102(1), MCA (1993), which we have discussed

above. The "unless" language, like the "felony" language, refers

specifically to fish and game violations and laws as set forth in

Title 87. In this regard, subsections (2) (a) through (2) (f) of 5

87-l-102, MCA (1993), expressly provide punishments for certain

misdemeanor fish and game violations which differ from the general

misdemeanor penalties provided in § 87-l-102(1), MCA (1993)

Moreover, § 87-l-102(5), MCA (1993), also expressly provides

for the penalties provided therein to be cumulative to any

penalties provided in Title 37, chapter 47, and Title 87, chapter

4 , part 2. The enactment of 5 87-l-102(5), MCA (1993), which

expressly references statutes pertaining to fish and game which are

outside the confines of Title 87, further reflects legislative

intent that § 87-l-102(1), MCA (1993), limits the penalties

available for fish and game violations.

10
Section 87-l-109, MCA (1993), also expressly provides for a

different punishment for fish and game-related conduct pursuant to

the "unless" language of 5 87-l-102(1), MCA (1993). Under § 87-l109, MCA (1993), any violation of Title 87 "is an offense for

purposes of the crimes of attempt, solicitation, and conspiracy set

out in Title 45, chapter 4." Like § 87-l-102(5), MCA (1993), this

statute specifically refers out of Title 87. Importantly though,

and unlike § 87-l-102(5), MCA (1993), § 87-l-109, MCA (1993),

expressly renders fish and game-related conduct subject to specific

provisions of Title 45. Had the legislature intended to authorize

the charging and punishment of fish and game-related conduct in

other regards outside of Title 87--for example, pursuant to the

criminal mischief statute--it could and would have done so here; it

did not. Instead, the legislature expressly provided, within the

parameters of Title 87, for the charging of fish and game-related

conduct pursuant to three--but only three--statutes contained in

Title 45, namely §§ 45-4-101 through 45-4-103, MCA. Thus, the

enactment of § 87-l-109, MCA (1993), constitutes an additional

indication of legislative intent to limit penalties for fish and

game-related conduct to those contained or expressly provided for

in Title 87.

We conclude that, by its plain language, § 87-l-102(1), MCA

(1993), limits penalties for fish and game-related conduct to those

provided for in Title 87. Having so concluded, we may not go

further and apply any other means of interpretation such as

legislative history. See Clarke, 897 P.2d at 1088. We do note in

11
passing, however, that the legislative history of 1991 Mont. LOWS

Chapter 329, in which the felony fish and game offenses were

created, appears to clarify that the Department understood that

felony charges for fish and game-related conduct could be brought

only within the parameters of Title 87.

The State advances a number of arguments in opposition to the

conclusion we have reached. It argues initially that Fertterer is

correct and, in addition, that Fertterer is controlling authority

which should be reaffirmed because of the fundamental importance of

stare decisis to the rule of law. We disagree with both

propositions.

Based on an undercover investigation of a large-scale poaching

operation, the Fertterers were charged with numerous misdemeanor

game violations under Title 87 and felony criminal mischief

pursuant to 5 45-6-101, MCA; the criminal mischief charges were

premised on the Fertterers' unlawful killing of elk, deer, antelope

and a mountain lion. They were convicted of several Title 87

misdemeanors and two counts of felony criminal mischief.

Fertterer, 841 P.2d at 468-69.

The Fertterers raised a number of issues on appeal. Among

other things, they argued that 5 87-l-102(1), MCA (1989), precluded

the felony criminal mischief charge under Title 45. They also

contended that wild animals are not property or public property in

Montana for purposes of the criminal mischief charge. Fertterer,

841 P.2d at 469.

Insofar as it is relevant to the case presently before us,

12
this Court split by a four to three vote on the issue of whether

the 1989 version of Title 87, MCA, provided the exclusive remedy

for the illegal taking of game, with the majority holding that it

did not. Fertterer, 841 P.2d at 472. The statutory analysis

advanced by the dissent produced the opposite conclusion: that,

under the statutes in effect at the time, it was improper to charge

the Fertterers with what the Court agreed were felony fish and game

violations. Fertterer, 841 P.2d at 475 (Gray, J., dissenting).

That conclusion, in the view of the dissent, was significantly

buttressed by the 1991 legislature's amendments to Title 87.

Fertterer, 841 P.2d at 475-76 (Gray, J., dissenting).

The 1991 amendments were not before us in Fertterer, but are

before us in this case which arises under the 1993 version of Title

87. Therefore, Fertterer may not be entirely on point and it may

be unnecessary, from a purely technical standpoint, to overrule

that decision or address the State's stare decisis argument in the

context of doing so. It is clear, however, given our analysis of

5 87-l-102(1), MCA (1993), above, that allowing Fertterer to stand

would result in apparently inconsistent lines of authority from a

rationale perspective, if not from the perspective of analyzing

precisely identical statutes. Thus, we turn to the State's

argument that Fertterer should be reaffirmed because of the

importance of stare decisis.

Stare decisis means "Itlo abide by, or adhere to, decided

cases." Black's Law Dictionary 1406 (6th ed. 1990). It is of

fundamental and central importance to the rule of law. Patterson

13
v. McLean Credit Union (19891, 491 U.S. 164, 172, 109 S.Ct. 2363,

2370, 105 L.Ed.2d 132, 147 (citation omitted). Indeed, there is no

question but that "[vlery weighty considerations underlie the

principle that courts should not lightly overrule past decisions."

Moragne v. States Marine Lines (1970), 398 U.S. 375, 403, 90 S.Ct.

1772, 1789, 26 L.Ed.2d 339, 358. We have held, in this regard,

that "stare decisis is a fundamental doctrine which reflects our

concerns for stability, predictability and equal treatment. .I'

Formicove, Inc. v. BurlingtonNorthern, Inc. (1983), 207 Mont. 189,

194, 6'73 P.2d 469, 472.

Court decisions are not sacrosanct, however, and stare decisis

is "not a mechanical formula of adherence to the latest

decision[.l" Patterson, 491 U.S. at 172. Indeed, we have held

that stare decisis does not require us to follow a manifestly wrong

decision. Formicove, 673 P.2d at 472. While the State concedes

this point, it urges us to follow United States Supreme Court

authority and determine that the burden on a party urging a

departure from stare decisis is particularly heavy "where the Court

is asked to overrule a point of statutory construction." See

Patterson, 491 U.S. at 172.

We decline to do so. First, we observe that our holding in

Formicove--that we are not bound to follow a manifestly wrong

decision--was made in the context of a statutory construction case.

See Formicove, 673 P.2d at 472. More importantly, however, the

doctrine's strength is not dependent on the creation of artificial

differences in burdens of proof or persuasion. Rather, it depends

14
on appellate courts' continued recognition of, and commitment to,

the importance of stare decisis in a society governed by the rule

of law. Our commitment to the doctrine, and to the concerns on

which it is grounded, continues unabated.

For the reasons expressed by the dissent in Fertterer and more

fully set forth above in the context of the present case, however,

we conclude that the holding in Fertterer that Title 87 does not

provide the exclusive remedy for fish and game violations was

manifestly wrong. That portion of Fertterer is, therefore,

expressly overruled. Based on our resolution of that issue herein,

we need not address or overrule the holdings in Fertterer-or the

State's and amicus curiae's arguments here--which relate to wild

animals as "public property" and "property" within the purview of

§§ 45-6-101 and 45-2-101, MCA, respectively.

The State also argues, and cites to numerous cases involving,

the long-standing rule in Montana that the prosecutor has

discretion to determine which offense to charge when conduct

violates more than one statute, as long as the offenses have

differing elements or require different proof. a, e.s., State v.

Smaage (Mont. 1996), 915 P.2d 192, 194, 53 St.Rep. 294, 295; State

v. Arlington (19941, 265 Mont. 127, 165, 875 P.2d 307, 330; State

v. Brady (1991), 249 Mont. 290, 295-96, 816 P.2d 413, 416; State v.

Booke (19781, 178 Mont. 225, 230, 583 P.2d 405, 408. It points out

that this rule applies even when one of the offenses is a felony of

more general application than a misdemeanor more specifically

addressing the conduct. See, e.s., Smaase, 915 P.2d at 194-95;

15
Bradv, 816 P.2d at 416.

The prosecutorial discretion and general versus specific cases

are not directly implicated here, however. Those principles are

applicable where several charges are available as a matter of law.

Here, we have concluded that the legislature intended otherwise

with regard to fish and game violations. In other words, in

enacting § 87-l-102(1), MCA (1993), the legislature intended to

preclude fish and game violations from being charged under Title

45, except where expressly authorized in Title 87. In this regard,

the State's citation to State ex rel. Fletcher v. District Court

(1993), 260 Mont. 410, 859 P.2d 992, is, in part, appropriate. In

that case, we addressed the authority and responsibility of county

attorneys generally, but noted that a prosecutor's broad

discretionary powers "are not without limit." Fletcher, 859 P.2d

at 995. We observed that a prosecutor's control of a criminal

action is "'limited only by such restrictions as the law imposes."'

Fletcher, 859 P.2d at 995 (citation omitted). By virtue of our

conclusion above that the felony criminal mischief charge is

precluded by 5 87-l-102(1), MCA (1993), the present case imposes

one of those exceedingly rare legal restrictions on prosecutorial

discretion generally referenced in Fletcher.

Nor is the State correct in asserting that Smaaqe is "directly

pertinent to the central issue on appeal" in the present case.

Smaaqe involved a criminal endangerment charge and conviction in

which an issue on appeal was whether the defendant should have been

charged under the driving under the influence of alcohol statutes.

16
Smaaqe, 915 P.2d at 193. We focused on the principles governing

alternative charging statutes, observing that when no clear and

manifest legislative intent to the contrary exists and different

proof is required under alternative statutes, the more specific

statutory violation need not be charged. Smaaqe, 915 P.2d at 194.

We examined the legislative history of the criminal endangerment

statute and determined that it indicated no clear and manifest

legislative intent to prohibit the use of the criminal endangerment

statute in drinking and driving situations. Smaaqe, 915 P.2d at

194.

To the extent Smaase has any application to the present case,

that application is limited to our focus on the question of

legislative intent. While we concluded in Smaaqe that there was no

clear intent to prohibit the use of the criminal endangerment

statute in drinking and driving situations, we have concluded in

this case that the legislature clearly intended § 87-l-102(1), MCA

(19931, to preclude charging Gatts with criminal mischief under

Title 45.

The State also argues that State v. Duncan (1979), 181 Mont.

382, 593 P.2d 1026, and State v. Moore (1977), 174 Mont. 292, 570

P.2d 580, both of which involved an offense defined in the Crimes

title of the Montana statutes and an offense defined in another

title, mandate a conclusion that prosecutorial discretion controls

even when the statute defining the less serious offense is

contained in a comprehensive body of law on a particular subject.

We disagree.

17
In Duncan, the State charged the defendant with four criminal

offenses after investigations by both the federal Securities

Exchange Commission and the state Auditor's Office; two of the

charged offenses were set forth in the Crimes title, and two were

contained in the Securities Regulation title, of the Revised Codes

of Montana. Duncan, 593 P.2d at 1028-29. The defendant moved to

dismiss. The district court dismissed one of the charges in the

Crimes title before trial and, after convicting the defendant of

deceptive practices in violation of 5 94-6-307, RCM (1947),

dismissed the charge of fraudulent securities practices as defined

in § 15-2005(l), RCM (1947). Duncan, 593 P.2d at 1029. The

defendant appealed.

After concluding that sufficient evidence supported the

defendant's conviction of the offense of deceptive practices, we

briefly addressed his contention that he should have been charged

with the specific fraudulent securities practices offense rather

than the general deceptive practices offense contained in the

Crimes title. Duncan, 593 P.2d at 1034. We observed that we

previously had declined to apply in criminal cases the "specific

controls over the general" rule of statutory construction utilized

in civil cases. We also quoted from State v. Lagerquist (1968),

152 Mont. 21, 30-31, 445 P.2d 910, 915, for the proposition that

when the legislature provides for a course of action through more

than one statute, the prosecution may choose either applicable law.

Duncan, 593 P.2d at 1034. Noting that the specific securities

offense had, indeed, been charged and later dismissed by the

18
district court after conviction on the deceptive practices charge,

we concluded that the defendant had been properly charged and

convicted. Duncan, 593 P.2d at 1034.

Duncan is inapplicable here. First, the question of whether

the Securities Regulation title precluded a charge under the Crimes

title for the defendant's acts was neither raised nor addressed in

Duncan. Equally important, however, is the Laserauist language,

quoted in Duncan, that the prosecution has charging discretion when

the legislature provides for charges under several statutes. See

Duncan, 593 P.2d at 1034. As discussed above, the legislature has

not so provided in this case. Rather, the legislature has provided

that all fish and game violations be prosecuted pursuant to the

provisions of Title 87. Thus, Duncan is not on point.

Moore more closely resembles the case presently before us.

There, the defendant was charged with felony deceptive practices

under the Criminal Code and moved to dismiss on the basis that he

was charged under the wrong statute; in the defendant's view, he

should have been charged with misdemeanor welfare fraud under the

Welfare Code. Moore, 570 P.2d at 582. The district court

dismissed the information and the State appealed.

We first addressed the two statutes and concluded that the

specific Welfare Code offense did not preclude prosecution for the

acts under the more general Criminal Code, provided the facts

supported a charge under either statute; in doing so, we relied on

our previous refusal to apply the specific versus general rule of

statutory construction in the criminal context and on Laserauist.

19
Moore, 570 P.2d at 582-84. In particular, we observed that

Laseruuist permitted prosecution "under either applicable statute

absent a clear and manifest legislative intent to the contrary."

Moore, 570 P.2d at 584.

W e then addressed, in one paragraph, the defendant's

contention that Laqerauist was distinguishable because the

comprehensive nature of the Welfare Code indicated a legislative

intent to preempt the entire field of welfare fraud to the

exclusion of statutes contained in the Criminal Code. Moore, 570

P.2d at 585. We observed that the misdemeanor statute at issue--

and, indeed, the entirety of the Welfare Code--covered only one

species of welfare fraud and did not encompass such welfare-related

offenses as embezzlement of welfare funds or forgery of welfare

warrants. Moore, 570 P.2d at 585. On that basis, we did not

perceive a legislative intent to preempt Criminal Code statutes by

enactment of the Welfare Code. Moore -I 570 P.2d at 585.

Thus, the State is correct in contending here that, in Moore,

w e rejected the defendant's contention that the Welfare Code

constituted a comprehensive body of law which precluded application

of Criminal Code statutes. However, Title 87 in its entirety and

§ 87-l-102(1), MCA (1993), in particular, differ markedly from the

titles and statutes at issue in Moore. Among other things, for

example, the Welfare Code at issue in Moore vested no specific law

enforcement authority in the department of public welfare created

therein, or in any of its employees, and did not render the

department a criminal justice agency for any purpose. Moreover,

20
the Welfare Code expressly defined only one misdemeanor offense--

the one at issue in Moore--and otherwise contained only a general

penalty statute making any knowing violation of the Code a

misdemeanor. Furthermore, unlike the penalty statute at issue in

the present case, the general penalty statute in the Moore Welfare

Code did not contain other language bringing all welfare-related

violations within its purview. For these reasons, it was

appropriate for us to conclude in Moore that neither the Welfare

Code nor the general penalty statute contained therein evidenced

legislative intent to preempt application oft statutes in the

Criminal Code. As discussed in detail above, Title 87 does

evidence a legislative intent to occupy the field regarding fish

and game violations and, therefore, to preclude charges under Title

45. Therefore, Moore is inapposite here.

We hold that the District Court erred in concluding that § 87-

1-102(1), MCA (1993), did not preclude charging Gatts with the

offense of felony criminal mischief under § 45-6-101, MCA. On that

basis, we further hold that the District Court abused its

discretion in denying Gatts' motion to dismiss that charge.

Reversed and remanded for entry of an order vacating Gatts'

conviction of the offense of felony criminal mischief and

dismissing that charge, and for reconsideration of Gatts' sentence

in light of that dismissal.
we concur:

Chief Justice

Justices

22
Justice W. William Leaphart, dissenting

I dissent. The Court holds that § 87-l-102(1), MCA (1993),

provides the exclusive punishment for violation of Title 87 or of

any fish and game laws in the State of Montana. I fail to see a

clear and manifest legislative intent that Title 87 or the language

of § 87-l-102(1), MCA, sets forth exclusive remedies. The statute

states that a person who violates Title 87 or any other law

relating to fish and game is guilty of a misdemeanor unless a

different punishment is expressly provided by law for the

violation. It is axiomatic that conduct can violate more than one

statute or title to the Montana Code. A declaration that, to the

extent such conduct violates the fish and game laws, it is a

misdemeanor, is not the same as saying that such conduct cannot

also constitute a violation of criminal statutes in Title 45.

Unless there is a clear manifestation of legislative intent to the

contrary, the prosecutor can charge under either applicable

statute. State v. Lagerquist (1968), 152 Mont. 21, 31, 445 P.2d

910, 915; State v. Evans (19691, 153 Mont. 303, 306, 456 P.2d 842,

844. The prosecutor has discretion to determine the charge when

the conduct violates more than one statute as long as the statutes

have differing elements. This rule applies even when one of the

statutes is a felony of more general application than a misdemeanor

statute which more specifically addresses the conduct and even if

the misdemeanor statute is part of a comprehensive body of law on

the particular subject. State v. Duncan (1979), 181 Mont. 382,

395-96, 593 P.2d 1026, 1034.

23
By way of analogy, even though Title 61 (Motor Vehicles), like

Title 87 (Fish & Wildlife), comprehensively provides that "it is a

misdemeanor for a person to violate any of the provisions of this

chapter unless the violation is declared to be a felony," § 61-8-

711, MCA, the misdemeanor provisions of the traffic code in Title

61 are not the exclusive remedy for drunk driving if the conduct

satisfies the elements of a more serious felony crime, negligent

homicide, § 45-5-104, MCA, for example. See State v. Gould (1985),

216 Mont. 455, 704 P.2d 20.

In State v. Smaage (Mont. 1996), 915 P.2d 192, 53 St.Rep. 294,

we affirmed Smaage's conviction for criminal endangerment for

driving recklessly down the streets of Helena while his blood

alcohol content was .250. We rejected his argument that he should

have been charged under the more specific DUI statutes of Title 61

rather than the more general criminal endangerment statute. Most

recently in State v. Bell (Mont. 1996), 923 P.2d 524, 53 St.Rep.

792, we held that when a person drives down a city street at speeds

of up to 80 mph in the middle of the morning, he is guilty of more

than just misdemeanor reckless driving under Title 61; he can be

charged with and found guilty of felony criminal endangerment under

Title 45, MCA.

I see nothing in 5 87-l-102, MCA, which states that the

penalties provided in Title 87 are the "only" penalties allowed for

such conduct or that they are "exclusive" of all other titles. I

would reaffirm our holding in State v. Fertterer (1992), 255 Mont.

73, 841 P.2d 467, that Title 87 does not provide the exclusive

remedy for conduct which constitutes both a fish and game violation

24
and a violation of the criminal code, Title 45.

At best, Title 87 is aimed at controlling the hunting of wild

game. The defendants here were not "hunting." They were engaged

in a calculated slaughter of bears. Over two and half months, the

defendants baited bears, chased them with hounds equipped with

radio collars, purposely wounded bears to provide sport for the

dogs, and killed smaller bears, cut their bellies open and used

their carcasses as bait for other bears. This conduct is clearly

more egregious than simply "unlawfully taking, killing, possessing,

or transporting a . black bear .'I under Title 87. Section

87-l-102(2) (a), MCA. The slaughter of at least four black bears

clearly exceeds the scope of any defined offense in Title 87.

In conclusion, the plain language of § 87-1-102(l), MCA, does

not purport to be exclusive. Secondly, I fail to see the clear and

manifest legislative intent to have Title 87 completely "occupy the

field." The misdemeanor provisions of Title 87 should no more be

the exclusive remedy for this senseless baiting and slaughter of

wild animals than it would be if someone were to mow down a herd of

antelope with a machine gun.

Chief Justice J. A. Turnage and Justice Charles E. Erdmann, join in

the foregoing dissent.

Chief Justice

Justice

25