NO. 93-141

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

THE STATE OF MONTANA,

Plaintiff

V .

ROD JOHNSTON,

Defendant

and Respondent,

and Appellant.

APPEAL FROM: District Court of the Sixth Judicial District,

In and for the County of Park,

The Honorable Byron L. Robb, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Karl Knuchel, Attorney at Law,

Livingston, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General:

George Schunk, Assistant Attorney General,

Helena, Montana

Wm. Nels Swandal, Park County Attorney,

Livingston, Montana

Filed:

Submitted on Briefs: October 21, 1993

Decided: January 12, 1994
Justice William E. Hunt, Sr., delivered the opinion of the Court.

Appellant, Rod Johnston, appeals from a judgment of the Sixth

Judicial District Court, Park County, finding him guilty of

shooting and taking a bull elk near Gardiner, Montana, before the

morning legal shooting time during hunting season.

We affirm.

Appellant raises the following issue on appeal:

Did the Department of Fish, Wildlife, and Parks' (Department)

regulations promulgated under 5 87-l-201, MCA, regarding legal

shooting times during big game hunting season, violate appellant's

due process rights, or in the alternative did his conviction result

from a violation of the rules of statutory construction?

On November 22, 1991, appellant was a licensed hunter, hunting

near Gardiner, Park County, Montana. Appellant acknowledges that

at 7:02 a.m. on that day, he shot and captured a six-point bull

elk. Soon thereafter, a warden cited appellant for violation of

5 87-l-102, MCA (1991), a misdemeanor, for taking a big game animal

prior to the legal shooting time. The warden then confiscated the

bull elk and sold it through a Fish and Game auction in Bozeman,

Montana.

Appellant was convicted by jury verdict in the Park County

Justice Court, and sentenced to a fine of $50, surcharge of $15,

and court costs of $100. He appealed to the Sixth Judicial

District Court, Park County, which set a trial de novo by jury.

However, upon stipulation by the parties, the District Court heard

the case after the parties stipulated to the findings of fact. The

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court found appellant guilty of shooting and taking a bull elk

before the legal shooting time, in violation of 5 87-l-102, MCA

(1991). The court sentenced him to a minimum statutory fine of

$300, a surcharge of $15, and court costs of $100, the imposition

of which the court stayed pending this appeal.

Did the Department's regulations promulgated under g 87-l-201,

MCA, regarding the legal shooting time during big game hunting

season, violate appellant's due process rights, or in the

alternative did his conviction result from a violation of the rules

of statutory construction?

The Department is granted broad statutory powers to supervise

Montana's fish, wildlife, and parks. see § 87-l-201(1), MCA.

Operating under legislative delegation of rulemaking authority (see

5 87-l-201(7), WA), the Department, through their Commission, has

established hunting hours for big game animals:

Authorized hunting hours for the taking of big game

animals begins one-half hour before sunrise and ends

one-half hour after sunset each day of the hunting

season. See official sunrise-sunset table on page 46 of

these regulations.

Big Game Hunting Regulations Montana (1991) at 3 (adopted by

administrative order on March 7, 1991). Additionally, the

Commission adopted administrative rules regarding the timetable as

follows:

12.6.401 TIME ZONES (1) The following time zone

descriptions and sunrise-sunset hour schedules are

official times for the zones designated for the purpose

of setting daily open and closed seasons. The time is

mountain standard and during periods of daylight savings

time add 1 hour (see following 4 pages).

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(2) An abbreviated version of these tables may be printed

on the big game maps and may be utilized by hunters

during big game seasons. The complete table will be

available at all regional offices and at the Helena

headquarters.

This rule and the accompanying time zone tables are published in

the Administrative Rules of Montana. The sunrise time set out in

the table for November 22, 1991, relevant to hunting big game in

Park County is 7:41 a.m. Therefore, according to the regulations,

the earliest a hunter could have begun shooting on that date was

one-half hour before 7~41 a.m., or 7:11 a.m.

Appellant argues that the hunting hour regulations established

by the Department are confusing, internally inconsistent, ambiguous

and vague, and factually erroneous requiring dismissal of the

charges against him for failure to protect his right to due

process. Although appellant's argument is inventive, we do not

agree.

Appellant argues that the regulations confuse hunters. He

argues that the Big Game Hunting Regulations, distributed to

licensed big game hunters by the Department, state that hunting

hours begin "one-half (l/2) hour before sunrise," and then proceed

to cross-reference the Administrative Rules of Montana's timetable,

which he argues, states the "actual sunrise" times. According to

appellant, these two references are inconsistent by definition and

thus confusing. The two references in the regulations are not

inconsistent, but rather, one reference is more general, and

cross-references the other more specific reference--the timetables.

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Further, appellant argues that the term "sunrise" is ambiguous

and vague, and should mean "actual sunrise" as calculated by the

United States Naval Observatory, rather than as set out in the

sunrise-sunset timetables by the Department. The Naval Observatory

calculated sunrise in Park County on November 22, 1991, at 7:31

a.m. However, nowhere in his brief does appellant assert that on

November 22, 1991, he had relied on Naval Observatory sunrise time,

or the Yellowstone National Park informational radio station which,

he claims, relies on the Naval Observatory time, when he shot the

bull elk at 7:Ol a.m.

We have held that a statute violates due process for vagueness

when the language used does not sufficiently define the required

conduct and persons of common intelligence must necessarily guess

at its meaning. Pierson v. State (1980), 188 Mont. 522, 526, 614

P.2d 1020, 1023. We agree here with the District Court that:

[Tlhere is no ambiguity in the regulations by Fish and

Game's [sic] stating hunting begins thirty minutes before

sunrise, and then printing exact schedules for sunrise,

and no breach of due process occurred because the

regulations are freely available to all hunters, anyone

o f ordinary intelligence would understand the

same . . . .

The administrative rules and the pamphlets available to licensed

hunters leave no room for a prospective hunter to guess at what

time he could begin shooting on any given day of hunting season.

Specifically, the regulations sufficiently define the meaning of

"sunrise" in the published timetables by providing the exact time

at which sunrise occurs for purposes of shooting big game animals.

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In addition to the foregoing, appellant asserts that the rules

and regulations contain erroneous scientific information and are

subject to human error. Specifically, he argues that the tables

incorrectly indicate on which day daylight savings time had begun

in 1992. While the tables may be vulnerable to human error and

incorrectly state the commencement time for daylight savings, they

precisely identified the time of sunrise on November 22, 1991, so

that a person of common intelligence would not need to guess when

it would occur relevant to big game shooting time.

Finally, appellant argues in the alternative that his

conviction resulted from a violation of the rules of statutory

construction. He argues that since these regulations are ambiguous

and vague, they should be construed and interpreted in his favor,

resulting in an acquittal. In light of our determination that the

regulations are not ambiguous or vague, we hold that the

regulations should not be interpreted in appellant's favor

resulting in an acquittal.

We affirm.

Justme

We concur:

January 12, 1994

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following

named:

Karl Knuchel

Attorney at Law

P.O. Box 953

Livingston, MT 59047

Hon. Joseph P. Mazurek, Attorney General

George Schunk, Assistant

Justice Bldg.

Helena, MT 59620

Wm. Nels Swandal, County Attorney

Jon M. Hesse, Deputy

414 E. Callender

Livingston, MT 59047

ED SMITH