                                                                                               06/27/2017


                                           DA 16-0554
                                                                                           Case Number: DA 16-0554

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 156



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DANIEL B. MCGREGOR,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fifth Judicial District,
                        In and For the County of Jefferson, Cause No. DC 2016-12
                        Honorable Loren Tucker, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Daniel B. McGregor, Self-Represented, Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Madison L. Mattioli, Assistant
                        Attorney General, Helena, Montana

                        Steven C. Haddon, Jefferson County Attorney, Danielle Perry, Deputy
                        County Attorney, Boulder, Montana



                                                    Submitted on Briefs: April 26, 2017

                                                                Decided: June 27, 2017


Filed:

                        __________________________________________
                                          Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.

¶1     Daniel B. McGregor (McGregor) appeals from an order entered in the Montana

Fifth Judicial District Court, Jefferson County, denying his motion to dismiss charges that

McGregor harvested a cow elk without first obtaining permission for hunting from the

private landowner, in violation of § 87-6-415(1), MCA. We affirm.

¶2     We restate the issue for review as follows:

       Whether violation of the use restrictions for private property enrolled in Montana’s
       Block Management Program constitutes a violation of § 87-6-415(1), MCA, which
       requires a hunter to obtain permission of the landowner before hunting on private
       property.

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     On November 9, 2015, Fish and Game Warden Sergeant Dave Loewen (Sergeant

Loewen) received information that McGregor may have committed hunting violations at

the Skytop Ranch Block Management Area (Skytop BMA). Skytop BMA is enrolled with

the Department of Fish, Wildlife, and Parks (the Department) in a Block Management

Program which allows hunters to hunt on a landowner’s property provided certain use

restrictions negotiated between the landowner and the Department have been satisfied. In

the case of Skytop BMA, a use restriction was imposed requiring a hunter to sign in at the

sign-in box prior to hunting on Skytop Ranch.

¶4     Sergeant Loewen spoke to McGregor at his home and McGregor confirmed that he

had parked his vehicle on property adjacent to Skytop BMA, entered the Skytop BMA, and

harvested a cow elk from the property on November 8, 2015. McGregor admitted that he

had not signed in at Skytop BMA’s sign-in box and told Sergeant Loewen that “numerous



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individuals” had indicated that Skytop Ranch allowed public hunting. McGregor relayed

that an adjacent landowner, Michael Field, represented to him that Skytop Ranch allowed

public hunting only by foot or horseback and that there was no requirement to obtain

separate permission to hunt. McGregor explained that he did not know Skytop Ranch was

in a Block Management Program with the Department and was unaware of any requirement

that he sign in at Skytop BMA’s sign-in box prior to entering and hunting on the property.

Sergeant Loewen confirmed by examining the sign-in book at Skytop BMA that McGregor

had not signed in on the date of the violation. Sergeant Loewen seized McGregor’s cow

elk and, pursuant to § 87-1-506(2), MCA, donated it to a local food bank or charity.

¶5    The Department provides the public with information about property enrolled in its

Block Management Program by publishing a Hunting Access Guide which contains maps

of the several block management regions. The Department also published a 2015 map of

the Skytop BMA which contained rules and regulations for accessing the hunting area, an

advisement that the Skytop BMA requires “Registration at Sign In Box,” and an indication

on the map where the box is located at Skytop BMA.

¶6     On November 9, 2015, Sergeant Loewen cited McGregor for hunting without

landowner permission in violation of § 87-6-415(1), MCA.          McGregor appeared in

Jefferson County Justice Court on November 16, 2015, and entered a plea of not guilty.

Following a bench trial on February 18, 2016, McGregor was convicted and subsequently

fined $135, plus a surcharge of $35. McGregor appealed his conviction de novo to the

District Court. He filed a motion to dismiss arguing, among other things, that the block

management statutes and rules implementing them were unconstitutional. In a bench trial,


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the District Court rejected McGregor’s arguments and found him guilty of hunting without

landowner permission, in violation of § 87-6-415(1), MCA. The court imposed the

mandatory surcharge and a $135 fine; however, the court suspended half of the fine,

leaving only $67.50 for McGregor to pay.

¶7     McGregor appeals the denial of his motion to dismiss. McGregor represented

himself in proceedings before the Justice Court, the District Court, and is currently

representing himself on appeal before this Court.

                                STANDARD OF REVIEW

¶8     The denial of a motion to dismiss in a criminal case is a question of law, which we

review for correctness. State v. McWilliams, 2008 MT 59, ¶ 22, 341 Mont. 517, 178 P.3d

121.

                                       DISCUSSION

¶9     Whether violation of the use restrictions for private property enrolled in Montana’s
Block Management Program constitutes a violation of § 87-6-415(1), MCA, which requires
a hunter to obtain permission of the landowner before hunting on private property.

¶10    We discern McGregor’s argument to be that by participating in the Department’s

Block Management Program, Skytop Ranch has “statutorily given . . . [its] permission for

the public to hunt on . . . [its] property.”1 McGregor argues that language contained within




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  McGregor’s arguments on appeal are difficult to discern. The State requests that we limit our
review to the issue and argument actually discussed in McGregor’s opening brief. Upon careful
consideration of McGregor’s opening brief, we conclude his primary objection relates to whether
violation of the use restrictions imposed pursuant to the Montana’s Block Management Program
may constitute hunting without permission of the landowner. Any other issue, including a
constitutional challenge to the Block Management Program, we conclude has not been supported
by sufficient legal argument or authority and we, accordingly, will not review.


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the block management statutes is either not defined or vague, and consequently whether

permission to hunt actually exists is unclear. McGregor suggests that the administrative

rules, through which the program is implemented, are similarly vague and undefined, thus

further rendering the existence of permission unclear.

¶11    The State maintains that McGregor was not cited for violating any of the block

management statutes or rules; but, rather, McGregor was cited for violating § 87-6-415,

MCA, requiring that a resident first obtain permission of the landowner when hunting on

private property. The State argues that those who apply to the State for permission to

harvest or remove Montana’s natural game are on notice that they are subject to the

Department’s rules and regulations, including those pertaining to the Block Management

Program.

¶12    Section 87-6-415(1), MCA, provides that “[a] resident or nonresident shall obtain

permission of the landowner, the lessee, or their agents before taking or attempting to take

[animals] . . . while hunting on private property.” Pursuant to § 87-1-301, MCA, the Fish,

Wildlife and Parks Commission “shall establish the hunting, fishing, and trapping rules of

the department . . . .” Those rules may “govern[] uses of . . . lands that it operates under

agreement with or in conjunction with . . . a private land owner.” Section 87-1-303, MCA.

Section 87-1-265, MCA, provides that the “department may establish within the block

management program established by administrative rule pursuant to authority contained in

87-1-301 and 87-1-303 programs of landowner assistance that encourage public access to

private and public lands for purposes of hunting and may adopt rules to carry out program

purposes.” To this end, the “department may establish a voluntary hunter management


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program to provide tangible benefits to private landowners enrolled in the block

management program who grant access to their land for public hunting.” Section 87-1-

266(1), MCA. The decision to “enroll a landowner in the hunter management program is

the responsibility of the department.” Section 87-1-266(1), MCA.

¶13    Admitted during trial was evidence and testimony describing Montana’s Block

Management Program. The program is a cooperative effort between the Department,

private landowners, and public land management agencies to help landowners manage

hunting activities and provide free public hunting access to private and isolated public

lands. The Department publishes regional maps and Hunting Access Guides that depict all

properties enrolled in the program for any particular year, and also makes available the

individual BMA maps that depict property boundaries and BMA Ranch Rules. There is

no charge to hunt on block management lands and landowner participation is voluntary.

Landowners agree to provide free public hunting under contract terms that stipulate how

hunting will be managed. Those stipulations are characterized as use restrictions.

¶14    Use restrictions for each BMA are established by negotiation between the

Department and the landowner. Mont. Admin. R. 12.4.205(1)(a). Reasonable restrictions

under the rules include, but are not limited to: (1) restrictions on vehicle use or off-road

travel for access or downed game removal; (2) number of hunters or hunting parties

utilizing a BMA per day; (3) times and places at which permission slips or other

instructions are provided on-site to the public; and (4) duration of the use season. Mont.

Admin. R. 12.4.205(1)(a). Skytop BMA’s use restriction was that hunters sign in at a

designated sign-in box.


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¶15    We have long recognized that “[t]hose who apply to the State for permission to

harvest or remove Montana’s natural game are on notice that they are rightfully subject to .

. . regulations [of the Department].” State v. Boyer, 2002 MT 33, ¶ 22, 308 Mont. 276, 42

P.3d 771. “Hunters are an identifiable group of persons exercising their right to utilize the

State’s game resources for food and other purposes. They are responsible for knowing the

laws pertaining to their sport.” State v. Huebner, 252 Mont. 184, 188, 827 P.2d 1260, 1263

(1992). Consistent with these responsibilities, this Court held in State v. Trujillo, 2008 MT

101, 342 Mont. 319, 180 P.3d 1153, that even though a hunter did not pass by any gate or

posted notice against trespassing, the hunter was nonetheless responsible for knowing

about those postings and was on legal notice of their existence. We also held in Trujillo

that “ignorance of the law is no defense in Montana, even if it is in reliance on what

someone else said.” Trujillo, ¶ 15.

¶16    The statute McGregor was charged with violating makes it a crime for someone to

take a game animal without a landowner’s permission. Permission is always required to

hunt on private property. McGregor does not claim that he obtained explicit permission

from the landowner or that he signed in at the Skytop BMA sign-in box. Pursuant to

regulations adopted by the Department which establish and implement the Block

Management Program, Skytop BMA agreed to allow hunters to access its lands, subject to

reasonable use restrictions. Here, the use restriction is the sign-in procedure which the

Department, through its publications, advised was the manner in which permission could

be obtained to hunt on Skytop BMA. The sign-in procedure is a benefit afforded to the

hunter, making it easier for hunters to obtain permission. It does not negate the requirement


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that the hunter obtain permission.      Absent compliance with Skytop BMA’s sign-in

procedure, McGregor did not have permission to hunt on Skytop BMA.

¶17    In Montana, because a person is on notice that they are subject to the rules of the

Department related to the management of wildlife, it is no defense that they were ignorant

of those rules or the law, or that they relied on statements from an adjoining property owner.

Trujillo, ¶¶ 10-15. Furthermore, “[k]nowledge that certain conduct constitutes an offense

or knowledge of the existence, meaning, or application of the statute defining an offense is

not an element of the offense unless the statute clearly defines it as an element.” Section

45-2-103(5), MCA. Pursuant to § 87-6-415(1), MCA, it is a crime to harvest game on

private property without the landowner’s permission. McGregor knew he had not obtained

landowner permission to hunt on private property. He did not have explicit permission

from Skytop Ranch to hunt on its property and did not comply with the rules through which

Skytop BMA granted permission. As McGregor did not comply with the statutes, rules,

and regulations governing BMA hunting, he did not have permission to hunt and harvest

game on Skytop BMA, which violated § 87-6-415(1), MCA.

¶18    In light of the foregoing, we will not address McGregor’s contention that seizure of

the cow elk by Sergeant Leowen is unconstitutional because a hunter, who is found not

guilty, can no longer be made whole.

                                      CONCLUSION

¶19    We affirm the District Court’s denial of McGregor’s motion to dismiss.




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                           /S/ LAURIE McKINNON


We Concur:

/S/ MICHAEL E WHEAT
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE




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