                             NO.    93-141
           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1994


THE STATE OF MONTANA,
           Plaintiff and Respondent,
     V .


ROD JOHNSTON,
           Defendant 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


                             Submitted on Briefs:       October 21, 1993
                                             Decided:   January 12, 1994
Filed:
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.



                                       4
       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
       of   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.



                                   5
     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
