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State v. McGregor

Supreme Court of Montana

June 27, 2017

STATE OF MONTANA, Plaintiff and Appellee,
v.
DANIEL B. MCGREGOR, Defendant and Appellant.

          Submitted on Briefs: April 26, 2017

         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

          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.

          OPINION

          LAURIE McKINNON, JUSTICE

         ¶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 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, 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 ...


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