## Facts

- Montana fish and wildlife officers ran an undercover investigation (Nov. 1989–Aug. 1990) into Richard J. Fertterer, Sr., and David John Fertterer for guided hunting and commercialization of illegally taken game.
- Undercover agents posed as out-of-state hunters and participated in two separate five-day hunts in which the defendants actively guided them; neither defendant held an outfitter license.
- Evidence showed the defendants hunted using artificial light at night, killed animals without proper tags, illegally trapped bear, solicited sale of an illegally taken mountain lion hide, and attempted to sell roughly 1,000 pounds of deer and elk meat to an undercover agent.
- A jury convicted Richard Fertterer, Sr. of two felony counts of criminal mischief for illegally killing multiple big game animals and several misdemeanor fish-and-game offenses (including unlicensed outfitting, unlawful sale/possession/transport of game, hunting with artificial light, and unlawful trapping).
- A jury convicted David Fertterer of two felony counts of criminal mischief and multiple misdemeanor fish-and-game offenses.
- The district court ordered restitution for the value of illegally killed game and required payment of investigation costs and jury costs.

## Issues

1. Whether wild animals constitute “public property” for purposes of Montana’s criminal mischief statute.
2. Whether Montana’s fish-and-game code (Title 87) provides an exclusive remedy that precludes prosecution under the general criminal mischief statute.
3. Whether wild animals are “property” under the criminal code’s definitional provisions.
4. Whether the criminal mischief statute is unconstitutionally vague as applied to illegal killing of wildlife.
5. Whether the sentencing court could require payment of investigation costs, including costs incurred before formal charging.
6. Whether the sentencing court could require payment of jury costs.

## Decision

- The Montana Supreme Court affirmed the felony criminal mischief convictions and the misdemeanor fish-and-game convictions.
- The court held wild animals are “public property” and also “property” within the criminal code for purposes of criminal mischief.
- The court held Title 87 is not an exclusive remedy; prosecutors may charge conduct under the general criminal code when the elements are met.
- The court rejected the as-applied vagueness challenge to the criminal mischief statute.
- The court reversed in part and remanded for recalculation/limitation of investigation-related cost assessments to amounts authorized by statute and properly tied to the offenses.
- The court generally upheld the authority to assess jury costs, subject to statutory limits and correct calculation.

## Legal Principles

- A state’s sovereign regulatory interest in wildlife can support treating wild animals as “public property” for property-damage offenses, including criminal mischief.
- The criminal code’s definition of “property” may be read broadly to include state and public interests in wildlife sufficient to support criminal mischief charges for illegal destruction of game.
- A specialized fish-and-game enforcement scheme does not necessarily displace generally applicable criminal statutes; absent express exclusivity, the prosecutor may proceed under either scheme when supported by the facts and elements.
- A criminal statute is not void for vagueness as applied when it provides reasonable notice of prohibited conduct and adequate standards to guide enforcement.
- Cost shifting in sentencing must be grounded in statutory authority and limited to expenses properly attributable to the prosecution or offense, rather than broad pre-charge investigative expenses.

## Conclusion

The Montana Supreme Court approved felony criminal-mischief prosecution for serious poaching by treating wildlife as public property and rejecting claims that fish-and-game statutes are the sole remedy, while limiting the defendants’ liability for investigative and related costs to those authorized and properly connected to the case.


State v. Fertterer, 841 P.2d 467 (Mont. 1992)