Opposition Brief — Lilburn v. Montana

No. 94-723

NOY 2-9-1094

In The OFFICE O; [HE CLERK

Supreme Court of the Unite

October Term, 1994

+

JOHN LILBURN,

Petitioner,

v.

STATE OF MONTANA,

Respondent.

onaaunanine Qanensnsenn

On Petition for Writ of Certiorari

To The Supreme Court of Montana

cmnantiinitits ,

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

onniniainaina Qonsncsanne

JOSEPH P. MAZUREK

Attorney General

CHRISTIAN D. TWEETEN*

Chief Deputy Attorney General

CLAY R. SMITH

Solicitor

State of Montana

Justice Building

P.O. Box 201401

Helena, MT 59620-1401

(406)444-2026

*Counsel of Record

QUESTION PRESENTED

Is a statute which prohibits conduct intended to

interfere with a hunter engaged in the lawful taking of a

game animal facially overbroad in violation of the First

Amendment?

TABLE OF CONTENTS

CET SR i 5 6 oo Fas Hive bees i

TAREE GP Ae vine oe cri tebenees iii

OPINIONS AND JUDGMENTS

is ik hb in ddan een 1

JURISDICTION AND TIMELINESS ............. I

STATUTES AND CONSTITUTIONAL

PRCIVIRIONEE OVO oon one cee ven ees 1

STATEMENT OF THE CASE...............--. 2

- SUMMARY OF ARGUMENT ..............---. 6

REASONS FOR DENIAL OF THE PETITION ...... 6

I. The Decisions of Other Lower Courts Are Not

Inconsistent With the Montana Supreme Court’s

DO Ti eee i bo wee ee ean cs 6

Il. The Montana Supreme Court’s Decision Is

Consistent With This Court’s Precedents and

Does Not Warrant Review ............... 11

A. The Montana Supreme Court’s holding

that the statute is content-neutral is

consistent with this Court’s precedents... 11

B. The Montana Court’s finding that the

statute is not substantially overbroad

does not warrant this Court’s review ... 15

CEPR RAM so bocce ce dewe chy eehtuaaeeen 19

TABLE OF AUTHORITIES

Page

CASES

Adderley v. Florida,

CI a i sy eee avec te ei wees 15

Barker v. Commonwealth,

No. 92-CA-2518-DG (Ky. Ct. App. Feb. 18, 1994) .. 9, 12

Boos v. Barry,

Ce | a aera ae ae 13, 15

Broadrick v. Oklahoma,

Oe RL ere ere 6, 10, 15, 16

Burson v. Freeman,

EE ce cece ee Guts eeees 15

City of Houston v. Hill,

WEEP ccc ee tee ances 13, 15-17

City of Ladue v. Gilleo,

kc pee den cestwecvwes 17

City of Renton v. Playtime Theatres, Inc.,

ie sg 6 do od a oo <6 6 0 06 o's 9, 14

Clark v. Community for Creative

Non-Violence,

cide dy kab eee ves anccas 15

Cornelius v. NAACP Legal

Defense & Educ. Fund,

se ido cea secvves tacts 15.

Dorman v. Satti,

Gre a. ees eee co Comm, 1906) «wc itve dee 7

iV

TABLE OF AUTHORITIES - Continued

Dorman v. Satti,

862 F.2d 432 (2d Cir. 1988),

cert. denied, 490 U.S. 1099 (1989) ............ Passim

Forsyth County v. Nationalist Movement,

ye Bee Pe eer ae eae ee ee ee Pee 15

Fund for Animals, Inc. v. Lujan,

ee ae Se CE BD 8g oc ee eee d ewe a’ 3

International Soc’y for Krishna

Consciousness v. Lee,

es I og ss 5 a win 466 be wo acne oe 14

Lilburn v. Racicot,

855 F. Supp. 327 (D. Mont. 1991), aff'd,

No. 91-35310 (9th Cir. July 13, 1992) .......... 1, 4, 8

Madsen v. Women’s Health Ctr.,

Be we ae ee ER Nk i's ob wb 6 seri nto ee ae 15, 17

Members of the City Council v.

Taxpayers for Vincent,

ee ere eS rer ene er Pare 16

Opinion of the Justices,

See PA Fe ND bin o's ooh ewe ewe 10

R.A.V. v. City of St. Paul,

EES Ge Rey Geet kas oe ers ed ke ees 12

State v. Ball,

ee See es I, PD in vo a ed Dees eeiees 8, 9

State v. Casey,

ee BS ke ee ee are 10

Vv

TABLE OF AUTHORITIES - Continued

Page

Turner Broadcasting System, Inc. v. FCC,

554 © Ger er sa os ee ee i wa 13, 15

Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc.,

Ge ee IE oes cece eweeteeepen vas 6

United States v. Grace,

Se, SP 8 6 606 Se ee awe eee 15

Ward v. Rock Against Racism,

ee SA ol ck pas eee c eens e ae cue 9, 15

Wisconsin v. Mitchell,

ae Es cnn sneer see ene eh eee 13

FEDERAL MATERIALS

Constitution

United States Constitution

CE es Oe i ek ke oa hen ek Oe Passim

Court Rules

Supreme Court Rules

Ss ON ee en Gg eg ety ek ke a a wn 10

eee as kg oe a ut aa ee haa 4 ee ee l

ES SoS OO a, yes Shwe 0s de Ve eae l

ig ee Siete oe ea og hg o blake alba ss «ae l

MONTANA MATERIALS

Montana Code Annotated

ee cn kh ea Chee Wee we ee 5

Ray Ghia, 4 pi at a Chee wee ees 2

I, s,s Oks Vie Bs Riva Cee oa a 3

I ge a ad fie eae ga a ae aoe i4

eM oe 7

vi

TABLE OF AUTHORITIES - Continued

Page

ES Es ak 4 60d 6 6400 0d 4 ee coe 1.

EPR hin 4 o's aie 4s a 6 0 we 2

EE as oss so 6 eae ha eee hee ee 4

ED: 5. 5s 6 64.5 such ae aera eee 8

ES Bk Cie 6 od vo ows 8 bs 8 Pew ORS 4, 8, 10

Ss so i's ka 08 88 ee OED 4

ee aa en ees ]

a's 5 as we 5 oo 0 eRe Ola ee Oh 14

Session Laws

Montana Laws of 1985

ee hee ss bw ke kk b 0 666k dee ee ek ae 3

OTHER STATES’ MATERIALS

General Statutes of Connecticut

Oe ne ee 8

Idaho Code

ED So sk 6 o bas -« 0's 04d eae oe hee ee 9

OTHER AUTHORITIES

Durrant, Sean P., Wyoming’s Hunter Interference

Law--Anarchy in the Woods: How Far Afield

Does the Right to Free Speech Extend?,

27 Land & Water L. Rev. 505 (1992), Comment ..... 14

Webster's New Collegiate Dictionary,

RF ae eee ee ay any 12

OPINIONS AND JUDGMENTS

OF COURTS BELOW

In addition to the cases cited in the Petition at 1,

Petitioner sought to litigate the constitutional issue presented

in this case in a declaratory judgment action filed in the United

States District Court for the District of Montana. The federal

district court rejected Petitioner’s complaint on abstention

grounds, Lilburn v. Racicot, 855 F. Supp. 327 (D. Mont. 1991).

Appendix to Brief in Opposition [hereinafter Opp. App.] la. The

United States Court of Appeals for the Ninth Circuit affirmed the

decision in an unreported opinion, Lilburn v. Racicot,

No. 91-35310 (9th Cir. July 13, 1992).

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JURISDICTION AND TIMELINESS

Respondent agrees that the Court has jurisdiction of the

petition. Respondent received service of the petition on

October 27, 1994. This response is timely if served by First

Class mail on or before November 28, 1994. Sup. Ct. R. 15.2,

29.2, 30.1.

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STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The text of the First Amendment to the United States

Constitution is set forth in the petition at 2. The verbatim text of

the statutory provisions at issue is as follows:

87-3-141. Definitions. As used in 87-3-

141 through 87-3-144, the following definitions

apply:

(1) "Taking" means the pursuit,

hunting, trapping, shooting, or killing of a wild

1

2

animal on land upon which the affected person

has the right or privilege to pursue, hunt, trap,

shoot, or kill the wild animal.

(2) "Wild animal" means any game

animal, fur-bearing animal, or predatory animal,

as defined in 87-2-101.

87-3-142. Harassment prohibited. (1)

No person may intentionally interfere with the

lawful taking of a wild animal by another.

(2) No person may, with intent to

prevent or hinder its lawful taking, disturb a wild

animal or engage in an activity or place in its way

any object or substance that will tend to disturb or

otherwise affect the behavior of a wild animal.

(3) No person may disturb an

individual engaged in the lawful taking of a wild

animal with intent to dissuade the individual or

otherwise prevent the taking of the animal.

(4) Nothing in this section prohibits a

landowner or lessee from taking reasonable

measures to prevent imminent danger to domestic

livestock and equipment.

4

STATEMENT OF THE CASE

In 1987, the Montana legislature enacted the Montana

Hunter Harassment statutes, Mont. Code Ann. §§ 87-3-141 to

-144, making it a misdemeanor offense to engage in various kinds

of conduct that interferes with a lawful sport hunt. The statutes

apply only to conduct occurring in the field that actually disturbs

wildlife or interferes with a lawful hunt. See Pet. App. lla. The

legislature’s motivation for enactment of the statute, as reflected

in the legislative history and expressly found by the Montana

Supreme Court, was to promote safety for hunters and for others

using lands where hunting occurs, including those opposed to

sport hunting, by avoiding contact, and potential conflict, between

3

armed hunters and persons intending to prevent the successful

completion of a lawful hunt. Pet. App. 12a. The facts of this

case demonstrate the soundness of the legislature’s judgment.

On March 13, 1990, Petitioner John Lilburn was one of

a group of individuals who attempted to disrupt a lawful bison

hunt on national forest land in southwest Montana.’ The group

members unsuccessfully attempted to drive a bison herd into

Yellowstone National Park, where hunting the bison would have

been illegal. Pet. App. 3a. Petitioner then attempted to prevent

one of the licensed hunters, Hal Slemmer, from making a shot.

As Slemmer sighted in on a bison through the scope of his

hunting rifle in preparation for making a shot, he saw Petitioner’s

head and torso suddenly appear in his scope. Petitioner had taken

up a position directly between Slemmer and his target. Slemmer

did not fire and raised the barrel of his rifle off his target. Jd.

A nearby game warden confronted Petitioner, and

Slemmer selected another target animal and prepared to make his

shot. As Slemmer began to squeeze the trigger of his rifle, he

again saw Petitioner’s head and torso suddenly appear in the

scope. Slemmer jerked his rifle skyward to avoid shooting

Petitioner, who had again assumed a position directly between

Slemmer and his target, a position roughly 10 to 12 feet from the

muzzle of Siemmer’s rifle. Slemmer and the game warden then

‘Montana amended its hunting laws in 1985 to include bison, statutorily

referred to as “wild buffalo," among game animals subject to hunting,

Mont. Code Ann. § 87-2-101(5), amended, 1985 Mont. Laws ch. 568, § 1,

in response to the inability of officials of the National Park Service to

control the migration from Yellowstone National Park into Montana of

bison carrying the disease brucellosis. See Proceedings of Mont. Sen.

Comm. on Fish & Game, Consideration of HB 763 (Mar. 12, Mar. 14, Mar.

21, and Mar. 26, 1985 (Mont. Legis. Council)). Brucellosis is a significant

health hazard to domestic livestock. Montana cattle herds have been

certified by the United States Department of Agriculture to be brucellosis-

free. Loss of this designation would have significant detrimental impacts

on Montana’s cattle industry. See Fund for Animals, Inc. v. Lujan, 962

F.2d 1391, 1400-02 (9th Cir. 1992). It was undisputed in the courts below

that the hunt involved in this case was in all respects lawful under

Montana’s game laws.

| " aiiaacteeniiiisiil r

4

proceeded to another area where Slemmer successfully killed a

bison. Pet. App. 3a.

Petitioner states as fact in his petition that he said the

words "Don’t shoot" when he stood up in front of the muzzle of

Slemmer’s rifle. Pet. 4. The evidence presented in the state

district court was in conflict with respect to the question of

whether Petitioner said anything. Petitioner testified that he said

the words "Don’t shoot." Tr. 11. Game Warden Dave Etzwiler,

an eyewitness in close proximity to the incident, denied that

Petitioner said anything at all. Tr. 59, 63-64. Slemmer did not

recall whether Petitioner spoke. Tr. 73. The Montana Supreme

Court’s recital of facts in its opinion makes no mention of

Petitioner’s alleged exclamation. Pet. App. 3a-4a. The court

expressly found that Petitioner was not prosecuted for any

expression or expressive conduct, but rather for his actions in

placing his body between Slemmer and his target in such a way

as to prevent the taking of the bison. Pet. App. 7a.

Petitioner was charged with the misdemeanor offense of

hunter harassment in violation of Mont. Code Ann. § 87-3-143(3)

(1989).2 While the charges were pending in Justice Court,

Petitioner filed a declaratory judgment action in the United States

District Court for the District of Montana, seeking a declaration

that the statute under which he was charged was unconstitutional.

The Justice Court stayed proceedings pending the disposition of

the federal suit. The federal district court dismissed the

declaratory judgment complaint, holding that it should abstain

from deciding the issue in deference to the pending State criminal

proceedings. Lilburn v. Racicot, 855 F. Supp. 327 (D. Mont.

1991), aff'd, No. 91-35310 (9th Cir. July 13, 1992). Opp.

None of the other protestors was charged with an offense under the

hunter harassment law arising from the events of March 13, 1990. There

was no evidence in the record that law enforcement officers observed any

other protestor interfering with a hunter about to shoot a bison, or engaging

in any other conduct proscribed by Mont. Code Ann. § 87-3-142(3). There

was evidence that protestors were observed by game wardens in possible

violation of Mont. Code Ann. § 87-3-142(2), which prohibits herding of

game animals to prevent a lawful hunt, Tr. 41-42, 50, but no charges were

filed against any protestor under this subsection.

ES ~ eA E = “ O ee

5

App. la. The Justice Court then denied Petitioner’s motion to

dismiss the complaint, and convicted him of the charge following

a jury trial.

Petitioner appealed the conviction to State district court

for trial de novo pursuant to Mont. Code Ann. § 46-17-311

(1991). The district court granted his motion to dismiss the

complaint, holding that the statute under which he was charged

was unconstitutionally overbroad and vague. Pet. App. 18a-30a.

The State appealed the dismissal to the Montana Supreme Court,

which reversed in a unanimous opinion, holding that the statute

regulated "primarily conduct," Pet. App. lla, and that to the

extent it regulated expressive conduct or speech it did so without

regard to communicative content. The court concluded that the

statute withstood constitutional challenge under this Court’s

precedents dealing with facial overbreadth challenges to

restrictions on speech and conduct, holding that any potential

unconstitutional applications of the statute were speculative, and

not "substantial . . . judged in relation to the statute’s plainly

legitimate sweep."" Pet. App. 8a-14a, quoting Broadrick v.

Oklahoma, 413 U.S. 601, 615 (1973). The court rejected

Petitioner’s vagueness challenge, holding that the statute clearly

applied to his conduct and accordingly that he lacked standing to

challenge the statute for vagueness on its face. Pet. App.

16a-17a.’

*Although Petitioner includes a reference to vagueness in the question

he presents, the petition contains no argument attacking the statute on

vagueness grounds. Petitioner knew that interference with a lawful hunt

was a violation of the statute. Tr. 15. This case does not present the

vagueness issue Petitioner sought to argue in the Montana courts because,

as the Montana Supreme Court found, a statute cannot be attacked on its

face for vagueness by a party whose conduct clearly falls within the

statute’s prohibition. Pet. App. 16a-17a. Village of Hoffman Estates v.

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497 (1982).

6

+

SUMMARY OF ARGUMENT

- There is no unacceptable conflict in lower court

decisions which requires the exercise of this Court’s jurisdiction

in this case. Despite the fact that hunter harassment laws have

been enacted in 48 states over the past ten years, there are only

a handful of reported cases in which the constitutionality of the

statutes has been tested. The cases that have stricken parts of

other state laws involved statutes much different from the

Montana statute at issue here. The lower courts are arriving at a

level of consensus on the federal law issues presented by the few

cases which have arisen, and this Court need not intervene at this

time to provide guidance.

2. The Montana Supreme Court’s decision is

consistent with this Court’s holdings and presents no important

First Amendment issue. Petitioner’s arguments proceed from a

misreading of the statute and misapply or ignore the controlling

decisions of this Court. The Montana statute is content-neutral

because it does not facially discriminate among messages based

on their content and it is justified by a non-content based

legislative purpose--to prevent interference with lawful hunting

activities, promote safety, and avoid dangerous confrontations

between hunters and persons attempting to prevent hunting. The

Montana court’s decision correctly applied the principles of

substantial overbreadth, holding that any hypothetical

unconstitutional application of the statute would not be "real and

substantial, judged in relation to the statute’s plainly legitimate

sweep." Broadrick v. Oklahoma, 413 U.S. 601 (1973).

7

REASONS FOR DENIAL OF THE PETITION

1. The Decisions of Other Lower Courts Are Not

Inconsistent With the Montana Supreme Court’s

Decision in This Case.

Petitioner asserts that lower courts are divided on the

issue presented in this case, and suggests that it is necessary for

this Court to grant the writ to resolve these conflicts. The lower

court decisions Petitioner cites involve statutory provisions which

differ in material ways from the Montana law at issue in this

case, and the treatment of those statutes by other lower courts is

largely consistent with the Montana Supreme Court’s decision

here.

Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988), cert.

denied, 490 U.S. 1099 (1989), involved a Connecticut statute

which had several parts. Like the Montana statute, it prohibited

interference with a lawful hunt in progress. The statute went

further, however, and also prohibited interference with "acts in

preparation” for the lawful taking of an animal. The Second

Circuit Court of Appeals upheld a federal district court’s decision

holding the statute overbroad insofar as it reached these "acts in

preparation.” Such acts could occur far from the field where the

actual hunt would take place and could include, according to the

reading of the Court of Appeals, such acts as "’buying supplies

long before the actual hunt takes place . . . ; consulting a road

map . . . ; making plans during a workplace coffee break; or even

getting a good night’s sleep before embarking on a hunting trip.’”

862 F.2d at 437, quoting Dorman v. Satti, 678 F. Supp. 375, 383

(D. Conn. 1988).

Significantly, the court of appeals in Dorman left

undisturbed the federal district court’s discussion of statutes such

as the Montana law, which reach only conduct occurring in the

field in the course of a lawful hunt. The Connecticut federal

district court opined that a state dearly had the power to

proscribe interference with hunters in the field during a lawful

hunt, even when the interference was accomplished through what

otherwise would be protected speech. 678 F. Supp. at 383.

Following the court of appeals’ Dorman decision, the

Connecticut legislature amended the Connecticut statute to delete

the prohibition of interference with "acts in preparation" for a

lawful hunt. Conn. Gen. Stat. § 53a-183a (1990). In State v.

Ball, 627 A.2d 892, 897 (Conn. 1993), the Connecticut Supreme

Court considered the amended statute, which is in many respects

similar to Mont. Code Ann. § 87-3-142(3), and held that it was

not a content-based restriction on speech.‘

The Court need not grant the writ in this case to reconcile

the Montana Supreme Court’s decision with Dorman. The statute

at issue in Dorman was materially different from the one

involved in this case. Mont. Code Ann. § 87-3-142(3) (1989),

unlike the Connecticut statute at issue in Dorman, has been

definitively construed by the state supreme court to reach "only

activities which occur in the field during an otherwise lawful

hunt." Pet. App. lla. The Montana statute thus does not suffer

from the geographical and temporal breadth which led the courts

to invalidate the Connecticut statute. Because it is limited in its

scope to the course of an actual hunt in the field, it cannot be

properly applied to "acts in preparation" occurring at other times

and places. The federal district court’s decision in Dorman,

which the court of appeals left undisturbed, recognized that

regulations such as the Montana statute are not unconstitutionally

overbroad.’

Finally, the Court should disregard any tension between

the Montana Supreme Court’s decision in this case and the

decision in Dorman. The amendment of the Connecticut statute

has rendered the narrow holding in Dorman moot, since the

“Ball remains in litigation in the Connecticut courts. The Connecticut

Supreme Court remanded the case for further evidentiary hearings on the

nature of the State’s interest in regulating interference with sport hunting

and on the nature of the forum involved. 627 A.2d at 899.

*The United States District Court for the District of Montana

distinguished Dorman on these grounds in rejecting Lilburn’s complaint for

declaratory judgment. Lilburn v. Racicot, 855 F. Supp. 327, 329-30 (D.

Mont. 1991), aff'd, No. 91-35310 (9th Cir. July 13, 1992). Opp. App.

6a-7a.

9

statute the court of appeals considered no longer exists.

Moreover, Dorman’s analysis of the First Amendment issues

presented is clearly wrong in light of this Court’s cases. The

Second Circuit apparently felt the Connecticut statute could be

considered content-based for no other reason than that its effects

fell more heavily on those opposed to sport hunting than on

others. 862 F.2d at 437. This Court has consistently rejected

similar arguments. See, e.g., Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989) (regulation of rock music performances held

content-neutral); City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 47 (1986) (ordinance zoning theaters based on content

of films held content-neutral). The recent trend of decisions

involving hunter harassment statutes in various states has been

consistent with the analysis of the Montana Supreme Court on

- this key question. State v. Casey, 876 P.2d 138, 139-40 (Idaho

1994) (Idaho hunter harassment law held content-neutral); Ball,

627 A.2d at 897-98 (amended Connecticut statute held content-

neutral).°

Petitioner’s assertion that the Idaho Supreme Court’s

decision in Casey conflicts with the decision in this case is also

wrong. The statute at issue in Casey, like the Connecticut statute

at issue in Dorman, was not limited in its application to conduct

which actually interferes in the field with the completion of a

lawful hunt. Casey was charged under a subsection of the Idaho

hunter harassment law which made it a misdemeanor to "[e]nter

or remain in any area where any animal may be taken with the

intent to interfere with the lawful taking or pursuit of wildlife.”

Idaho Code § 36-1510(1){c). No similar provision is found in the

Montana hunter harassment law. The Idaho court hypothesized

that the Idaho statute could be violated by someone who "might

enter an area where wildlife could be legally hunted and do

nothing more than announce his opposition to hunting and his

intention to interfere with such taking.” 876 P.2d at 140. In

contrast, the Montana Supreme Court held in this case that

‘In addition to these reported cases, the Kentucky hunter harassment

law has been sustained against a First Amendment challenge in an

unreported decision, Barker v. Commonwealth, No. 92-CA-2518-DG (Ky.

Ct. App. Feb. 18, 1994).

10

violation of Mont. Code Ann. § 87-3-142(3) required actual

disturbance of a lawful hunt. Pet. App. 10a-lla. The Idaho

court recognized the distinction between the provision at issue in

Casey and statutes such as Montana’s by severing the subsection

at issue from the Idaho statute and leaving in effect provisions

similar to Montana’s which require proof of actual disturbance of

a lawful hunt. /d. at 141.

In addition to Dorman and Casey, Petitioner cites Opinion

of the Justices, 509 A.2d 749 (N.H. 1986), as a state court

decision alleged to conflict with the decision in this case.

Pet. 12, n.5. The New Hampshire opinion considered only the

question of the constitutionality under the New Hampshire

constitution of a proposed hunter harassment law. The court

expressly declined to reach the issue of the proposed legislation’s

validity under the First Amendment. 509 A.2d at 753. A

conflict between the Montana Supreme Court’s decision on an

issue of federal law and the New Hampshire Supreme Court’s

decision on a similar state law issue is not grounds for exercise

of this Court’s jurisdiction. Sup. Ct. R. 10.1(6) (certiorari may

be appropriate "[wJhen a state court of last resort has decided a

federal question in a way that conflicts" (emphasis added)).

Moreover, the New Hampshire opinion was an advisory one,

issued in advance of the enactment of the provision at issue. The

court did not discuss or apply the rule of Broadrick that a statute

may be held facially unconstitutional under the First Amendment

only if its potential unconstitutional applications are "real and

substantial." 413 U.S. at 615. The issue decided by the Montana

Supreme Court in this case--whether the statute is facially

overbroad under Broadrick--was not presented or decided in the

New Hampshire case.

Petitioner asserts that review by this Court of the question

presented "would be of tremendous value to state and federal

courts." Pet. 13. To the contrary, given the widespread

enactment over the past ten years of hunter harassment laws

throughout the country, it is remarkable that very few reported

cases exist in which the statutes have been challenged. The state

and lower federal courts do not appear to be struggling with these

cases, and the recent decisions are arriving at a level of consensus

with respect to the federal law issues involved. The different

11

outcomes in the various cases are attributable more to the

variances in statutory approach from state to state than to any

widespread uncertainty about the controlling federal law

principles. These statutory variations make a decision by this

Court in this case of limited value to lower federal courts and

courts in other states.

Petitioner has cited no case in which a statute similar to

the one at issue in this case has been held facially overbroad in

violation of the First Amendment. In the absence of conflicting

decisions considering similar statutes, the Court should deny the

writ in this case.

Il. The Montana Supreme Court’s Decision Is Consistent

With This Court’s Precedents and Does Not Warrant

Review.

A. The Montana Supreme Court’s holding that

the statute is content-neutral is consistent with

this Court’s precedents.

Petitioner argues that the Montana Supreme Court’s

determination that the statute is content-neutral is inconsistent

with established First Amendment principles. This argument

should be rejected because it relies on a misinterpretation of the

statute and misreads this Court’s decisions.

Petitioner asserts that the statute "is expressly directed at

actions taken and statements made with the ’intent to dissuade’

the listener from hunting." Pet. 13 (emphasis Petitioner’s).

While he carefully adds the words "actions" and "conduct" to his

discussion, Petitioner’s argument is premised throughout on the

idea that the statute is designed to regulate speech, asserting, for

example, that it "focuses on one particular form of ’disfavored

speech,’” Pet. 14. A reading of the statute as a whole dispels the

notion that the statute deals exclusively, or even extensively, with

speech.

Petitioner assiduously avoids quoting the statute

accurately, preferring to paraphrase its terms out of context. The

statute does not punish speech qua speech, and it makes no

reference to the intent to dissuade anyone "from hunting.” The

12

conduct prohibited by the statute is the act of "disturbing" a

person engaged in a lawful hunt. For purposes of the statute,

"disturb" must be given the meaning used by the Montana

Supreme Court in its opinion, viz., to interfere with or interrupt,

Pet. App. 13a, see Webster's New Collegiate Dictionary 333

(1977 ed.).’ Although the legislature, to avoid application of the

statute to accidental or inadvertent intrusions, defined the specific

intent required to make such a disturbance criminal--"intent to

dissuade the individual or otherwise prevent the taking of the

animal"--the prohibition of harassment is primarily directed at

conduct which actually disturbs a lawful hunt in progress with the

intent to prevent the taking of an animal.

Concededly, an "intent to dissuade or otherwise prevent"

a hunter from completing a hunt may arise from a defendant’s

philosophical opposition to hunting. However, as the Montana

Supreme Court found, Pet. App. 13a, the intent can also arise

from other attitudes, including the desire of the defendant to take

the animal which the victim intends to take.’ To the extent

expressive conduct is relevant in a prosecution under the statute

at all, the applicability of the statute does not depend on the kind

of expressive conduct in which the defendant engaged. /d.

"For this reason, among others, Petitioner’s reliance on R.A.V. v. City

of St. Paul, 112 S. Ct. 2538 (1992), is misplaced. In that case, the Court

invalidated an ordinance which made it a crime to engage in expressive

conduct “which one knows or has reasonable grounds to know arouses

anger, alarm or resentment in others on the basis of race." The ordinance,

unlike the Montana statute, discriminated against expression based on the

ideas conveyed, and it criminalized expression based on the listener’s

subjective reaction. To violate the Montana statute, the defendant need not

engage in expressive conduct at all, and the State need not prove that the

victim reacted to the defendant’s conduct in any way.

‘Compare, e.g., Dorman, in which the plaintiff was originally

prosecuted for attempting to talk a hunter out of hunting game birds, with

Barker v. Commonwealth, No. 92-CA-2518-DG, slip op. at 3 (Ky. Ct. App.

Feb. 18, 1994), in which the defendant asserted that he interfered with a

deer hunter, not out of any philosophical dislike of hunting, but rather with

the intention of driving deer from a vineyard to prevent damage to the

trees. Slip op. at 3.

7, = =

13

Interference by communication of any message, or no message at

all, would be equally culpable, if accompanied by the requisite

intent.

Petitioner asserts that the statute is content-based because

speech of a certain content is more likely than other kinds of

speech to evidence an intent to dissuade or prevent. Pet. 16

("[t]he *content of what was said’ to a hunter will obviously be

crucial to any determination of whether an individual had the

requisite ’intent to dissuade’"). But this Court has expressly

rejected the idea that the use of statements to prove intent violates

the First Amendment. In Wisconsin v. Mitchell, 113 S. Ct. 2194,

2201-02 (1993), the Court sustained a Wisconsin statute

providing an enhanced penalty for bias-motivated crimes,

disregarding arguments that the statute violated the First

Amendment because a defendant’s biased statements would be the

best evidence of the proscribed motivation. Similarly, reliance on

a defendant’s statements in determining whether he or she

intended to dissuade or prevent under this statute would not

violate the First Amendment or render the statute overbroad.

The second reason for rejecting Petitioner’s arguments is

that they misapply this Court’s decisions. Under this Court’s

precedents, a statute may be found content-based if it facially

discriminates against speech of a certain content or if the statute

was enacted with the aim of promoting or inhibiting speech of

one content rather than speech of another. Turner Broadcasting

System, Inc. v. FCC, 114 S. Ct. 2445, 2459 (1994). The above

discussion demonstrates that a fair reading of the statute dispels

the assertion that it fails the first prong of this test. Petitioner’s

reliance on Turner Broadcasting for the proposition that a

content-neutral purpose cannot save a law that discriminates on

its face based on content is therefore inapposite.

As to the second prong of the test, Petitioner appears to

concede, Pet. 16-17, that the Montana Supreme Court accurately

found that the legislature’s intent in the enactment of the Montana

statute was not to suppress speech, but to promote safety and

avoid dangerous encounters between hunters and persons

intending to interfere with them. Pet. App. 12a-13a. However,

in citing cases such as City of Houston v. Hill, 482 U.S. 451

(1987), and Boos v. Barry, 485 U.S. 312 (1988), Petitioner

14

incorrectly assumes that the danger against which the Montana

legislature wished to guard arises solely from the risk that hunters

would be offended by speech and intentionally seek to injure

protestors. To the contrary, the Montana legislature, fully

familiar with the conditions which would exist in the field, was

well aware that persons who intentionally interfered with an

ongoing hunt were at great risk of accidental injury.

Montana law requires hunters to take precautions against

their misidentification as a target. Hunters are required to wear

orange clothing in the field, Mont. Code Ann. § 87-3-302 (1993),

and young hunters receive training in firearm safety with the

objective, among others, of avoiding conduct which brings

hunters into each other’s line of fire. See Mont. Code Ann. § 87-

2-105 (1993). No such requirements apply to persons who go

into the woods for the purpose of interfering with a hunt. Such

persons frequently engage in unsafe conduct as part of their

interference activities. See Sean P. Durrant, Comment,

Wyoming's Hunter Interference Law--Anarchy in the Woods:

How Far Afield Does the Right to Free Speech Extend?, 27 Land

& Water L. Rev. 505, 505-07 & n.3 (1992) (describing

documented examples of confrontations between hunters and

protestors in the field). The facts of this case clearly demonstrate

that the legislature’s concern was grounded in fact. Petitioner

came within a split second of being shot at close range with a

high-powered rifle, not because Hal Slemmer was offended by

any speech Petitioner uttered but because of Petitioner’s own

foolhardy behavior in stepping in front of a hunter about to make

a shot.

Legislative intent to avoid such dangerous events, and to

allow hunters to hunt without interference, are content-neutral

motivations. The legislature recognized that debate would occur

regarding the sport of hunting. It restricted that debate only

insofar as it both occurred at a time and place presenting, in the

legislature’s judgment, unacceptable risk to persons in the field

and interfered with lawful activities occurring there. Such a

statute, regulating narrowly in a nonpublic forum, does not

violate the First Amendment. Jnternational Soc’y for Krishna

Consciousness v. Lee, 112 S. Ct. 2701, 2708-09 (1992). The

Montana Supreme Court’s decision sustaining the statute is fully

ogg ene ao

15

consistent with the controlling decisions of this Court involving

similarly motivated laws, e.g., Ward and Playtime Theatres, with

decisions dealing with statutes restricting speech as to time, place,

or manner, e.g., Clark v. Community for Creative Non-Violence,

468 U.S. 288 (1984), and decisions dealing with regulatory

schemes operating in a nonpublic forum, e.g., Lee, 112 S. Ct. at

2708-09; Cornelius v. NAACP Legal Defense & Educ. Fund, 473

U.S. 788 (1985).°

B. The Montana Court’s finding that the statute

is not substantially overbroad does not warrant

this Court’s review.

A determination of whether the decision in this case

warrants review demands a discussion of the governing principles

in a facial overbreadth analysis. Petitioner, however, does not

cite the seminal overbreadth case, Broadrick v. Oklahoma, 413

U.S. 601 (1973), and does not state the governing principles

announced in that case and reiterated by this Court as recently as

the decision in Forsyth County v. Nationalist Movement, 112 S.

Ct. 2395, 2400-01 (1992).

°Almost without exception, the cases Petitioner cites involved burdens

directed at the press, e.g., Turner Broadcasting and Ark. Writers’ Project,

Inc. v. Ragland, 481 U.S. 221 (1987), or restrictions on speech in

traditionally public fora such as public streets, Madsen v. Women’s Health

Cir., 114 S. Ct. 2516 (1994); Forsyth County v. Nationalist Movement, 112

S. Ct. 2395 (1992); Burson v. Freeman, 112 S. Ct. 1846 (1992); Boos v.

Barry, 485 U.S. 312 (1988); City of Houston v. Hill, 482 U.S. 451 (1987).

In this case, Petitioner made no showing that national forests and other

areas where sport hunting occurs are dedicated, either by tradition or

government fiat, to use as a forum for expressive conduct. The only

argument advanced by Petitioner in this regard in the courts below was that

the places were areas where the public was allowed to go, a rationale which

this Court has consistently rejected as a sole basis for a claim that a forum

is a public one for First Amendment purposes. United States v. Grace, 461

U.S. 171, 177-78 (1983), quoting Adderley v. Florida, 385 U.S. 39, 47-48

(1966). The burden of proof on this issue was on Petitioner, Clark v.

Community for Creative Non-Violence, 468 U.S. 288, 293 n.5 (1984), and

he failed to carry it.

16

Under Broadrick, a person, such as Petitioner,’ whose

conduct is not protected by the First Amendment is nevertheless

allowed to challenge a statute on First Amendment grounds

because the Court has recognized that some statutes sweep so

broadly that their very existence can stifle significant amounts of

protected speech. Broadrick, 413 U.S. at 611-12. However, a

person whose conduct is not constitutionally protected must show

more than that a statute has hypothetical unconstitutional

applications. Since facial overbreadth is "manifestly strong

medicine . . . employed by the Court sparingly and only as a last

resort," id. at 613, a person alleging facial overbreadth must show

that the statute’s potential unconstitutional applications are "not

only real, but substantial as well, judged in relation to the

statute’s plainly legitimate sweep." Jd. at 615. "In short, there

must be a realistic danger that the statute itself will significantly

compromise recognized First Amendment protections of parties

not before the Court for it to be facially challenged on

overbreadth grounds." Members of the City Council v. Taxpayers

for Vincent, 466 U.S. 789, 801 (1984).

Beyond disagreeing with the Montana Supreme Court’s

conclusions, Petitioner never explains in what respect the court’s

decision is unfaithful to these principles. He simply argues that

the rules which require a police officer on a city street to tolerate

"a significant amount of verbal criticism," Hill, 482 U.S. at 461,

somehow create a constitutional privilege to interfere with a

lawful hunt by a private citizen on lands where such activity is

expressly permitted. Hill announces no doctrine leading to such

a conclusion.

The ordinance at issue in Hill made it unlawful to "in any

manner oppose, molest, abuse, or interrupt any policeman in the

'°As the Montana Supreme Court specifically found, Petitioner did not

argue in the courts below that his conduct in this case constituted "speech"

protected by the First Amendment. Pet. App. 7a ("Lilburn . . . does not

contend that his own conduct, which forms the basis of the charges brought

against him, was constitutionally protected"). Although the petition is far

from clear on this point, it makes, and indeed could make, no cogent

argument that the First Amendment protects Petitioner’s right to stand up

in front of a hunter and prevent him from making a shot.

17

execution of his duty." This Court struck the ordinance, in part

because "the First Amendment protects a significant amount of

verbal criticism and challenge directed at police officers." 482

U.S. at 461 (emphasis added.) The Court invalidated the

ordinance for two reasons: (1) It criminally proscribed verbal

conduct toward police officers which is constitutionally protected,

id. at 462; and (2) it gave police officers unbridled discretion in

determining what conduct violates the ordinance, id. at 465-66.

Petitioner reads into Hill a constitutional right to subject

hunters to "criticism and challenge," at least while hunting on

public lands, and in the course of doing so to interfere with the

hunters’ lawful activities. Of course, the Montana statute as

construed by the Montana Supreme Court does not prohibit such

"challenge and criticism," except in those circumstances when it

actually and intentionally disturbs a hunt. This Court recognized

in Lee that such a restriction does not violate the First

Amendment. Moreover, the City of Houston did not even

attempt to justify the ordinance as a legitimate time, place, or

manner restriction. No such argument could plausibly be made,

since the ordinance applied throughout the city and at all times.

The Montana statute, in contrast, only operates during limited

times and in places where a lawful hunt is occurring. Hill is

therefore not in point.

Petitioner next argues that the Montana statute "essentially

*forecloses an entire medium of expression’.” Pet. 19. This

argument is virtually incomprehensible. The cited authority, City

of Ladue v. Gilleo, 114 S. Ct. 2038 (1994), dealt with an

ordinance prohibiting exhibition of residential yard signs. How

that case applies here is never explained in the petition.

However, this Court has quite clearly rejected Petitioner’s

"medium is the message” argument. Pet. 19. The First

Amendment does not create a right of access to the most

efficient, effective, or "poignant" forum for speech. "The First

Amendment does not demand unrestricted access to a nonpublic

forum merely because that forum may be the most efficient

means of delivering the speaker’s message." Cornelius v. NAACP

Legal Defense & Educ. Fund, 473 U.S. 788, 809 (1985).

Petitioner’s reliance on the Court’s recent decision in

Madsen v. Women’s Health Center, 114 S. Ct. 2516 (1994), is

18

also misplaced. That case involved an injunction against certain

activities of protestors at abortion clinics. As the Court’s opinion

makes clear, several factors distinguish this case. First, the

injunction prohibited speech in "a traditional public forum,” viz.,

a city street, not in a national forest which has not been shown to

be a public forum by tradition or designation. /d. at 2524.

Second, the Court found that heightened scrutiny was appropriate

because the restraint at issue was an injunction, rather than a

statute like the one at issue here. Jd. at 2525. Finally, the

provision at issue in Madsen prohibited all unsolicited approaches

by the persons subject to the injunction. The statute at issue here,

in contrast, prohibits only conduct which disturbs the lawful

activities of hunters, leaving a wide area in which a protestor’s

conduct or communication is unaffected by the statute.

The Montana Supreme Court found that the potential for

unconstitutional application of the statute was far exceeded by the

statute’s legitimate sweep. Pet. App. 14a. Petitioner does not

challenge this conclusion, preferring to ignore the requirements

for "substantial overbreadth" in favor of a series of overstated

assertions of the statute’s supposed infirmity.'' Unlike

Petitioner’s arguments, the Montana court’s application of the

overbreadth test is faithful to this Court’s precedents. It does not

warrant certiorari review.

''For example, Petitioner’s assertion that the Montana statute, "in effect,

renders vast amounts of public land off limits to First Amendment speech

and conduct" (emphasis Petitioner’s) is pure hyperbole. First, public lands

being used for hunting are not well suited for exchange of ideas, as

Petitioner recognized in his testimony in this case. Tr. 11, 23. Second, thie

statute can only apply during those limited times when hunting is in season.

Speech and conduct at other times are unaffected by the statute. Third, not

all First Amendment speech and conduct will disturb a lawful hunt. Speech

and conduct that do not are unaffected by the statute. Fourth, actual hunts

occur on a very small percentage of the public land at any given time.

Speech and conduct in areas where a hunt is not in progress are unaffected

by the statute.

19

- ¢

CONCLUSION

For the foregoing reasons, the petition for certiorari

should be denied.

Respectfully submitted,

JOSEPH P. MAZUREK

Attorney General

CHRISTIAN D. TWEETEN*

Chief Deputy Attorney General

CLAY R. SMITH

Solicitor

State of Montana

Justice Building

P.O. Box 201401

Helena, MT 59620-1401

(406)444-2026

*Counsel of Record

November 1994

la

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

* * +

JOHN LILBURN,

Plaintiff,

-V-

MARC RACICOT, Attorney general CV 90-56-M-CCL

of Montana; MIKE SALVAGNI, ORDER

Gallatin County Attorney; K.L. (Filed

COOL, Director of Montana Jan. 22, 1991)

Department of Fish, Wildlife and

Parks; GEORGE HUBBARD,

Warden Captain Montana

Department of Fish, Wildlife and

Parks,

Defendants.

BACKGROUND

On March 13, 1990, Gallatin County Attorney Mike

Salvagni, filed a complaint against John Lilburn in Gal-

latin Justice Court on behalf of the State of Montana

alleging that John Lilburn committed the offense of

harassment, a misdemeanor offense, in violation of Mon-

tana Code Annotated 87-3-142(3). The complaint alleges —

that John Lilburn purposely or knowingly disturbed an

individual engaged in the lawful taking of a wild animal,

specifically a buffalo which had traveled beyond the

boundaries of Yellowstone National Park. The complaint

states that Lilburn disturbed the hunter with the intent to

2a

dissuade or otherwise prevent the taking of the buffalo

when Lilburn placed himself between the buffalo and the

hunter who was aiming a loaded rifle at the buffalo.

Following the filing of the complaint in Gallatin

County Justice Court, Lilburn filed this action against the

Attorney General, the Gallatin County Attorney, and the

Department of Fish, Wildlife, and Parks alleging his civil

rights were violated when he was arrested by state offi-

cials for violating an allegedly unconstitutional state law.

Plaintiff Lilburn states the Hunter Harassment Act is

unconstitutionally vague in that it fails to define prohib-

ited conduct with any degree of specificity and is over-

broad in that it forecloses his right to exercise free speech

in violation of the First Amendment. Plaintiff seeks

declaratory judgment that the Act is unconstitutional on

its face or is unconstitutionally applied against him;

injunctive relief restraining defendants from enforcing

the act; and recovery of attorney’s fees pursuant to 42

U.S.C. § 1988.

Defendants move to dismiss the complaint in federal

court on the grounds that the federal court should abstain

from interfering in an ongoing state criminal action.

Plaintiff opposes the motion on the grounds that the

Hunter Harassment Act is so clearly unconstitutional on

its face that the federal court should intervene; that the

justice court is an improper forum in which to consider a

constitutional issue; and that forcing him to litigate this

issue through the state court system will cause consider-

able delay and inconvenience.

Although abstention from the exercise of federal

jurisdiction is the exception, not the rule, Colorado River

3a

Conservation District v. United States, 424 U.S. 800, 813,

(1986), abstention is appropriate if (1) there are pending

state judicial proceedings, (2) the state proceedings impli-

cate important state interests, (3) and the state proceed-

ings provide an adequate opportunity to raise federal

questions. Younger v. Harris, 401 U.S. 37 (1971). However,

federal intervention may be warranted if petitioner can

show he comes within the special circumstances excep-

tion to Younger such as proven harassment by state offi-

cials, bad faith prosecutions, or extraordinary

circumstances such that petitioner would suffer irrepar-

able injury if the federal court did not intervene. Perez v.

Ledesma, 401 U.S. 82, 85 (1971).

Here, Plaintiff Lilburn focuses on the third prong of

Younger arguing that the defendants fail to show the state

proceedings provide an adequate opportunity to raise

federal questions. Plaintiff suggests that the justice court

where he is being prosecuted for the misdemeanor crimi-

nal offense is an inappropriate forum in which to con-

sider constitutional questions and argues that the

Montana Supreme Court has so found in State v. Tollefson

__. Mont. ___, 780 P.2d 621 (1989).

In Tollefson, the State moved for a writ of supervisory

control after the Justice Court found unconstitutional the

statute which provides for a rebuttable presumption on

blood alcohol content in a DUI case. In dicta, the court

pointed out that review of a constitutional question in

this particular case was difficult because there was no

court record and therefore questioned whether a justice

court can be a proper forum for a consideration of the

constitutionality of a statute. The Montana Supreme

Court reviewed the Justice Court’s ruling and reversed.

4a

Significantly, the court stated that because its ruling was

for the purposes of this case only, the issue could be

raised again in the event the defendant was convicted

and obtained a de novo trial in district court.

Tollefson is not persuasive on the issue of whether a

justice court provides an adequate opportunity to raise a

constitutional issue. The language relied upon is dicta and

the court specifically pointed out defendant could raise

the issue again in district court. Piaintiff complains that

such interpretation of Tollefson will force him to appeal to

the state district court, and state Supreme Court in order

to reach federal court. Cost, anxiety, and inconvenience of

having to defend against a state prosecution, however,

does not preclude a federal court from abstaining from

interfering in a state prosecution. Younger, 401 U.S. 37, 46

(1971). Moreover, a state has a special interest in enforc-

ing its own laws in its own courts. Officers of the State

“are charged with the duty of prosecuting the laws of the

State and must decide when and how this is to be done.

The accused should first set up and rely upon his defense

in the state courts, even though this involves a challenge

of the validity of some statue [sic], unless it plainly

appears that this course would not afford adequate pro-

tection.” Id. at 45.

Finally, the very problem of which plaintiff com-

plains, exhausting the state process first before reaching

the federal forum, is at the heart of the abstention doc-

trine. As the Supreme Court has stated:

“Younger and its progeny espouse a strong

federal policy against federal-court interference

with pending state judicial proceedings absent

extraordinary circumstances. .... The notion of

5a

‘comity’ includes ‘a proper respect for state

functions, a recognition of the fact that the

entire country is made up of a Union of separate

state governments, and a continuance of the

belief that the National Government will fare

best if the States and their institutions are left

free to perform their separate functions in their

separate ways.’. . . . Minimal respect for the

state processes, of course, precludes any pre-

sumption that the state courts will not safeguard

federal constitutional rights. Middlesex County

Ethics Committee v. Garden State Bar Association,

457 U.S. 423 (1982).

Here, Plaintiff Lilburn is presuming that the state’s

process will not protect his constitutional rights merely

because he is in justice court. He further presumes some

higher state court will not agree with his arguments on

the constitutionality of the Hunter Harassment Act. Such

presumptions are not warranted. Montana Judges,

including justices of the peace, are subject to and bound

by the federal constitution. Pennzoil v. Texaco, 107 S.Ct.

1519, 1528 (1987).

Plaintiff also argues that because the Montana statute

is so plainly unconstitutional on its face, federal interven-

tion is warranted to stop the state from infringing upon

his constitutionally protected right of free speech. The

court disagrees. Hunting is a legitimate activity which the

state may protect in any reasonable and constitutionally

permissible manner. Although the statute may inhibit

speech to some limited degree, it also protects hunters

and those opposed to hunting from the very kind of harm

which may have occurred when the plaintiff stepped in

front of the hunter, who was pointing a loaded rifle at a

6a

bison. The goal of the statute is clearly reasonable. “The

existence of a ‘chilling effect’, even in the area of First

Amendment rights, has never been considered a suffi-

cient basis, in and of itself, for prohibiting state action.

Where a statute does not directly abridge free speech, but

- while regulating a subject within the State’s power -

tends to have the incidental effect of inhibiting First

Amendment rights, it is well settled that the statute can

be upheld if the effect on speech is minor in relation to

the need for control of the conduct and the lack of alter-

native means for doing so.” Younger at 51 (citations omit-

ted). Here, regulating hunting, including interference

with hunting, is clearly within the State’s power.

Plaintiff points out that at least one Court of Appeals

has declared a hunter harassment statute unconstitutional

because it interfered with free speech. Dorman v. Satti, 862

F.2d 432 (2nd Cir. 1988) However, in Dorman, there was

no pending state action as here, and hence the court was

not faced with interfering with an ongoing criminal pros-

ecution. Moreover, the statute involved in Dorman pro-

hibited persons from interfering with another person who

was taking or preparing to take wildlife. The court found

such language too broad because the clause “preparing to

take” could be construed to encompass buying supplies

long before the actual hunt takes place, consulting a road

map, making plans during a workplace coffee break, or

even getting a good night’s sleep before embarking on a

hunting trip. Id. at 437 (quoting district court’s opinion).

The particular subsection under which plaintiff Lilburn is

charged, however, contains no such language but rather

proscribes behavior which interferes with an individual

7a

actually engaged in the lawful taking of a wild animal.

Mont. Code Ann. § 87-3-142 (3).

Plaintiff has not attempted to exhaust his remedy

under state law, and has not established the “special

circumstances” required for federal intervention. Accord-

ingly, this court is prohibited by principles of comity from

considering his claim and request for relief.

IT IS THEREFORE ORDERED that defendants’

motion to dismiss is GRANTED.

The Clerk shall forthwith notify counsel of entry of

this order.

Done and dated this 22 day of January, 1991.

/s/ Charles C. Lovell

CHARLES C. LOVELL

United States District Judge