dissenting.
The majority concludes that ORS 497.441 is unambiguous and that revocation of an angling license does not apply to “free fishing weekend.” I disagree. In my view, analyzing the statute under the first and second levels under PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), does not demonstrate clearly what the legislature intended — that is, whether the revocation of an angling license encompasses “free fishing weekend” — so it is necessary to reach the third level of analysis. One maxim of construction at that level allows this court to consider what the legislature would have done if it had had before it the issue presented in this case. I do not believe it would have decided to give an annual two-day reprieve to persons whose angling licenses were revoked for violations of the wildlife laws. Accordingly, I respectfully dissent.
In my view, there are two interpretations of ORS 497.441 that are at least as plausible as the one adopted by the majority, thereby rendering the statute ambiguous. First, as the state argues, the phrase “the activity for which the license, tag or permit is required” could be meant simply to distinguish among angling, hunting, and trapping. The fact that the statute refers to “the activity’ suggests that there is a single activity to which each license, tag, or permit applies rather than a variety of activities. It seems reasonable to read ORS 497.441 to mean simply that, if a person’s angling license is revoked, the person is barred from angling, but not from hunting or trapping.
*216There is a second plausible interpretation: that is, ORS 497.441 does not prohibit all angling activities during the revocation period, but does prohibit engaging in angling activities that generally require a license — even when the general requirement is temporarily suspended for “free fishing weekend.” Certainly, at any time during the revocation period, other than “free fishing weekend,” the conduct that defendant engaged in here — fishing at Hebo Lake — is included in “the activity” prohibited by ORS 497.441. It is entirely plausible to construe the statute to mean that those activities that generally require a license are prohibited at all times during the revocation period. Under that interpretation — which I find to be the most plausible — so long as it occurred during the revocation period, defendant’s conduct is included in the prohibited “activity’ within the meaning of ORS 497.441.
Because there is more than one plausible way to read ORS 497.441, it is necessary to proceed to the second level of PGE and examine the legislative history for clues to the legislature’s intent. As the majority acknowledges, the legislative history of ORS 497.441 demonstrates that, when it enacted the statute, the legislature intended to impose enhanced sanctions on those who engage in prohibited activities after their licenses have been revoked. In other words, it intended to distinguish between persons who simply do not have licenses and those whose licenses have been revoked— and to deal more harshly with the latter. While perhaps not dispositive with respect to the precise issue before us, the legislative history indicates that the legislators were not feeling especially sympathetic toward persons whose licenses were revoked for violations of the wildlife laws. Nevertheless, because the legislative history is not dispositive, resort to the third level of PGE — maxims of statutory construction — is necessary.
One maxim instructs the court “to construe a statute in accordance with what it believes the legislature would have done, had that body specifically addressed the issue at hand.”1 State v. Gulley, 324 Or 57, 66, 921 P2d 396 (1996). *217Given that the mood of the legislature was not favorable to persons whose licenses were revoked for violations of the wildlife laws, it seems clear what the answer would have been had the legislature considered whether such persons should be included in any future-enacted temporary suspensions of the general licensing requirement. About the last thing that the 1981 Legislative Assembly would have wanted would have been to reward revoked anglers with a weekend-long free pass.
The text and the legislative history of ORS 497.079 give further guidance.2 They demonstrate that, in establishing a “free fishing weekend,” the legislature’s only purpose was to allow people who did not have licenses to go fishing without having to pay the usual fees. All other regulations pertaining to fishing would remain intact. Tellingly, the statute opens with a “notwithstanding” clause that refers to the general licensing statute, ORS 497.075, and to the statutes *218governing licensing fees, ORS 497.121 and ORS 497.132, but it makes no mention of ORS 497.441, the revocation statute. Certainly, the legislature knew how to explicitly suspend application of otherwise applicable statutes, and it did not do so with the revocation statute. Also, when the legislature renewed the statute in 1995,3 Rod Ingram, the Deputy Director of the Oregon Department of Fish and Wildlife, testified before the Senate Committee on Agriculture, Natural Resources, and Environment. The committee asked Ingram whether catch limits and other restrictions would still apply on “free fishing weekend.” He stated, “Season restrictions, gear restrictions. The only thing that is waived is the fishing license fee, and the need for a salmon/steelhead tag or a halibut tag or a sturgeon tag.” Tape Recording, Senate Committee on Agriculture, Natural Resources, and Environment, HB 2221, May 10,1995, Tape 103, Side A (emphasis added); see also Staff Measure Summary, House Committee on Natural Resources, Agriculture and Forestry Subcommittee, HB 2221, Apr 21, 1995, (“[ORS 497.079 allows] the Fish and Wildlife Commission to authorize two consecutive days of angling for fish without payment of license or tag fees.”). It seems clear from that discussion that, in enacting “free fishing weekend,” the legislature intended merely to waive the fee for people who do not have licenses — not to grant a two-day amnesty for people who have violated the wildlife laws.
In short, had the legislature considered the issue before us, I believe it would have expressly prohibited angling on “free fishing weekend” for persons whose angling licenses were revoked for violations of the wildlife laws. For that reason, ORS 497.441 should be construed to mean that a revoked angler may not take advantage of “free fishing weekend” if it falls during the revocation period.
I respectfully dissent.
Although I believe that the “what would the legislature have done” maxim should be relied on only as a matter of last resort, I have considered other *217third-level maxims — including the “principle of lenity” and the related principle that a defendant should be given “fair warning” that his conduct is criminal, ORS 161.025(l)(c) — and have found none that provides any relevant guidance in this case. The principle of lenity appears to have been overruled by statute. See ORS 161.025(2); but see State v. Isom, 313 Or 391, 396 n 4, 837 P2d 491 (1992). The “fair warning” principle does not apply in this case because the ambiguity in ORS 497.441 does not rise to the level of unconstitutional vagueness. See State v. Duggan, 290 Or 369, 373, 622 P2d 316 (1981) (statutes did not satisfy the “fair warning” requirement when they were “so ambiguous as to be unconstitutionally void for vagueness”).
As the majority notes, ORS 497.079 was enacted eight years after ORS 497.441 and thus cannot serve as context at the first level of a PGE analysis. However, prior decisions from this court and the Supreme Court indicate that, at the third level, in determining what the legislature would have done had it considered an issue, we are not limited to considering the context that existed at the time of enactment. See, e.g., Marks v. McKenzie High School Fact-Finding Team, 319 Or 451, 457-63, 878 P2d 417 (1994) (canvassing decisions of other jurisdictions with laws comparable to the Oregon statute at issue, including decisions rendered after Oregon’s statute was enacted, and stating, “Because the lines of analysis in the foregoing cases became fully developed only after the Oregon law took effect, they are not expositions of the expressed intent of the Oregon legislature. Nevertheless, we find the analysis that emerges from those cases persuasive as to what the legislature would have intended, had it considered the specific issue.”); State v. Werdell, 202 Or App 413, 423-24, 122 P3d 86 (2005), rev allowed, 340 Or 708 (2006) (considering a later-enacted statute to determine what the legislature would have done had it considered that the statute at issue was unclear); State v. Perry, 165 Or App 342, 996 P2d 995 (2000), aff'd, 336 Or 49, 77 P3d 313 (2003) (considering “the various amendments to ORS 166.250” and “the overall scheme of firearms regulation, as it has evolved,” in determining what the legislature would have done had it considered the issue at hand when it originally enacted ORS 166.250).
ORS 497.079 was originally enacted in 1989, as noted, but it contained a sunset clause that provided that it would automatically be repealed in 1996. Thus, the 1995 Legislative Assembly revisited the statute before deciding whether to make it permanent.