Farmer v. Olorado Parks & Wildlife Comm'n

• Decision Date: 25 August 2016
• Docket Number: Court of Appeals No. 14CA2199
• Citation: 2016 COA 120,382 P.3d 1263
• Parties: Bobby R. FARMER, Plaintiff–Appellant, v. COLORADO PARKS & WILDLIFE COMMISSION, Department of Natural Resources, State of Colorado, Defendant–Appellee.
• Court: Colorado Court of Appeals

382 P.3d 1263

2016 COA 120

Bobby R. FARMER, Plaintiff–Appellant,

v.COLORADO PARKS & WILDLIFE COMMISSION, Department of Natural Resources, State of Colorado, Defendant–Appellee.

Court of Appeals No. 14CA2199

Colorado Court of Appeals, Div. IV.

Announced August 25, 2016

Randy L. Brown, P.C., Randy L. Brown, Grand Junction, Colorado, for Plaintiff–Appellant

Cynthia H. Coffman, Attorney General, Elaine J. Wizzard, Assistant Attorney General, Denver, Colorado, for Defendant–Appellee

Opinion by JUDGE HARRIS

¶ 1 Bobby R. Farmer appeals from the decision of the Colorado Parks and Wildlife Commission (Commission) to suspend his wildlife license privileges for twenty years. Farmer contends that the Commission's decision was arbitrary and capricious because it was not based on any standards designed to constrain the hearing officer's unfettered discretion as to the duration of the suspension. We agree and therefore vacate Farmer's suspension.

I. Background

¶ 2 Farmer is a big game hunter and guide. In 2006, after working as a registered outfitter for more than fifteen years, Farmer allowed his Colorado outfitter's license to lapse, though he continued to maintain the necessary permits to provide guiding services in Utah.

¶ 3 In 2008, the Division of Wildlife (DOW) received complaints from registered outfitters that Farmer was guiding hunts in Colorado without a license. DOW investigators initiated an investigation that spanned nearly three years and included undercover operations and interviews with numerous clients and associates of Farmer.

¶ 4 In late 2011, Farmer was charged with six counts of illegal sale of big game wildlife in violation of section 33–6–113(2)(a), C.R.S. 2015

, a class five felony, for outfitting mountain lion hunts without the proper license. He subsequently pleaded guilty to count 1 of the complaint, which alleged that he had guided a mountain lion hunt for Justin Skalla on January 5, 2009. In exchange for his guilty plea, Farmer received a two-year (unsupervised) deferred judgment and sentence on the single count and the dismissal of the remaining counts. A condition of the deferred judgment agreement prohibited Farmer from engaging in hunting activities, including acting as a guide or outfitter, for two years.

¶ 5 Pursuant to section 33–6–113(2)(a)

, his guilty plea triggered an administrative hearing by the Commission to determine whether to suspend Farmer's wildlife license privileges. Prior to the hearing, the hearing officer was provided with the DOW's 300–page investigative file, which detailed the factual premise underlying all 6 counts originally charged against Farmer. The hearing officer indicated that he had reviewed the file, and he asked Farmer a few questions based on the investigators' reports. Though Farmer responded to the questions, his lawyer contended that the statute permitted consideration only of the circumstances surrounding the offense of conviction, not of conduct charged but neither admitted to nor proven. Farmer then presented mitigating evidence related to the single count to which he had pleaded guilty.

¶ 6 After the hearing, Farmer received written notice that his hunting license had been suspended for twenty years. In his findings of fact, the hearing officer listed all six counts originally charged against Farmer and detailed the underlying facts. He further concluded that “[e]vidence in the state's case report[ ] supports the fact that these violations did occur.” He explained the twenty-year suspension as follows:

Mr. Farmer's wildlife violation is considered serious in nature, and appears to represent deliberate and knowing unlawful conduct by the respondent [.] His offenses also appear to represent an intentional disregard for Colorado's wildlife laws and regulations[.] Considering Mr. Farmer's convictions in court, and in balancing his offenses, and the statutorily-authorized period of suspension available for his wildlife violation, pursuant to C.R.S. 33–6–113

, a suspension period of 20–years of all of his privileges is warranted and ordered[.]

¶ 7 The hearing officer's order included a list of “[p]revious cases involving Illegal Sale/Outfitting without Registration,” consisting of thirteen names with corresponding suspension terms of between fifteen years and life. The hearing officer concluded that Farmer's suspension term was proportional to those imposed on other similarly situated licensees.

¶ 8 Farmer appealed the hearing officer's decision to the Commission. He argued that the hearing officer had erred in considering the unproven conduct and that the participating DOW investigator's approval of the plea agreement, which called for a two-year prohibition on hunting activities, established that his case warranted a much shorter period of suspension.

¶ 9 The Commission affirmed the twenty-year suspension. Like the hearing officer's order, the Commission's decision listed each of the dismissed counts and an extensive factual basis for the charges. The Commission disputed that Farmer had pleaded guilty to any particular count of the complaint, suggesting instead that Farmer had agreed that a factual basis supported any of the violations, and further disputed that the hearing officer had considered any of the conduct underlying the dismissed charges. As explanation for its affirmance, the Commission stated:

Mr. Farmer's wildlife-related misconduct is considered very serious in nature [.] His offenses reveal willful, deliberate and intentional wildlife-related criminal misconduct[.] Additionally, significant DOW and judicial resources were spent bringing this case to a conclusion[.] Such conclusion resulted in a criminal conviction against Mr. Farmer[.] These offenses considered together—and particularly with the law enforcement and judicial intervention—demonstrate by clear and convincing evidence an unacceptable pattern of knowing, flagrant and unlawful wildlife offenses which must be addressed.

¶ 10 The Commission's decision included the hearing officer's list of licensees and their suspension periods.

¶ 11 Farmer then initiated this action pursuant to section 24–4–106(7), C.R.S. 2015

, for review of the agency's decision. The district court affirmed.

II. Standard of Review

¶ 12 Our review of a district court's decision in a proceeding under the State Administrative Procedure Act (APA) is de novo. We sit in the same position as the district court and review the agency's decision for abuse of discretion. Quercioli v. Colo. Dep't of Nat. Res. , 201 P.3d 1270, 1271 (Colo. App. 2008)

.

¶ 13 We may set aside an agency's decision when it abused its discretion or when the decision was arbitrary and capricious, based on findings of fact that were clearly erroneous, unsupported by substantial evidence, or otherwise contrary to law. § 24–4–106(7)

; Grand Cty. Bd. of Comm'rs v. Colo. Prop. Tax Adm'r , 2016 COA 2, ¶ 26, ––– P.3d ––––. The agency's findings of fact are entitled to deference unless they are unsupported by competent evidence or reflect a failure to abide by the statutory scheme. Grand Cty. , ¶ 27.

III. Arbitrary and Capricious Agency Action

¶ 14 Farmer contends that he was deprived of due process because neither sections 33–6–106

and –113, C.R.S. 2015, nor any applicable regulations contain sufficient standards to constrain the Commission's discretion in determining the length of his suspension. Although we do not consider this to be a due process issue, we agree that there were insufficient standards to guide the Commission's decision, and thus conclude that it acted arbitrarily and capriciously when it suspended Farmer's license.

A. Preservation

¶ 15 As an initial matter, the Commission contends that Farmer failed to preserve this issue for review because he did not raise it at any point during his administrative hearing and he did not raise it in the district court until he filed his reply brief.

¶ 16 Ordinarily, an issue not raised before a hearing officer is waived. Chostner v. Colo. Water Quality Control Comm'n , 2013 COA 111, ¶ 39, 327 P.3d 290

. However, when the hearing officer has no authority to address the issue, it can be raised for the first time on appeal. See

United Airlines v. Indus. Claim Appeals Office , 2013 COA 48, ¶ 27, 312 P.3d 235 (because administrative law judge is not authorized to address constitutional issue, it need not be raised during administrative hearing); see also

Clasby v. Klapper , 636 P.2d 682, 684 n.6 (Colo. 1981) (“There was no need for the appellant to present his constitutional challenge to the board before raising that issue on appeal to the district court. Since the board could not rule on that claim, it would serve no purpose to impose such a requirement.”) (citations omitted). This is especially true when resolution of the issue does not require the hearing officer to make any factual determinations. See

United Airlines , ¶ 29.

¶ 17 Farmer's claim is that sections 33–6–106

and –113 do not provide sufficient standards to guide the hearing officer's discretion. The hearing officer had no authority to address either the constitutional or statutory merits of his argument. See

Clasby , 636 P.2d at 684 n.6. And this is a pure issue of law that requires no factfinding by the hearing officer. Thus, we may consider this issue even though it was not raised in the administrative hearing.

¶ 18 As for the argument that Farmer raised the issue for the first time in his reply brief in the district court, we note that the timing did not prejudice the Commission as the district court allowed the Commission to fully address the merits of Farmer's argument in a surreply. On appeal, the Commission chose not to respond to Farmer's due process argument, but we requested supplemental briefing. Therefore, the issue has been fully briefed in this court as well.

¶ 19 Farmer's claim presents a pure issue of law, the parties have had an opportunity to brief the merits of the claim in the district court and on appeal, the factual record is sufficiently...