Anderson v. Ariz. Game and Fish Dept.

• Decision Date: 08 November 2010
• Docket Number: No. 2 CA-CV 2010-0098.,2 CA-CV 2010-0098.
• Parties: Ralph E. ANDERSON, Plaintiff/Appellant, v. ARIZONA GAME AND FISH DEPARTMENT, Defendant/Appellee.
• Court: Arizona Court of Appeals

243 P.3d 1021

226 Ariz. 39

Ralph E. ANDERSON, Plaintiff/Appellant,

v.ARIZONA GAME AND FISH DEPARTMENT, Defendant/Appellee.

No. 2 CA-CV 2010-0098.

Court of Appeals of Arizona,

Division 2, Department A.

Nov. 8, 2010.

Barton & Storts, P.C. by Brick P. Storts, III, Tucson, Attorney for Plaintiff/Appellant.

Terry Goddard, Arizona Attorney General by Linda J. Pollock, Phoenix, Attorneys for Defendant/Appellee.

OPINION

BRAMMER, Presiding Judge.

¶ 1 Ralph Anderson appeals from the superior court's order affirming the Arizona Game and Fish Commission's decision revoking his hunting, fishing and trapping licenses (referred to herein as licenses) and denyinghim the right to secure additional licenses for a period of ten years consecutive to a previously imposed revocation term. Anderson argues on appeal that the Commission lacked the statutory authority under A.R.S. § 17-340 to impose consecutive sanctions and lacked jurisdiction to revoke his previously revoked licenses. We reverse in part and affirm in part the superior court's order affirming the Commission's July 2008 decision. We remand the case to the superior court with directions to return it to the Commission for further proceedings.

Factual and Procedural Background

¶ 2 The relevant facts are undisputed. In September 2007, Anderson was convicted of the unlawful taking of wildlife out of season. Pursuant to § 17-340, the Commission revoked his licenses and denied him the right to re-apply for additional licenses for a period of five years. In November 2007, Anderson was convicted of an unrelated second violation of game and fish laws-taking game in excess of the bag limit. As a result, in July 2008 the Commission ordered the following pursuant to § 17-340:

NOW, THEREFORE, IT IS ORDERED that any and all licenses to HUNT, FISH, and TRAP in the State of Arizona issued to MR. RALPH E. ANDERSON be revoked and HE is denied the right to secure additional license(s) for a period of TEN (10) YEARS to run consecutively after his current revocation which expires on March 7, 2013.

¶ 3 After the Commission denied his request for rehearing, Anderson sought judicial review of the Commission's decision. The superior court affirmed the decision and returned the matter to the Commission for enforcement.¹ This appeal followed. We have jurisdiction over Anderson's appeal pursuant to A.R.S. § 12-913.

Discussion

¶ 4 Anderson first argues the superior court erred in finding the Commission had authority to impose consecutive sanctions for multiple violations of game and fish laws because such authority is not granted explicitly by § 17-340(B)(2). The superior court "shall affirm the agency action unless ... [it] is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." A.R.S. § 12-910(E); see also Brodsky v. City of Phoenix Police Dep't. Ret. Sys. Bd., 183 Ariz. 92, 94-95, 900 P.2d 1228, 1230-31 (court decides only whether action "illegal, arbitrary, capricious, or an abuse of discretion"). And, we review a court's interpretation of statutes de novo. Pima County v. Pima County Law Enforcement Merit Sys. Council (Harvey), 211 Ariz. 224 ¶ 13, 119 P.3d 1027, 1030 (2005); LaWall v. Pima County Merit Sys. Comm'n, 212 Ariz. 489, ¶ 4, 134 P.3d 394, 396 (App.2006).

¶ 5 Section 17-340 provides, in relevant part:

A. Upon conviction ... and in addition to other penalties prescribed by this title, the commission, after a public hearing, may revoke or suspend a license issued to any person under this title and deny the person the right to secure another license to take or possess wildlife for a period of not to exceed five years for:

1. Unlawful taking, unlawful selling, unlawful offering for sale, unlawful bartering or unlawful possession of wildlife.

....

B. On conviction or after adjudication as a delinquent juvenile and in addition to any penalties prescribed by this title:

....

2. For a second conviction or a second adjudication as a delinquent juvenile, for unlawfully taking or wounding wildlife atany time or place, the commission, after a public hearing, may revoke, suspend or deny a person's privilege to take wildlife for a period of up to ten years.

¶ 6 An administrative agency has only the authority granted by the legislature through its enabling legislation. Harvey, 211 Ariz. at ¶ 13, 119 P.3d at 1030; LaWall, 212 Ariz. at ¶ 6, 134 P.3d at 397. The superior court found the Commission had authority to impose consecutive sanctions because § 17-340(B) permits the Commission to revoke a person's privilege to take wildlife for a second violation "[i]n addition to any other penalties prescribed by this title." We disagree that the Commission has such authority.

¶ 7 "The primary rule of statutory construction is to find and give effect to legislative intent." Mail Boxes, Etc., U.S.A. v. Indus. Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). We first look to the plain language of the statute as the best reflection of the legislature's intent. See id. And if that language is unambiguous, we give effect to it and do not employ other rules of statutory construction to determine the statute's meaning. Janson ex rel. Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). The phrase, "[i]n addition to any other penalties prescribed by this title," does not explicitly authorize consecutive sanctions. It instead may permit a person to be sanctioned under multiple sections of the title for one offense. For example, the Commission may revoke a person's license under § 17-340(A) and simultaneously suspend his privileges under § 17-340(B). Or a repeat offender may have his hunting privileges revoked under § 17-340(B) and also be found guilty of a class one misdemeanor under A.R.S. § 17-340(H) for taking wildlife while his privileges are revoked.

¶ 8 To the extent the statutory language is ambiguous, we may look to the legislative history in order to interpret the statute and determine the legislature's intent. See Blake v. Schwartz, 202 Ariz. 120, ¶ 29, 42 P.3d 6, 12 (App.2002) ("[U]ncertainty about the meaning or interpretation of [a] statute's terms requires the appellate court to apply methods of statutory interpretation that go beyond the statute's literal language, [including consideration of] the statute's ... historical background.' "), quoting Estancia Dev. Assoc., L.L.C. v. City of Scottsdale, 196 Ariz. 87, ¶ 11, 993 P.2d 1051, 1054 (App.1999). Although neither party presented the superior court with the legislative history of § 17-340, we consider it in order to construe the statute. See Evenstad v. State, 178 Ariz. 578, 582, 875 P.2d 811, 815 (App.1993) ("[W]hen we are considering the interpretation and application of statutes, we do not believe we can be limited to the arguments made by the parties if that would cause us to reach an incorrect result.").

¶ 9 The legislative history of § 17-340 shows a 2006 amendment of the bill, as initially introduced, would have granted the Commission explicit authority to "deny a person's privilege to take or possess wildlife for a period of not to exceed five years per violation, which may run consecutively." H.B. 2129, 47th Leg., 2d Reg. Sess. (Ariz.2006) (introduced version). Subsequent amendments to the 2006 bill removed the Commission's power to impose consecutive sanctions, moved all references to "privileges" to subsection (B), and specified new maximum sanction periods for subsequent violations. H.B. 2129, 47th Leg., 2d Reg. Sess. (Ariz.2006) (Senate engrossed version); Minutes of House Comm. on Approp., 47th Leg., 2d Reg. Sess. (Feb. 22, 2006) (amendment "[r]emoves the provision that penalties imposed by the Commission may run consecutively"). Because the statute's language does not grant the Commission the express power to impose consecutive sanctions, and further because the legislature considered and rejected granting that power, we hold § 17-340(B) does not grant the Commission authority to impose consecutive sanctions on offenders for repeat offenses.²

¶ 10 To the extent Anderson contends the Commission does not have the power to impose sanctions under § 17-340(B)(2) until he has completed the term of his previous sanction, we disagree. The Commission may revoke or suspend a person's privilege to take wildlife "[o]n conviction," including "for a second conviction." § 17-340(B). Theplain language of the statute grants the Commission authority to sanction persons convicted of violations of game and fish laws and does not exclude from the Commission's jurisdiction persons who previously have been convicted of a violation, but have not yet completed a prior revocation or suspension period.³See Mail Boxes, Etc., U.S.A., 181 Ariz. at 121, 888 P.2d at 779 (To determine legislative intent, "[w]e look first to the statute's words.").

¶ 11 Anderson also contends the Commission lacked jurisdiction to revoke his licenses under § 17-340(B) because they already had been revoked as a sanction for his first conviction. Although the Commission may lack authority to revoke licenses under § 17-340(B) because that subsection only empowers the Commission to "revoke ... a person's privilege to take wildlife," the Commission has the power under § 17-340(A) to "revoke or suspend a license" issued to a person who has been convicted of a covered offense. The Commission's June 2008 order provides that "any and all...