Billings v. WYOMING BD. OF OUTFITTERS

• Decision Date: 20 April 2004
• Docket Number: No. 03-20.,03-20.
• Parties: John R. BILLINGS, Licensed Outfitter, License No. BFG-295, Appellant (Petitioner), v. WYOMING BOARD OF OUTFITTERS AND PROFESSIONAL GUIDES, Appellee (Respondent). and John R. Billings, d/b/a Open Creek Outfitting; and Open Creek Outfitting, LLC, Appellants (Plaintiff), v. Wyoming Board of Outfitters and Professional Guides, Appellee (Defendant).
• Court: Wyoming Supreme Court

88 P.3d 455

2004 WY 42

John R. BILLINGS, Licensed Outfitter, License No. BFG-295, Appellant (Petitioner), v. WYOMING BOARD OF OUTFITTERS AND PROFESSIONAL GUIDES, Appellee (Respondent). and John R. Billings, d/b/a Open Creek Outfitting; and Open Creek Outfitting, LLC, Appellants (Plaintiff), v. Wyoming Board of Outfitters and Professional Guides, Appellee (Defendant).

No. 03-20.

Supreme Court of Wyoming.

April 20, 2004.

Representing Appellants: Daniel B. Frank of the Frank Law Office, P.C., Cheyenne, Wyoming; and S. Joseph Darrah of Darrah, Darrah & Brown, P.C., Powell, Wyoming.

Representing Appellee: Patrick J. Crank, Attorney General; Robin Sessions Cooley, Senior Assistant Attorney General; and Kennard F. Nelson, Senior Assistant Attorney General, Cheyenne, Wyoming.

Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

VOIGT, Justice.

[¶ 1] In February 2002, the Wyoming Board of Outfitters and Professional Guides (Board) revoked appellant John R. Billings' (Billings) outfitter's license based on several violations of state statutes and/or the Board's rules. Billings subsequently filed a petition for review of the Board's decision, and a complaint for declaratory judgment, in the district court. Following the district court's respective rulings, three incidents underlying these violations remain at issue on appeal: (1) Billings' livestock and its proximity to his lower hunting camp and that camp's water supply; (2) whether Billings failed properly to dispose of a dead mule carcass; and (3) whether Billings willfully endangered Sandra Ditzler's health and safety while traveling from the lower hunting camp to the trailhead.

[¶ 2] Billings argues that the evidence was insufficient to support the Board's findings that Billings' conduct violated state statutes and/or the Board's rules and that the Board did not sufficiently explain why it revoked Billings' license rather than impose a lesser sanction. He also raises several issues regarding the constitutionality of state statutory provisions and the Board's rules. We affirm.

ISSUES

[¶ 3] We rephrase the parties' issue statements as follows:

1. Whether the record contains sufficient evidence that:

A. Billings willfully endangered the health and safety of consumers of the lower camp's water supply, maintained an unsanitary camp, failed to keep livestock facilities separate from camp facilities, and failed to protect a stream from contamination;

B. Billings violated a significant federal regulation pertaining to wildlife, game and fish; and

C. Billings willfully endangered the health and safety of Sandra Ditzler.

2. Should we find sufficient evidence to support one or more of these violations, was the Board's decision to revoke Billings' outfitter's license proper?

3. Whether the constitutionality of Wyo. Stat. Ann. § 23-2-416(a)(v) (LexisNexis 2003) remains at issue on appeal?

4. Whether Wyo. Stat. Ann. § 23-2-416(a)(iv) and (ix) and Chapter 3, Section 1(n) (1997) of the Board's rules are unconstitutionally vague?

5. Whether Billings has standing to challenge the constitutionality of Chapter 3, Section 2 of the Board's rules?

FACTS

[¶ 4] Appellant Billings is an outfitter licensed by the Board. Billings has provided commercial outfitting services in the Bridger Teton National Forest since the early 1980s. His business consists of outfitting hunters, through the use of horses and mules, into an area near the southeast corner of Yellowstone Park, in the Thorofare River Drainage. There, Billings maintains two hunting camps. His lower hunting camp is approximately 37-39 miles from the Ishawooa Creek Trailhead while his upper hunting camp is located 30-32 miles from that trailhead. Billings also maintains a "layover" camp along the Ishawooa Creek Trail, where clients stop overnight en route to the hunting camps. The hunting camps may also be reached by way of a trail known as the Deer Creek Trail.

On July 20, 1998, the Board filed a complaint against Billings seeking censure, suspension, or revocation of Billings' outfitter's license. The Board's complaint was based on written complaints from hunters who hired Billings' during the 1996 and 1997 hunting seasons. The Board's complaint first alleged that Billings acted unethically and dishonorably in the treatment of, and correspondence with, his clients. The complaint next alleged that Billings had willfully endangered his clients. One endangerment allegation asserted the abandonment of clients on Deer Creek Trail as the clients packed out of camp. The other willful endangerment allegation asserted Billings had permitted a client to lead a troublesome mule, Mel, along the trail and that the client was eventually kicked in the chest by the mule. (The evidence produced at the hearing indicated that the client, Dan Nutsch, was actually kicked by the mule he had been riding, Bo, when he dismounted Bo in order to gather up troublesome Mel.)

The complaint also alleged that Billings had violated significant federal regulations pertaining to wildlife, game, and fish by (1) improperly disposing of a mule carcass, in violation of 36 C.F.R. § 261.58(s); and (2) caching items in the wilderness without permission from the United States Forest Service in violation of 36 C.F.R. § 261.57(f). The complaint further alleged that Billings had failed to maintain neat and sanitary camps and that Billings had substantially breached his contract with his clients by, inter alia, utilizing hunting guides who were not properly trained and by failing to maintain a sufficient number of employees in camp. The complaint finally alleged that Billings had treated his livestock in an inhumane fashion.

After four days of hearings, held December 11, 1998, and February 2-4, 1999, the Board issued its findings of fact and conclusions of law on April 22, 1999, revoking Billings' outfitters license....

...

The Board also specifically found and concluded that Billings did not engage in the inhumane treatment of his livestock. The Board did not make any findings regarding the allegation that Billings had illegally cached items in the wilderness.

Billings filed a combined petition for review and complaint for declaratory judgment with the district court, which certified the case pursuant to W.R.A.P. 12.09.

Disciplinary Matter of Billings, 2001 WY 81, ¶¶ 3-6, 8-9, 30 P.3d 557, 562-64 (Wyo.2001)

(Billings I).¹

[¶ 5] In Billings I, 2001 WY 81, ¶¶ 19, 23, 42, 30 P.3d at 567-68, 573, we proceeded to resolve several issues raised by Billings, and ultimately concluded that the Board's findings were "inadequate to permit appellate review," that the Board exceeded its statutory authority in promulgating two of its rules, and that the district court was without authority to certify the declaratory judgment action to this Court. We remanded the case to the district court "with instructions to enter a judgment vacating the order of the Board and remanding the proceedings to the Board for further proceedings consistent with [our] opinion." Id., 2001 WY 81, ¶ 43, 30 P.3d at 573.

[¶ 6] On remand, the Board issued new findings of fact and conclusions of law on February 26, 2002, and again revoked Billings' outfitter's license. In March 2002, Billings filed a Petition for Review of Agency Action, Request for Stay and Complaint for Declaratory Judgment. The district court bifurcated its consideration of the complaint for declaratory judgment and the petition for review. The district court found that Wyo. Stat. Ann. § 23-2-416(a)(v) was unconstitutionally vague, but otherwise rejected the constitutional arguments Billings raised in seeking a declaratory judgment. The district court affirmed the Board on the issues raised in Billings' petition for review. Billings now appeals the district court's adverse rulings. The Board did not cross-appeal the district court's decision on the constitutionality of Wyo. Stat. Ann. § 23-2-416(a)(v).

STANDARD OF REVIEW

[¶ 7] Under the circumstances of the instant case, Wyo. Stat. Ann. § 23-2-416(c) provides for judicial review of license revocation proceedings pursuant to the Wyoming Administrative Procedure Act. Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2003) sets forth the standards for judicial review of agency action:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:

(i) Compel agency action unlawfully withheld or unreasonably delayed; and

(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;

(B) Contrary to constitutional right, power, privilege or immunity;

(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right (D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[¶ 8] As we said in Bryant v. State ex rel. Wyoming Dept. of Transp., 2002 WY 140, ¶ 9, 55 P.3d 4, 8 (Wyo.2002), we do not

afford any special deference to the district court's decision when we review a matter initiated before an administrative agency. Rather, this court reviews the case as if it came directly from the administrative agency.... Our review must focus on the evidence and consider the reasonableness of the agency's exercise of judgment while determining if the agency committed errors of law.... If the agency committed any errors of law, this court must correct them.

See also State ex rel. Dept. of Transp. v. Legarda, 2003 WY 130, ¶ 10, 77 P.3d 708,...