Billings v. Wyoming State Bd. of Outfitters and Professional Guides

• Decision Date: 03 September 1992
• Docket Number: No. 91-227,91-227
• Citation: 837 P.2d 84
• Parties: John R. BILLINGS, d/b/a Open Creek Outfitters, Petitioner (Petitioner), v. WYOMING STATE BOARD OF OUTFITTERS AND PROFESSIONAL GUIDES, Respondent (Respondent).
• Court: Wyoming Supreme Court

Page 84

837 P.2d 84

John R. BILLINGS, d/b/a Open Creek Outfitters, Petitioner (Petitioner), v. WYOMING STATE BOARD OF OUTFITTERS AND PROFESSIONAL GUIDES, Respondent (Respondent).

No. 91-227.

Supreme Court of Wyoming.

Sept. 3, 1992.

Andrew L. Breffeilh, Jackson, for petitioner.

Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, and Ron Arnold, Sr. Asst. Attys. Gen., for respondent.

Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT, ^* and GOLDEN, JJ.

MACY, Chief Justice.

Petitioner John R. Billings, d/b/a Open Creek Outfitters, appeals from Respondent Wyoming State Board of Outfitters and Professional Guides' decision to revoke Petitioner's 1990 outfitter's license and to deny his 1991 license application.

We reverse.

Petitioner raises the following arguments on appeal:

I. The Board's conclusion of law that Petitioner violated § 23-2-416(a)(iv), and § 23-3-303(a), W.S.1977 with spoiled game meat is unsupported by substantial evidence.

II. The Board's conclusion of law that Petitioner violated § 23-2-416(a)(iv), and § 23-3-303(a), W.S.1977 with spoiled game meat is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.

III. The Board violated the Petitioner's constitutional rights against self-incrimination, against double jeopardy, to due process of law, and to equal protection of the laws.

IV. The Board denied the Petitioner his constitutional and statutory right to counsel.

V. The Board systematically violated the Wyoming Administrative Procedure Act.

VI. The Board systematically violated its own rules.

John R. Billings had operated Open Creek Outfitters for the previous ten years in the Open Creek drainage area of the Thorofare River in the Shoshone National Forest. The operation consisted of two camps staffed with various guides, wranglers, and cooks who provided the hunters with meals, horses, and sleeping accommodations. The hunters reached the camps by completing a rigorous thirty-two-mile pack trip into the wilderness. Once they were in camp, the hunters were taken on guided hunts for various big game animals in the Open Creek drainage area.

Following the 1990 hunting season, the Board received several complaints from hunters dissatisfied with the quality and/or lack of services which Petitioner provided on hunts scheduled for the weeks of September 8 and October 14, 1990. Most significant among the complaints was the fact that the meat from several of the elk shot during the September hunt spoiled before Petitioner delivered it to a meat processor in Cody. Similarly, hunters on the October trip complained that Petitioner needlessly allowed the meat from a deer to spoil. A hearing examiner heard the complaints in a two-day hearing, after which he recommended that Petitioner's 1991 license application be rejected for needlessly allowing game animals to go to waste. The Board voted to adopt the hearing examiner's recommendation and his proposed findings of fact and conclusions of law. Rather than issuing an order, the Board notified Petitioner by letter that, on the basis of the hearing examiner's recommendation, it was revoking his 1990 license and denying his 1991 license application. Petitioner petitioned for a review in the district court, and the district court certified the matter to this Court for resolution pursuant to W.R.A.P. 12.09.

In his first issue, Petitioner contends that the Board's conclusions of law were not supported with substantial evidence as was required by Wyo.Stat. § 16-3-114(c)(ii)(E) (1990). Although Petitioner phrases the argument as being a lack of substantial evidence, the text of his argument addresses what, in our view, is the true threshold question: Whether the Board made sufficiently detailed findings of fact to support its action as was required by Wyo.Stat. § 16-3-110 (1990).

Section 16-3-110 sets forth an agency's duty to support its action with sufficient factual findings:

A final decision or order adverse to a party in a contested case shall be in writing or dictated into the record. The final decision shall include findings of fact and conclusions of law separately stated. Findings of fact if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting the findings.

(Emphasis added.) In prior cases, we interpreted this statute as imposing the duty upon the agency to "make findings of basic facts upon all of the material issues in the proceeding and upon which its ultimate findings of fact or conclusions are based." Pan American Petroleum Corporation v. Wyoming Oil and Gas Conservation Commission, 446 P.2d 550, 555 (Wyo.1968). See also Mekss v. Wyoming Girls' School, 813 P.2d 185, 201 (Wyo.1991), cert. denied, 502 U.S. 1032, 112 S.Ct. 872, 116 L.Ed.2d 777 (1992). A lack of findings of basic fact on all material issues precludes any rational basis for judicial review because this Court cannot determine the basis upon which each ultimate fact or conclusion was reached. In short, we must know the why. Geraud v. Schrader, 531 P.2d 872, 879 (Wyo.), cert. denied, 423 U.S. 904, 96 S.Ct. 205, 46 L.Ed.2d 134 (1975). When the agency's findings do not adequately explain the justification for its position, we must remand the matter to the agency for the necessary supplemental findings. Mekss, 813 P.2d at 202.

In this case, the Board based its decision to revoke Petitioner's license and to deny his license application upon the following conclusion of law:

22. [Petitioner] violated W.S. 23-2-416(a)(iv) ¹ and W.S. 23-3-303(a) by allowing meat to needlessly go to waste. [Petitioner] did not make any special arrangements to pack out the meat when the weather was unseasonably hot during the September 8, 1990 trip. The unseasonable weather does not excuse an experienced outfitter to continually allow hunting while not taking precautions against the unseasonable heat. Furthermore, [Petitioner] did not pack out the meat shot by a hunter on the October 14, 1990 trip.

Wyo.Stat. § 23-2-416(a)(iv) (1991) authorizes the Board to suspend or revoke an outfitter's license for violation of a significant wildlife law. Here, the Board concluded that Petitioner violated Wyo.Stat. § 23-3-303(a) (1991), which provides:

(a) No person shall take and leave, abandon or allow any game bird, game fish, or game animal except trophy game animal, or edible portion, to intentionally or needlessly go to waste.

The language of § 23-3-303(a) requires the Board to find first that Petitioner took a game animal and second that he needlessly or intentionally allowed it to go to waste. In an attempt to satisfy the statute's requirements, the Board made the following findings:

10. Most of the hunters shot elk on the trip [referring to the September 8th trip]. Five out of six elk spoiled before delivery of the elk meat to the Cody processor.

....

13. During the October 14, 1990 trip, one of the hunters shot and killed a deer. The deer meat was never found and packed out to the Cody processor plant.

These findings are insufficient to support the Board's conclusion that Petitioner violated § 23-3-303(a) for two reasons. First, the Board failed to find that Petitioner took the animals which he allegedly allowed to go to waste. Second, the findings are not adequate to allow this Court to engage in a meaningful review of the Board's conclusion that Petitioner needlessly wasted wild game meat.

We will first address the Board's failure to adequately support its conclusion that Petitioner needlessly allowed the meat from game animals to go to waste. The Board's findings that the meat from five elk spoiled before it was delivered to the meat processor and that one deer was never found and packed out are not sufficient. To adequately support its conclusion, the Board must explain how Petitioner's action or inaction resulted in needlessly wasting wild meat. At a minimum, the Board should have made findings regarding the relevant time period; i.e., establishing when the kill was made, when the animal was brought into camp, and when Petitioner actually packed out the meat. Without knowing what Petitioner did or failed to do, we do not have an adequate basis upon which we can review the Board's conclusion.

In addition to its two cursory findings of fact, the Board states in conclusion of law number 22 that Petitioner did not make special arrangements to pack out the meat during the unseasonably hot September hunt and that he allowed hunting while not taking precautions against the heat. Although written as part of a conclusion of law, these statements are probably more accurately labeled as findings of fact. As findings of fact, these statements at least attempt to identify what Petitioner failed to do; however, they are still not sufficient to support the conclusion that Petitioner needlessly allowed the meat to spoil because they do not identify what special arrangements or precautions Petitioner failed to undertake.

As we previously mentioned, to violate § 23-3-303(a) one must not only needlessly allow wild game meat to go to waste, but one must also take the game animal in question. Our interpretation of the statute requires the Board to find that Petitioner took the deer and elk which spoiled. The Board disagrees with this position, arguing that § 23-3-303(a) is applicable to Petitioner even if he did not take the animals. In support of its view that to violate the statute one does not need to take the animal, the Board points out that § 23-3-303(a) does not say "no hunter" may waste wild game meat but rather that it provides "no person" may waste wild meat. "Person" is broadly defined in Wyo.Stat. § 23-1-102(a)(viii) (1991) as "an individual, partnership, corporation, company, any other type of association, and any agent or officer of any partnership, corporation, company, or other type of association." Thus, according to the Board, this broad definition makes the statute applicable to Petitioner.

We...