DISCIPLINARY MATTER OF BILLINGS

• Decision Date: 31 August 2001
• Docket Number: No. 99-218.,99-218.
• Citation: 30 P.3d 557,2001 WY 81
• Parties: In the DISCIPLINARY MATTER OF John R. BILLINGS, d/b/a Open Creek Outfitting, Licensed Outfitter, License No. BG-295, and John R. Billings, d/b/a Open Creek Outfitting, Appellant (Petitioner), v. Wyoming Board of Outfitters and Guides, Appellee (Respondent).
• Court: Wyoming Supreme Court

30 P.3d 557

2001 WY 81

In the DISCIPLINARY MATTER OF John R. BILLINGS, d/b/a Open Creek Outfitting, Licensed Outfitter, License No. BG-295, and John R. Billings, d/b/a Open Creek Outfitting, Appellant (Petitioner), v. Wyoming Board of Outfitters and Guides, Appellee (Respondent).

No. 99-218.

Supreme Court of Wyoming.

August 31, 2001.

S. Joseph Darrah of Darrah & Darrah, P.C., Powell, WY, and Daniel B. Frank of Frank Law Office, P.C., Cheyenne, WY. Argument by Mr. Frank, Representing Appellant.

Gay Woodhouse, Attorney General; Michael L. Hubbard, Deputy Attorney General; John S. Burbridge, Assistant Attorney General; Angela C. Dougherty, Assistant Attorney General. Argument by Mr. Burbridge, Representing Appellee.

Before LEHMAN, C.J., and MACY,¹ GOLDEN, and HILL, JJ.

LEHMAN, Chief Justice.

[¶ 1] Based on complaints from dissatisfied clients of outfitter John R. Billings (Billings), the Wyoming State Board of Outfitters and Professional Guides (Board), after four days of hearings, revoked Billings' outfitter's license. We reverse and remand for proceedings consistent with this opinion.

ISSUES

[¶ 2] Billings presents this statement of the issues:

A. Did the Wyoming Board of Outfitters and Professional Guides (Board) make adequate findings of fact in its order revoking the Appellant's outfitting license to show that it weighed conflicting evidence and made a reasoned decision sufficient to permit judicial review of the Board's reasoning?

B. Upon judicial review of the entire record is there substantial evidence showing that the Board met its burden to prove its case with clear and convincing evidence?

C. Did the Board properly promulgate regulations containing adequate objective standards to permit judicial review of the agency's conclusions of law in its order?

D. Did the Board exceed its statutory authority when it promulgated regulations which expand the reach and effect of the regulations upon the Appellant beyond the clear meaning of the authorizing statute?

E. Did the Board fail to comply with the Wyoming Administrative Procedure Act when it incorporated Federal Regulations by reference in the absence of the procedures required by W.S. § 16-3-103(h)?

F. Did the Board violate the Wyoming Administrative Procedure Act and constitutional notice requirements when it found Appellant violated certain regulations which it did not allege in its complaint?

G. In the event that the Court upholds any of the Board's factual findings and corresponding regulations, did the Board adequately explain how it applied its findings of fact to the law so as to permit judicial review of the Board's ultimate legal conclusions?

H. Is Appellant entitled to judgment declaring that certain provisions in the outfitters act and the Board's commensurate regulations are constitutionally void for vagueness and over breadth in accordance with the Declaratory Judgments Act?

I. Is Appellant entitled to judgment declaring that the Board has not been properly been [sic] delegated authority to adjudicate matters properly devoted to the jurisdiction of the Courts or other agencies?

As appellee, the Board articulates this statement of the issues:

I. Whether the decision of the Wyoming State Board of Outfitters and Professional Guides revoking Appellant's license was proper under Wyo. Stat. § 16-3-114.

II. Whether Appellant improperly used the "statement of facts" portion of his brief for legal argument in violation of the Wyoming Rules of Appellate Procedure.

III. Whether the Appellant's complaint for declaratory judgment was improperly joined with Appellant's petition for relief.

FACTS

[¶ 3] 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.

[¶ 4] 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.)

[¶ 5] 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.

[¶ 6] 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's Findings of Fact included:

3. On or about October 10, 1997, John R. Billings did act unethically and dishonorably by calling his clients names such as "son of a bitch"; by challenging clients to a fight when disagreements arose; and by assaulting a client at the trailhead.

4. On or about October 10, 1997, John R. Billings did willfully endanger the health and safety of clients, in that he abandoned one of his clients, Sandra Ditzler, on the Deer Creek Trail.

5. On or about September 8, 1997, John R. Billings did willfully endanger the health and safety of clients in that he permitted Dan Nutsch to be injured while caring for livestock which belonged to John R. Billings, and which should have been properly cared for by employees of John R. Billings, while traveling into camp. 6. On or about August 25, 1997, John R. Billings did violate significant federal regulations pertaining to Wildlife, game and fish in that he did fail to properly dispose of the carcass of a dead mule as required by 36 C.F.R. 261.58(s), Special Order, relating to Grizzly Bears, properly issued by the United States Department of Agriculture, Forest Service.

7. During the Fall of 1997, John R. Billings failed to maintain a sanitary camp in that he permitted livestock to remain in and near the camp water supply utilized for human consumption; and leave excrement near the water supply in violation of the rules and regulations of the Board.

8. John R. Billings breached his contracts with clients by failing to be responsible for the actions of his employees and professional guides in that he failed to properly provide supervision for his employees in handling of livestock while transporting hunters to camp; failed to provide adequate training for his employees in the handling of livestock; and by his lack of attendance at camp, failed to supervise or adequately provide for the supervision of the activities of his employees while they were in camp; failed to provide adequate professional outfitting and guide services at his camps, and while on the trail to and from his camp; failed to provide adequate employees and guides to properly run his camps; and causing clients to lose hunting time they had contracted for because of his lack of adequate employees and guides.

[¶ 7] The Board's order also includes conclusions of law that are virtually identical to these findings of fact. Those conclusions provided:

4. John R. Billings did act unethically and dishonorably by calling his clients names such as "son of a bitch"; by challenging clients to a fight when disagreements arose; and by assaulting a client at the trailhead in violation of § 23-2-416(a)(v) and (x) W.S.1998 and Chapter 3, Section 1(o) and (t), Rules and Regulations of the Wyoming State Board of Outfitters and Professional Guides.

5. John R. Billings did willfully endanger the health and safety of clients, in that he abandoned one of his clients, Sandra Ditzler, on the Deer Creek Trail in violation of § 23-2-416(a)(ix) and (x) W.S.1998 and Chapter 3, Section 1(k), (o) and (t), Rules and Regulations of the Wyoming State Board of Outfitters and Professional Guides.

6. John R. Billings did willfully endanger the health and safety of clients in that he permitted a hunter, Dan Nutsch, to be injured while caring for livestock which belonged to John R. Billings, and which should have been properly cared for by employees of John R. Billings, while traveling into camp in violation of § 23-2-416(a)(ix) and (x) W.S.1998 and Chapter 3, Section 1(k), (o) and (t), Rules and Regulations of the Wyoming State Board of Outfitters and

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