Heilig v. Wyoming Game and Fish Com'n, 02-41.

Citation2003 WY 27,64 P.3d 734
Decision Date28 February 2003
Docket NumberNo. 02-41.,02-41.
PartiesDaniel HEILIG, Appellant (Plaintiff), v. WYOMING GAME AND FISH COMMISSION, Wyoming Game and Fish Department, and John Baughman, Director, Wyoming Game and Fish Department, Appellees (Defendants).
CourtUnited States State Supreme Court of Wyoming

Daniel F. Heilig, Lander, Wyoming, pro se.

Hoke MacMillan, Attorney General; Thomas J. Davidson, Deputy Attorney General; and Lynda G. Cook, Senior Assistant Attorney General, Representing Appellees.

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

KITE, Justice.

[¶ 1] Daniel Heilig, an attorney and avid hunter, filed a pro se declaratory judgment action in the Ninth Judicial District Court asserting Chapter 2, Section 12 of the Wyoming Game and Fish Department's (Game and Fish) general hunting regulations was null and void, unenforceable, and invalid ab initio because Game and Fish had not complied with the Wyoming Administrative Procedure Act (Wyo. Stat. Ann. §§ 16-3-101 to -115 (LexisNexis 2001)) (WAPA) in incorporating its 2000 Walk-In Areas Hunting publication (Atlas) by reference into its rules and regulations. Prior to the declaratory judgment action being filed, a criminal action was filed against Mr. Heilig in the Big Horn County Circuit Court alleging he failed to obtain landowner consent to hunt in violation of Wyo. Stat. Ann. § 23-3-305(b) (LexisNexis 2001). The criminal matter was pending on appeal to the Fifth Judicial District Court and presented the same legal issues as the declaratory judgment complaint. The Ninth Judicial District Court granted Game and Fish's motion to dismiss the declaratory judgment action finding the complaint failed to state a claim upon which relief could be granted and Mr. Heilig was not adversely affected in fact. We affirm the dismissal on different grounds because the declaratory judgment was not consistent with the circumstances in which we have allowed multiple similar actions to proceed.

ISSUE

[¶ 2] We rephrase the issue as follows: Did the Ninth Judicial District Court abuse its discretion by dismissing the declaratory judgment action?

FACTS

[¶ 3] Game and Fish began to develop a program in 1998 intended to make hunting on private lands available to the public through agreements with private landowners. The landowners stipulate the species for which they will permit access and the time frame within established hunting seasons in which the public will be allowed access on their private lands. We will refer to this as the Walk-In Area Program.

[¶ 4] On November 5, 2000, Mr. Heilig was hunting pheasants in Walk-In Area No. 28 located in Big Horn County. The area was not designated for pheasant hunting by the Atlas, and Mr. Heilig had not asked for nor received the landowner's permission to hunt pheasants. He was cited by a Game and Fish warden and prosecuted in the circuit court of the Fifth Judicial District for allegedly violating § 23-3-305(b)1 by entering private property in Big Horn County to hunt without the landowner's permission—a seventh degree misdemeanor. These facts are not in dispute.

[¶ 5] In February of 2001, Mr. Heilig filed a motion to dismiss the criminal action contending in part that Game and Fish's rules and regulations for the Walk-In Area Program were void because they were improperly promulgated and were unconstitutional. On April 24, 2001, the circuit court denied the motion, and Mr. Heilig entered a conditional guilty plea under W.R.Cr.P. 11(a)(2)2 and appealed the denial of his motion to dismiss to the Fifth Judicial District Court. On the same day, the parties filed a joint motion requesting the circuit court to certify specific questions to the Fifth Judicial District Court and identified these legal issues:

a. Does a person hunting on private lands that are enrolled in [Game and Fish's] Walk-In Access Program who has received permission of the owner or person in charge of the property commit a trespass in violation of W.S. § 23-3-305(b) when that person hunts a species not contemplated in the contract which created the rights of the general public to hunt the private lands?
b. Did [Game and Fish] violate W.S. § 23-1-302(a)(i) when it established the Walk-In Access Program in a manner which allowed private landowners to determine which species may be hunted on their private lands, and at what dates, irrespective of the legally promulgated seasons which were established according to the Wyoming Administrative Procedure[ ] Act?
c. Has [Game and Fish] violated the requirements of the Wyoming Administrative Procedure[] Act when it allowed private landowners, in conjunction with the Walk-In Access Program, to set dates and species which could be taken on their private lands when said dates and species limitations conflicted with hunting areas not enrolled in said program?
d. Is the Walk-In Access Program in violation of the Wyoming Administrative Procedure[ ] Act in that the program was not subject to the procedural requirements of the Act, yet criminal sanctions may result from violations of the provisions of the program?
e. Can a [Game and Fish] publication (Walk-In Area Atlas), which has not been subject to public notice or public comment, provide a legal basis to sustain a criminal charge of trespassing, a violation of W.S. § 23-3-305(b)?
f. Is W.S. § 23-3-305(b), as applied to [Mr. Heilig] in this case, unconstitutionally vague, and therefore void, in violation of the Due Process Clause of the 14th Amendment to the United States Constitution, and Article I of the Wyoming Constitution?

The status of the appeal to the Fifth Judicial District Court is unclear, but it appears from the designated record to be pending.

[¶ 6] On April 6, 2001, Mr. Heilig filed a pro se declaratory judgment action in the Ninth Judicial District Court setting out claims we paraphrase as follows:

Count I—"Violations of Wyoming Administrative Procedure Act." Game and Fish violated § 16-3-103(h) of the WAPA by incorporating "Department publications," the Atlas, by reference into its rules at Chapter 2, Section 12 which are not codes, standards, rules, or regulations and were not in existence at the time the rules (Chapter 2, Section 12) were promulgated in April of 2000. Game and Fish violated the WAPA because it failed to identify what "Department publications" it was incorporating by reference, provide a statement of the terms and substance of the proposed rule, or indicate where the publications material could be accessed.
Count II—"Violations of Wyoming Game and Fish Statutes and Wyoming Administrative Procedure Act." Game and Fish exceeded its authority and acted contrary to Wyo. Stat. Ann. §§ 23-1-302(a) and 23-1-303 (LexisNexis 2001) by establishing the Atlas hunting seasons and dates without conforming to the WAPA requirements.
Count III—"Violation of Due Process Requirements of the 14th Amendment to the Constitution of the United States." Game and Fish violated Mr. Heilig's right to due process under the Fourteenth Amendment3 to the United States Constitution by prosecuting a criminal charge on the basis of Game and Fish's rules (Chapter 2, Section 12) and the Atlas which were not properly promulgated under the WAPA and did not provide adequate notice of the prohibited behavior or the potential penal sanction.
Count IV—"Violation of Due Process Requirements of Article 1, Section 6 of the Constitution of [t]he State of Wyoming." Game and Fish violated Mr. Heilig's right to due process under Article 1, Section 64 of the Wyoming Constitution by prosecuting a charge on the basis of a rule and publication which failed to provide fair and adequate warning of the prohibited conduct or penalty and were not promulgated pursuant to the WAPA procedural requirements.

[¶ 7] Through this action, Mr. Heilig requested the Ninth Judicial District Court: (1) declare Game and Fish's rules (Chapter 2, Section 12) and Atlas null and void, unenforceable, invalid ab initio, and unconstitutional; (2) issue an injunction precluding enforcement under the rules; and (3) award him attorney fees. Game and Fish filed a motion to dismiss alleging Mr. Heilig did not have standing and was endeavoring to forum shop because these issues were before the circuit court of the Fifth Judicial District. The Ninth Judicial District Court granted Game and Fish's motion holding that Mr. Heilig did not have standing to file the complaint because he was not affected in fact by the rule. This appeal followed.

STANDARD OF REVIEW

[¶ 8] The declaratory judgment action was dismissed because the district court found Mr. Heilig lacked standing. We agree dismissal was proper but on different grounds. This court must affirm the district court's action on appeal if it is sustainable on any legal ground appearing in the record even if the legal ground or theory articulated by the district court is incorrect. Masinter v. Markstein, 2002 WY 64, ¶ 8, 45 P.3d 237, ¶ 8 (Wyo.2002); Deisch v. Jay, 790 P.2d 1273, 1278 (Wyo.1990); Transamerica Commercial Finance Corporation v. Naef, 842 P.2d 539, 541 (Wyo.1992).

In a de novo review of the threshold question of jurisdiction, "we examine the policies underlying both the Uniform Declaratory Judgments Act and the doctrine of justiciability to determine if this is a proper case for judicial action." Reiman Corp. v. City of Cheyenne, 838 P.2d 1182, 1185 (Wyo.1992). The district court's decision to stay or dismiss an action due to a pending proceeding, however, is discretionary.

Southwestern Public Service Company v. Thunder Basin Coal Company, 978 P.2d 1138, 1141 (Wyo.1999). In determining whether there has been an abuse of discretion, we must decide the ultimate issue of whether the court could have reasonably concluded as it did in the situation before it. Capshaw v. Schieck, 2002 WY 54, ¶ 13, 44 P.3d 47, ¶ 13 (Wyo.2002); Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). However,

"`[t]he trial court's exercise of this discretion is subject to searching appellate review and
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