Lineberger v. STATE BD. OF OUTFITTERS AND PROFESSIONAL GUIDES

• Decision Date: 11 April 2002
• Docket Number: No. 01-113.,01-113.
• Parties: Ronald R. LINEBERGER, Appellant (Petitioner), v. WYOMING STATE BOARD OF OUTFITTERS AND PROFESSIONAL GUIDES, Appellee (Respondent).
• Court: Wyoming Supreme Court

44 P.3d 56

2002 WY 55

Ronald R. LINEBERGER, Appellant (Petitioner), v. WYOMING STATE BOARD OF OUTFITTERS AND PROFESSIONAL GUIDES, Appellee (Respondent).

No. 01-113.

Supreme Court of Wyoming.

April 11, 2002.

S. Joseph Darrah of Darrah & Darrah, P.C., Powell, WYO, and Daniel B. Frank of Frank Law Office, P.C., Cheyenne, WYO, Representing Appellant.

Hoke MacMillan, Attorney General; Michael L. Hubbard, Deputy Attorney General; and Eugene W. Jackson, Assistant Attorney General, Cheyenne, WYO, Representing Appellee.

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

VOIGT, Justice.

[¶ 1] This case comes before us in the form of a Petition for Review of Agency Action, certified to this Court by the district court pursuant to W.R.A.P. 12.09. Ronald R. Lineberger (the appellant) raises nine separate issues in contesting the decision of the Wyoming State Board of Outfitters and Professional Guides (the Board) to deny his 2000 application for a professional guide license. While we conclude that the issues have been rendered moot by the passage of time, we do hold, since the issue will no doubt continue to arise, that the Board exceeded its authority by imposing a condition on the appellant's license to the effect that he would voluntarily relinquish his license if convicted of violating any state or federal law.

ISSUES

[¶ 2] The appellant states the issues as follows:

1. Did the Board exceed its statutory authority, abuse its discretion, and act arbitrarily and capriciously when it required petitioner, as a condition of obtaining his professional guide license, to sign a waiver agreement which provided that he would forfeit his license in the event he was convicted for violation of any law?

2. Did the Board exceed its statutory authority, abuse its discretion, and act arbitrarily and capriciously when it refused to renew petitioner's guide license on the basis that he was convicted of violating a law which was unrelated to the occupation of guiding?

3. Did the Board exceed its legal authority, act arbitrarily and capriciously, abuse its discretion, and act not otherwise in accordance with the law when it required petitioner to execute the waiver agreement after petitioner was already licensed in 1989?

4. Was the Board's interpretation of the waiver agreement in which it interpreted the agreement to require petitioner to forfeit his guide's license in the event that he is convicted of violating any law proper and an abuse of discretion, or is the waiver agreement limited to violations of law related to a candidate's fitness to be a professional guide?

5. Does the administrative record contain substantial evidence to support the Board's decision to deny petitioner's application?

6. Did the Board include improper findings of fact outside of the administrative record?

7. Did a Board member who took part in the investigation improperly refuse to recuse himself from deliberations in violation of Wyo. Stat. § 16-3-111?

8. Did the Board engage in prohibited post hoc rationalization decision-making when it stated on the record that its decision was to deny petitioner's application, but ordered the parties to file proposed findings of fact and conclusions of law to support the Board's decision?

9. Was the Board's decision arbitrary and capricious, an abuse of discretion and otherwise not otherwise in accordance with the law?

The Board reduces these issues to the following:

I. Whether the Board had authority to require Lineberger to sign a waiver before issuing Lineberger a conditional professional guide's license.

II. Whether the Board was correct in denying Lineberger's application for a professional guide's license.

III. Whether the process was tainted when the Board member refused to recuse himself.

[¶ 3] For the reasons set forth more fully below, we will directly answer only the following question:

May the Board condition the granting of a professional guide's license upon a licensee's agreement that he will voluntarily relinquish the license in the event that he is convicted of violating any state or federal law?

THE STATUTORY CONSTRUCT

[¶ 4] Non-residents may not hunt big or trophy game animals on wilderness areas in Wyoming unless accompanied by a licensed professional guide or a resident guide. Wyo. Stat. Ann. § 23-2-401(a) (Lexis Supp.2000). The Board is responsible for licensing guides under Wyo. Stat. Ann. § 23-2-410 (LexisNexis 2001):

(a) The board shall:

* * *

(ii) Carry out the provisions of this act and in accordance with the Wyoming Administrative Procedure Act, adopt necessary rules and regulations for carrying out this act including requirements for training, experience and knowledge of relevant law and rules and regulations as may be imposed upon outfitters and professional guides, the content and requirements for examination of license applicants and other necessary and reasonable rules[.]

* * *

(c) The board shall license and regulate outfitters and professional guides in this state and shall:

(i) Examine applicants for licensure under this act;

(ii) Deny or approve applications for licensure and may revoke or suspend licenses in accordance with this act and its rules and regulations;

(iii) Conduct hearings upon complaints received relative to licensees;

(iv) Impose reasonable restrictions and limitations upon licensees as necessary to implement this act;

(v) Designate areas within the state as recommended by the commission for game management purposes in which a licensee may conduct outfitting or professional guiding under the license[.]

[¶ 5] Specific statutory qualifications for a professional guide's license are contained in Wyo. Stat. Ann. § 23-2-412(a) (LexisNexis 2001):

(a) An applicant for a professional guide's license under this act shall meet the following qualifications:

(i) At least eighteen (18) years of age;

(ii) Employed by or operating under an independent contract with a licensed outfitter[.]

The same statute, in subsection (e), adds the following requirements:

(e) In addition to subsection (a) of this section, an applicant for a professional guide's license shall report:

(i) Any conviction or forfeiture of any bond amount for a violation of federal or state law or applicable regulation relating to wildlife, game and fish within five (5) years before the date of filing license application;

(ii) Any felony conviction; and (iii) Any conviction for a violation of federal or state law relating to criminal fraud and occurring within five (5) years prior to the date of filing application.

[¶ 6] The Board's authority to require examination before licensure is found in Wyo. Stat. Ann. § 23-2-413 (LexisNexis 2001). Under subsection (c) of that section, the Board is authorized to "investigate the qualifications of the applicant to ensure compliance with this act." Once the applicant has passed the required examination and the Board has "determine[d] the applicant is otherwise in compliance with the requirements of this act and its rules and regulations," the Board "may" issue a license. Wyo. Stat. Ann. § 23-2-414(a) (LexisNexis 2001).

[¶ 7] Of specific significance to the issue at hand is the limitation found in Wyo. Stat. Ann. § 23-2-414(b):

A license issued under this act is valid for the calendar year in which issued and shall expire on December 31 of that year unless earlier expiring pursuant to W.S. 23-2-412(b) or otherwise suspended or revoked.

FACTS

[¶ 8] In 1993, the appellant was convicted of three federal wildlife-related felonies. He served a year in prison and three years of probation. In 1998, the appellant applied to the Board for a professional guide's license. The Board granted the application, but only after conditioning the license for a period of five years. The appellant signed an agreement on August 10, 1998, with the following specific condition:

I agree to a five year conditional license, wherein if I am convicted of violating any game & fish, Board law or rule and regulation, Forest Service, State or Federal law for this duration, I will voluntarily relinquish my guide's license to the Board and I waive any right to appeal or hearing procedure.

[¶ 9] The appellant received his conditional professional guide's license in 1998 and again in 1999.¹ He applied again on June 20, 2000. His application was not granted; instead, it was returned to him with instructions to appear before the Board at its next meeting so renewal could be considered in light of the appellant's "current conviction." That "current conviction" is the basis of the present petition for review.

[¶ 10] On June 9, 2000, a Judgment and Sentence was entered in the County Court of Park County, Wyoming (now referred to as Circuit Court), adjudicating the appellant guilty of two counts of misdemeanor property destruction. The convictions were the result of a plea agreement between the appellant and the Park County and Prosecuting Attorney. The Judgment and Sentence neither mentions the nature of the property destroyed nor names the recipient of the $4,000.00 in restitution ordered to be paid by the appellant. The only hint that the charges may have involved wildlife is the following paragraph in the Written Plea Agreement of Defendant:

7. The State of Wyoming further expressly represents and agrees that no other criminal charges or investigations whether they be State and/or Local will be filed, sought and/or pursued pursuant as against the Defendant, Mr. Ronald R. Lineberger, as relates to the original criminal information filed in this matter, and including any copper tags attached to the snares or traps inscribed with the name Ronald R. Lineberger the same or similar to such tags presently in the possession of the State of Wyoming, and referenced as State of Wyoming v. Ronald R. Lineberger, Criminal No. Cr-9909-4-COD.

[¶ 11] It is at this point that we must digress a bit to at least mention how odd it is that we are called upon in this case to decide whether the Board may...