Wyoming Bd. of Outfitters and Professional Guides v. Clark, No. 00-271

• Citation: 2001 WY 78,30 P.3d 36
• Decision Date: 27 August 2001
• Docket Number: No. 00-271, No. 00-272.
• Parties: WYOMING BOARD OF OUTFITTERS AND PROFESSIONAL GUIDES, Appellant (Respondent), v. D. Kenneth CLARK, Appellee (Petitioner). Wyoming Board of Outfitters and Professional Guides, Appellant (Respondent), v. D. Kenneth Clark, Appellee (Petitioner).
• Court: United States State Supreme Court of Wyoming

30 P.3d 36

2001 WY 78

WYOMING BOARD OF OUTFITTERS AND PROFESSIONAL GUIDES, Appellant (Respondent), v. D. Kenneth CLARK, Appellee (Petitioner).

Wyoming Board of Outfitters and Professional Guides, Appellant (Respondent), v. D. Kenneth Clark, Appellee (Petitioner).

Nos. 00-271, 00-272.

Supreme Court of Wyoming.

August 27, 2001.

Gay Woodhouse, Wyoming Attorney General; Michael L. Hubbard, Deputy Attorney General; and Eugene W. Jackson, Assistant Attorney General, for Appellant.

James E. Phillips of James E. Phillips, P.C., Evanston, WY, for Appellees.

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

[¶ 1] Appellant, the Wyoming Board of Outfitters and Professional Guides (Board), challenges an order of the district court reversing the Board's decision to deny a guide's license to Appellee, D. Kenneth Clark (Clark). We will affirm the district court, but on grounds dissimilar to those relied upon by that court.

ISSUES

[¶ 2] The Board offers this statement of the issues:

I. Did the district court err in ruling the Board had no statutory rule-making authority to deny a professional guide's license?

II. Did the district court err in ruling that the Board's decision to deny a license to Clark was arbitrary and capricious?

Clark abbreviates the issue thus:

A. Did the district court correctly rule that the Appellant's decision to deny Appellee a professional guide's license was arbitrary, capricious, an abuse of discretion, and contrary to law.

FACTS

[¶ 3] Clark began working in the outfitting and guiding business in 1967. In 1995, Clark was charged with a Lacey Act violation for illegally tagging a deer that was shot by one of his clients who did not have a license to shoot a deer. Clark entered a plea of guilty to that violation in Federal court, and, as a result of a plea bargain, he was sentenced to two years' probation, a fine of $5,000.00, and revocation of his United Sates Forest Service (USFS) Special Use Permit and his commercial outfitting-guide operations on National Forest lands. In addition, Clark surrendered his outfitter's license to the Board. Clark was permitted to sell his hunting camp operation to Gary Amerine, with the condition that Clark would have nothing to do with operation of that business in accordance with the USFS conditions of Clark's sale of the business to Amerine.

[¶ 4] On July 6, 1998, Clark was issued a conditional guide's license, which permitted Clark to guide only for Robert Barlow. An additional condition of that license was that Clark was to obtain prior approval from the Board before he could work for any outfitter other than Barlow. On August 1, 1998, Clark submitted a request to the Board to work as a guide for Amerine. Clark appeared at the Board's meeting on August 24, 1998, to pursue that request, as well as an apparent request to work for Gregg Fischer.¹ However, the Board denied Clark's request to work for either Amerine or Fischer because of the USFS's limitation with respect to Amerine and the close proximity of Amerine's camp to that of Fischer's. According to the Board's brief, the purpose to be served by this limitation/condition was to avoid the appearance of impropriety by not allowing Clark back into the same location where his acts led to his conviction. Clark then amended his request to work for Dale Clark.

[¶ 5] The Board asked Clark what the distance was between Amerine's area of operation and that of Dale Clark. Clark informed the Board that the two areas (or "camps") were approximately 28 miles apart. The minutes of the Board's meeting indicate that Clark represented to the Board that Dale Clark's camp was "about 28 miles away from Amerine's camp." On September 11, 1998, Mesia Nyman, District Ranger for the USFS in the Greys River Ranger District, sent a letter to the Board indicating that Clark's statement that Dale Clark's camp was 28 miles from Amerine's camp was misleading. Nyman stated in her letter that Dale Clark did not have a camp, that both Amerine and Dale Clark shared the same day-use area, and that the situation made it impossible to manage and monitor Clark's role as a guide (i.e., whether he was working for Amerine or Dale Clark). Nyman asked that the Board reconsider its decision to allow Clark to work for Dale Clark. [¶ 6] As a result of Nyman's letter to the Board, the Board conducted an investigation. By letter dated December 16, 1998, the Board informed Clark that he was in violation of the conditions imposed on his 1998 license and directed that Clark surrender his license, which he did. That license indicated that Clark had worked for only Barlow and Dale Clark during the 1998 season.

[¶ 7] It is not disputed that Clark submitted an application to renew his guide's license for the 1999 season, nor is it disputed that the Board denied his application for the reasons that Clark's 1998 application contained "false information," as well as because of his "unprofessional conduct toward Game & Fish Warden Hyde and Forest Service officer Nyman during a routine license check last fall."

[¶ 8] In a March 3, 1999 pleading filed before the Board, Clark requested a hearing on the denial of his 1999 guide's license application. On June 17, 1999, a hearing was held pursuant to Clark's request. We will not set out in detail the evidence at this juncture but will refer to the pertinent portions of that record in the course of our discussion of the issues. The end result of the hearing was that Clark was denied a license for the 1999 season. The Board's basis for denial was memorialized in the Findings of Fact, which we set out here in detail:

FINDINGS OF FACT

1. We find that D. Kenneth Clark (Clark) previously held a 1998 professional guide license, as conditioned by the Board, in Wyoming.

2. We find that on or about August 24, 1998, Clark engaged in substantial misrepresentation, presented material false statements and failed to disclose material facts to the Board in supporting his request to amend the condition restricting the outfitter he could work for pursuant to his conditional 1998 professional guide license issued on or about July of 1998. Pursuant to his conditional license, Clark could only guide for Barlow Outfitting unless he appeared before the Board and requested approval to guide for another outfitter.

3. Specifically, we find that Clark attended the Board's regular meeting on August 24, 1998 to answer questions regarding Clark's request to guide for Gary Amerine (Amerine) because Barlow Outfitting could only hire him as a guide for one hunt. Clark stated that Gregg Fischer (Fischer) was going to hire him as a guide, (implying that he had spoken to Fischer), but that Clark failed to disclose to the Board that he did not talk to Fischer prior to attending the meeting. We find that Clark did not talk to Fischer until December of 1998; after the hunting season was over.

4. We find that Clark's statement that Fischer would hire him as a guide was substantially misleading in that the statement implied that Clark had spoken to Fischer to [sic] before the August 28, 1998 meeting, when he had not. We further find that Clark's statement was reasonably calculated to cause the Board to amend the conditions of his 1998 professional guide license.

5. We find that on the same date as set forth in paragraph 2, Clark returned to the meeting and represented that Dale Clark (D.Clark) would hire him as a guide for the 1998 hunting season. In supporting his request to guide for D. Clark, Clark represented that D. Clark operated his outfitting business mainly in the Salt Creek River Drainage and lower half of Grey's River. When questioned about the distance of D. Clark's operating area from Amerine's camp, Clark represented to the Board that the camp was about twenty-eight (28) miles away from D. Clark's operating area. Clark failed to inform the Board that D. Clark's and Amerine permitted usage areas actually overlapped and that D. Clark's authorized area was within seven (7) miles of Amerine's camp.

6. We find that Clark is familiar with the Grey's River and Salt Creek River District as he has lived in the area for forty-nine (49) years and has been professionally outfitting and guiding the area for thirty-one (31) years, as represented by Clark in his testimony and application for a professional guide license. As such, Clark knew he was misrepresenting to the Board that the distance from Amerine's camp to D. Clark's operating area was about twenty-eight (28) miles. We find that Clark's misrepresentation was reasonably calculated to cause the Board to amend the conditions of his 1998 professional guide license.

7. We find that Clark's failure to advise the Board that Amerine's operating area and D. Clark's operating area overlapped was an intentional omission of a material fact to the Board which was reasonably calculated by Clark to cause the Board to amend the conditions placed on his 1998 professional guide license.

8. We find that Clark's activities as described in paragraphs 1 through 7 of the Findings of Fact constitute unethical and/or dishonorable conduct pursuant to the Board's Rules and Regulations, Chapter 3, Section 1(t).²

9. We find that on or about October 8, 1998, Clark and his hunters were subjected to a routine licensure check by Mesia Nyman (Nyman), District Ranger for the United States Forest Service on the Bridger-Teton Forest, Grey's River Ranger district, and Kemmerer Ranger District, and Duane Hyde (Hyde), Game Warden for the Wyoming Game and Fish Department.

10. We find the testimony of Nyman and Hyde to be credible in that they presented a consistent account of the events surrounding the licensure check of Clark and his party of hunters.

11. During the license check, we find that Clark intentionally handled livestock in a manner that was intended to interfere with Hyde when he was checking hunters' licenses. Clark led the livestock near Hyde and jerked the lead rope of the horse causing

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