Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Farmer v. Colorado Parks & Wildlife Commission

Court of Appeals of Colorado, Fourth Division

August 25, 2016

Bobby R. Farmer, Plaintiff-Appellant,
v.
Colorado Parks & Wildlife Commission, Department of Natural Resources, State of Colorado, Defendant-Appellee.

         City and County of Denver District Court No. 13CV32393 Honorable Ross B.H. Buchanan, Judge

          Randy L. Brown, P.C., Randy L. Brown, Grand Junction, Colorado, for Plaintiff-Appellant

          Cynthia H. Coffman, Attorney General, Elaine J. Wizzard, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee

          OPINION

          HARRIS JUDGE

         ¶ 1 Bobby R. Farmer appeals from the decision of the Colorado Parks and Wildlife Commission (Commission) to suspend his wildlife license privileges for twenty years. Farmer contends that the Commission's decision was arbitrary and capricious because it was not based on any standards designed to constrain the hearing officer's unfettered discretion as to the duration of the suspension. We agree and therefore vacate Farmer's suspension.

         I. Background

         ¶ 2 Farmer is a big game hunter and guide. In 2006, after working as a registered outfitter for more than fifteen years, Farmer allowed his Colorado outfitter's license to lapse, though he continued to maintain the necessary permits to provide guiding services in Utah.

         ¶ 3 In 2008, the Division of Wildlife (DOW) received complaints from registered outfitters that Farmer was guiding hunts in Colorado without a license. DOW investigators initiated an investigation that spanned nearly three years and included undercover operations and interviews with numerous clients and associates of Farmer.

         ¶ 4 In late 2011, Farmer was charged with six counts of illegal sale of big game wildlife in violation of section 33-6-113(2)(a), C.R.S. 2015, a class five felony, for outfitting mountain lion hunts without the proper license. He subsequently pleaded guilty to count 1 of the complaint, which alleged that he had guided a mountain lion hunt for Justin Skalla on January 5, 2009. In exchange for his guilty plea, Farmer received a two-year (unsupervised) deferred judgment and sentence on the single count and the dismissal of the remaining counts. A condition of the deferred judgment agreement prohibited Farmer from engaging in hunting activities, including acting as a guide or outfitter, for two years.

         ¶ 5 Pursuant to section 33-6-113(2)(a), his guilty plea triggered an administrative hearing by the Commission to determine whether to suspend Farmer's wildlife license privileges. Prior to the hearing, the hearing officer was provided with the DOW's 300-page investigative file, which detailed the factual premise underlying all 6 counts originally charged against Farmer. The hearing officer indicated that he had reviewed the file, and he asked Farmer a few questions based on the investigators' reports. Though Farmer responded to the questions, his lawyer contended that the statute permitted consideration only of the circumstances surrounding the offense of conviction, not of conduct charged but neither admitted to nor proven. Farmer then presented mitigating evidence related to the single count to which he had pleaded guilty.

         ¶ 6 After the hearing, Farmer received written notice that his hunting license had been suspended for twenty years. In his findings of fact, the hearing officer listed all six counts originally charged against Farmer and detailed the underlying facts. He further concluded that "[e]vidence in the state's case report[] supports the fact that these violations did occur." He explained the twenty-year suspension as follows:

Mr. Farmer's wildlife violation is considered serious in nature, and appears to represent deliberate and knowing unlawful conduct by the respondent[.] His offenses also appear to represent an intentional disregard for Colorado's wildlife laws and regulations[.] Considering Mr. Farmer's convictions in court, and in balancing his offenses, and the statutorily-authorized period of suspension available for his wildlife violation, pursuant to C.R.S. 33-6-113, a suspension period of 20-years of all of his privileges is warranted and ordered[.]

         ¶ 7 The hearing officer's order included a list of "[p]revious cases involving Illegal Sale/Outfitting without Registration, " consisting of thirteen names with corresponding suspension terms of between fifteen years and life. The hearing officer concluded that Farmer's suspension term was proportional to those imposed on other similarly situated licensees.

         ¶ 8 Farmer appealed the hearing officer's decision to the Commission. He argued that the hearing officer had erred in considering the unproven conduct and that the participating DOW investigator's approval of the plea agreement, which called for a two-year prohibition on hunting activities, established that his case warranted a much shorter period of suspension.

         ¶ 9 The Commission affirmed the twenty-year suspension. Like the hearing officer's order, the Commission's decision listed each of the dismissed counts and an extensive factual basis for the charges. The Commission disputed that Farmer had pleaded guilty to any particular count of the complaint, suggesting instead that Farmer had agreed that a factual basis supported any of the violations, and further disputed that the hearing officer had considered any of the conduct underlying the dismissed charges. As explanation for its affirmance, the Commission stated:

Mr. Farmer's wildlife-related misconduct is considered very serious in nature[.] His offenses reveal willful, deliberate and intentional wildlife-related criminal misconduct[.] Additionally, significant DOW and judicial resources were spent bringing this case to a conclusion[.] Such conclusion resulted in a criminal conviction against Mr. Farmer[.] These offenses considered together - and particularly with the law enforcement and judicial intervention - demonstrate by clear and convincing evidence an unacceptable pattern of knowing, flagrant and unlawful wildlife offenses which must be addressed.

         ¶ 10 The Commission's decision included the hearing officer's list of licensees and their suspension periods.

         ¶ 11 Farmer then initiated this action pursuant to section 24-4-106(7), C.R.S. 2015, for review of the agency's decision. The district court affirmed.

         II. Standard of Review

         ¶ 12 Our review of a district court's decision in a proceeding under the State Administrative Procedure Act (APA) is de novo. We sit in the same position as the district court and review the agency's decision for abuse of discretion. Querci ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.