ALJDEC decisions subject to certification as final

20A-0001-AH-AZGFD · Arizona Game and Fish Department · 2020-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

James Ellis,

Respondent

No. 20A-0001-AH-AZGFD

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 9, 2020.

APPEARANCES: Linda Pollack, Assistant Attorney General, appeared on behalf of the Arizona Game and Fish Department. Respondent failed to appear.

ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera.

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FINDINGS OF FACT

The Arizona Game and Fish Department (AZGFD) has the authority to regulate and govern the taking of wildlife in the State of Arizona, pursuant to Arizona Revised Statute (A.R.S.) § 17-340(G) and Arizona Administrative Code (A.A.C) 12-4-607(C).

On or about October 10, 2019, the AZGFD issued a Notice of Hearing to Respondent. In the Notice of Hearing, the AZGFD alleged that on or before April 2015, Respondent unlawfully took, wounded, or killed four Merriam’s turkeys from his 2014 Polaris RZR in Game Management Unit 5B South, Coconino National Forest in violation of A.R.S §§ 17-301(B), 17-309(A)(2), 17-309(A)(5), 17-309(A)(12), 17-309(A)(14), and 17-309(A)(16).

On or about November 26, 2015, Respondent was convicted of “[p]ossess unlawfully taken mule deer buck and sentenced: fined $187.00.”

On or about June 16, 2016, the AZGFD revoked Respondent’s hunting, fishing, and trapping licenses and denied him the right to obtain such licenses for a period of five years.

On or about April 3, 2018, Respondent was convicted of cross country travel, harass wildlife (to wit: a badger), take wildlife from vehicle, and transport unlawfully taken wildlife. Respondent was fined $1,132.00.

On or about December 7, 2018, the AZGFD revoked Respondent’s hunting, fishing, and trapping licenses and denied him the right to obtain such licenses for a period of five years.

The AZGFD referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Notice of Hearing set forth a hearing date and time of December 10, 2019 at 9:00 a.m. The AZGFD requested a continuance and the hearing was continued to January 9, 2020 at 9:00 a.m.

The AZGFD sent the Notice of Hearing to Respondent via certified mail and regular mail to the address of record at 4058 East Delta Circle, Mesa, AZ 85206. The AZGFD also sent a copy to another listed address at 1543 East Hearne Way, Gilbert, AZ 85234. Both letters were returned to the AZGFD. The AZGFD also used Nationwide Service of Process to personally serve Respondent. After multiple attempts, the AZGFD was unable to personally serve Respondent.

The Notice of Hearing informed Respondent that “[i]f you do not wish to attend the hearing, you may submit written testimony to the Department or directly to the Office of Administrative Hearings before the hearing....” Respondent failed to submit such documentation. Furthermore, Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence.

HEARING EVIDENCE

At the hearing, the AZGFD presented the testimony of Luke Apfel (Officer Apfel), AZGFD Officer and Wildlife Manager, and Clint Adams (Investigator Adams), AZGFD Investigator and Technical Manager. The AZGFD presented 25 exhibits.

Officer Apfel testified that he was assigned to the Coconino National Forest at Game Management Unit 5B.

On or about October 1, 2015, the beginning of small game hunting season, Officer Apfel came across a camp that was in an unlikely location. The camp was located on a rough road in the middle of the forest and not near a designated camp site. During that time of the year hunters with valid tags, could only hunt squirrel and turkeys on Game Management Unit 5B property.

Officer Apfel approached the camp and saw Respondent and his friends. Officer Apfel immediately observed an AR15 rifle in Respondent’s vehicle. Officer Apfel spoke to Respondent and learned that Respondent did not have a valid license or tag to hunt turkeys, however, Respondent’s friends had licenses and tags. Respondent admitted that he did not have a tag because he was going back home to Texas. Officer Apfel documented Respondent’s vehicle license plate.

On or about October 6, 2015, Officer Apfel heard the revving of an engine and observed Respondent driving the same Polaris RZR he had observed a few days prior into the woods. Respondent was alone. Officer Apfel found that suspicious because it was raining and because Respondent was supposed to be in Texas, as he previously told Officer Apfel. Later that night, Officer Apfel informed Investigator Adams of his observations. Both of them set up a surveillance of Respondent’s camp. That night, Officer Apfel heard Respondent’s conversation with a friend and heard them voice their concern over the AZGFD’s presence.

On or about October 7, 2015, Officer Apfel set up another surveillance of Respondent’s camp. Officer Apfel observed Respondent driving the Polaris RZR with a male passenger. Officer observed them frequent the camp a couple of times before they returned at night. After they returned, Officer Apfel observed Respondent holding the head of a freshly killed mule deer. This time of the year was not mule deer season.

Officer Apfel and Investigator Adams approached the camp to investigate. They learned that Respondent’s passenger killed the mule deer and decapitated the mule deer. Officer Apfel observed the mule deer head, a bloody sawzall, bloody hand wipes, beer cans, and a camera. The following morning, Officer Apfel located the body of the mule deer.

Officer Apfel issued citations for the unlawful possession of mule deer head and unlawful taking of mule deer. Respondent was found guilty in June 2016.

Investigator Adams testified that he had been a Game Ranger at Coconino National Forest for 21 years. During the course of his investigation, after contact with Respondent, Investigator Adams learned that Respondent had several applications for permits, but no current valid license for hunting. Hunters with permits are deemed to have knowledge of the Arizona hunting laws as hunting is a privilege.

Additionally, Investigator Adams conducted a search of Respondent on the Arizona Motor Vehicle Department database. Investigator Adams learned that Respondent owned two Polaris RZRs, one registered in 2014 and one registered in 2015.

On or about October 6, 2015, Investigator Adams testified that he was contacted by Officer Apfel regarding Respondent. They set up a surveillance that night but did not make any observations.

On or about October 7, 2015, they conducted another surveillance of Respondent’s camp and discovered that Respondent unlawfully killed a mule deer. During his search of Respondent’s Polaris RZR and camp, Investigator Adams observed a decapitated deer mule head in the passenger side of the vehicle along with a sawzall. Investigator Adams also observed a Go Pro video camera at the entrance of Respondent’s camp trailer. When asked to view and download the contents of the video camera, Respondent admitted the camera belonged to him and consented to Investigator Adams’s request to view the videos. Due to the size of the files on the video camera, Investigator Adams was unable to download any videos at the camp site. With Respondent’s consent, Investigator Adams took the video camera for further investigation.

After Investigator Adams viewed the footage from Respondent’s video camera, he observed several violations. Investigator Adams obtained a search warrant for the video camera.

Investigator Adams observed the footage to be of Game Management Unit 5B from the vantage point of the driver of a Polaris RZR. Investigator Adams linked the Polaris RZR to Respondent based on the outlines, shadows, and occasional view of the vehicle and Respondent, himself, on the footage.

The footage of unlawful taking of the Merriam’s turkeys were labeled on Respondent’s video camera as #3 and #7. Video footage #3 and #7, was presented by the AZGFD. The dates of the video footage were unknown because there was no date stamp. Video footage #3 showed Respondent’s Polaris RZR, the barrel of the rifle emerging from inside the Polaris RZR, and the smoke and sound of four shots fired from that rifle. Investigator Adams identified the Polaris RZR as Respondent’s vehicle and identified the rifle as an AR15. This type of rifle is unlawful in hunting, as is shooting the rifle from a vehicle. The turkey died on the ground. Respondent drove up to the turkey and threw the turkey in the vehicle. That was a violation of unlawful possession and unlawful transport of a turkey.

Video #7 showed Respondent’s vehicle and the barrel of the rifle. In this video, voices could be heard yelling “That’s two!” and “I got three of them.” Investigator Adams identified one of the voices as that of Respondent. Additionally, the video showed the shadow of someone holding the AR15. There were three turkeys that were shot and killed on this day. The video clearly showed each one of them flutter and fall to the ground. Respondent did not retrieve any of the turkeys. Furthermore, Investigator Adams identified the vehicle in the videos as Respondent’s Polaris RZRs. Investigator Adams opined that Respondent violated the bag limit, unlawfully drove cross country, left three of the turkeys to waste, and shot the turkeys from a vehicle with an unlawful weapon.

CONCLUSIONS OF LAW

This matter lies within the AZGFD’s jurisdiction under A.R.S. § 17-340(G) and A.A.C 12-4-607(C).

The AZGFD bears the burden of proof and must establish the unlawful taking of wildlife by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” See Morris K. Udall, Arizona Law of Evidence § 5 (1960). A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1120 (8th ed. 2004).

A.R.S. § 17-101(20) holds, in pertinent part, that “‘[t]ake’ means pursuing, shooting, hunting, fishing, trapping, killing, capturing, snaring or netting wildlife or placing or using any net or other device to trap in a manner that may result in capturing or killing wildlife.”

A.R.S. § 17-301(B) holds, in pertinent part, that “[a] person shall not take wildlife, except aquatic wildlife, or discharge a firearm or shoot any other device from a motor vehicle, including an automobile, aircraft, train or powerboat, or from a sailboat, boat under sail, or a floating object towed by powerboat or sailboat except as expressly permitted by the commission. No person may knowingly discharge any firearm or shoot any other device upon, from, across or into a road or railway.”

A.R.S. § 17-309(A) holds, in pertinent part, as follows:

Unless otherwise prescribed by this title, it is unlawful for a person to: ....

2. Take, possess, transport, release, buy, sell, or offer or expose for sale wildlife except as expressly permitted by this title. . . . .

5. Take a game bird, game mammal or game fish and knowingly permit an edible portion thereof to go to waste, except as provided in section 17-302. . . . .

12. Take wildlife with an unlawful device. . . . .

14. Take wildlife in excess of the bag limit. . . . .

16. Possess or transport any wildlife or parts of the wildlife that was unlawfully taken.

A.R.S. § 17-314(A) holds, in pertinent parts, that “[t]he commission may impose a civil penalty against any person for unlawfully taking, wounding, killing or possessing any of the following wildlife . . . .”

The AZGFD established by a preponderance of the evidence that Respondent was responsible for the loss of four Merriam’s turkeys to the State of Arizona. The video clearly depicted Respondent’s RZR and the barrel of Respondent’s rifle present when four Merriam’s turkeys were shot. The turkeys were seen fluttering and falling after being shot. There was evidence that Respondent left three of the four turkeys to go to waste and unlawfully possessed one turkey when he took it without a valid tag or license.

Hunting is a privilege. As a former licensed hunter, Respondent was deemed knowledgeable with AZGFD laws and procedures. While the evidence did not clearly establish if he was the shooter, the evidence established that Respondent facilitated the pursuit of the turkeys and thus, was accountable.

The AZGFD established that Respondent violated A.R.S §§ 17-301(B), 17-309(A)(2), 17-309(A)(5), 17-309(A)(12), 17-309(A)(14), and 17-309(A)(16). Respondent was in violation when he unlawfully took four Merriam’s turkeys after shots were fired from an unlawful weapon while inside his Polaris RZR that Respondent drove cross country and left most of the turkeys for waste and unlawfully possessed one turkey without a valid tag or license.

RECOMMENDED ORDER

Based on the foregoing, the Administrative Law Judge enters a findings of fact, conclusions of law, and a recommendation to the AZGFD that Respondent, James Ellis, unlawfully took, wounded, or killed four Merriam’s turkeys.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five days from the date of that certification.

Done this day, January 28, 2020.

/s/ Antara Nath Rivera

Administrative Law Judge

Transmitted electronically to:

Ty Gray, Director

Arizona Game and Fish Department-54864001

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