ALJDEC decisions subject to certification as final
20A-0002-AH-AZGFD · Arizona Game and Fish Department · 2020-06-25
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of
Timothy Downs
No. 20A-0002-AH-AZGFD
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 13, 2020, May 27, 2020, and May 28, 2020
APPEARANCES: Thomas Baker, Esq. appeared on behalf of Respondent Timothy Downs. Assistant Attorney General Linda Pollack appeared on behalf of the Arizona Game and Fish Department.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
On or about December 27, 2019, Respondent Timothy Downs filed an application for a Guide License with the Arizona Game and Fish Department (Department).
On January 13, 2020, the Department denied the application.
Downs filed an appeal.
The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
On February 11, 2020, the Department issued a Notice of Hearing setting the above-entitled matter for hearing on March 13, 2020. In the Notice of Hearing provided, “ the Department requests the entry of findings of fact and conclusions of law to the Arizona Game and Fish Commission that Respondent witnessed, and failed to report to the Department two violations of a federal or state wildlife law or rule committed by one James Hamberlin.” Through the Notice of Hearing, the Department alleged the following:
(1) While in the course of performing guide activities or while performing guide services, you had personal knowledge of, and failed to report to the Department a violation of a state or federal wildlife law committed by one James Hamberlin, to-wit, his acts of locating bighorn sheep from or with the aid of an aircraft in Hunt Unit 24B on or about October 31, 2017 during an open big game season or within 48 hours of an open big game season, in violation of A.R.S. 17-309(A)(1) and Arizona Administrative Code R12-4-319(C). Your failure to report this violation committed by James Hamberlin is a violation of A.R.S. 17-309(A)(1); Arizona Administrative Code R12-4-208(G) and R12-4-208(T)(4).
(2) While in the course of performing guide activities or while performing guide services, you had personal knowledge of, and failed to report to the Department a violation of a state or federal wildlife law committed by one James Hamberlin, to-wit, his acts of locating bighorn sheep from or with the aid of an aircraft in Hunt Unit 24B on or about November 17, 2017 during an open big game season or within 48 hours of an open big game season, in violation of A.R.S. 17-309(A)(1) and Arizona Administrative Code R12-4-319(C). Your failure to report this violation committed by James Hamberlin is a violation of A.R.S. 17-309(A)(1); Arizona Administrative Code R12-4-208(G) and R12-4-208(T)(4).
On October 31, 2017, Hamberlin unlawfully located bighorn sheep rams from his aircraft in Game Management Unit 24B during open big game hunts. Hamberlin communicated to Downs their locations along with photographs of the rams Hamberlin had found.
Testimony of Rick Peebles
7. Rick Peebles is an investigator in the Special Operations Unit at the Department. Peebles has 20 years of experience in law enforcement. Peebles has worked for the Department for 27 years. Peebles has been trained in preparing digital evidence. Peebles has special training in using the Cellebrite software used to extract data from mobile devices. Peebles received the specialized training from the manufacturer of Cellebrite.
8. Officer Krisel Colvin of the Department requested that Peebles create a Cellebrite extraction report of Downs’s cell phone. Peebles explained that the report shows when phone calls are placed and received along with the duration of the call. The repot extracts short texts and multimedia messages with photographs and videos. The report shows the sender and receiver of calls and text messages, along with dates. Peebles created the extraction report of Downs’s phone that is reflected in Exhibit 27.
Cellebrite Extraction Report of Downs’s Cellphone: October 26, 2017
9. The Cellebrite extraction report showed the following text message sent by Downs to Hamberlin, Mike Burm, and Bob Kyhn on October 26, 2017:
Downs sends a text message to Hamberlin, Mike Burm, and Bob Kyhn at 7:23 a.m. which provided:
Im heading up to flagstaff reminiscing on the past 10 months , wow it was fun , frustrating and at times nurve wracking , i just wanted to say thank you to everyone for putting in the time to help shane hammer the Ram of our deams . Its weird to be done . I cant wait to see your guys photos in Reno .
See pg. 555 of Ex. 27.
Cellebrite Extraction Report of Downs’s Cellphone: October 31, 2017
The Cellebrite extraction report showed the following text messages that were sent from Downs or to Downs on October 31, 2017:
Downs sends a text message to Hamberlin at 4:54 p.m. which provided.” You get down ok ?” See Ex. 27, pg. 569.
Hamberlin sends a text message to Downs at 5:32 that provided, “Just landed. I’ll call you when I’m driving home.” You get down ok ?
Downs sends a text message to Todd Garvin at 6:20 p.m. that provided, “Jim wad out tonight . Up high” See Ex. 27, pg. 569.
Downs sends a text message to Todd Garvin at 6:35 p.m. that provided, “Lot of rams . Im going out in the morning .” See Ex. 27, pg. 569.
Downs receives a text message from Todd Garvin at 6:40 p.m. that provided, “Sweet!! Anything big?. See Ex. 27, pg. 569.Downs responded, “Yes” by text at 6:41. See id. Todd Garvin responded back to Downs by text at 6:43 p.m., “Sweet. We need to keep the south guy away from there. They told me they found a giant in Hog but they don’t know how to score sheep and no way to take pics. Downs responded back to Todd Garvin at 6:45 p.m., “ Ok . These are out in the low country . He saw a heard in hog . That country will kick your ass. Im sure they cant hike it day after day. See Ex. 27, pg. 569.
Hamberlin sends a message to Downs at 7:24 p.m. that provides, “I got Rambo.”
Hamberlin sends a message to Downs at 7:32 p.m. of a photograph of a close up of the head of a Big Horn Sheep.
Hamberlin sends a message to Downs at 7:35 p.m. of a photograph of a close up of the head of a Big Horn Sheep.
Downs sends a photograph of a Big Horn Sheep to Shane Rhoton at 7:50 pm.
Downs sends a photograph of a Big Horn Sheep to Todd Garvin at 7:52 along with the message, “Dont show anyone. Hes longer.”
Downs sends a text to Hamberlin at 7:54 p.m. with the message, “Holly crap bubba . 107 41 . That is 188” See Ex. 27, pg. 569.
Downs sends a message to Todd Gavin at 7:55 p.m. that provided, “106 40 41 is 187” See Ex. 27, pg. 569. Downs sends a message to Hamberlin that provided, At the least he is 106 , i think he is 41 and 42.” See Ex. 27, pg. 569. Downs sends a message at 8:00 pm to Shane Rhoton that provided, “Im thinking 106 ,41 &42 . 189.” Rhoton responded at 8:03 p.m. to Downs, “Hmm. I pray he makes It”. Downs responds back to Rhoton at 8:04 p.m. with “We are going in in the morning to get better pics ”
Downs sends a text to message at 8:08 that provided, “ We have ears in there camp . They are not anywhere near him . I told bob after we tag out in 22 he can help 24bn and todd and i will go to 24bs to help them and keep them away
”
At about 8:08, Rhoton sent a message to Downs that provided, “Fingers crossed.”
At about 8:09 a.m., Rhoton sent a message to Downs that provided, “There are four rams that could all be hawgs I know of”
At about 8:10 a.m., Downs sent a text message to Rhoton which provided, “At least . And new ones we will find that blew up.”
At about 8:11 p.m., Downs sent a message to Rhoton which provided, “We are not sharing any pics with anyone .”
At about 8:14 p.m., Downs sent a message to Rhoton which provided, “Our goal is to kill curl to save ridge and Nomad”. Downs sent a photograph of two Big Horn Sheep with the photograph.
At about 8:15 p.m., Downs sent a message to Rhoton which provided, “Curls a stud and the hunter should be pumped”
At about 8:15 p.m., Downs sent a message to Rhoton which provided, “For sure , 180 .”
At about 8:16 p.m., Downs sends photograph of a Big Horn Sheep to Bob Kyhn.
At about 8:16 p.m., Rhoton sent a message Downs which provided, “Long as Hell”
At about 8:32 p.m. Bob Kyhn sent a message to Downs which provided “O yah!!!!!!!!”
Hamberlin sent a message to Downs which provided, “Looooong.”
9. On November 2, 2017, Downs sends a message to Rhoton at 3:18 p.m. that provided, “Im running out to video Rambo in the morning. Are you sure you want to part with your desert cape ? If so im going to get with clay and give him a deposit and pick a pose to mount the king .”.
10. On November 17, 2017, Hamberlin unlawfully located bighorn sheep rams from his aircraft in Game Management Unit 24B during open big game hunts. Hamberlin communicated to Downs their locations along with photographs of the rams Hamberlin had found.
11. Melvin Craig Shelly is a Hunting Guide Licensee for big horn sheep.
At all times relevant to this matter, Officer Timothy Holt was Shelly’s supervisor. Officer Holt and Shelly are both Department employees.
12. On November 16, 2017 Shelly called and reported to Holt that he observed a parachute plane flying low in Canyon Lake. Shelly believed that the person flying the plan was scouting for sheep.
13. Shelly submitted a voluntary statement to Holt through email regarding his observation. The December 13, 2017 email provides, in relevant part, as follows:
On Thursday November 16, 2017, I was coming into the palo verde boat dock at Canyon Lake with my boat to scout for desert bighorn sheep for the upcoming hunt in unit 22. In the pickup with me was David May, the guide for Lenard Wells, one of the two unit 22 permit holders for bighorn sheep. Also in the pickup was Stan Reynolds retired Yukon Territories sheep outfitter. The time was approximately 8 to 8:30 AM.
As we entered palo verde we observed a parachute plane flying low along the contours of the mountain just east of the Dam at Canyon lake, all three of us saw it, it had a orange or reddish center of the chute, and the outer trim we think was a yellowish color, the parachute plane then went out of sight to the northeast east of the mountain. Stan Reynolds immediately commented the plane was scouting for sheep, flying just like they do in the Yukon, which is legal to do so there, David May and myself agreed that it looked like the plan was looking for sheep, since sheep are the only prominent wildlife species on that mountain.
I immediately called Tim Holt and reported the incident.
Approximately five minutes later i observed the parachute plane flying south just east of Canyon Lake, i watched the plane fly south approximately along the boulder creek and la barge drainage’s in the direction of weavers needle, the parachute plane did not appear to be scouting for wildlife as it flew south from Canyon lake, it was flying at a higher elevation and flying in a straight line heading south, i watched the plane fly south until i could no longer observe it.
Cellebrite Extraction Report of Downs Cellphone: November 16, 2017
14. The Cellebrite extraction report showed the following text messages that were sent from Downs or to Downs on November 16, 2017:
Downs sends a text message to Hamberlin and Mike Brum that that he would pick up Hamberlin at 5:30. The message also provided “Be at qt at 6.” See Pg. 638, Ex. 27.
Downs sends a text message to Hamberlin at 6:45 p.m. that provides, “Got a call from doyle moss , he said he has two big rollers bidding . He said he is the only guys he will go with .” See Pg. 638, Ex. 27.
At about 6:47 p.m., Downs sends a text message to Hamberlin which provided, “Jason hairston said he has watched us for a while and is very impressed. He is biding as well.” .” See Pg. 639, Ex. 27.
Downs notifies Boby Kyhn by text message, “We are here” at about 4:44 a.m. See Ex. 27, pg. 639, block 5097
15. On November 17, 2017, Hamberlin unlawfully located bighorn sheep rams from his aircraft in Game Management Unit 24B during open big game hunts. Hamberlin communicated to Downs their locations along with photographs of the rams Hamberlin had found.
Cellebrite Extraction Report of Downs Cellphone: November 17, 2017
16. The Cellebrite extraction report showed the following text messages that were sent to or from Downs on November 17, 2017:
Downs sends a message to Hamberlin at 5:17 p.m. that
provided, “Are you doing your thing tomarrow”. Hamberlin replied at 5:24 p.m., “Too windy. What do you want to do?”. Downs responded at about 5:30 p.m., ‘Im good with anything . With bob off the we have the lake coved the week before .”
At 5:31 p.m., Hamberlin responded, “Do you want to ranger into the 4 peaks rd?”
At 5:32 p.m., Hamberlin texts, Downs “Or Apache?”. Downs responded at 5:33 p.m., “Lets do apache .” Hamberlin responded at 5:34 p.m., “Ok. Bring my boat.”
Hamberlin sent a close up photograph of the head of a Big Horn Sheep to Downs by text message at about 6:57 p.m. See Ex. 27, pg. 133.
Hamberlin sent a second a close up photograph of the head of a Big Horn Sheep to Downs along with the message “Saw this guy tonight @ SMC” at 6:58. See Ex. 27, pg. 133.
Hamberlin sends two images of a close up image of the head of a Big Horn Sheep to Downs along with the message, “And this guy in Whitlow.” At 7:00 p.m. See Ex. 27, pg. 133.
Hamberlin sends an image that appears to be taken overhead of several Big Horn Sheep to Downs along with the message, “And these on Geoff’s mountain” At 7:01 p.m. See Ex. 27, pg. 133.
Hamberlin sends two close up photographs of Big Horn Sheep to Downs along with the message “And this guy on wedding cake” at 7:02 p.m. See Ex. 27, pg. 133.
Hamberlin sends a close up photograph of Big horn Sheep to Downs along with the message, “And this guy in the flats on the way back” at 7:03 p.m. See Ex. 27, pg. 133.
At 7:06 p.m., Downs sends an image of Big Horn Sheep which appears to be taken from above the sheep to Hamberlin. The message sent at 7:06:04 p.m. States “New Mexico”. See Ex. 27, pg. 133.
From 7:06 p.m.to 7:08 p.m., Downs sends images of Big Horn Sheep to Todd Garvin. See Ex. 27, pg. 132.
Downs sends a message to Todd Garvin at 7:17 p.m. which provided, “Canyon Lake sucked today, one ram. We are going to Apache tomorrow.” See Page 642 of Ex. 27.
Cellebrite Extraction Report of Downs Cellphone: November 20, 2017
17. The Cellebrite extraction report showed the following text messages that were either sent to or from Downs on November 20, 2017:
Downs sends a message to Bob Kyhn at about 2:47 p.m. that provided, “I just had this sent to me. Of course I said no
Are any of our guys flying chute planes around
canyon lake?
LMAO. Rumor has it Double H has video of
A3 flying up and down the lake going up and
down every canyon.” Bob responds with what seems to be an automatic message that he is driving and will see the message when he gets to his destination.
At 2:48 p.m., Chad Roton sends a message to Downs, “They are telling everyone it’s us. Even game
and Fish. Lol
Downs sends a message to Chad Rhoton at 2:57 p.m. “No worries about us . We are not doing it .”
At 3:15 p.m. Bob Kyhn responds, “Well that’s very interesting.”
At 3:16, Downs sends a message to Bob Kyhn, “Jim needs to stop”
At 3:17, Bob Kyhn responds, “I know what you mean. You know how these darn rumor spread. I’m sure were the talk of the town now.”
At 3:17, Chad Rhoton responds “I know. Lol”
At 4:10, Downs sends Chad Rhoton a message, “People suck dude . Always trying to bash.when your on top .”
At 4:13 p.m. to Chard Rhoton, Downs says, “Bastards”
At 4:17, Downs receive an incoming phone call from
Hamberlin that lasts 7 minutes and 56 seconds.
At 4:29, Downs text Chad Rhoton, “Any talk on the Auction bidders ? Jason hairston has messaged me . Im telling him crap cuz hes in bed with num nuts scott .”
At 4:45. Chad Rhoton text Downs, “Just the typical rumor mill.”
18. Hamberlin was charged with and convicted of five misdemeanor counts of unlawfully using aircraft to locate wildlife on October 27, 2017, October 31, 2017, November 14, 2017, November 16, 2017 and November 17, 2017.
Testimony of Officer Krisele Colvin
21. Officer Krisele Colvin is an employee of the Department. Colin received a text from her supervisor Officer Holt that there was a photograph of sheep “floating around” that appeared to be taken from the air with Hamberlin’s watermark. Colvin has experience riding in helicopters searching for wildlife.
22. On September 6, 2017, the Department’s game thief hotline received a call from a silent witness. The silent witness reported unlawful use of aircraft to locate wildlife during an archery deer hunt in hunt unit 24B. The witness reported a specific para plane. The person was concerned that the para plane seemed to repeat flying over areas containing big horn Sheep. The person reported that Downs asked to use their property to scout big horn sheep and that the person had mentioned “flying.” The person knew that Downs was guiding Shane Rhoton.
23. Officer Colvin found successful hunts reflected with Downs and Kyhn on social media. Colvin found evidence that Downs was sub guiding.
24. Colvin found images on Chamberlin’s Instagram account that appeared to be of hunt unit 24b. Officer Colvin spoke with Hamberlin and confirmed that he owned a parachute plane.
25. Officer Colvin wrote a search warrant for Downs’s and Hamberlin’s cell phones. Officer Colvin explained that Downs was searching for a sheep named “Elvis”. Shane Rhoton harvested Elvis on October 21, 2017.
26. On October 27, 2017, Officer Colvin was driving out to patrol for a white tail deer hunt in the Superstition. Officer Colvin saw a para plane fly out of hunt unit 24B which matched the description provided by the silent witness. Officer Colvin observed the plane when she was driving on the 60 freeway. Officer Colvin confirmed that the plane that is shown in Exhibit 10 was the plane that she saw on October 27, 2017.
27. Next, Officer Colvin drove to the location where such a plane would land on an open dirt area for quads and recreational vehicles.
28. Officer Colvin saw the plane land and she took a photograph (Ex. 11). Officer Colvin approached the pilot James Hamberlin. It was the first time that she met hHamberlin in person. They discussed big Horn Sheep. Hamberlin began discussing the last time that he flew. Hamberlin inquired with Officer Colvin whether she knew the status of Elvis and he told Officer Colvin how Elvis was harvested. There was an open white tail hunt in October of 2017.
29. Hamberlin said that he had thousands of photos of Elvis and that he was in the process of naming sheep. Hamberlin explained that Rambo would be the next “trophy” ram. Hamberlin said that he did not want the photos shared with guides because he loves photography and does not want to see the animals harvested. The photos on Facebook and Instagram were of sheep that had already been harvested.
30. Officer Colvin began drafting a search warrant for wildlife violations committed by Downs. Colvin drafted the search warrant based on the following facts:
(a) Downs was a guide for Shane in the hunt for Elvis, (b) Hamberlin’s admission of mutual knowledge of the harvest of Elvis, and (c) Hamberlin said Tim and Bob Kyhn had been looking for Elvis.
31. Officer Colvin created the search warrant. Officer Holt seized Downs’s cell phone and logged it into the Mesa office. Officer Holt placed the cell phone in a sealed an envelope. Officer Holt would have signed it out and placed it in a secure evidence locker. The phone was transferred to Phoenix after Office Colvin requested that a transcription from Rick Peebles. Rick Peebles placed the cell phone in a storage facility. Peebles created the extraction report.
32. Based on Colvin’s review of the extraction report, Colvin concluded that Downs was a part of a guide group with clients. Colvin concluded that Hamberlin was included in the group.
33. Officer Colvin explained that guides and hunters spend months and years in advance of a hunt season looking for a ram. Before December of 2017, Colvin opined that a good guide would have found a good ram before December of 2017. 34. Officer Colvin concluded that Downs, Hamberlin, Bob Kyhn, Shane Rhoton, and Mike Burm were working together based on a group text sent by Downs to the previously named on October 26, 2017, at 7:23 a.m., just five days after Elvis was harvested. The text message provided, “Im heading up to flagstaff reminiscing on the past 10 months, wow it was fun , frustrating and at times nurve wracking , i just wanted to say thank you to everyone for putting in the time to help shane hammer the Ram of our deams . Its weird to be done . I cant wait to see your guys photos in Reno .
35. Officer Colvin states there was an open season in Hunt Unit 24B in the Superstition in October of 2017.
36. Officer Colvin stated that Todd Garvin is another licensed guide in the State of Arizona.
37. Officer Colvin explained that the she believes that Hamberlin took the photographs of the big horn sheep that he sent to Downs on October 31, 2017, on October 31, 2017, because Hamberlin admitted that he flew his parachute plane that day. At the time, Shane Rhoton was the auction tag holder.
38. Officer Colvin explained that a sheep’s horns are measured with a Boone and Crockett score. Colvin stated, “the longer the horn, the longer the score.” With regard to Down’s text showing 41 and 188, she explained that 41 would represent the length of the horns and the score would be 188 which is long. Elvis had a Boone and Crocket score of 190. Officer Colvin believed based upon her review of the texts involving Rambo that Downs was going to scout Rambo. Officer Colvin explained that part of Canyon Lake is situated in unit 22 and 24B. There is a high concentration of big horn sheep in Canyon Lake. Colvin believes that Downs acted under A3 forest service.
39. Colvin opined that the photograph of several sheep that Hamberlin sent to Downs on November 17, 2017 at 7:01:20, which Hamberlin noted were at Geoff’s mountain were taken from the air because it appears that the sheep are running away and sheet do not usually run away. See Exhibit 27, pg. 641. Sheep will run if aircraft is near. Colvin stated that there were no high points on the flats. Colvin asserted that any reasonable person should have known that Hamberlin was in the air when he took the photograph.
40. Colvin explained that the reference made to Double H in the November 20, 2017 text sent from Downs to Bob Kyhn, Double H is competing guide service. Colvin explained that SMC is the San Mateo Castro. Colvin explained that wedding cake is a specific mountain in hunt unit 24B.
41. On October 31, 2017, Downs had a contract to provide guide servicres to Mark Furnam in a big horn sheep hunt.
Testimony of Officer Timothy Holt
42. Officer Timothy Holt is an employee of the Department. There was an open hunt season on November 6, 2017. Officer Holt received a text from Kelly that he observed a parachute at Canyon Lake. On November 16, 2017, Officer Holt drove to Desert Wells area based on a prior investigation. Officer Holt identified the parachute plan when he arrived and took a photograph of the plane. Officer Holt took a photo of the truck and trailer registered to Hamberlin. See Exhibit 15. Holt concealed himself when he took the pictures. Holt heard a powered plane coming in from the North. Office Holt observed Hamberlin load aircraft to trailer.
43. Officer Holt served Downs with the search warrant with Brian Anthony in Gilbert. Downs willingly surrendered his phone (at about 4:38). Holt and Anthony were in full uniform and told Downs that they were there pursuant to a warrant for flying in a big game season and it involved Downs. Officer Holt explained that Downs voluntarily spoke with him and Brian Anthony. Officer Holt asked Downs how he knew Hamberlin. Downs responded that Hamberlin was a part of the group not really the hunt group but that he was a photographer. Downs said that Hamberlin was just a buddy; Downs stated that he did not know where Hamberlin flew and denied that Hamberlin gave him information. Downs accurately described Hamberlin’s plane. Downs stated that he was a passenger in Hamberlin’s plane around May or June of 2017. Downs said that Hamberlin takes family and friends on flights.
Testimony of Timothy Downs
44. Downs is a hunter and a licensed guide. Downs has spent 30 years
working for a metal company. Downs obtained his guide license in 2012 and he hunts desert big horn sheep. Downs had a Guide Contract in August of 2017. Downs guided Dr. Rhoton and Mark Furnham in 2017.
45. Downs’s partner is Bob Kyhn. Downs and Kyhn performed services for Dr. Rhoton. Downs stated that he performs groundwork for hunter and locates rams with photos and videos. Downs stated that he does not use trail cameras. Downs explained that he and Kyhn spent 60 days in the field preparing for the hunt with
Dr. Rhoton. There were 1 or 2 standout sheep, but Elvis was at the top of the chain. Downs stated that he spent 5 days a week preparing for Elvis.
46. Downs stated that any work that he may have performed on October 31, 2017 could only have been for Mark Farnam. However, Farnam could only hunt in unit 22, not 24B. Hunts are limited to specific geographical areas.
47. Downs explained that Hamberlin is a photographer friend who has a passion for Big Horn sheep. Hamberlin posts photographs on the internet of animals. The Department has used Hamberlin’s photographs in some of its media. Downs does not believe that Hamberlin has ever seen Elvis from the earth.
48. Downs considers himself an expert guide. Downs stated that people coming from out of the state contact him for assistance. Downs stated that the substance of the Department’s basis for denying his application is the same as the criminal case against him where he was charged with 14 counts and he was acquitted.
49. Downs states that on October 31, 2017, he opened up his shop at
5 a.m. and worked a 10 hour shift until 3pm. Downs stated that he performed no guide services on that day and did not witness Hamberlin do anything.
50. Downs stated that he did not perform guide services on November 17, 2017. Downs stated that he may have been on his boat that he kept at Canyon Lake. Downs stated that he is on Canyon Lake three times a week. Downs did not personally see Hamberlin flying on 11/17/2017
51. Farman’s hunt was in Unit 22. Downs stated that Elvis was located in 24B North. Downs stated that Elvis was harvested on October 21, 2017.
52. Downs stated that he prepared for Farnham’s hunt on foot. Downs stated that Hamberlin has never been a part of his business and that he never received a payment from Hamberlin. Downs has discussed with Hamberlin that he flies his aircraft frequently. Downs stated that Hamberlin always sends him photographs of animals. Downs has known Hamberlin since 2011. Downs stated that Hamberlin sent him photos from 24B South which is 25 miles north of where Farnam was hunting.
53. Downs acknowledged that Hamberlin took photos of Elvis but he does not recall using Hamberlin’s photographs or showing them to any of his clients. Downs says he is aware that Hamberlin would fly plane on Superstition Mountains. Downs admitted that he knew that Hamberlin would be flying his plane on October 31, 2017. Downs acknowledged that Rambo was an above average ram. Downs stated that the A3 guide group allowed him to use its permits, but no money was exchanged. Downs acknowledged that Double H is his competitor. Downs denied that he intentionally misled Officer Holt. Downs stated that he told Officer Holt that Hamberlin flies all the time, but he does not know when he flies his parachute plane.
Testimony of James Hamberlin
54. James Hamberlin explained that he flew about four times a month in 2016 and 2017. Hamberlin stated that he has suffered a leg injury due to flying. Hamberlin stated that he did not fly during Dr. Rhoton’s hunt for Elvis to avoid false accusations.
55. Hamberlin testified to the effect that a person cannot fly at 7 or 8 miles per hour winds because even a slight breeze can thwart the plane. Hamberlin stated that he cannot take quality photographs from a parachute. Hamberlin stated that he never chases or circles around wildlife. Hamberlin stated that he turns to the side because he is sensitive to an animal’s reaction. Hamberlin stated that he never told anyone that he would fly with the intent to locate wildlife. Hamberlin acknowledged that the photograph in Exhibit 6 is his parachute plane.
56. Hamberlin stated that he flew his plane on October 31, 2017 because most people don’t want dental work on Halloween. Hamberlin believed that he sent a text to Downs after he returned home.
57. Hamberlin testified that on November 17, 2017, he did not see Downs, nor did he try to relay locations of animals to Downs. Hamberlin explained that he never shares photos from the plane and that he rarely shares photos taken while he was in the air. Hamberlin explained that he knows Bob Kyhn and he has only met Todd Garvin two or three times. Hamberlin explained that he first learned of Elvis around 2014 or 2015, and has never taken a picture of Elvis from the air.
58. Hamberlin stated that he is aware of the prohibition to use aircraft to locate wildlife to hunt them during an open season. Hamberlin stated that he names sheep to categorize photos.
59. Hamberlin stated that he flew in hunt unit 24B South 40 times in 2017. Hamberlin admitted that he saw Rambo from the air on October 31, 2017 and found him 2 miles from the Desert Wells Recreation area.
60. Hamberlin testified that he zoomed into to the horns when he cropped the photos that he sent Downs on October 31, 2017. Hamberlin testified that he zoomed into the horns because he knew that Downs could recognize the sheep if he zoomed in on the horns. Downs had already seen Rambo many times.
61. On November 1, 2017, Hamberlin sent a text to Downs and stated that he had Rambo at 350. Hamberlin clarified that he meant that he was 350 yards away taking a photo of Rambo. Hamberlin stated that he saw Rambo the day before when he flew past him. Hamberlin stated in one of the text messages he stated that he needed to kill a ram because he knew that the ram was old and would die soon. Hamberlin believed that the ram should be killed before his horn broke.
62. Hamberlin admitted that he flew around Canyon Lake on December 16, 2017. Hamberlin stated that he only gave Downs the mountain range of the sheep that he found which would not help the Guide locate the sheep.
Testimony of Robert Kyhn (Bob Kyhn)
63. Bob Kyhn testified that he works with Downs and provided guide services to Shane Rhoton. Kyhn stated that he knew Elvis was in Unit 24B south shore of canyon lake and fish creek. Kyhn stated that he spent 56 days on the ground preparing for Dr. Rhoton’s hunt. Kyhn stated that he never flew in Hamberlin’s plane and that there is no business relationship between Hamberlin and Downs. Kyhn stated that he did not like that Hamberlin flew due to the implications of flying over animals. Kyhn stated that he only observed Rambo in the SMC.
CONCLUSIONS OF LAW
This matter lies within the Department’s jurisdiction under A.R.S. § 17-201.
Applicant bears the burden of proof to establish by a preponderance of the evidence that the Department improperly denied the Application. 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.” 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).
Wildlife in the State of Arizona is considered property of the state. A.R.S. § 17-102.
The Commission shall, “establish hunting, trapping and fishing rules and prescribe the manner and methods that may be used in taking wildlife.” A.R.S. §17-231 (A)(3).
A guide license applicant must demonstrate knowledge of state and federal laws governing take of wildlife by passing an Arizona Game and Fish Department supervised exam. See A.A.C. R12-4-208.
A holder of a guide license must report any violation of federal or state wildlife regulation, law, or rule the guide has personally witnessed. See A.R.S. § 17-309(A)(1); A.A.C. R12-4-208(G); A.A.C. R12-4-408(T)(4); A.A.C. R12-4-208(O)(2).
An individual must not locate wildlife from or with the aid of an aircraft in a hunt unit with an open big game season. See A.R.S. § 17-309(A)(1); A.A.C. R12-4-319(C).
The preponderance of the evidence shows that Hamberlin violated A.R.S. 17-309(A)(1) and Arizona Administrative Code R12-4-319(C).
The preponderance of evidence shows that Downs personally witnessed Hamberlin violate A.R.S. 17-309(A)(1) and Arizona Administrative Code R12-4-319(C).
The preponderance of the evidence shows that Downs failed to report two violations of a federal or state wildlife law or rule, which is a violation of A.R.S. 17-309(A)(1); Arizona Administrative Code R12-4-208(G) and R12-4-208(T)(4).
Upon consideration of all of the evidence presented, Downs has not established that the Department’s denial was improper.
RECOMMENDED ORDER
In light of the foregoing, it is ordered that the Department’s denial be upheld.
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, June 24, 2020.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Ty Gray, Director
Arizona Game and Fish Department