ALJDEC decisions subject to certification as final

22A-0001-AH-AZGFD · Arizona Game and Fish Department · 2022-04-05

-54864001

001

-137160-45720000 IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Loren McReynolds, Respondent

No. 22A-0001-AH-AZGFD

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 16, 2022

APPEARANCES: Respondent Loren McReynolds did not appear. Assistant Attorney General Linda Pollock appeared on behalf of the Arizona Game and Fish Department.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On February 2, 2022, the Arizona Game and Fish Department (AZ Game and Fish or Department) issued a Notice of Hearing setting the above-entitled matter for hearing on March 16, 2022, pursuant to Arizona Revised Statutes (A.R.S.) § 17-340(G).

2. Through the Notice of Hearing, AZ Game and Fish made the following allegations:

On or about September 3, 2013, Respondent unlawfully took a Mule deer in an area closed to the take of wildlife, to-wit: the Grand Canyon National Park, in violation of A.R.S. § 17-309(A)(11).

On or about September 4, 2013, Respondent unlawfully transported and possessed the unlawfully-taken Mule deer, in violation of A.R.S. § 17-309(A)(16).

Respondent is responsible for the loss of one (1) Mule deer to the State of Arizona.

Arizona revised Statutes § 17-314(A) authorizes the Arizona Game and Fish Commission to impose civil penalty of not less than $1,500.00 for the unlawfully taking, wounding, killing or possession of a deer.

A.R.S. § 17-314(B) further authorizes this minimum sum to be doubled for a second violation, verdict or judgment and tripled for a third violation, verdict or judgment.

AZ Game and Fish states upon information and belief that Respondent has been convicted of two prior violations for the unlawful take of wildlife in the Williams Justice Court, Williams, Arizona.

On or about October 1, 2021, Respondent was adjudged guilty following a trial in the Williams Justice Court of the unlawful take of wildlife, to-wit: on or about December 28, 2012, Respondent unlawfully took a mule deer in excess of the bag limit in the Kaibab National Forest, Coconino County, Arizona, and possessed and/or transported such unlawfully-taken mule deer, in violation of A.R.S. §§ 17-309(A)(14) and 17-309(A)(16).

On or about October 1, 2021, Respondent was adjudged guilty following a trial in the Williams Justice Court of the unlawful take of wildlife, to-wit: on or about December 23, 2015, Respondent unlawfully took a mule deer in excess of the bag limit within the Perrin Ranch, Coconino County, Arizona, and possessed and/or transported such unlawfully-taken mule deer, in violation of in violation of A.R.S. §§ 17-309(A)(14) and 17-309(A)(16).

A.R.S. § 17-314(B) further authorizes the Arizona Game and Fish Commission to seek possession and recovery of any wildlife thereof unlawfully taken wounded, killed or possessed.

3. Through the Notice of Hearing, AZ Game and Fish notified Respondent Loren McReynolds (Respondent) of its request that the Administrative Law Judge make the following findings of fact and conclusions of law:

Respondent unlawfully took one Mule Deer in the Grand Canyon National Park in violation of A.R.S. A.R.S. § 17-309(A)(11).

Respondent transported and possessed the unlawfully-taken Mule deer, in violation of A.R.S. § 17-314(A)(16).

Possession of the shoulder mount of the unlawfully-taken Mule deer should be granted to AZ Game and Fish pursuant to A.R.S. § 17-314(B).

4. The Notice of Hearing was mailed to Respondent’s address of record.

5. A hearing was held on March 16, 2022.

6. At hearing, the Department presented the testimony of Britnee Bachstein, Kyle Riebli, Marc Darris, Officer Clint Adams, Special Agent Philip Oakes, and Special Agent Kyle Carpenter. The Department submitted exhibits 1 through 16.

7. Respondent did not appear at the scheduled time and the matter was convened in his absence at about 1:15 p.m. on March 16, 2022. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional time, Respondent did not appear through an attorney, and did not contact the Office of Administrative Hearings to request that the start of the hearing be further delayed.

Testimony of Britnee Bachstein

8. At all times relevant to this matter, Respondent worked as a hunting guide

through his business, Mac Outfitters. Respondent also sold antlers through his company, McReynolds Antler Company.

9. Toward the end of 2011, Respondent met Britnee Bachstein. At some time from 2012 to 2013, Ms. Bachstein and Mr. McReynolds began dating. At the time,

Ms. Bachstein lived in Flagstaff, Arizona. In 2013, Ms. Bachstein was eighteen years old.

10. On September 3, 2013, Ms. Bachstein went on a hunting trip with

Mr. McReynolds.

11. Respondent and Ms. Bachstein hunted together and picked up antlers during their relationship.

12. During the September 3, 2013 hunting trip, Respondent and Ms. Bachstein both wore hunting camouflage and drove Respondent’s truck.

Respondent had archery equipment during the trip. The truck had decal of Mac Outfitters. Respondent and Ms. Bachstein would usually drive to the forest and set up camp. During some trips, Respondent and Ms. Bachstein would bring a

“5-wheel quad.”

13. On September 3, 2013, Respondent and Ms. Bachstein drove to the forest and set up camp. Ms. Bachstein believed that they were done for the day. However, Respondent and Ms. Bachstein drove to the Grand Canyon National Forest tourist area located at the south rim. It was about an hour before sundown. Ms. Bachstein did not believe that Respondent had any intention of hunting.

14. Respondent and Ms. Bachstein took photos of a deer located off the side of the road. The deer had velvet antlers and did not appear to be afraid of humans. Respondent was excited about the deer. Respondent and Ms. Bachstein were within about 10 yards of the deer. People in other cars were looking at the deer.

15. Ms. Bachstein testified to the effect that Respondent told her, “Do you know how good this deer would be for business?” Ms. Bachstein believed that Respondent was referring to acquiring jobs for his guiding and antler businesses.

16. Respondent never told Ms. Bachstein that he wanted to take the deer.

However, after looking at the deer on the side of the road, Respondent told Ms. Bachstein that he was getting out of the truck. Respondent told Ms. Bachstein to drive to the bathroom area and come back and pick him up. Respondent told Ms. Bachstein to “take her time.” Ms. Bachstein believed that Respondent was contemplating killing the deer because she did not know of any other reason why Respondent would ask her to go to the bathroom and come back. Ms. Bachstein comes from a family of hunters.

Ms. Bachstein was aware that it was unlawful to kill wildlife in the Grand Canyon National Forest.

17. Ms. Bachstein drove to the bathroom area, through the parking lot, and back to the area where Respondent first exited the truck. Respondent returned to the driver’s seat and he and Ms. Bachstein drove back to the camp. Respondent told Ms. Bachstein that they would return that night to pick up the deer. Respondent and

Ms. Bachstein drove back to the area where they camped in the woods. Respondent and Ms. Bachstein laid in the bed of the truck. Respondent told Ms. Bachstein “let’s get some rest and we’ll get up in a little while.” It was dark at this time. Ms. Bachstein was unhappy with Respondent and felt uncomfortable.

18. Ms. Bachstein explained that she stayed with Respondent because he was manipulative and abusive. Additionally, Ms. Bachstein had no other way of getting home.

19. Respondent and Ms. Bachstein woke up at about two or three o’clock in the morning and drove back to the tourist area in the Grand Canyon National Forest. Respondent searched for the deer using a spotlight or flashlight. Respondent and Ms. Bachstein were the only individuals present. Respondent told Ms. Bachstein that he found the deer. The deer was located approximately 20 to 30 yards in some trees off the side of the road.

20. Respondent and Ms. Bachstein dragged the deer to the end of the road and loaded it into the truck. Ms. Bachstein recalled that the deer was fat. Respondent told Ms. Bachstein, “Thank God you’re strong.” At this time, it was still dark.

21. Respondent and Ms. Bachstein went to a different location in the woods and Respondent gutted the deer. Ms. Bachstein helped Respondent gut the deer. Respondent removed the guts and left the deer’s internal parts in one area. Next, Respondent and Ms. Bachstein drove to another location and waited for the sun to come up. Respondent and Ms. Bachstein used their cell phones to take pictures after the son rose. Next, Respondent and Ms. Bachstein drove to another area and Respondent cleaned the deer near water. See Exhibit 11. At that time, Respondent created a story that he and Ms. Bachstein could others about how they took the deer. Respondent field dressed the deer.

22. Respondent told Ms. Bachstein that the story would be that he sent

Ms. Bachstein to hike on her in the woods. However, Ms. Bachstein explained that she will get lost if she walks in the woods by herself. Respondent told her they would say that Respondent came back later saying that he had killed her deer and took Ms. Bachstein back to location where the photographs were initially taken. Ms. Bachstein described the story as complete fiction.

23. Ms. Bachstein posed with the deer in Respondent’s truck after the deer was killed. See Exhibit 7 and Ms. Bachstein’s testimony on the Hearing Record (0915 2022-03-16).AAC at 9:40 minutes.

24. Ms. Bachstein took the photograph in Exhibit 4. The photograph in Exhibit 4 was not taken in the same location where the deer was killed.

25. Ms. Bachstein took the fifth and sixth photos in Exhibit 4.

26. After Respondent field dressed the deer, Respondent and Ms. Bachstein drove back to Flagstaff with.

27. Ms. Bachstein felt disillusioned after the trip.

28. When asked during direct examination whether Respondent tried to dissuade her from testifying at the hearing, Ms. Bachstein answered “yes”.

29. Ms. Bachstein expressed that she did not understand how Respondent could be proud of unlawfully killing a deer. Respondent told Ms. Bachstein to delete all of the photographs.

Testimony of Kyle Riebli

30. Mr. Riebli worked at the Grand Canyon National Park as a park service ranger from 2003-2006,

31. In August of 2013, Mr. Riebeli drove for Pink Jeep Tours on the south rim of the Grand Canyon. During the Pink Jeep Tour, Mr. Riebli would drive guests to the Grand Canyon and educate them about the park. Guests also had the opportunity to take photos of the park.

32. On August 28, 2013, Mr. Riebli took a photo of the deer with velvet antlers during a Pink Jeep Tour. See Exhibits 5 and 6. Mr. Riebli had tourists with him. The deer was located on the south side of the road of Desert View Drive in the south rim of the Grand Canyon National Park. The deer was non-typical and unique. Mr. Riebli had seen the deer ten different times between July and August of 2013. The deer was always on the side of the road.

33. Mr. Riebli learned that the deer had been killed after he learned from one of his former college roommates that someone posted the deer on the “CouesWhitetail.com” website. The website is a hunting website about mule deer.

Mr. Riebli searched for the deer on the website and reported it to AZ Game and Fish. Mr. Riebli reported the killing by calling the Grand Canyon National Park Service dispatch phone number for law enforcement. Mr. Riebli typically saw the unique deer in a burn area from the 180 to a quarter of a mile down Desert View Drive on the south side of the road. See Exhibit 15 and Mr. Riebli’s testimony on the Hearing Audio (0915 2022-03-16.AAC), at 43:00 – 46:32 minutes. Mr. Riebli remarked that the deer was unique and not afraid of humans. See id.

Testimony of Marc Darris

34. Marc Darris is a driver for the United Parcel Service (UPS). Mr. Darris has been a driver for UPS for twenty-seven years. Mr. Darris holds a hunting guide license from AZ Game and Fish.

35. In 2013, Mr. Darris drove a regular route that included the south rim of the Grand Canyon National Forest. Mr. Darris frequently saw a mule deer buck with a unique set of antlers. See Exhibit 5. Mr. Darris recognized the deer in Exhibit 5 because it was a trophy class mule deer.

36. Mr. Darris would always see the deer when he would drive toward Desert View. Mr. Darris would see the deer in the afternoon hours in a few 100 yards of highway 180 and Desert View in the Grand Canyon National Forest.

37. On September 3, 2013, Mr. Darris headed north on 180 which is a highway coming out of Tusayan, at about 2:30 p.m. to 3:00 p.m. There is a junction with a hard right to Desert View where Mr. Darris turned right. Mr. Darris did not make it 100 yards before he recognized a truck and an elk crossing the road.

38. Mr. Darris observed a male and female in the truck wearing camouflage. Mr. Darris did not know Respondent. Mr. Darris did not recognize the passengers. After he crossed, he headed east and looked back and noticed that he truck had McReynolds Antler Company detail.

39. . Mr. Darris recognized the truck because it belonged to his friend Dale Burns. Mr. Burns just happened to call him that day. Mr. Darris asked Mr. Burns if he had sold his truck. Mr. Burns told Mr. Darris that he sold the truck to Respondent. Mr. Darris told Mr. Burns that he saw his former truck in the park.

40. Jim Madden, an AZ Game and Fish special investigator, called Mr. Darris. Mr. Darris never expected to receive a call from Mr. Madden. Mr. Madden asked Mr. Darris if he knew anything about the unique deer. Mr. Darris then realized that someone had shot the deer. Mr. Darris recalled that the two people in the truck were wearing hunting camouflage.

Testimony of Officer Clint Adams

41. Officer Clint Adams has worked for the AZ Game and Fish Dept. for 25 years. Officer Adams has worked in law enforcement for 20 of the 25 years. AZ Game and Fish investigated the killing of the deer in 2013. At the time, Ms. Bachstein was uncooperative.

42. In 2017, Officer Adams resumed his investigation of the 2013 taking incident. AZ Game and Fish and the Minnesota Department of Natural Resources engaged in a special protect wherein undercover policeman went on a hunt with Respondent. As a result of the undercover operation, a search warrant was obtained based on crimes that Respondent committed with the undercover officers. Officer Adams discovered more evidence related to the 2013 incident. The undercover officers videotaped the interior of Respondent’s residence. Officer Adams saw the deer from the 2013 incident on the video tape hanging as a shoulder mount on Respondent’s wall.

43. Officer Adams and Special Agent Kyle Carpenter interviewed Ms. Bachstein in 2017 Ms. Bachstein originally stuck to her old story but later became cooperative. Officer Adams stated that Ms. Bachstein’s testimony during the hearing was consistent with the statements that she made to him in 2017.

44. Officer Adams obtained a search warrant for Respondent’s Facebook account and received a return. See Exhibit 10. The search warrant and return was for “Loren McReynolds dba Mac Outfitters.” See id at pg. 275. The search warrant returned photographs of the deer with the Mac Outfitters logo. The metadata for the photo shown on pg. 275 of Exhibit 10 shows that the photograph was taken on September 4, 2013 at 7:50 a.m. in the morning. The metadata also shows longitude and latitude information that provides coordinates on a map that show any place on earth. Officer Adams provided the longitude and latitude information to Special Agent Kyle Carpenter for further investigation.

45. Officer Adams prepared affidavits for a superior court warrant for the search of Respondent’s residence. See Exhibit 4. Officer Adams was present for the search warrant. Officer Adams seized the shoulder mount from Respondent’s

residence. The shoulder mount that was seized from Respondent’s residence was the same as the deer in the photographs that Ms. Bachstein identified earlier in the hearing. The shoulder mount did not have velvet antlers because Respondent told an undercover officer that he took it to someone to have it removed. Officer Adams explained that removing velvet from antlers is not uncommon.

46. During the execution of the search warrant, officers seized Respondent’s computer. The metadata shows that the photographs found on Respondent’s computer were taken on September 4, 2013, from 7:45 a.m. to 8:03 a.m. See Exhibit 7. There were 18 photographs on Respondent’s computer. The photographs were provided to the National Park Service. Officer Adams was present in court on October 1, 2021 when Respondent was convicted of crimes related to the unlawful taking of wildlife. Officer Adams identified the person in the photographs as the same person who appeared in court on October 1, 2021.

See Exhibits 12 and 13.

47. On or about October 1, 2021, Respondent was adjudged guilty following a trial in the Williams Justice Court of the unlawful take of wildlife, to-wit: on or about December 28, 2012, Respondent unlawfully took a mule deer in excess of the bag limit in the Kaibab National Forest, Coconino County, Arizona, and possessed and/or transported such unlawfully-taken mule deer, in violation of A.R.S. §§ 17-309(A)(14) and 17-309(A)(16). See Exhibit 12.

48. On or about October 1, 2021, Respondent was adjudged guilty following a trial in the Williams Justice Court of the unlawful take of wildlife, to-wit: on or about December 23, 2015, Respondent unlawfully took a mule deer in excess of the bag limit within the Perrin Ranch, Coconino County, Arizona, and possessed and/or transported such unlawfully-taken mule deer, in violation of in violation of A.R.S. §§ 17-309(A)(14) and 17-309(A)(16). See Exhibit 13.

Testimony of Special Agent Philip Oaks

49. Special Agent Philip Oaks has been a special agent with the National Park Service for about 10 years. In February of 2018, Special Agent Kyler Carpenter asked for assistance in locating where a photograph was taken. Agent Carpenter provided Agent Oaks with the longitude and latitude to assist him with the task. See Exhibit 10.

50. On February 6, 2018, Agent Carpenter gave Agent Oaks the coordinates. On February 8, 2018, Agent Oaks put the coordinates in a Global Positioning System (GPS) unit and followed the arrow. The GPS directed him to leave Grand Canyon National Forest and led him into the Kibab National Forest.

Testimony of Special Agent Kyle Carpenter

51. Special Agent Kyler Carpenter has been a special agent with the United States Park Service for approximately 5 years. Agent Carpenter was the lead agent for the National Park Service. Agent Carpenter interviewed Ms. Bachstein. Agent Carpenter interviewed Mr. Riebli and Mr. Darris with help from a co-worker as a part of his investigation. AZ Game and Fish officers provided a link to a YouTube video of the 2013 deer. Agent Carpenter identified the videographer as Dave Finnegan. Agent Carpenter interviewed Mr. Finnegan by phone. Mr. Finnegan verified that he was present in the Grand Canyon on August 17, 2013 by providing a paid entrance fee to the Grand Canyon and receipts from a bookstore for items purchased on August 17, 2013. The bookstore is in the Grand Canyon’s visitor’s center. Mr. Finnegan created the video on August 17, 2013. See Exhibit 3. Mr. Finnegan sent Agent Carpenter the original file that contained the video. Agent Carpenter watched the entire video, but edited the length for the hearing. The voice on the video is the voice of Mr. Finnegan.

52. Agent Carpenter conducted an expert analysis of the deer on the photograph from the Facebook search warrant return (a photo of Respondent posing next to the deer in the woods) and the video taken of the mounted deer in Respondent’s home in Flagstaff. See Exhibit 9, slide and Hearing Audio Record (1031 2022-03-16).AAC at: 55:30 to 58:54 minutes. Agent Carpenter concluded that the deer in the You Tube video and from the photograph from Facebook contained the same deer due to the similarity between the spurs were similar and the eye guards at the base of the antlers above the deer’s skull.

53. Agent Carpenter conducted an expert analysis of a photograph with Respondent and a screenshot from the You-Tube video and concluded that the same deer was displayed in both photographs. See the Hearing Audio, (1031 2022-03-16).AAC at 55:30-58:54 minutes. The knob at the branch of the antler and the spurs were the same. See id.

54. Agent Carpenter conducted an expert analysis of the Facebook photo and Riebli’s photo. Agent Carpenter observed that the configuration of the antlers in both photos are similar. See the Hearing Audio, (1031 2022-03-16).AAC at 55:30-58:54.

55. Agent Carpenter ultimately concluded that the deer shown in the Facebook search warrant photo, the Riebli photo, and the screenshot from Finnegan’s You Tube video were the same deer.

56. Agent Carpenter conducted his own forensic analysis of the photos from Officer Adams. The metadata shows that on September 4, 2013, between 7:45 a.m. and 8:04 a.m., photos were taken from an IPhone 4 and an IPhone 4s. See Ex. 16.

The metadata also provided longitude and latitude coordinates. Based on his analysis, Agent Carpenter concluded that Respondent moved the deer from the Grand Canyon National Forest to Kaibab National Forest. See Agent Carpenter’s testimony on the Hearing Audio, (1031 2022-03-16).AAC at 59:00 to 1:13:00.

CONCLUSIONS OF LAW

This matter lies within the Department’s jurisdiction under A.R.S. § 17-201.

The Department bears the burden of proof and must establish that Respondent violated AZ Game and Fish laws by a preponderance of the evidence.

See A.R.S. § 41-1092.07(G); A.A.C. R2-19-119(A) and (B)(1).

“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).

An individual must not take a mule deer in an area closed to the taking of wildlife, to wit: the Grand Canyon National Forest. See A.R.S. § 17-309(A)(11).

An individual must not possess or transport any wildlife that was unlawfully taken. See A.R.S. § 17-309(A)(16).

AZ Game and Fish may impose a civil penalty of no less than $1,500.00 for the unlawfully taking, wounding, killing or possession of a deer. See A.R.S. § 17-314(A). The minimum sum may be doubled for a second violation, verdict or judgment and tripled for a third violation, verdict or judgment. See A.R.S. § 17-314(B).

The preponderance of the evidence shows that Respondent violated A.R.S. § 17-309(A)(11), (14), and (16) as alleged in numbers AZ Game and Fish’s February 2, 2022 Notice of Hearing.

The facts, as set forth previously, establish that Respondent violated A.R.S. § 17-309(A)(11), (14), and (16).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that possession of the shoulder mount of the unlawfully-taken Mule deer should be granted to AZ Game and Fish pursuant to A.R.S. § 17-314(B), on the effective date of the Order.

It is further recommended that AZ Game and Fish require Respondent to pay a tripled minimum sum as a civil penalty in an amount not less than $4,500.00 for the unlawful taking, transportation and possession of a Mule deer in the Grand Canyon National Park pursuant to A.R.S. § 17-314(A)(2) and (B).

Done this day, April 5, 2022.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Ty Gray, Director

Arizona Game and Fish Department

By: Miranda Alvarez

Legal Secretary