ALJDEC decisions subject to certification as final

22A-0003-AH-AZGFD · Arizona Game and Fish Department · 2022-10-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

John Ottley,

Respondent

No. 22A-0003-AH-AZGFD

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 6, 2022

APPEARANCES: Respondent John Ottley appeared on his own behalf. The Arizona Game and Fish Department was represented by Assistant Attorney General Linda J. Pollock.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about June 28, 2022, the Arizona Game and Fish Department (Department) issued a Notice of Hearing to Respondent John Ottley setting the above-entitled matter for hearing on August 24, 2022, pursuant to Ariz. Rev. Stat. § 17-340(G).

The hearing in this matter was continued to October 6, 2022.

On or about August 24, 2022, the Department issued an Amended Notice of Hearing in which the Department made the following allegations:

On or about May 18, 2017, John Ottley unlawfully possessed wildlife in excess of the possession limit, to-wit: 68 Rosy boa snakes, in violation A.R.S. of § 17-309(A)(15).

On or about May 18, 2017, John Ottley unlawfully possessed wildlife, to-wit: two Gila monsters, in violation of A.R.S. § 17-306(A) and Arizona Administrative Code 12-4-406(A) and 12-4-406(H).

Arizona Revised Statutes § 17-314(A) and Commission Rule R12-4-127 authorize the Arizona Game and Fish Commission to impose a civil penalty of not less than $250.00 for each unlawfully-possessed Rosy boa and Gila monster in order to compensate the State of Arizona for the value of lost wildlife.

At hearing, the Department presented the testimony of Officer Ryan Babel, Officer Matt Braun, Anthony Vowell, Rick Peebles, Officer Chandler, Officer Alicia Nemlowill, and Thomas R. Jones, Ph.D., and submitted the affidavit of Tarune “Ty” Dillon in lieu of his testimony. The Department submitted exhibits 1 through 29.

Respondent testified on his own behalf.

Hearing Evidence

While reviewing ads on faunaclassified.com, Officer Babel discovered an ad posted by Respondent on or about September 7, 2014, that read as follows:

LOCALITY SPECIFIC HARQUAHALA BOAS

If you are interested in pure, locality specific Harquahala boas I have unrelated babies available from the peak, rock quarry, east ridge, low elevation, etc. Locality specific from the Harcuvars and Cerbats are also available in very limited numbers.

On or about September 8, 2014, Respondent posted a comment on the ad stating, “All gone!”

On or about September 8, 2014, a user named Mick Lynuts commented as follows:

Sweet! So all of these boas must be free right? ... because myself and many others know that you cannot sell AZ rosy boas when you live in AZ. You sure spent a lot of time up on that mountain this season John. Are all those racks filled up?

On or about September 8, 2014, Respondent replied to Mick Lynuts, “Wow, another genius who thinks he’s funny.”

On or about May 18, 2017, Anthony Vowell, an agent with the United States Fish and Wildlife Service (Fish and Wildlife), arrived outside Respondent’s house around 1:00 p.m. in preparation to serve a search warrant at the location.

While waiting outside Respondent’s house, Agent Vowell observed Respondent come out of the building with a cooler that he placed in the back of his vehicle. While Respondent drove around the neighborhood, Agent Vowell followed him to ensure he did not leave the area.

When Respondent returned to his home, Agent Vowell approached Respondent and let Respondent know he was there to serve a search warrant. Agent Vowell asked if he could look in the vehicle and see what was in the cooler. Respondent consented to letting Agent Vowell look in the vehicle.

Respondent opened the cooler and Agent Vowell observed two Gila monsters in the cooler. Respondent explained to Agent Vowell that it was breeding season and that Respondent “takes them for a drive to get them in the mood.” Agent Vowell found this explanation to be “ridiculous” but acknowledged he was unfamiliar with breeding Gila monsters in captivity.

Agent Vowell asked Respondent where he got the Gila monsters from and Respondent stated he had owned them for 20 years and got them from Mexico.

Agent Vowell searched the Fish and Wildlife system and was unable to locate any paperwork that Respondent would have had to complete to legally bring the Gila monsters into the United States from Mexico.

Once Department officers arrived, the Department executed a search warrant issued by the Maricopa County Superior Court at Respondent’s home.

Pursuant to the search warrant, the Department seized 71 live rosy boas, the 2 Gila monsters Agent Vowell observed in the cooler, and 1 dead rosy boa.

The rosy boas were located in racks in an outbuilding with approximately 1 snake per drawer. Respondent had other enclosures housing other types of snakes.

The Department also seized an all-terrain vehicle with an added light bar across the front, tongs commonly used to pick up snakes or other reptiles, containers commonly used to hold snakes, reptiles, and bugs, and a check from California Zoological Supply payable to Kathy Ottley in the amount of $1,475.00 with a memo of “Hq HARV rosy $25 CA BRED.” The Department also seized two iPhones.

When cataloging the rosy boas, the Department observed a note in each drawer with detailed information relating to the date and location of collection and the propagation history.

The Department compiled the individual notes into a master list for ease of reference. Based on the notes discovered, the rosy boas were collected from April 6, 2010, through April 25, 2017. Several were noted to have been born from certain females, including four that were “Born from #56 Female” on September 4, 2015, and two that were “born from #13 female” on September 20, 2015. In total, 11 rosy boas were collected in 2010, 4 in 2011, 12 in 2012, 13 in 2013, 12 in 2014, 1 in 2015, 3 in 2016, and 1 in 2017. Twelve of the notes did not have dates on them.

A search of the iPhones revealed videos of rosy boas in the wild with a voice describing the snakes and some showing a thermometer with someone taking the snakes’ temperatures.

The iPhones also contained videos of Gila monsters. In one video, an individual nudged the Gila monster with their foot and then picked up the Gila monster by the tail and moved it. That video was date stamped April 7, 2016.

Officer Nemlowill took the metadata that was extracted from the iPhones showing where the videos of the Gila monsters were taken and mapped them to confirm the accuracy. Officer Nemlowill discovered that the videos were all taken in the Harquahala mountain area and noted the landscape in the area was visually similar to that shown in the video.

Dr. Jones compared the Gila monster in the video with the photographs Agent Vowell took of the Gila monsters in the cooler in Respondent’s car. Dr. Jones determined that one of Gila monsters in the video was the same as one of the Gila monsters in the cooler based on the observed markings.

On or about May 7, 2018, a grand jury in Maricopa County, Arizona handed down an indictment in which Respondent was charged with 13 counts of violating Arizona law relating to the taking, possession, and/or transportation of rosy boas and Gila monsters.

On or about August 21, 2019, Respondent entered a guilty plea to two of the counts as follows:

COUNT 4: TAKE/POSSESS/SELL WILDLIFE, A CLASS 2 MISDEMEANOR, in violation of A.R.S. 17-101, 17-301, 17-301.01, 17-309, 13-707, and 13-802 committed on December 6, 2016.

COUNT 12(as amended): GAME AND FISH VIOLATION BARTER OR SELL WILDLIFE A CLASS 6 UNDESIGNATED FELONY, in violation of A.R.S. 17-101, 17-309, 13-701, 13-702, and 13-801 committed on April 25, 2017.

Following the entry of the guilty pleas, the Department suspended Respondent’s hunting license from the Department from June 11, 2021, through June 11, 2026, and issued a $300.00 civil assessment.

Respondent testified that he deeply regretted allowing himself to be coerced into taking a plea deal, but indicated he was promised a light sentence in exchange for his plea. Respondent stated he was a hobby breeder since he was a teenager and had been studying rosy boas as part of his post-graduate work.

Respondent indicated that the Gila monsters in the videos were from his breeding collection and that “virtually all of them” were not from Arizona. Respondent acknowledged that one of the Gila monster in the video was the same as one of the Gila monsters in the cooler, but indicated that the other Gila monster had been traded out for a different Gila monster for breeding purposes. Respondent asserted that a friend wanted to photograph Gila monsters in a natural landscape, so he took his up to the area for that purpose.

Respondent admitted that every rosy boa located on his property during the execution of the search warrant on May 18, 2017, was an Arizona rosy boa, but denied that he owned or captured all of them. Respondent acknowledged that the handwriting on each of the notes in the drawers was his writing, but maintained that many of the rosy boas were on loan from friends for breeding purposes.

CONCLUSIONS OF LAW

This matter lies within the Department’s jurisdiction under Ariz. Rev. Stat. § 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 Ariz. Rev. Stat. § 41-1092.07(G); Ariz. Admin. Code 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).

Ariz. Rev. Stat. § 17-306(A) provides as follows:

No person shall import or transport into this state or sell, trade or release within this state or have in the person's possession any live wildlife except as authorized by the commission or as defined in title 3, chapter 16.

Ariz. Admin. Code R12-4-406 provides, in pertinent part, as follows:

A. In order to lawfully possess wildlife listed as restricted under this Section, for any activity prohibited under A.R.S. §§ 17- 255.02, 17-306, R12-4-902, or this Article, a person shall possess:

1. All applicable federal licenses and permits; and

2. The appropriate special license listed under R12-4- 409(A); or

3. Act under a lawful exemption authorized under A.R.S. § 17-255.04, R12-4-314, R12-4-404, R12-4-405, R12-4- 407, R12-4-425, R12-4-427, and R12-4-430. . . .

. . . .

H. Reptiles listed below are considered restricted live wildlife:

. . . .

2. All species of the following families or genera of the order Squamata:

. . . .

d. The family Helodermatidae. Common names include: Gila monster and Mexican beaded lizard.

Pursuant to Commission Order 43, in effect at the time of the execution of the search warrant on May 18, 2017, rosy boas had a bag limit of two per year and/or a possession limit of four at any given time whether live or dead. An individual had to a hunting or combination license to take rosy boas.

Ariz. Admin. Code R12-4-404 provides, in pertinent part, as follows:

C. A person possessing wildlife or offspring of wildlife taken under this Section shall dispose of the wildlife or offspring of wildlife using any one or more of the following methods:

1. Giving the wildlife as a gift,

2. Exporting the wildlife to another state or jurisdiction, or

3. Disposing of the wildlife as directed by the Department.

. . . .

G. A person shall not exceed the possession limit of live wildlife established by Commission Order for that species.

1. Offspring of wildlife possessed under this Section shall count towards the established possession limit.

2. A person may possess offspring of amphibians or reptiles in excess of the possession limit for no more than 12 months from the date of birth or hatching.

3. On or before the day the offspring reach 12 months of age, the person possessing them shall dispose of them as prescribed under subsection (C).

4. A person is prohibited from releasing offspring of propagated wildlife into the wild.

In Arizona, it is unlawful for a person to “[p]ossess wildlife in excess of the possession limit.” Ariz. Rev. Stat. § 17-309(A)(15).

The Department may impose a civil penalty of not less than $250.00 for each unlawfully-possessed rosy boa and Gila monster. See Ariz. Rev. Stat. § 17-314(A) and Ariz. Admin. Code R12-4-127.

Respondent’s account that he was not in violation of Arizona law because not all of the rosy boas were his was not credible and not relevant. Respondent admitted that the handwriting on the notes located with each rosy boa was his. Given the nature of the notes and the time span covered, it is not believable that Respondent wrote these notes for other people’s rosy boas that he happened to have in his possession on May 18, 2017. Further, Arizona law does not specify that ownership of rosy boas in excess of the limit is a violation, but provides merely that possession of rosy boas in excess of the limit is a violation. As the possession limit for rosy boas at the time was four, Respondent was in possession of 68 more rosy boas that allowed by state law.

As to the Gila monsters, Respondent’s account is also not credible. Respondent could provide no documentation and Agent Vowell could locate no records in the Fish and Wildlife system to prove that the Gila monsters Respondent possessed were legally imported from Mexico. While it might be possible that Respondent took Gila monsters he possessed into the Harquahala mountain area at the request of a photographer friend, that is irrelevant to the question of whether Respondent violated state law if he did not lawfully possess the Gila monsters in the first place.

Accordingly, the preponderance of the evidence established Respondent violated Ariz. Rev. Stat. § 17-309(A)(15) as alleged in the Department’s August 24, 2022 Amended Notice of Hearing when he unlawfully possessed 68 rosy boas and 2 Gila monsters.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Department require Respondent to pay a civil penalty in an amount not less $17,500.00 for the unlawful taking, transportation, and possession of 68 rosy boas and 2 Gila monsters pursuant to Ariz. Rev. Stat. § 17-314(A).

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 40 days from the date of that certification.

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-137160-45720000Done this day, October 26, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Ty Gray , Director

Arizona Game and Fish Department

Linda J. Pollock, Esq.

Attorney General's Office

1275 West Washington

Phoenix, Arizona 85007

[email redacted]

John Ottley

2343 N. 123 Dr.

Avondale, AZ 85392

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000