ALJDEC decisions subject to certification as final

22A-0004-AH-AZGFD · Arizona Game and Fish Department · 2023-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Austin Lewis and Newell L. Lewis

Respondents.

No. 22A-0004-AH-AZGFD

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 10, 2023

APPEARANCES: Respondents Austin Lewis and Newell L. Lewis appeared on behalf of themselves. Assistant Attorney General Linda Pollack appeared on behalf of the Arizona Game and Fish Department (Department).

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On December 2, 2022, the Department issued a Notice of Hearing setting the above-entitled matter for hearing on January 10, 2023. Through the Notice of Hearing, the Department alleged the following:

A. On or about November 6, 2020, Austin Lewis unlawfully took two Mule deer in Game Management Unit 41 near Arlington Arizona, when he had no valid hunting tag for that unit, in violation of A.R.S. §17-309(A)(1) and Commission Rule 12-4-302(D)(2).

B. On or about November 6, 2020, Austin Lewis unlawfully possessed and transported the two unlawfully-taken mule deer, in violation of A.R.S. §17- 309(A)(16).

C. On or about November 6, 2020, Newell Lewis unlawfully attached his own hunting tag to one of the mule deer unlawfully taken by Austin Lewis, in violation of A.R.S. §17-309(A)(1) and Commission Rule 12-4-302(E)(4).

D. On or about November 6, 2020, Newell Lewis, by having unlawfully attached his own hunting tag to the deer that Austin Lewis had unlawfully taken, unlawfully possessed a mule deer in violation of A.R.S. §17-309(A)(16).

E. On April 26, 2022 Austin Lewis pled guilty to, and was convicted of one count of take of a mule deer over the bag limit in the Ironwood Justice Court, Gila Bend, Arizona. Two additional counts against Austin Lewis for the unlawful take of two mule deer in the wrong unit and two counts of possession of the unlawfully-taken deer were dismissed as part of the plea agreement.

F. On April 26, 2022 Newell Lewis pled guilty to, and was convicted of attaching his hunting tag to wildlife killed by another person in the Ironwood Justice Court, Gila Bend, Arizona. One additional count against Newell Lewis for the unlawful possession of an unlawfully-taken deer was dismissed as part of the plea agreement.

G. Based on Austin Lewis’s conviction for take of a mule deer over the bag limit, the Arizona Game and Fish Commission on June 10, 2022 imposed a five-year revocation of Austin Lewis’s hunting and fishing privileges, and a civil penalty of $3808.66 upon him for the loss of one mule deer to the State of Arizona.

H. Based on Newell Lewis’s conviction for attaching his tag on a mule deer taken by another person, the Arizona Game and Fish Commission on June 10, 2022 voted to impose a five-year revocation of Newell Lewis’s hunting privileges.

I. Arizona Revised Statutes §17-314(A) and Commission Rule R12-4-127 authorize the Arizona Game and Fish Commission to impose a civil penalty up to $3808.66 for the unlawful taking, wounding, killing or possession of a deer in order to compensate the State of Arizona for the value of lost wildlife.

J. The Commission on June 10, 2022 voted to seek recovery of a shared civil penalty against both Austin and Newell Lewis for their unlawful take and possession of the second mule deer.

K. Austin Lewis and Newell Lewis are responsible for the loss of one mule deer to the State of Arizona.

L. Arizona Revised Statutes §17-314(B) further authorizes the Commission to seek possession and recovery of any wildlife or part thereof unlawfully taken, wounded, killed or possessed.

M. The Commission on June 10, 2022 voted to seek recovery of the wildlife parts of both mule deer unlawfully taken and possessed by Austin and Newell Lewis.

N. On or about November 6, 2020 Austin Lewis unlawfully took and possessed two mule deer in Game Management Unit 41 when he had no valid hunting tag for that unit, in violation of A.R.S. §§17-309(A)(1), 17-309(A)(16) and Commission Rule 12-4-302(D)(2).

O. On or about November 6, 2020 Newell Lewis unlawfully tagged and possessed one mule deer in Game Management Unit 41, in violation of §§17-309(A)(1), 17-309(A)(16) and Commission Rule 12-4-302(E)(4).

2. Through the December 2, 2022 Notice of Hearing, the Department requested the entry of a recommendation to the Arizona Game and Fish Commission that:

A. A shared civil penalty of up to $3,808.66 is authorized for the second mule deer that Austin Lewis unlawfully took and that Austin Lewis and Newell Lewis unlawfully possessed pursuant to A.R.S. § 17-314(A) and Commission Rule 12-4-127.

B. That the hides, heads and antlers of both unlawfully-taken and possessed mule deer be surrendered by Austin and Newell Lewis to the Arizona Game and Fish Department pursuant to A.R.S. § 17-314(B).

3. A hearing was held on January 10, 2023.

4. The Department presented the testimony of William Tarrazon and Department Officer Travis Clarkson, and submitted exhibits 1 through 20. Austin and Newel Lewis did not provide testimony or evidence. Austin and Newel Lewis did not dispute the Department’s allegations.

5. At all times relevant to this matter, Austin and Newell Lewis (Lewises) possessed hunting licenses issued through the Department.

6. The Lewises drew game tags for Game Management Unit (GMU) 39, 40, and 40B. See Exhibits 13 and 14; See Officer Clarkson’s testimony at 33:15 to 51:55 minutes on the Hearing Audio Record.

7. The Lewises did not draw a game tag for Unit 41. See Exhibits 13 and 14; See Officer Clarkson’s testimony at 33:15 to 51:55 minutes on the Hearing Audio Record.

8. William Tarrazon has been a licensed hunter in the State of Arizona for 20 years. Tarrazon entered the lottery and successfully drew a deer tag for GMU 41 for the Fall 2020 antler deer hunt. On November 6, 2020, Tarrazon arrived at GMU 41 for the hunt. Shortly after sunrise, at approximately 7:30 a.m., Tarrazon heard two gun shots. Tarrazon observed, through his binoculars, an individual (whom he would later learn was Austin Lewis), shoot a deer in Unit 41.

9. Tarrazon subsequently walked over to Austin. Tarrazon wanted to see the deer and to congratulate Austin. Austin was standing next to a deer in the middle of the road.

10. Tarrazon had a conversation with Austin and learned that Austin was a police officer.

11. Tarrazon allowed Austin to use his knife to “gut” the deer.

12. Austin gutted the deer.

13. Tarrazon observed Austin tag the deer that died in the middle of the road. See Exhibit 5.

14. Tarrazon later learned that Austin shot a second deer in GMU 41.

15. Tarrazon took photographs of both deer. See Exhibit 6.

16. Austin called his father, Newell, to bring a deer tag.

17. Tarrazon observed Newell tag the second deer with Newell’s tag.

18. Tarrazon “jokingly” asked Austin for deer meat.

19. Tarrazon observed Austin and Lewis load the truck with the two deer and drive away.

20. Tarrazon knew that it was illegal for Austin to kill two deer in the hunt.

21. On November 7, 2022, Austin offered deer meat to Tarrazon by text message. See Exhibit 7.

22. Tarrazon responded by sending a picture of Austin’s truck with the two deer. See Exhibit 7. Tarrazon informed Austin that he had received the picture from three different people.

23. Tarrazon felt uncomfortable at the time that he learned that a second deer was shot.

24. Tarrazon reported the unlawful killing and possession to the Department.

25. On or about April 14, 2022, Newell was convicted of Count A, Tag Mule Deer Killed by Another, a Class 2 Misdemeanor, in the Ironwood Justice Court of the State of Arizona for Maricopa County. The conviction was based on conduct that occurred on November 6, 2020. Newell was fined $311. See Exhibit 17.

26. On or about April 14, 2022, Austin was convicted of Count A, Allow Wildlife To Be Tagged With Another Person’s Tag, A Class 2 Misdemeanor, in the Ironwood Justice Court of the State of Arizona for Maricopa County. The conviction was based on conduct that occurred on November 6, 2020. Austin was fined $311.

See Exhibit 15.

27. On or about April 14, 2022 Austin was convicted of Count A, Take Wildlife in Excess of Bag Limit, a Class 2 Misdemeanor, in the Ironwood Justice Court of the State of Arizona for Maricopa County. The conviction was based on conduct that occurred on November 6, 2020. Austin was fined $750. See Exhibit 15.

28. Based on Austin’s conviction for take of a mule deer over the bag limit, the Arizona Game and Fish Commission on June 10, 2022 imposed a five-year revocation of Austin Lewis’s hunting and fishing privileges, and a civil penalty of $3808.66 upon him for the loss of one mule deer to the State of Arizona. See Exhibit 16.

29. Based on Newell’s conviction for attaching his tag on a mule deer taken by another person, the Arizona Game and Fish Commission on June 10, 2022 voted to impose a five-year revocation of Newell Lewis’s hunting privileges. See Exhibit 18.

30. Austin Lewis and Newell Lewis are responsible for the loss of one mule deer to the State of Arizona.

CONCLUSIONS OF LAW

1. A person shall not attach their tag to wildlife killed by another person.

See A.A.C. R4-12-302(E)(4).

2. The commission may impose a civil penalty against any person for the unlawful taking or possessing of a deer, or part thereof, to recover the minimum sum of $1,500. See A.R.S. § 17-314(A)(2).

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

4. A person must not take wildlife in excess of the bag limit. See A.R.S. § 17-309(A)(14).

5. An individual must not take a deer except take, possess, or transport,

wildlife except as expressly permitted by A.R.S. § 17. See A.R.S. § 17-309(A)(2).

6. A person shall use a tag only in the season and hunt for which the tag is valid as specified by Commission Order. See A.A.C. R4-12-302(D)(2).

7. A person shall not attach their tag to wildlife killed by another person. A.A.C. R4-12-302(E)(4).

8. The weight of the evidence shows that on or about November 6, 2020,

Austin Lewis unlawfully took and possessed two mule deer in Game Management Unit 41 when he had no valid hunting tag for that unit, in violation of A.R.S. §§17-309(A)(1), 17-309(A)(16) and Commission Rule 12-4-302(D)(2).

9. The weight of the evidence shows that on or about November 6, 2020 Newell Lewis unlawfully tagged and possessed one mule deer in Game Management Unit 41, in violation of §§17-309(A)(1), 17-309(A)(16) and Commission Rule 12-4-302(E)(4).

10. A.R.S. §17-314(A) and Commission Rule R12-4-127 authorize the

Arizona Game and Fish Commission to impose a civil penalty up to $3808.66 for the unlawful taking, wounding, killing or possession of a deer in order to compensate the State of Arizona for the value of lost wildlife. 11. A.R.S. §17-314(B) further authorizes the Commission to seek possession and recovery of any wildlife or part thereof unlawfully taken, wounded, killed or possessed.

RECOMMENDED ORDER

Based upon the foregoing, it is recommended that the Department assess a civil penalty in the amount of $3,808.66 to be paid in certified funds to the Department on or before the effective date of the Department’s final Order in this matter.

It is further recommended that the hides, heads and antlers of both unlawfully-taken and possessed mule deer be surrendered by Austin and Newell Lewis to the Arizona Game and Fish Department pursuant to A.R.S. § 17-314(B).

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 shall be five (5) days from the date of certification.

Done this day, January 30, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Ty Gray, Director

Arizona Game and Fish Department

By: OAH Staff

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