ALJDEC decisions subject to certification as final

23A-0001-AH-AZGFD · Arizona Game and Fish Department · 2023-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Mark P. Somerlik,

Respondent

No. 23A-0001-AH-AZGFD

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 15, 2023

APPEARANCES: Respondent Mark P. Somerlik did not appear. The Arizona Game and Fish Department was represented by Assistant Attorney General Linda J. Pollock.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Department Exhibits 1 through 5.

_____________________________________________________________________

FINDINGS OF FACT

On or about October 11, 2023, the Arizona Game and Fish Department (Department) issued a Notice of Hearing to Respondent Mark P. Somerlik setting the above-entitled matter for hearing on November 15, 2023, pursuant to Ariz. Rev. Stat. § 17-340(G). The Notice of Hearing was sent to Respondent at his mailing and email address.

In the Notice of Hearing, the Department made the following allegations:

On or about October 30, 2020, Respondent unlawfully possessed wildlife in excess of the possession limit, to-wit: 32 Rattlesnakes of various species, 3 copperhead snakes, and 1 water moccasin, in violation A.R.S. of § 17-309(A)(15).

On or about October 30, 2020, Respondent unlawfully possessed wildlife in excess of the possession limit, to-wit: 4 Gila monsters, in violation of A.R.S. § 17-309(A)(15). Gila monsters are restricted live wildlife as defined by Commission Rule R12-4-406(H) and Respondent did not possess a valid license for their possession and was not acting under any lawful exemption.

On or about October 30, 2020, Respondent unlawfully possessed wildlife in excess of the possession limit, to-wit: 1 Sonoran desert toad, in violation of A.R.S. § 17-309(A)(15).

An October 12, 2023 order from the Office of Administrative Hearings advised the parties that the hearing would convene via Google Meet and provided the information needed to connect to the hearing. The order was sent to Respondent via email.

Respondent did not request, in advance of the hearing, that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence in his defense.

At hearing, the Department presented the testimony of Officer Dennis Fogle and Major Ken Dinquel.

Hearing Evidence

On or about October 30, 2020, Prescott Valley Police Department responded to the home of Respondent for a domestic violence incident. Officer Huber reported observing at least 10 rattlesnakes and 2 Gila monsters inside the residence. Respondent was identified as the owner of the reptiles. Officer Huber took pictures of the reptiles and notified Respondent that the reptiles were seized in place as evidence until Department officers could arrive.

On or about October 30, 2020, Officer Huber forwarded the photographs to Officer Fogle. Officer Fogle was able to identify the 2 Gila monsters and a copperhead snake, which he knew to be restricted live wildlife that cannot be possessed in the State of Arizona without a special license.

Officer Fogle searched a Department database and determined that Respondent did not have a valid Hunting License or Special License for the possession of the restricted live wildlife.

On or about October 30, 2020, Officer Fogle and officers with Prescott Valley Police Department attempted to make contact with Respondent, but no one would answer the front door. The officers observed a side door open to the attached garage on the northeast side of the house. Looking through the open door, the officers could not see any wildlife that Officer Huber had previously observed in that area.

Upon realizing the reptiles were no longer in the garage, Officer Fogle obtained a search warrant for the residence.

When serving the search warrant, Officer Fogle made contact with Respondent’s mother and were able to search the residence. No reptiles were discovered in the residence.

On or about November 3, 2020, Officer Fogle returned to Respondent’s home and Respondent answered the door. Respondent refused to come out to talk to Officer Fogle. While Officer Fogle was on the street, Respondent left the property. Respondent was placed under arrest for tampering with evidence.

While processing paperwork at the jail, Respondent began getting panicked and was not feeling well. Respondent asked Officer Fogle if he could avoid being booked if he worked with him.

Officer Fogle advised Respondent that if he provided information regarding the location of the reptiles, Respondent would not have to be booked and would receive “long form” charges.

At that time, Respondent told Officer Fogle that he did not have a hunting license, but had collected all the snakes. Respondent acknowledged that he knew the reptiles had been seized in place, but he took all of them to a friend’s house.

Upon arrival at the home of Respondent’s friend, the friend said there were no snakes on the property except one rosy boa in the garage. Officer Fogle was allowed to search the property and did not find any reptiles.

Eventually, the friend admitted that the reptiles were at the house, but his roommates were getting concerned, so he moved them to a storage unit.

Officer Fogle then took Respondent to the storage unit, where Officer Fogle observed several stacked totes containing reptiles.

Officer Fogle took an inventory of the reptiles that documented 35 snakes, 4 Gila monsters, and 1 desert toad. During the inventory, Respondent was able to identify each snake and indicate where he had collected them.

All of the reptiles were transported to a Department evidence storage location in Prescott Valley overnight.

The next day, Officer Fogle and Major Dinquel photographed, identified, and cataloged the reptiles. During the process, Officer Fogle and Major Dinquel were in contact with the president of the Phoenix Herpetological Society (PHS) via FaceTime to help with identification of the various species of snakes. The president also noted that he believed several of the snakes seemed lethargic and were not in good shape.

The inventory of reptiles was recorded to include the following:

Sonoran Desert Toad – 1

Gila Monsters – 4

Blacktail Rattlesnakes – 5

Arizona Black Rattlesnakes – 5

Speckled Rattlesnakes – 7

Blue Speckled Rattlesnakes – 2

Tiger Rattlesnakes – 6

Mohave Rattlesnakes – 1

Copperhead – 3

Mottled Rock Rattlesnake – 1

Water Moccasin – 1

Sidewinder Rattlesnake – 1

Pigmy – 2

Diamondback Rattlesnake – 2

The reptiles were moved to a PHS holding facility. PHS had a special permit to hold restricted wildlife for purposes of rehabilitation and as evidence.

Between December 1, 2020, and February 18, 2021, Major Dinquel was contacted on 7 occasions to collect a total of 17 deceased snakes that had been collected from Respondent’s possession.

On or about March 5, 2021, Major Dinquel was notified by PHS that they had observed lesions and/or ulcerations on some of the snakes collected from Respondent that they believed could be snake fungal disease. PHS was concerned because snake fungal disease spreads easily and they did not want it to spread the disease to PHS’s private collection of snakes.

Major Dinquel was unfamiliar with snake fungal disease and made inquiries with Department staff and a herpetological expert to learn more. Major Dinquel was advised that snake fungal disease had been found in Arizona, but it was far more common in areas with more moisture or wetter climates.

Samples were taken from six of the snakes that had died between December 2020 and February 2021. The samples were sent to a lab in Illinois and three of the samples returned positive for snake fungal disease. The three positive samples were from snakes Respondent claimed to have collected in Texas and Florida.

Because of the contagious nature of snake fungal disease and the risk to native populations, the remaining snakes collected from Respondent’s possession were euthanized.

On or about August 10, 2022, Respondent pled guilty to and was convicted of three counts of unlawful possession of wildlife in the Prescott Justice Court, Prescott, Arizona. Two additional counts against Respondent for the unlawful possession of additional wildlife were dismissed as part of the plea agreement.

Based on Respondent’s conviction for the unlawful possession of wildlife, on May 12, 2023, the Arizona Game and Fish Commission imposed a five-year revocation of Respondent’s hunting and fishing privileges, and a civil penalty of $168.54 upon him for the loss of three speckled rattlesnakes to the State of Arizona.

After the hearing concluded on November 15, 2023, the Office of Administrative Hearings received a letter sent through the U.S. Postal Service from Respondent that provided, in pertinent part, as follows:

I am writing in response to your hearing notice. I am unable to make it due to surgery, and I will be in recovery in the hospital. I take full responsibility on keeping animals that were restricted, and not having a hunting license for some of those animals. I paid all of my original fines including the ones that Game and Fish sent me. I understand why I can’t have a hunting license for 5 years, but I disagree with pursuing higher fines.

I would like to clarify about the comments of the animals being in poor health. Snake fungal disease was the cause for their poor health and it was not related to how I cared for the animals.

It is in question to fine me further for the loss of wildlife for the state of Arizona. As it was stated in the hearing, Game and Fish couldn’t find any evidence of where those animals came from. Those animals were bought as captive bred animals, from Texas, legally at reptile shows. There is no loss for the state of Arizona, in fact some of those animals were not native to this state.

The only loss was for me. I surrendered my entire collection. Three years later, I am still feeling the effects of that emotionally, and I’m still getting harassed by Game and Fish. . . .

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.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”

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.”

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.

e. The family Viperidae. Common names include: pit and true vipers, including rattlesnakes.

In Arizona, it is unlawful for a person to “[p]ossess wildlife in excess of the possession limit.”

The Department may impose a civil penalty of not less than $250.00 for each unlawfully-possessed Gila monster, Sonoran desert toad, and snake.

Accordingly, the preponderance of the evidence established Respondent violated Ariz. Rev. Stat. § 17-309(A)(15) and Ariz. Rev. Stat. § 17-306(A) as alleged in the Department’s October 11, 2023 Notice of Hearing when he unlawfully possessed 29 rattlesnakes, 3 copperhead snakes, 1 water moccasin, 4 Gila monsters, and 1 Sonoran desert toad.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Department require Respondent to pay a civil penalty in an amount not less $9,500.00 for the unlawful taking, transportation, and possession of 29 rattlesnakes, 3 copperhead snakes, 1 water moccasin, 4 Gila monsters, and 1 Sonoran desert toad 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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, December 5, 2023.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Ty Gray, Director

Arizona Game and Fish Department

Mark Somerlik

[email redacted]

Linda J. Pollock

Office of the Attorney General

[email redacted]

By: OAH Staff