ALJDEC decisions subject to certification as final

24A-0003-AH-AZGFD · Arizona Game and Fish Department · 2024-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Ernesto Bernal,

Respondent

No. 24A-0003-AH-AZGFD

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 9, 2024

APPEARANCES: The Arizona Game and Fish Department was represented by Assistant Attorney General Patrick J. Boyle who appeared via Google Meet. Respondent Ernesto Bernal appeared via Google Meet on his own behalf.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Game and Fish Department Exhibits 1-21 were admitted into evidence.

FINDINGS OF FACT

Andrew Clarys the ranch manager of the Salero Ranch in Santa Cruz County, Arizona testified that on November 6, 2022 between 7:00 a.m. and 7:30 a.m., he heard two gunshots near the ranch headquarters.

Mr. Clarys testified that the Salero Ranch is private property and its roads are posted with “no trespassing, no hunting” signs at the entrance and exit to the property as well as every one-quarter of a mile.

In addition, Mr. Clarys testified that he immediately proceeded to the location of the gunshots and found a man, later identified as Ernesto Bernal, trying to conceal himself by hiding behind rocks. Mr. Clarys testified that Mr. Bernal stated that he was looking for his dog.

Mr. Clarys testified that he then called the Santa Cruz Sherriff’s Office and the Arizona Game and Fish Department (Department).

Officer AJ Lander, Wildlife Manager for the Department testified as to his involvement with this incident.

Officer Lander testified that Mr. Bernal told him he was walking from Squaw Gulch attempting to find his dog but was not hunting. Officer Lander testified that Bernal had a valid hunting license, but an expired permit for area 34(A).

Officer Lander further testified that he used the “OnX” phone application to determine where Bernal was walking from and to, and believed that the 3 mile distance was not plausible.

Further, Officer Lander testified that a hunting rifle, a hunting knife, and a jacket with an expired hunting tag for the unit were discovered, concealed in a bush nearby. Ernesto Bernal’s name was listed on the expired tag, and Mr. Bernal admitted that the items were his.

Officer Lander testified that he cited Mr. Bernal for trespass and hunting without a tag, and sent Mr. Bernal on his way.

Next, Officer Lander testified that he went back to the area, and at around 4:00 p.m. the officers discovered a dead trophy-class antlered white-tailed deer buck concealed in bushes nearby where Bernal’s possessions had been discovered. The officers determined that the deer had had died as a result of two gunshot wounds, and that the carcass had been dragged and concealed in some brush.

Officer Lander testified that Officer Bryan Aragon placed a motion activated trail camera aimed at the location where the deer had been discovered. Officer Aragon testified that on November 9, 2022, the officers recovered the camera and discovered that it had photographed a masked individual at 5:25 a.m. on November 9, 2022, in the exact area where the deer had been concealed.

12. In addition, Officer Lander testified that Mr. Bernal’s cell phone records were obtained with a search warrant.

13. Finally, Officer Lander testified that Nicholas Dinnuzio and Jordan Dodson, acquaintances of Mr. Bernal were questioned twice, with the second interviews being more helpful.

14. Field Supervisor Bryan Aragon testified that he was a Wildlife Manager in November 2022. He testified that it was well known that Solero Ranch was closed to hunters.

15. Officer Aragon too testified as to how and where the deer was found in relation to Mr. Bernal’s belongings.

16. As to the footage obtain on November 9, 2022, Officer Aragon testified that the image appeared to be of a man holding a cell phone for light. He also testified that he found western style boot marks in the area which matched the same style Mr. Bernal was wearing.

17. Department Investigator Nathaniel Foley testified that he too investigated the matter, but was mostly involved in analyzing the results from the warrant. Investigator Foley testified in great detail that the location data in the cell phone records indicated that Mr. Bernal’s cell phone was in the area where the deer was found on November 6, 2022 and that his cell phone was again in the area on November 9, 2022 at 5:25 a.m.

18. Investigator Foley concluded that there was ample probable cause for unlawful taking, as the cell phone data placed Mr. Bernal at the location from not only the kill, but the attempted retrieval as well. Also, after reviewing Mr. Clary’s account of what he heard and saw, there was no doubt that the animal was killed that day by Mr. Bernal. Further, after conducting the second interview with Mr. Dodson, it was apparent to Investigator Foley that he was being truthful about the incident while Mr. Bernal was not.

19. On August 8, 2023, Ernesto Bernal pled guilty to, and was convicted of one count of unlawful trespass in the Santa Cruz County Justice Court, Nogales, Arizona. Two additional counts against Ernesto Bernal for the unlawful taking of the wildlife in a closed area were dismissed as part of the plea agreement.

20. In closing arguments, the Department alleged that on or about November 6, 2022, Mr. Bernal unlawfully took a white-tailed deer in an area closed to the taking of wildlife and without a valid tag, in violation of A.R.S. § 17-309(A)(11) and 17-331(A). The Department further alleged that on or about November 6, 2022, Mr. Bernal possessed or transported the carcass of big game, to-wit: one white tailed deer without a valid tag being attached, in violation of A.R.S. § 17-309(A)(17). Because of this, the Department was seeking a civil penalty of $3,261.34 for the unlawful possession of one (1) white tail deer in order to compensate the State of Arizona for the value of lost wildlife.

21. While Mr. Bernal did not offer any testimony, he argued that there were two people in the area, both with equal opportunity to kill that deer, and that there was no proof that he was the one who killed the deer. Mr. Bernal also argued that he was unaware as to how the civil penalty amount was determined, and that he already paid the fine for trespassing.

CONCLUSIONS OF LAW

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

The Department bears the burden of proof to establish by a preponderance of the evidence that the Respondent killed and took the deer. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazzano 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.R.S. § 17-309(A)(11) and (17) provide in pertinent part:

Unless otherwise prescribed by this title, it is unlawful for a person to:

...

Take wildlife in an area closed to the taking of that wildlife.

...

17. Possess or transport the carcass of big game without a valid tag being attached.

A.R.S. § 17-331(A) provides:

A. Except as provided by this title, rules prescribed by the commission or commission order, a person shall not take any wildlife in this state without a valid license or a commission approved proof of purchase. The person shall carry the license or proof of purchase and produce it on request to any game ranger, wildlife manager or peace officer.

A.R.S. §17-314(A) provides in pertinent part:

A. The commission may impose a civil penalty against any person for unlawfully taking, wounding, killing or possessing any of the following wildlife, or part thereof, to recover the following minimum sums:

...

2. For each bear, mountain lion, pronghorn (antelope) or deer $1,500.00

A.A.C. R12-4-127 provides as follows:

A. In order to compensate the state for the value of lost or injured wildlife, the Commission may, pursuant to A.R.S. § 17-314, impose a civil penalty against any person for unlawfully taking, wounding, killing or possessing wildlife. Any civil penalties so imposed shall be equal to or greater than the applicable statutory-minimum sums found in A.R.S. § 17-314(A). The Commission may impose a civil penalty above the statutory minimum sums where it has determined that the value of the lost or injured wildlife exceeds the statutory-minimum sums.

B. The Commission shall annually establish the value of lost or injured wildlife using objective and measurable economic criteria. When doing so, the Commission may consider objective economic criteria recommended by the Department or any other person.

C. The Department shall recommend the value of lost or injured wildlife to the Commission by aggregating the following objective and measurable economic factors:

1. The average dollar amount spent by an individual hunter in pursuit of the same species. This amount shall be calculated using information from the most recent National Survey of Fishing, Hunting and Wildlife-Associated Recreation conducted by the U.S. Fish and Wildlife Service and measures hunting and fishing expenditures, in combination with hunter harvest data gathered by the Department. This information shall be available on the Department’s website.

2. The average dollar amount spent by an individual in an effort to view wildlife. This amount shall be calculated using information from the most recent National Survey of Fishing, Hunting and Wildlife-Associated Recreation conducted by the U.S. Fish and Wildlife Service and measures wildlife viewing expenditures, in combination with hunter harvest data gathered by the Department. This information shall be available on the Department’s website.

3. The average body weight in pounds of meat for the unlawfully taken or possessed species multiplied by the average price per pound of ground meat for that same species or a similar species. Average body weight in pounds of meat shall be calculated using the average body weight for the wildlife taken, minus 30% of the average weight to account for the weight of the head, hide, offal, and bone.

4. When new data is not available, the Department may use Consumer Price Index (CPI) calculations to update the above factors in terms of U.S. dollars.

D. The most recent wildlife values established by the Commission shall be available on the Department’s website.

The preponderance of the evidence shows that Mr. Bernal violated A.R.S. § 17-309(A)(11) and (17) and A.R.S. § 17-331(A).

However, there was no credible evidence presented that per A.A.C. R12-4-127, the civil penalty should be greater than $1,500.00 as set in A.R.S. §17-314(A)(2) for this particular deer. Because of that, the tribunal finds that a civil penalty of $1,500.00 to be appropriate.

/ / /

RECOMMENDED ORDER

In light of the foregoing, it is ordered that Respondent be found in violation of § 17-309(A)(11) and (17) as well as A.R.S. § 17-331(A).

It is further ordered that Respondent pay a fine in the amount of $1,500.00.

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, October 24, 2024.

/s/ Adam D. Stone

Administrative Law Judge

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

Ty Gray , Director

Arizona Game and Fish Department

AAG Patrick Boyle

[email redacted]

Ernesto Bernal

[email redacted]

By: OAH Staff