Farmer v. Colorado Parks & Wildlife Commission ( 2016 )

COLORADO COURT OF APPEALS 2016COA120
Court of Appeals No. 14CA2199
City and County of Denver District Court No. 13CV32393
Honorable Ross B.H. Buchanan, Judge
Bobby R. Farmer,
Plaintiff-Appellant,
v.
Colorado Parks & Wildlife Commission, Department of Natural Resources,
State of Colorado,
Defendant-Appellee.
ORDER REVERSED
Division IV
Opinion by JUDGE HARRIS
Hawthorne and Román, JJ., concur
Announced August 25, 2016
Randy L. Brown, P.C., Randy L. Brown, Grand Junction, Colorado, for Plaintiff-
Appellant
Cynthia H. Coffman, Attorney General, Elaine J. Wizzard, Assistant Attorney
General, Denver, Colorado, for Defendant-Appellee
¶1 Bobby R. Farmer appeals from the decision of the Colorado
Parks and Wildlife Commission (Commission) to suspend his
wildlife license privileges for twenty years. Farmer contends that
the Commission’s decision was arbitrary and capricious because it
was not based on any standards designed to constrain the hearing
officer’s unfettered discretion as to the duration of the suspension.
We agree and therefore vacate Farmer’s suspension.
I. Background
¶2 Farmer is a big game hunter and guide. In 2006, after
working as a registered outfitter for more than fifteen years, Farmer
allowed his Colorado outfitter’s license to lapse, though he
continued to maintain the necessary permits to provide guiding
services in Utah.
¶3 In 2008, the Division of Wildlife (DOW) received complaints
from registered outfitters that Farmer was guiding hunts in
Colorado without a license. DOW investigators initiated an
investigation that spanned nearly three years and included
undercover operations and interviews with numerous clients and
associates of Farmer.
1
¶4 In late 2011, Farmer was charged with six counts of illegal
sale of big game wildlife in violation of section 33-6-113(2)(a), C.R.S.
2015, a class five felony, for outfitting mountain lion hunts without
the proper license. He subsequently pleaded guilty to count 1 of the
complaint, which alleged that he had guided a mountain lion hunt
for Justin Skalla on January 5, 2009. In exchange for his guilty
plea, Farmer received a two-year (unsupervised) deferred judgment
and sentence on the single count and the dismissal of the
remaining counts. A condition of the deferred judgment agreement
prohibited Farmer from engaging in hunting activities, including
acting as a guide or outfitter, for two years.
¶5 Pursuant to section 33-6-113(2)(a), his guilty plea triggered an
administrative hearing by the Commission to determine whether to
suspend Farmer’s wildlife license privileges. Prior to the hearing,
the hearing officer was provided with the DOW’s 300-page
investigative file, which detailed the factual premise underlying all 6
counts originally charged against Farmer. The hearing officer
indicated that he had reviewed the file, and he asked Farmer a few
questions based on the investigators’ reports. Though Farmer
responded to the questions, his lawyer contended that the statute
2
permitted consideration only of the circumstances surrounding the
offense of conviction, not of conduct charged but neither admitted
to nor proven. Farmer then presented mitigating evidence related to
the single count to which he had pleaded guilty.
¶6 After the hearing, Farmer received written notice that his
hunting license had been suspended for twenty years. In his
findings of fact, the hearing officer listed all six counts originally
charged against Farmer and detailed the underlying facts. He
further concluded that “[e]vidence in the state’s case report[]
supports the fact that these violations did occur.” He explained the
twenty-year suspension as follows:
Mr. Farmer’s wildlife violation is considered
serious in nature, and appears to represent
deliberate and knowing unlawful conduct by
the respondent[.] His offenses also appear to
represent an intentional disregard for
Colorado’s wildlife laws and regulations[.]
Considering Mr. Farmer’s convictions in court,
and in balancing his offenses, and the
statutorily-authorized period of suspension
available for his wildlife violation, pursuant to
C.R.S. 33-6-113, a suspension period of 20-
years of all of his privileges is warranted and
ordered[.]
¶7 The hearing officer’s order included a list of “[p]revious cases
involving Illegal Sale/Outfitting without Registration,” consisting of
3
thirteen names with corresponding suspension terms of between
fifteen years and life. The hearing officer concluded that Farmer’s
suspension term was proportional to those imposed on other
similarly situated licensees.
¶8 Farmer appealed the hearing officer’s decision to the
Commission. He argued that the hearing officer had erred in
considering the unproven conduct and that the participating DOW
investigator’s approval of the plea agreement, which called for a
two-year prohibition on hunting activities, established that his case
warranted a much shorter period of suspension.
¶9 The Commission affirmed the twenty-year suspension. Like
the hearing officer’s order, the Commission’s decision listed each of
the dismissed counts and an extensive factual basis for the charges.
The Commission disputed that Farmer had pleaded guilty to any
particular count of the complaint, suggesting instead that Farmer
had agreed that a factual basis supported any of the violations, and
further disputed that the hearing officer had considered any of the
conduct underlying the dismissed charges. As explanation for its
affirmance, the Commission stated:
4
Mr. Farmer’s wildlife-related misconduct is
considered very serious in nature[.] His
offenses reveal willful, deliberate and
intentional wildlife-related criminal
misconduct[.] Additionally, significant DOW
and judicial resources were spent bringing this
case to a conclusion[.] Such conclusion
resulted in a criminal conviction against Mr.
Farmer[.] These offenses considered together
— and particularly with the law enforcement
and judicial intervention — demonstrate by
clear and convincing evidence an unacceptable
pattern of knowing, flagrant and unlawful
wildlife offenses which must be addressed.
¶ 10 The Commission’s decision included the hearing officer’s list of
licensees and their suspension periods.
¶ 11 Farmer then initiated this action pursuant to section 24-4-
106(7), C.R.S. 2015, for review of the agency’s decision. The district
court affirmed.
II. Standard of Review
¶ 12 Our review of a district court’s decision in a proceeding under
the State Administrative Procedure Act (APA) is de novo. We sit in
the same position as the district court and review the agency’s
decision for abuse of discretion. Quercioli v. Colo. Dep’t of Nat. Res.,
201 P.3d 1270, 1271 (Colo. App. 2008).
5
¶ 13 We may set aside an agency’s decision when it abused its
discretion or when the decision was arbitrary and capricious, based
on findings of fact that were clearly erroneous, unsupported by
substantial evidence, or otherwise contrary to law. § 24-4-106(7);
Grand Cty. Bd. of Comm’rs v. Colo. Prop. Tax Adm’r, 2016 COA 2,
¶ 26. The agency’s findings of fact are entitled to deference unless
they are unsupported by competent evidence or reflect a failure to
abide by the statutory scheme. Grand Cty., ¶ 27.
III. Arbitrary and Capricious Agency Action
¶ 14 Farmer contends that he was deprived of due process because
neither sections 33-6-106 and -113, C.R.S. 2015, nor any
applicable regulations contain sufficient standards to constrain the
Commission’s discretion in determining the length of his
suspension. Although we do not consider this to be a due process
issue, we agree that there were insufficient standards to guide the
Commission’s decision, and thus conclude that it acted arbitrarily
and capriciously when it suspended Farmer’s license.
A. Preservation
¶ 15 As an initial matter, the Commission contends that Farmer
failed to preserve this issue for review because he did not raise it at
6
any point during his administrative hearing and he did not raise it
in the district court until he filed his reply brief.
¶ 16 Ordinarily, an issue not raised before a hearing officer is
waived. Chostner v. Colo. Water Quality Control Comm’n, 2013 COA
111, ¶ 39. However, when the hearing officer has no authority to
address the issue, it can be raised for the first time on appeal. See
United Airlines v. Indus. Claim Appeals Office, 2013 COA 48, ¶ 27
(because administrative law judge is not authorized to address
constitutional issue, it need not be raised during administrative
hearing); see also Clasby v. Klapper, 636 P.2d 682, 684 n.6 (Colo.
1981) (“There was no need for the appellant to present his
constitutional challenge to the board before raising that issue on
appeal to the district court. Since the board could not rule on that
claim, it would serve no purpose to impose such a requirement.”)
(citations omitted). This is especially true when resolution of the
issue does not require the hearing officer to make any factual
determinations. See United Airlines, ¶ 29.
¶ 17 Farmer’s claim is that sections 33-6-106 and -113 do not
provide sufficient standards to guide the hearing officer’s discretion.
The hearing officer had no authority to address either the
7
constitutional or statutory merits of his argument. See Clasby, 636
P.2d at 684 n.6. And this is a pure issue of law that requires no
factfinding by the hearing officer. Thus, we may consider this issue
even though it was not raised in the administrative hearing.
¶ 18 As for the argument that Farmer raised the issue for the first
time in his reply brief in the district court, we note that the timing
did not prejudice the Commission as the district court allowed the
Commission to fully address the merits of Farmer’s argument in a
surreply. On appeal, the Commission chose not to respond to
Farmer’s due process argument, but we requested supplemental
briefing. Therefore, the issue has been fully briefed in this court as
well.
¶ 19 Farmer’s claim presents a pure issue of law, the parties have
had an opportunity to brief the merits of the claim in the district
court and on appeal, the factual record is sufficiently developed,
and we would apply a de novo standard in any event. Under these
circumstances, we will exercise our discretion to consider Farmer’s
claim. See Grohn v. Sisters of Charity Health Servs. Colo., 960 P.2d
722, 727 (Colo. App. 1998) (Issues raised in reply briefs are not
properly preserved on appeal “where the opposing party was unable
8
to respond.”); see also United States v. Jarvis, 499 F.3d 1196, 1202
(10th Cir. 2007) (a court can exercise discretion to address
unpreserved issue of law where parties have briefed the issue).
B. Statutory Scheme for License Suspensions
¶ 20 The Commission is a part of the Department of Natural
Resources with authority to regulate the taking, possession, and
use of wildlife. § 33-1-106, C.R.S. 2015. Pursuant to section 33-1-
106(1)(e), the Commission may provide for the issuance of licenses
for hunting, fishing, trapping, or possession of wildlife. And under
section 33-6-106, and any rules and regulations adopted under
articles 1 to 6 of title 33, the Commission may suspend or revoke
such a license.
¶ 21 Section 33-6-106 creates a license suspension scheme similar
to the point system of the Division of Motor Vehicles (DMV).
Convictions for violations of wildlife laws result in points assessed
against a person’s license; if a person accumulates twenty points
within a five-year period, the Commission may suspend the
person’s license for a period not to exceed five years. § 33-6-106(1).
However, under section 33-6-113(2)(a), in lieu of any point
9
assessment, a person convicted of illegal sale of wildlife (big game)
faces a license suspension of anywhere from one year to a lifetime.
¶ 22 Any person who is considered for suspension has a right to a
hearing to show cause why his or her license should not be
suspended. § 33-6-106(3). According to the Commission, the
hearing is a nonadversarial proceeding, see Woodrow v. Wildlife
Comm’n, 206 P.3d 835, 838 (Colo. App. 2009), where the licensee
bears the burden of proof to show mitigating circumstances and to
persuade the hearing officer that, in spite of the conviction or
convictions, his or her license should not be suspended.
¶ 23 Finally, section 24-4-104, C.R.S. 2015, directs that “[e]very
agency decision respecting the . . . suspension . . . of a license shall
be based solely upon the stated criteria, terms, and purposes of the
statute, or regulations promulgated thereunder, and case law
interpreting such statutes and regulations pursuant to which the
license is issued or required.” § 24-4-104(2).
C. Sufficiency of the Commission’s Standards
¶ 24 Farmer contends that the lack of standards to guide the
hearing officer’s decision constitutes a due process violation. While
some courts have identified this issue as a procedural or
10
substantive due process problem, see, e.g., Elizondo v. State, Dep’t
of Revenue, 194 Colo. 113, 117, 570 P.2d 518, 521 (1977); Cendant
Corp. & Subsidiaries v. Dep’t of Revenue, 226 P.3d 1102, 1108
(Colo. App. 2009), others frame it as an arbitrary and capricious
exercise of authority prohibited by the APA. See, e.g., Feeney v.
Colo. Ltd. Gaming Control Comm’n, 890 P.2d 173, 176-77 (Colo.
App. 1994).1 Under either framework, the crux of the issue is that
agency decision-making must demonstrate the use of sufficient
standards to ensure rational and consistent results in individual
agency actions. Zamarripa v. Q & T Food Stores, Inc., 929 P.2d
1332, 1342 (Colo. 1997). While we conclude that Farmer’s claim is
more appropriately analyzed under the statutory framework, the
substance of the issue remains the lack of sufficient standards.
¶ 25 Everyone would agree that an administrative agency cannot
validly engage in quasi-judicial decision-making without sufficient
standards. Cottrell v. City & Cty. of Denver, 636 P.2d 703, 709
(Colo. 1981); Squire Rest. & Lounge, Inc. v. City & Cty. of Denver,
890 P.2d 164, 166 (Colo. App. 1994); see also State Farm Mut. Auto.
1Other courts conceive of the problem as a violation of the
nondelegation doctrine. See Cottrell v. City & Cty. of Denver, 636
P.2d 703, 709 (Colo. 1981).
11
Ins. Co. v. City of Lakewood, 788 P.2d 808, 816 (Colo. 1990).
Sufficient standards are “necessary to give fair notice of the criteria
to be used so that a case may be prepared, to ensure that all
decision makers are using uniform criteria, and to provide a
meaningful basis for judicial review.” State Farm, 788 P.2d at 816.
Just as importantly, standards “protect against unnecessary and
uncontrolled exercise of discretionary power.” Cottrell, 636 P.2d at
709.
¶ 26 To determine whether there are sufficient standards to guide
an agency’s discretion, “the appropriate analysis is to determine
first whether sufficient statutory standards or safeguards exist to
fulfill these functions. Second, if those standards and safeguards
are inadequate, it must be determined whether additional
administrative standards and safeguards accomplish the necessary
protection from arbitrary action.” Id. at 709-10.
¶ 27 Under Cottrell, we begin the analysis by looking at the
standards provided in the statutory provision which provides for the
suspension, section 33-6-113. This statute, however, provides no
standards. Rather, the statute merely provides that, upon
conviction for the illegal sale of big game, “the commission may
12
suspend any or all wildlife license privileges of the person for a
minimum of one year to life.” § 33-6-113(2)(a). There is no further
statutory guidance on when a conviction warrants suspension or for
how long.2
¶ 28 We look to the Commission’s rules and regulations to identify
any applicable standards. But there are no regulations providing
any standard for the suspension of wildlife license privileges.
Although the Commission has general rulemaking authority, § 33-
1-104(1), C.R.S. 2015, and the legislature has more specifically
authorized the promulgation of rules related to licenses, § 33-1-
106(1)(e), the Commission has not established any rules governing
the suspension of wildlife privileges. Thus, under this scheme,
neither the statute nor regulations provide standards to guide a
2 In contrast, the statute does provide criteria for determining
whether a suspension may be set aside before the term has expired.
Under section 33-6-106(9)(a), C.R.S. 2015, a licensee may petition
the Commission to end a suspension early. The Commission may
end a suspension if (A) the person is unlikely to violate article 6
again; (B) the person has not been convicted of or pleaded guilty or
nolo contendere to any violation of articles 1-6 after the suspension
was imposed; and (C) the suspension is the person’s first in
Colorado. § 33-6-106(9)(c)(I). The Commission may also consider
whether the person has been convicted of or pleaded guilty or nolo
contendere to any misdemeanor or felony. § 33-6-106(9)(c)(II).
13
hearing officer’s determination whether to suspend a licensee’s
wildlife privileges for one year or a lifetime.
¶ 29 In addressing Farmer’s claim that this lack of standards leads
to arbitrary conduct, we find Elizondo v. Department of Revenue,
194 Colo. 113, 570 P.2d 518 (1977), instructive. In Elizondo, the
DMV had the authority to grant probationary driver’s licenses to
drivers whose permanent licenses had been revoked. However, the
statute contained no standards or constraints on the exercise of
this power. And although the DMV was statutorily authorized to
promulgate rules regulating the granting of probationary licenses, it
had declined to exercise this authority.
¶ 30 Because neither the statute nor any regulations circumscribed
the exercise of this power, hearing officers were afforded “unfettered
discretion,” and thus the scheme provided no “assurance that each
hearing officer will not, consciously or subconsciously, follow
standards quite different from those applied by his or her
colleagues.” Id. at 118, 570 P.2d at 521. The supreme court
concluded that without any constraint on the hearing officers’
discretion, “judicial review is a hollow gesture.” Id. Thus, to
“reduce significantly the possibility that the decision process will be
14
arbitrary,” the court remanded for a new hearing and concluded
that the DMV could not deny any request for a probationary license
until it promulgated rules to guide the hearing officers’ discretion in
the matter. Id. at 119, 570 P.2d at 522.
¶ 31 While we recognize that specific standards are not required,
either the statute or administrative regulations must provide at
least some guiding principle for an agency’s decision. See Douglas
Cty. Bd. of Comm’rs v. Pub. Utils. Comm’n, 829 P.2d 1303, 1311
(Colo. 1992) (distinguishing Elizondo to uphold agency’s broad
discretion because statute required agency to make a finding of
reasonableness and other statutes and regulations guided the
agency’s determination of whether utility’s request was reasonable).
¶ 32 We are not persuaded by the Commission’s reliance on Kibler
v. State, 718 P.2d 531 (Colo. 1986), or Douglas County Board of
Commissioners v. Public Utilities Commission. In Kibler, the plaintiff
claimed that a statute governing the revocation of a nursing license
was unconstitutionally vague because it failed to sufficiently
delineate the proscribed conduct and provide standards for the
imposition of discipline. There, however, the statute proscribed a
range of conduct and enumerated various penalties that could be
15
imposed based on the severity of the underlying conduct. Thus, as
the court concluded, the statute appropriately provided the nursing
board with the discretion to “address the varied degrees of
culpability” associated with the listed misconduct. 718 P.2d at 535.
¶ 33 Here, in contrast, the statute only contemplates one type of
misconduct, a conviction under section 33-6-113, yet the
Commission is given unfettered discretion to impose a suspension
for anywhere from one year to a lifetime. Unlike the statute in
Kibler, the imposition of a suspension is not a matter of matching
the more culpable conduct listed in the statute with a more severe
penalty, but instead applying any term of suspension to the same
underlying misconduct. Therefore, the reasoning in Kibler is not
applicable to the statutory scheme at issue here.
¶ 34 And in Douglas County, although the Public Utilities
Commission (PUC) had broad discretion to order “reasonable
improvement[s],” the statute specifically required that the PUC
make a finding of reasonableness before approving such
improvements. 829 P.2d at 1312. The supreme court concluded
that the reasonableness standard was sufficiently specific,
particularly where other PUC rules and related statutes guided the
16
reasonableness inquiry. Id. at 1312-13. Again, unlike the statute
at issue here, the statute upheld in Douglas County provided a
standard to guide the agency’s discretion.
¶ 35 Section 24-4-104 requires that suspension of a license be
based solely upon stated criteria, terms, and purposes of the
statute or regulations promulgated to implement the statute. We
discern no stated criteria or terms upon which the hearing officer
could have based his decision to impose a twenty-year suspension
of Farmer’s license.
¶ 36 The hearing officer and the Commission insist that they did
not consider the unproven conduct described in the reports
provided by the DOW investigators. Indeed, the Commission
asserted that had the hearing officer considered the facts
underlying the other charges, he would likely have imposed a
lifetime suspension. Still, the hearing officer’s order and the
Commission’s decision refer to “offenses,” “offenses taken together,”
and a “pattern . . . of wildlife offenses,” which seem to suggest
consideration of conduct beyond the one unlicensed hunt with
Skalla in January 2009 that formed the basis of count 1 of the
17
complaint.3 Nevertheless, we take the hearing officer and the
Commission at their word and assume that they considered only
the facts surrounding Farmer’s offense of conviction.
¶ 37 But that assumption only raises additional questions about
how the hearing officer arrived at a twenty-year suspension.
Contrary to the Commission’s assertion that “inherent factors”
provide sufficient guidance for determining the length of a
suspension, we cannot discern what factors underlying Farmer’s
misconduct contributed to his twenty-year suspension.
¶ 38 According to the DOW’s reports, Farmer donated a hunt to the
Safari Club International, and Skalla paid the club $4500 for the
hunt. Farmer and Skalla hunted in Utah for several days, but
when the mountain lion they were tracking crossed the border, they
3 Like the district court, we must take exception with the
Commission’s finding that the “court’s disposition. . . does not
appear to make reference to any single violation that Mr. Farmer
committed.” The plea agreement and deferred sentencing
stipulation both make clear that Farmer pleaded guilty to count 1 of
the complaint (which referenced the Skalla hunt in January 2009)
in exchange for the dismissal of all other counts. Farmer
acknowledged that there was a factual basis to support his guilty
plea to count 1, but he did not otherwise admit during the court
proceedings to any violations of the statute.
18
followed it and Skalla killed the animal in Colorado. Skalla tipped
Farmer $400.
¶ 39 The Commission contends that factors such as the level of
mens rea and whether the violation is a felony or a misdemeanor
provide sufficient guidelines for imposing a license suspension. The
hearing officer and the Commission justified Farmer’s long
suspension on the ground that his violation represented “willful,
deliberate and intentional wildlife-related criminal misconduct.”
But the mens rea required for a violation of section 33-6-113 is
knowing (willful), not intentional or deliberate. There may be cases
— though this is not one of them (the facts underlying count 1 do
not suggest that Farmer intentionally provided unauthorized guide
services in Colorado) — where the facts establish a higher mens rea,
but in general every licensee facing suspension will have engaged in
willful criminal misconduct amounting to a felony offense.
Accordingly, these factors could not be a useful guide for
distinguishing among licensees based on degree of culpability.
¶ 40 The Commission also found relevant that significant DOW and
judicial resources were expended in bringing the case to a
conclusion. Setting aside whether the cost of prosecution is a
19
proper factor to consider in an aggravation analysis (one might
reasonably worry that it would chill a defendant’s exercise of the
right to trial), the record shows that Farmer pleaded guilty,
resulting in an unsupervised deferred judgment and sentence.
Imagining a less expensive resolution of a criminal case would be
difficult.
¶ 41 Nor are we persuaded that the agency’s action, though guided
by no standards or criteria, was not arbitrary because other,
similarly situated licensees also received long suspensions. For one
thing, the range of suspensions imposed on licensees who
committed a single violation of the statute is quite broad: fifteen
years in some cases, a lifetime suspension in others. In the
absence of any further information about the licensees or the
criteria used to distinguish among them, we are left to wonder why
similarly situated licensees received different periods of suspension.
Moreover, if a conviction for a single violation of section 33-6-
113(1)(a) warrants in all cases a fifteen-year to life suspension, we
must also wonder what conduct would merit a suspension of less
than fifteen years. The legislature contemplated that suspensions
under section 33-6-113 would range from one year to a lifetime.
20
The hearing officer’s decision to impose, in every case, a minimum
suspension term of fifteen years for a single violation of the statute
does not give complete effect to the legislature’s intent.
¶ 42 In sum, we are simply unable to determine how or why the
hearing officer arrived at a twenty-year suspension term based on
Farmer’s offense of conviction. The absence of any standards to
guide the Commission’s discretion contravenes section 24-4-
104(2)’s express directive that licensing decisions be based solely on
stated criteria and hinders effective judicial review. At oral
argument, the Commission insisted that its unfettered discretion to
impose any term of suspension meant that a reviewing court would
be obligated to affirm Farmer’s suspension under any
circumstance, whether the suspension was for one year or a
lifetime. That assertion proves the point: judicial review is a
meaningless gesture without adequate constraints on a hearing
officer’s discretion. Elizondo, 194 Colo. at 118, 570 P.2d at 521.
¶ 43 Thus, because neither the statute nor any applicable
regulations provide sufficient standards to guide the agency’s
suspension decision, we conclude that the Commission’s action in
suspending Farmer’s license was arbitrary and capricious. See
21
Feeney, 890 P.2d at 177 (license revocation would be arbitrary
without sufficient standards). Because there are no stated criteria
governing the suspension decision, we reverse the decision of the
district court and vacate Farmer’s suspension.
¶ 44 We decline to remand for a new hearing. In crafting a remedy,
we seek to restore the parties to the status quo before the agency’s
arbitrary and capricious conduct. See Hackett v. Xerox Corp. Long-
Term Disability Income Plan, 315 F.3d 771, 776 (7th Cir. 2003).
Here, Farmer’s license was suspended under defective procedures,
so the status quo prior was no suspension; thus, any remedy must
vacate the suspension. If we were to remand instead, although the
hearing officer could adjust Farmer’s term of suspension, he could
not find that the lack of standards was anything but arbitrary and
capricious. Id. Accordingly, remanding to the hearing officer would
not provide Farmer a complete remedy for the arbitrary and
capricious suspension of his license under defective procedures.
Id.; cf. Berge v. United States, 949 F. Supp. 2d 36, 42-43 (D.D.C.
2013) (Court may “forego the futile gesture of remand to the agency”
where there is only one appropriate outcome.).
22
¶ 45 Though the Elizondo court remedied the DMV’s violation of
due process by remanding for a new hearing that comported with
due process standards, 194 Colo. at 119-20, 570 P.2d at 522-23,
there, the status quo before the arbitrary and capricious agency
action was that the claimant did not have a probationary license;
thus, the appropriate remedy to correct the defective procedures
was to provide the claimant with the proper procedures for
obtaining a probationary license. Hackett, 315 F.3d at 776. Here,
in contrast, Farmer already had wildlife privileges before the
defective suspension proceedings, and thus those must be restored.
Id. We express no opinion on whether the Commission could, after
adopting appropriate standards to guide the hearing officer’s
suspension decision, institute new suspension proceedings against
Farmer.
IV. Remaining Contentions
¶ 46 In light of our conclusion that the suspension was arbitrary
and capricious, we need not resolve Farmer’s other contentions.
V. Conclusion
¶ 47 We reverse the order of the district court and vacate Farmer’s
suspension.
23
JUDGE HAWTHORNE and JUDGE ROMÁN concur.
24