No. 28942 (Amendment): R657-26. Adjudicative Proceedings for a License, Permit, or Certificate of Registration

 

DAR File No.: 28942
Filed: 08/22/2006, 05:48
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is being amended to clarify the time frames and manner in which correspondence regarding adjudicative procedures regarding suspension of privileges to harvest protected wildlife in the state of Utah are conducted.

 

Summary of the rule or change:

Subsection R657-26-5(1)(b) is being amended to clarify the time frame in which a respondent has to respond to a Notice of Agency Action and request a hearing regarding the possible suspension of the respondent's privilege to harvest protected wildlife, and specify that the request must be made in writing and received, not simply mailed, by the deadline. Subsection R657-26-8(2) is being amended to clarify the time frame in which a respondent has to appeal the Decision and Order of the hearing officer to the Wildlife Board, and specify that the request be received, not simply mailed, by the deadline. Subsection R657-8(8)(a) is being amended to clarify the process by which the Wildlife Board issues decisions on suspension appeals.

 

State statutory or constitutional authorization for this rule:

Subsection 23-19-9(15)

 

Anticipated cost or savings to:

the state budget:

This rule is being amended to clarify the time frame and manner in which correspondence regarding adjudicative procedures regarding suspension of privileges to harvest protected wildlife in the state of Utah. The Division of Wildlife Resources (DWR) determines that this amendment will not create any cost or savings impact to the state budget or DWR's budget, since it will not increase workload and can be done with existing budget.

 

local governments:

None--This filing does not create any direct cost or savings impact to local governments because they are not directly affected by the rule. Nor are local governments indirectly impacted because the rule does not create a situation requiring services from local governments.

 

other persons:

None--These amendments do not impose any requirements on persons.

 

Compliance costs for affected persons:

These amendments simply clarify the time frame and manner in which correspondence regarding adjudicative procedures regarding suspension of privileges to harvest protected wildlife in the state of Utah. Therefore, this rule does not impose any cost requirements for affected persons.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

The amendments to this rule do not create an impact on businesses. Michael R. Styler, Executive Director

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Natural Resources
Wildlife Resources
1594 W NORTH TEMPLE
SALT LAKE CITY UT 84116-3154

 

Direct questions regarding this rule to:

Robin Thomas at the above address, by phone at 801-538-4707, by FAX at 801-538-4745, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

10/16/2006

 

This rule may become effective on:

10/24/2006

 

Authorized by:

James F Karpowitz, Director

 

 

RULE TEXT

R657. Natural Resources, Wildlife Resources.

R657-26. Adjudicative Proceedings for a License, Permit, or Certificate of Registration.

R657-26-5. Hearings.

(1)(a) The presiding officer shall provide the respondent with an opportunity for a hearing.

(b) A hearing shall be held if the [respondent requests a hearing within 20]division receives a written request for a hearing from the respondent within 20 calendar days after the date the notice of agency action is issued.

(2) The respondent, or a person designated by the respondent to appear on the respondent's behalf, may testify at the hearing and present any relevant information or evidence.

(3) Hearings shall be open to the public.

(4) After reviewing all the information provided by the parties, the presiding officer shall suspend the respondent's license, permit or certificate of registration privileges in accordance with Section 23-19-9.

(5)(a) The type of license, permit or certificate of registration privilege suspension imposed shall be within the following categories:

(i) all fishing licenses and permits;

(ii) all furbearer and bobcat licenses and permits;

(iii) all big game licenses and permits;

(iv) all small game licenses and permits, and wild turkey permits;

(v) all permits to take and pursue cougar and bear;

(vi) all falconry permits and falconry certificates of registration;

(vii) certificates of registration of a type specified; or

(viii) all hunting licenses, permits and certificates of registration;

(ix) all licenses, permits and certificates of registration issued by the division.

(b) The presiding officer may suspend the license, permit or certificate of registration privileges most closely associated with the activity for which the person was participating in when the violation occurred.

(c) The presiding officer may suspend the license, permit or certificate of registration privileges most closely associated with the activity that involved the unlawful taking of terrestrial wildlife for which no season has been established.

(d) If the violation involves acts that occurred while participating in an activity regulated by Title 23, which include more than one of the types of license or permit privileges as provided in Subsection (a), the presiding officer may suspend the license, permit or certificate of registration privileges for all categories that apply.

(e) The presiding officer may impose a suspension of all privileges to hunt protected wildlife or all privileges to take protected wildlife if the violations are found by the hearing officer to be conspicuously bad or offensive, and may include, but are not restricted to, the violations described in Subsection (e)(i) through Subsection (e)(viii).

(i) Any violation which could result in suspension that involves taking, in a single criminal episode, four times the legal bag limit of any protected fish species.

(ii) Any violation which could result in suspension that involves taking, in a single criminal episode, three times the legal bag limit of any small game species or waterfowl.

(iii) Any violation which could result in suspension that involves a once-in-a-lifetime species.

(iv) Any violation which could result in suspension that occurs out of season or in a closed area for the species illegally taken and involves a trophy animal.

(v) Three or more felony or class A misdemeanor violations under Section 23-20-4 in a seven-year period, regardless of suspension periods previously imposed.

(vi) Any violation which could result in suspension that involves the illegal taking, in a single criminal episode, of two or more big game animals not classified as once-in-a-lifetime.

(vii) Any violation which could result in suspension that involves the illegal taking, in a single criminal episode, of two or more cougar or bear.

(viii) Any violation subject to Section 23-19-9 that further violates an existing order of revocation or suspension recognized by the Utah Division of Wildlife Resources.

(6) The director shall appoint a qualified person as a hearing officer in accordance with Section 23-19-9(9).

(7)(a) The courts may suspend, in criminal sentencing, a person's privilege to apply for, purchase, or exercise the benefits conferred by a license, permit, or certificate of registration in accordance with Section 23-19-9(10).

(8) The division shall suspend and reinstate all hunting, fishing, trapping, and falconry privileges consistent with Title 23, Chapter 25, Wildlife Violator Compact.

 

R657-26-8. Wildlife Board Review - Procedure.

(1)(a) A person may file an appeal of a presiding officer's decision with the Wildlife Board.

(b) The appeal must be in writing and the respondent shall send a copy of the appeal by mail to the chair of the Wildlife Board and each of the parties.

(2) The appeal must be [filed]received within 30 calendar days after the issuance of the presiding officer's decision and order.

(3) The appeal shall:

(a) be signed by the respondent or the respondent's legal counsel;

(b) state the grounds for appeal and the relief requested; and

(c) state the date upon which it was mailed.

(4)(a) Within [15]30 calendar days after the mailing date of the appeal, any party may file a written response with the Wildlife Board.

(b) A copy of the response shall be sent by mail to the chair of the Wildlife Board and each of the parties.

(5) The Wildlife Board may hold a de novo formal hearing in accordance with the provisions of Section 63-46b-6 through Section 63-46b-10. The Wildlife Board may convert the hearing to an informal hearing anytime before a final order is issued if:

(a) conversion of the proceeding is in the public interest; and

(b) conversion of the proceeding does not unfairly prejudice the rights of any party.

(6) At the conclusion of the hearing, the Wildlife Board may:

(a) affirm the decision;

(b) vacate or remand the decision;

(c) amend the type of suspension ordered by the presiding officer; or

(d) amend the suspension period.

(7) The Wildlife Board chair may vote in an adjudicative proceedings decision, and any Wildlife Board decision shall be supported by a majority of the voting members present.

(8)(a) [If the Wildlife Board takes any action to vacate or remand the decision or amend the type of suspension]Within a reasonable time after the close of the formal hearing, the chair of the Wildlife Board shall[, within a reasonable time,] issue a written order [on review]that affirms, vacates or remands the decision or amends the type of suspension ordered by the hearing officer.

(b) The order on review shall be signed by the chair of the Wildlife Board and mailed to each party.

(c) The order on review shall contain:

(i) a designation of the statute permitting review;

(ii) a statement of the issues reviewed;

(iii) findings of fact as to each of the issues reviewed;

(iv) conclusions of law as to each of the issues reviewed;

(v) whether the decision of the presiding officer is to be affirmed, reversed, modified, and whether all or any portion of the adjudicative proceeding is to be remanded;

(vi) a notice of any right of further administrative reconsideration or judicial review; and

(vii) the time limits applicable to any appeal or review.

 

KEY: wildlife, suspensions, violations

Date of Enactment of Last Substantive Change: [December 2, 2004]2006

Notice of Continuation: August 21, 2006

Authorizing, and Implemented or Interpreted Law: 23-13-2; 23-14-1; 23-14-19; 23-19-9; 23-20-14; 63-46b-13; 63-46b-5