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 PlaintiffAppellant Cynthia H. Coffman, Attorney General, Elaine J. Wizzard, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee1 ¶ 1 Bobby R. Farmer appeals from th e 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 ar bitrary and capricious because it was not based on any standards d esigned 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 necessa ry 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.2 ¶ 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 outfi tting 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 priv ileges. 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 la wyer contended that the statute3 permitted consideration only of the circumstances surrounding the offense of conviction, not of co nduct charged but neither admitted to nor proven. Farmer then present ed 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]vide nce in the state’s case report[] supports the fact that these violat ions 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 with out Registration,” consisting of4 thirteen names with corresponding suspension terms of between fifteen years and life. The hearin g officer concluded that Farmer’s suspension term was proportion al to those imposed on other similarly situated licensees. ¶ 8 Farmer appealed the hearing officer’s decision to the Commission. He argued that th e 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 Co mmission’s decision listed each of the dismissed counts and an extensi ve 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 su pported 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:5 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 th e 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 Ac t (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).6 ¶ 13 We may set aside an agency’s decision when it abused its discretion or when the decision w as 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 de prived 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 cons ider this to be a due process issue, we agree that there were insufficient standards to guide the Commission’s decision, and thus conc lude 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 at7 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 no t 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 bo ard before raising that issue on appeal to the district court. Sinc e the board could not rule on that claim, it would serve no purpo se to impose such a requirement.”) (citations omitted). This is especi ally true when resolution of the issue does not require the hearin g 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 the8 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 distri ct 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 Commi ssion 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 st andard 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 unable9 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 regu late 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 licen se suspension scheme similar to the point system of the Division of Motor Vehicles (DMV). Convictions for violations of wild life 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 ex ceed five years. § 33-6-106(1). However, under section 33-6-113(2)(a), in lieu of any point10 assessment, a person convicted of ille gal sale of wildlife (big game) faces a license suspension of anywhere from one year to a lifetime. ¶ 22 Any person who is considered fo r 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 sh ould 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 cr iteria, terms, and purposes of the statute, or regulations promul gated thereunder, and case law interpreting such statutes and regulations pursuant to which the license is issued or requ ired.” § 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 constitut es a due process violation. While some courts have identified this issue as a procedural or11 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 pr ohibited 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.

1 Other 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).12 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 unif orm 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 safeg uards 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 may13 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 Commi ssion’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 gene ral rulemaking authority, § 33- 1-104(1), C.R.S. 2015, and the le gislature 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).14 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 pr obationary driver’s licenses to drivers whose permanent licenses ha d 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 pr ovided no “assurance that each hearing officer will not, consciou sly 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 be15 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 ot her 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 th e revocation of a nursing license was unconstitutionally vague because it failed to sufficiently delineate the proscribed conduc t and provide standards for the imposition of discipline. There, however, the statute proscribed a range of conduct and enumerated various penalties that could be16 imposed based on the severity of th e 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 unde r section 33-6-113, yet the Commission is given unfettered discr etion 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 statut ory 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 reasonablen ess before approving such improvements. 829 P.2d at 1312. The supreme court concluded that the reasonableness standa rd was sufficiently specific, particularly where other PUC rules and related statutes guided the17 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 criter ia, terms, and purposes of the statute or regulations promulgated to implement the statute. We discern no stated criteria or te rms 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 Commi ssion 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 “o ffenses,” “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 form ed the basis of count 1 of the18 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 asse rtion 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 “c ourt’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 Fa rmer pleaded guilty to count 1 of the complaint (which referenced th e Skalla hunt in January 2009) in exchange for the dismissal of all other counts. Farmer acknowledged that there was a fact ual 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.19 followed it and Skalla killed the an imal 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 impo sing a license suspension. The hearing officer and the Commission justified Farmer’s long suspension on the ground that hi s violation represented “willful, deliberate and intentional wildlif e-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 intentiona lly provided unauthorized guide services in Colorado) — where the f acts 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 a20 proper factor to consider in an aggravation analysis (one might reasonably worry that it would ch ill a defendant’s exercise of the right to trial), the record shows that Farmer pleaded guilty, resulting in an unsupervised de ferred 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 amon g them, we are left to wonder why similarly situated licensees received different periods of suspension. Moreover, if a conviction for a si ngle 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.21 The hearing officer’s decision to impose, in every case, a minimum suspension term of fifteen years fo r 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 licensi ng decisions be based solely on stated criteria and hinders effect ive judicial review. At oral argument, the Commission insisted th at 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. See22 Feeney , 890 P.2d at 177 (license revocation would be arbitrary without sufficient standards). Becau se 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 h earing. In crafting a remedy, we seek to restore the parties to th e status quo before the agency’s arbitrary and capricious conduct. See Hackett v. Xerox Corp. LongTerm Disability Income Plan , 315 F.3d 771, 776 (7th Cir. 2003). Here, Farmer’s license was suspen ded 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 standa rds 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 licen se 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.).23 ¶ 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, an d 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.24 JUDGE HAWTHORNE and JU DGE ROMÁN concur.