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-Appellee
1 

¶ 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. 
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 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 
3 

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 
4 

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: 
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 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). 
6 

¶ 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 
7 

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 
8 

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 
9 

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 
10 

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 
11 

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. 

 

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 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 
13 

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). 
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 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 
15 

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 
16 

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 
17 

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 
18 

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. 
19 

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 
20 

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. 
21 

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 
22 

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. LongTerm 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.). 
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, 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. 
24 

JUDGE HAWTHORNE and JUDGE ROMÁN concur.