OAH Docket No. 4-2000-12774-2

 

 

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

 

FOR THE DEPARTMENT OF NATURAL RESOURCES

 

 

 

In the Matter of the Revocation of the Falconry Permit of Douglas E. Johnson

FINDINGS OF FACT, CONCLUSIONS AND RECOMMENDATION

 

 

Administrative Law Judge Bruce H. Johnson conducted a hearing in this contested case proceeding beginning at 9:30 a.m. on Thursday, July 19, 2000, at the Office of Administrative Hearings, Suite 1700, 100 Washington Square, Minneapolis, Minnesota.  The record closed on October 23, 2000, when all of the parties’ post-hearing submissions were received.

           

            Joan M. Eichhorst, Assistant Attorney General, Suite 900, 445 Minnesota Street, St. Paul, Minnesota 55101-2127, represented the Department of Natural Resources (the Department) at the hearing.  Stuart E. Gale, Attorney at Law, Suite 101, 9301 Bryant Avenue South, Bloomington, Minnesota 55420, represented the Appellant, Douglas E. Johnson.

NOTICE

This Report is a recommendation, not a final decision.  The Commissioner of the Minnesota Department of Natural Resources will make the final decision after reviewing the administrative record.  The Commissioner may adopt, reject or modify these Findings of Fact, Conclusions and Recommendations.  Under Minnesota law,[1] the Commissioner may not make his final decision until after the parties have had access to this report for at least ten days.  During that time, the Commissioner must give each party adversely affected by this report an opportunity to file exceptions and present argument to him.  Parties should contact the office of Allen Garber, Commissioner, Minnesota Department of Natural Resources, 500 Lafayette Road, St. Paul, Minnesota 55155, to find out how to file exceptions or present argument.

 

 

THE ISSUES

 

(1)               Whether accepting late annual reports from Mr. Johnson prevents the Department from revoking his falconry permit for failure to submit timely reports;

(2)               Whether the Department is precluded from revoking Mr. Johnson’s falconry permit on the basis of falconry-related criminal convictions and rule violations that fall outside criminal and civil statutory limitation periods;

(3)               Whether cause existed for the Department to revoke Mr. Johnson’s falconry permit for three years effective June 24, 1999; and

(4)               Whether the Department deprived Mr. Johnson to his right to due process of law when it failed to provide him with an administrative hearing before revoking his permit.

Based upon the record in this matter, the Administrative Law Judge (ALJ) makes the following:

FINDINGS OF FACT

1.                  Under both Minnesota and federal law, persons possessing raptors and practicing falconry are required to have permits issued both by the Department and by the U. S. Fish and Wildlife Service (USFWS).[2]

2.                  The Commissioner has promulgated rules governing the practice of falconry within the state.[3]  Among other things, those rules establish classes of falconry permits,[4] eligibility criteria for falconry permit holders,[5] and reporting requirements.[6]

3.                  Douglas E. Johnson currently resides at 3908 – 45^th Avenue South, Minneapolis, Minnesota  55406.  He has been involved in falconry since 1970, and has held state and federal falconry permits since 1978.[7]  During all times that are pertinent to this proceeding, Mr. Johnson has met the Department’s eligibility criteria and those of the USFWS[8] for falconry permit holders.

4.                  All falconry permits issued by the Department expire on September 30th of the year of expiration.[9]

5.                  In addition to other kinds of reports, the Department’s rules require falconry permit holders to report the following information in an Annual Report to the Department at the Commissioner’s request:

A.     all raptors in possession, by species, marker numbers, sex (if known), age (if known), date and where or from whom acquired;

B.           all raptors possessed or acquired at any time during the specified period, but no longer possessed, by species, marker numbers, sex (if known), age (if known), date and where or from whom acquired, date and to whom given, if applicable, or whether escaped, died, or released, and when the event occurred; and

C.     all unused markers in possession.

6.                  From October 1, 1979, through September 30, 1980, Douglas Johnson held a combined state-federal falconry permit that had been issued to him by both the Department and the USFWS.[10]  The Commissioner requested Mr. Johnson to submit a 1980 Annual Report to the Department by July 31, 1980.[11]  Mr. Johnson failed to submit his 1980 Annual Report by the deadline established by the Commissioner.  By letter dated August 15, 1980, the Department notified Mr. Johnson that his 1980 Annual Report was delinquent and told him that if the Department did not receive the delinquent report by September 15, 1980, it would take steps to revoke his permit.[12]  Mr. Johnson then submitted his report to the Department on or after August 25, 1980.[13]

7.                  From October 1, 1981, through September 30, 1982, Douglas Johnson held a combined state-federal falconry permit that had been issued to him by both the Department and the USFWS.[14]  The Commissioner requested Mr. Johnson to submit a 1982 Annual Report to the Department by July 31, 1982.[15]  Mr. Johnson failed to submit his 1982 Annual Report by the deadline established by the Commissioner.  By letter dated August 23, 1982, the Department notified Mr. Johnson that his 1982 Annual Report was delinquent and told him that if the Department did not receive the delinquent report by September 20, 1982, it would take steps to revoke his permit.[16]  Mr. Johnson then submitted his report to the Department on or about September 27, 1982.[17]

8.                  From October 1, 1983, through September 30, 1984, Douglas Johnson held a combined state-federal falconry permit that had been issued to him by both the Department and the USFWS.[18]  The Commissioner requested Mr. Johnson to submit a 1984 Annual Report to the Department by July 29, 1984.[19]  Mr. Johnson failed to submit his 1984 Annual Report by the deadline established by the Commissioner.  By letter dated October 9, 1984, the Department notified Mr. Johnson that his 1984 Annual Report was delinquent and told him that if the Department did not receive the delinquent report by November 1, 1984, it would take steps to revoke his permit.[20]  Mr. Johnson did not submit his report to the Department until on or after December 11, 1984.[21]

9.                  From October 1, 1986, through September 30, 1987, Douglas Johnson held a combined state-federal falconry permit that had been issued to him by both the Department and the USFWS.[22]  The Commissioner requested Mr. Johnson to submit a 1987 Annual Report to the Department by July 31, 1987.[23]  Mr. Johnson failed to submit his 1987 Annual Report by the deadline established by the Commissioner.  Mr. Johnson did not submit his report to the Department until on or after October 11, 1987.[24]

10.             From October 1, 1988, through September 30, 1989, Douglas Johnson held a combined state-federal falconry permit that had been issued to him by both the Department and the USFWS.[25]  The Commissioner requested Mr. Johnson to submit a 1989 Annual Report to the Department by July 31, 1989.[26]  Mr. Johnson failed to submit his 1989 Annual Report by the deadline established by the Commissioner.  By letter dated August 9, 1989, the Department notified Mr. Johnson that his 1989 Annual Report was delinquent and told him that if the Department did not receive the delinquent report by August 24, 1989, his falconry permit would not be reissued.[27]  Mr. Johnson did not submit his report to the Department until on or after December 11, 1989.[28]

11.             From October 1, 1989, through September 30, 1990, Douglas Johnson held a combined state-federal falconry permit that had been issued to him by both the Department and the USFWS.[29]  The Commissioner requested Mr. Johnson to submit a 1990 Annual Report to the Department by July 31, 1990.[30]  Mr. Johnson failed to submit his 1990 Annual Report by the deadline established by the Commissioner.  Mr. Johnson did not submit his report to the Department until on or after October 20, 1990.[31]

12.             Mr. Johnson did not apply for renewal of his combined state-federal falconry permit for the period October 1, 1991, through September 30, 1992, until on or after July 30, 1992.[32]  As a consequence, from October 1, 1991, through at least July 6, 1992, Mr. Johnson possessed a raptor without holding a current combined state-federal falconry permit.[33]  On July 23, 1992, the USFWS suspended Mr. Johnson’s federal falconry permit.[34]  In July 1992 Mr. Johnson was convicted in U. S. District Court of possessing a Prairie/Peregrine cross raptor without a valid federal falconry permit.[35]  Mr. Johnson did not apply to the Department for a 1991/1992 falconry permit until after September 10, 1992.[36]

13.             Both the Department and the USFWS issued Douglas Johnson a combined state-federal falconry permit covering the period from October 1, 1993, through September 30, 1994.[37]  The Commissioner requested Mr. Johnson to submit a 1994 Annual Report to the Department by July 31, 1994.[38]  Mr. Johnson failed to submit his 1994 Annual Report by the deadline established by the Commissioner.  By letter dated August 23, 1994, the Department notified Mr. Johnson that his 1994 Annual Report was delinquent and told him that if the Department did not receive the delinquent report by September 15, 1994, it would take steps to revoke his permit.[39]  Mr. Johnson did not submit his report to the Department until September 15, 1994.[40]

14.             Both the Department and the USFWS issued Douglas Johnson a combined state-federal falconry permit covering the period from October 1, 1994, through September 30, 1995.[41]  The Commissioner requested Mr. Johnson to submit a 1995 Annual Report to the Department by August 15, 1995.[42]  Mr. Johnson failed to submit his 1995 Annual Report by the deadline established by the Commissioner.  By letter dated October 13, 1995, the Department notified Mr. Johnson that his 1995 Annual Report was delinquent and told him that if the Department did not receive the delinquent report by November 1, 1995, it would take steps to revoke his permit.[43]  Mr. Johnson did not submit his report to the Department until on or after December 11, 1995.[44]

15.             Both the Department and the USFWS issued Douglas Johnson a combined state-federal falconry permit covering the period from October 1, 1995, through September 30, 1996.[45]  The Commissioner requested Mr. Johnson to submit a 1996 Annual Report to the Department by August 31, 1996.[46]  Mr. Johnson did submit that report to the Department on August 31, 1996.[47]

16.             On July 31, 1996, Mr. Johnson was acquitted in U. S. District Court of having falconry facilities that failed to meet the standards required by law.[48]

17.             On October 2, 1996, Mr. Johnson pleaded guilty in U. S. District Court of disposing of a Northern goshawk on December 12, 1994, without submitting to the USFWS a form required by the Code of Federal Regulations.[49]

18.             In 1997 Mr. Johnson applied for a combined state-federal falconry permit covering the three-year period from October 1, 1997, through September 30, 2000.[50]  On September 30, 1997, the Department granted Mr. Johnson a state falconry permit for that period.[51]  The USFWS has never taken action on Mr. Johnson’s request for a federal falconry permit for the same period.[52]

19.             Mr. Johnson submitted a timely 1997 Annual Report to the Department.  By letter dated July 13, 1998, the Department requested that Mr. Johnson’s 1998 Annual Report be submitted to the Department by July 31, 1998.[53]  Mr. Johnson failed to submit his 1998 Annual Report by the deadline established by the Commissioner.  He did not submit that report to the Department until after September 24, 1998.[54]  On October 20, 1998, the Department issued a Summons and Complaint to Mr. Johnson charging him with the misdemeanor of failing to comply with Minnesota Game and Fish Rules, namely failing to file a timely 1998 annual falconry report.[55]  On March 17, 1999, Mr. Johnson was convicted of that charge in Anoka County District Court and fined $135.00.[56]

20.             On June 24, 1999, the Department revoked Mr. Johnson’s state falconry permit for a period of three years for violating state game and fish rules.  As grounds for the revocation, the letter cited Mr. Johnson’s late submission of his annual falconry report in 1980, 1982, 1984, 1987, 1989, 1990, 1994, 1995, and 1996.  It also cited his federal convictions in 1992 and 1996 for possessing a peregrine without a permit and failing to report the death of a Goshawk, respectively, and his state conviction in 1999 for failing to submit a 1998 annual falconry report.  Finally, the letter of revocation directed Mr. Johnson to transfer his bird to a permitted falconer or approved facility within 30 days from June 24, 1999, or have the bird seized by a conservation officer.[57]  The letter did not advise Mr. Johnson of any rights that he might have to appeal the revocation.

21.             Between June 24 and July 22, 1999, Mr. Johnson made a telephone call to the Department requesting information on how to appeal the revocation of his falconry permit.[58]  By letter dated July 22, 1999, the Department advised Mr. Johnson that its rules did not specify a particular appeal procedure, but that he could appeal by submitting a written request for review of the decision by the Commissioner.[59]  The Department also advised Mr. Johnson that initiating an appeal would not extend the July 24, 1999, deadline for transferring his bird to another permitted falconer or facility.[60]

22.             By letter dated September 20, 1999, Mr. Johnson requested the Commissioner to reconsider the revocation of his falconry permit, and this contested case proceeding ensued when the Department filed and served Mr. Johnson with a Notice of and Order for Hearing on March 3, 2000.

23.             These Findings are based on all of the evidence in the record.  Citations to portions of the record are not intended to be exclusive references.

24.             The Administrative Law Judge adopts as Findings any Conclusions that are more appropriately described as Findings.

 

            Based upon these Findings of Fact, the ALJ makes the following:

 

CONCLUSIONS

 

1.                  State law[61] gives the ALJ and the Department authority to conduct this proceeding, to consider the issues raised here, and to make findings, conclusions, and recommendations and orders, as appropriate.

2.                  The Department has complied with all of the substantive and procedural requirements of Minnesota law for initiating and conducting this contested case proceeding.

3.                  Minnesota law provides that:

A person may not take, buy, sell, transport, or possess a protected wild animal unless allowed by the game and fish laws.  The ownership of all wild animals is in the state, unless the wild animal has been lawfully acquired under the game and fish laws.  The ownership of a wild animal that is lawfully acquired reverts to the state if a law relating to sale, transportation, or possession of the wild animal is violated.[62]

4.                  The Commissioner has adopted rules[63] specifying the terms and conditions under which persons holding state falconry permits may retain possession of raptors.

5.                  Regardless of how Mr. Johnson may have acquired his peregrine falcon, his right to continued possession of the bird was and is conditioned on his adherence to the Commissioner’s falconry rules.[64]

6.                  Ownership of Mr. Johnson’s falcon became vested in the state by operation of law on March 17, 1999, when Mr. Johnson was convicted in Anoka County District Court of violating one of the Department’s falconry rules.[65]

7.                  The state exercises ownership of all wild animals within its borders as trustee for all of its citizens.[66]  And the legislature has assigned that role as trustee to the Commissioner.[67]  The Commissioner therefore became trustee of Mr. Johnson’s falcon when Mr. Johnson was convicted of violating a falconry rule.  The Commissioner’s authority as trustee extends to deciding whether and under what circumstances Mr. Johnson may be allowed to have possession of the bird for use in the sport of falconry.[68]

8.                  One of the Commissioner’s falconry rules requires permit holders to make reports to the Department, as requested by the Commissioner.[69]  Mr. Johnson violated that rule by failing to submits state Annual Falconry Reports by the deadlines specified by the Commissioner in calendar years 1980, 1982, 1984, 1987, 1989, 1990, 1992, 1994, 1995, and 1998.

9.                  Another of the Commissioner’s falconry rules prohibits Minnesota residents from possessing raptors without a permit obtained from the Commissioner.[70]  Mr. Johnson violated that rule by possessing a raptor from October 1, 1991, through on or about July 6, 1992, without having a valid and effective state falconry permit.

10.             Yet another of the Commissioner’s falconry rules prohibits permittees from disposing of raptors, through death or otherwise, “unless the permittee submits, within five working days, Federal Form 3—186A completed, in accordance with the instructions on the form, for each bird.”[71]  Mr. Johnson violated that rule by disposing of a northern goshawk on or about December 20, 1994, and then thereafter failing to submit the required report within the time specified by law.

11.             The legislature has empowered the Commissioner to “deny, modify, suspend, or revoke a permit for cause, including violation of the game and fish laws or rules adopted thereunder.”[72]  And the Commissioner’s falconry rules specify that “[a] permittee violating the provisions of this chapter may be subject to permit revocation, and all raptors held may be subject to seizure and confiscation in the manner provided by law.”[73]

12.             The Department has the burden of establishing by a preponderance of the evidence that cause existed to revoke Mr. Johnson’s falconry permit.

13.             The Department may rely on violations by Mr. Johnson of its annual falconry reporting rules in deciding whether or not to revoke his falconry permit even though the Department may have subsequently accepted late reports from him and renewed his falconry permits.

14.             The Department was not precluded from relying on earlier criminal convictions or on reporting violations falling beyond criminal and civil statutes of limitation as bases for revoking Mr. Johnson’s falconry permit.

15.             The Department has established by a preponderance of the evidence that Mr. Johnson has repeatedly violated the Commissioner’s falconry rules over a twenty-year period.  The Department has therefore established that cause existed to revoke his falconry permit.

16.             The Department did not deprive Mr. Johnson of his right to due process of law by failing to provide him with a hearing before his falconry permit was revoked.

17.             The Administrative Law Judge adopts as Conclusions any Findings, which are more appropriately described as Conclusions.

18.             The bases and reasons for these Conclusions are those expressed in the Memorandum that follows, and the ALJ incorporates that Memorandum into these conclusions.

Based upon these Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

The Administrative Law Judge recommends that the Commissioner AFFIRM the Department’s decision to revoke Mr. Johnson’s falconry permit and DISMISS Mr. Johnson’s appeal .

 

 

Dated this 31^st day of October, 2000.

 

 

BRUCE H. JOHNSON

Administrative Law Judge

 

 

 

NOTICE

 

            Under Minnesota law,[74] the Commissioner must serve its final decision upon each party and the Administrative Law Judge by first-class mail.

 

MEMORANDUM

I.

Cause Existed for the Department to

Revoke Mr. Johnson’s Falconry Permit

With one exception, there was no genuine dispute about the material facts in this matter.  Mr. Johnson has committed twelve violations of the Department’s falconry rules since 1980.[75]  Minnesota law empowers the Commissioner to revoke permits, including falconry permits, “for cause, including violation of the game and fish laws or rules adopted thereunder.”[76]  Mr. Johnson relies on three arguments to support his assertion that the Department lacked cause to revoke his falconry permit.  First, he argues that any rule violations that he subsequently cured may not form the basis for permit revocation if the Department accepted his tender of a cure, took no action against him at the time, and renewed his permit.  Second, he argues that the Department is estopped from revoking his permit on the basis of rule violations for which he was criminally convicted or for violations that fall beyond the criminal and civil statutes of limitations.  Finally, he argues that all of his rule violations were “paper problems” involving failure to meet reporting deadlines and not violations that reflected on his abilities as a falconer or on his care of the birds he possessed.  In other words, he characterizes his shortcomings as de minimis violations that fall short of the statutory requirement of cause.

A.    It was proper for the Department to consider reporting violations that Mr. Johnson for which it took no earlier action.

Over a nineteen-year period Mr. Johnson was late in filing his annual falconry reports nine times.[77]  The first eight times he was late the Department ended up accepting his late filings and renewing his falconry permits.  During six of the years he was late, the Department sent him letters after the annual report deadline had passed threatening to revoke his permit if he did not submit his report by a later specified date.  Although Mr. Johnson characterizes those letters as giving him extensions of the filing deadlines, the letters clearly did no such thing.[78]  They were warning letters telling Mr. Johnson that he would face legal consequences if he did not submit his reports by specified future dates.[79]  One issue that Mr. Johnson raises is whether or not the Department is now precluded from using those late report filings as bases for revoking Mr. Johnson’s permit.

The Commissioner’s authority to revoke permits for rule violations is permissive:

Wherever the game and fish laws specifically provide for the issuance of a permit by the commissioner, the commissioner may do the following in accordance with criteria and procedures established in rules adopted by the commissioner:

    (1)   issue a permit with reasonable conditions; and

    (2) deny, modify, suspend, or revoke a permit for cause, including violation of the game and fish laws or rules adopted thereunder.[80]  [Emphasis supplied.]

Whether to revoke a permit following any particular rule violation is a matter of the Commissioner’s discretion.  But Mr. Johnson suggests that the legal doctrine of waiver limits that discretion here.  Citing Anderson v. Twin City Transit Co.,[81] he argues that by failing to exercise its discretion to revoke his permit promptly, the Department has waived its right to do so later on.  In Anderson the Minnesota Supreme Court described waiver as “either the result of an intentional relinquishment of a known right or an estoppel from enforcing it.”[82]  But Anderson involved private parties and not an agency of the state.  This proceeding deals not with exercise of a legal right but with exercise of a sovereign power.  Mr. Johnson has offered no authority for the proposition that the state, as sovereign, waives exercise of its powers by failing to exercise them at a particular time.  In other words, the ALJ concludes that the defense of waiver is unavailable to Mr. Johnson here.

B.    Revocation of Mr. Johnson’s falconry permit is not precluded by any statute of limitations or by the doctrine of estoppel.

Three of Mr. Johnson’s ten[83] rule violations resulted in criminal convictions, two in federal court and one in state district court.  He argues that revoking his permit based on conduct for which he was criminally convicted exposes him to double jeopardy.[84]  The legislature has expressly made any violations of game and fish laws, including those that also may also result in criminal proceedings, grounds for revoking permits.[85]  So Mr. Johnson’s double jeopardy argument necessarily brings the constitutionality of a statute into question.  Neither an executive branch agency, such as the Department, nor an administrative law judge can declare a statute unconstitutional, since that power is vested in the judicial branch.  Neeland v. Clearwater Memorial Hospital, 257 N.W.2d 366, 368 (Minn. 1977).  The ALJ must therefore presume that the statute in question is constitutional and proceed to apply it in the way that the legislature indicated that it should be applied.[86]

Mr. Johnson also argues that either a three-year statute of limitations for criminal prosecutions[87] or a six-year statute of limitations for initiating civil actions[88] precludes consideration of any rule violations that he might have committed prior to June 24, 1999.  The three-year criminal statute of limitations is clearly inapplicable because it only operates to prevent “criminal complaints or indictments” from being “found or made and filed” more than three years after the commission of the offense.[89]  It does not expressly preclude civil permit revocation proceedings.  Similarly, the civil statute of limitations that might arguably apply here is directed toward “actions.”[90]  In its usual legal sense, the term “action” means “a lawsuit brought in a court” or “a formal complaint within the jurisdiction of a court of law.”[91]  That would exclude administrative contested case proceedings such as this.[92]  But it unnecessary to determine whether this proceeding is an action for purposes of the civil statute of limitations, since three of Mr. Johnson’s rule violations occurred within six years of his permit revocation.[93]  Moreover, the legislature has empowered the Department to revoke permits for “cause, including violation of the game and fish laws or rules adopted thereunder.[94]  [Emphasis supplied.]  Finally, two other things are readily apparent from the language of the statute.  First, the legislature intended to give the Commissioner significant latitude in determining when the Department’s permits should be revoked.  And second, the legislature clearly did not intend to define or to limit what “cause” might be to how many rule violations a permittee might have committed within some limitation period.  So the inquiry must necessarily turn to the broader question of whether or not the Department’s reasons for revoking Mr. Johnson’s falconry permit fall within any limits that the legislature did intend to place on the Commissioner’s discretion to determine whether cause for revocation exists.

C.    Cause existed for the Department to revoke Mr. Johnson’s falconry permit.

The statute giving the Commissioner authority to revoke the various permits that the Department issues is generic in nature and was intended to apply to a broad range of permit programs relating to the state’s natural resources.  So, in order to determine what cause means for purposes of revoking a falconry permit, one must examine the specific context of that program.[95]  The law charges the Commissioner with exercising control over all wild animals within the state’s borders, and that control extends to raptors.  The legislature has even given the Commissioner authority to adopt specific rules relating to what falconers must do in order to enjoy that privilege and to enjoy temporary custody of the raptors in their care.[96]

What the Department’s letter of revocation referred to and the evidence has established here is that Mr. Johnson has exhibited a twenty-year pattern of chronic noncompliance with the state’s falconry rules.  What Mr. Johnson’s behavior and his own testimony indicate is that he simply does not regard the Department’s falconry reporting rules to be a serious matter that is worthy of his attention.  Rather, he has consistently considered the reporting requirement to be a ministerial function that he is free to ignore or respond to at his own convenience.  The USFWS suspended his federal falconry permit in July 1992, essentially because he had failed to take steps to renew it.  But that action does not appear to have captured his attention for very long.  In 1994 and 1995 he again missed the annual reporting deadlines.

The Commissioner has a responsibility to ensure that state’s raptors are entrusted to responsible persons when engaging in the sport of falconry.  That is the whole thrust of the Department’s falconry regulations.[97]  Over the last several years Mr. Johnson has displayed a pattern of chronic noncompliance with program rules.  That behavior indicates he does not take his own responsibilities as a falconer as seriously as the Commissioner has the right to expect of persons entrusted with the possession of raptors.  It is unnecessary here to define the universe of things that might constitute cause to revoke a falconry permit.  It is only necessary to determine whether or not Mr. Johnson’s behavior falls within that universe.  And here the ALJ concludes that it does and that there was cause for the Department to revoke his falconry permit.

II.

The Department Did Not Deprive

Mr. Johnson of Procedural Due Process of Law

In addition to claiming that the Department lacked cause to revoke his falconry permit, Mr. Johnson also argues that the revocation should be set aside because the Department deprived him of procedural due process of law in a number of respects.  Mr. Johnson first claims that due process required the Department to adopt rules that further define what specific behaviors amount to “cause” for revoking a falconry permit.  The legislature itself has imposed no such rulemaking requirement.  Rather, it has generally given the Commissioner wide latitude to determine the behaviors that justify revoking the many kinds of permits that the Department issues.  But by statute the legislature has specified at least two particular kinds of behavior that justify revocation of permits issued by the Department — namely, “violation of the game and fish laws or rules adopted thereunder.”[98]  Here, the letter of revocation referred to thirteen specific rule violations by Mr. Johnson, although two were ultimately not substantiated.  Moreover, the listing of those violations sequentially by year made it clear that the Department was also basing its revocation on a pattern of chronic noncompliance with the rules.  In short, the reasons for revoking Mr. Johnson’s falconry permit reasonably fall within the ambit of the legislature’s specification of cause.  So, the Department’s decision not to further define cause in its rules did not deprive Mr. Johnson of due process of law.[99]

Mr. Johnson next claims that the Department deprived him of due process by failing to notify him of his appeal rights in its revocation letter.  A party’s right to an administrative contested case proceeding to appeal an adverse agency decision is generally set forth in the Minnesota Administrative Procedure Act (APA), which provides:

An agency shall initiate a contested case proceeding when one is required by law.  Unless otherwise provided by law, an agency shall decide a contested case only in accordance with the contested case procedures of the Administrative Procedure Act.[100]

Due process may require an agency to advise a party of a statutorily mandated right of appeal where the mere existence of a rule or statute is not, as a practical matter, sufficient notice of that right.[101]  Here, the provisions of the APA would not necessarily make it clear to Mr. Johnson that he had a right to appeal revocation of his falconry permit in an administrative contested case proceeding.  So, the ALJ concludes that the Department should have advised Mr. Johnson of his appeal rights in its revocation letter.  But here, he later called the Department and asked about his appeal rights.  It then provided him with a right of appeal, and this proceeding ensued.  So if this post-revocation hearing is the process to which he is entitled, his rights have not actually been impaired.  The inquiry then must turn to Mr. Johnson’s third claim of denial of due process — namely, that he was entitled to a pre-revocation appeal hearing.

Mr. Johnson has made no claim that this post-revocation hearing has been procedurally insufficient.  So the remaining question is whether or not the Constitution guaranteed him this hearing before the Department revoked his falconry permit.  First of all, in order to obtain due process protection, Mr. Johnson must show that he has a protected interest that the Department’s action has impaired.  A due process argument may only be raised when official action causes a denial of life, liberty, or property.[102]  Here, Mr. Johnson claims a protected property interest, a claim that the Department questions but does not necessarily refute.  Property interests go beyond simple ownership of real or personal property and do include such things as specific benefits and licenses.[103]  Here, although the state has apparently now acquired ownership of Mr. Johnson’s falcon,[104] he correctly observes that the state’s ownership interest is that of a trustee.[105]  So the law still affords him the right to possess the bird in order to engage in the sport of falconry, subject to the conditions imposed by the Commissioner in his capacity as the state’s trustee.[106]  The ALJ therefore concludes that Mr. Johnson still has a qualified property interest in his falcon[107] that is sufficient to provide him with due process protection.

But the U. S. Supreme Court has indicated that procedural due process is context-dependent — that is, “due process is flexible and calls for such procedural protections as the particular situation demands.”[108]  And it has ruled that if entitled to hearing at all, aggrieved parties are not always entitled to have the hearing conducted before the adverse agency action occurs.[109]  Rather, the Court has established a balancing test for determining what process is due in given circumstances.  That test was expressed in Matthews v. Eldridge:[110]

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mr. Johnson is not claiming any general procedural insufficiency in the APA’s contested case provisions or in the way in which this hearing is being conducted.  He is only arguing that this hearing should have occurred before, rather than after, his permit was revoked.   What remains, then, is to apply the Matthews test to his claim of entitlement to a pre-revocation hearing.  As noted above, Mr. Johnson’s private interest is a qualified right to use his bird to engage in falconry, subject to such conditions that the Commissioner, in his capacity as trustee, may impose.  And in this particular case the value of holding a pre-revocation, rather than a post-revocation, would be limited, at best.  The underlying facts here are virtually uncontested.  Mr. Johnson has clearly violated a number of the Commissioner’s falconry rules.  So, it is difficult to see how an evidentiary hearing held after his permit has been revoked has contributed in some way to an erroneous deprivation of Mr. Johnson’s permit.  Finally, because the state has an ownership interest Mr. Johnson’s falcon as trustee, the Commissioner not only has an interest, but a special responsibility, to ensure that the bird is being entrusted to a responsible custodian.  In other words, Mr. Johnson’s private interest is not as strong here as private interests might be in other contexts. Balancing these factors, the ALJ concludes that affording Mr. Johnson due process did not require the Department to provide him with a hearing before revoking his permit.  Moreover, no compelling purpose would now be served by reinstating Mr. Johnson’s falconry permit and directing the Department to provide him with another hearing before taking any future action to revoke it.

B. H. J.