By Patrick F. Welsh, Esq.
In August 2012, state Rep. Jon Becker’s House Bill 1330 was signed
into law creating an appeals process for Coloradans with suspended hunting
or fishing licenses. This law gives hunters and anglers in Colorado a
hearing and an appeals process for suspended licenses and allows a way
and means for these individuals to continue to pursue their passion.
The Wildlife Attorneys at Feldmann Nagel Margulis work with many clients to
reinstate fishing and hunting rights in Colorado, and specifically between
Julia Stancil and myself, we have handled hundreds of wildlife cases throughout
the county. For example, in December of 2014, Wildlife Attorney Julia
Stancil went before the Colorado Parks and Wildlife Commission to petition
for a reinstatement of her client's rights to hunt and fish in Colorado
and all other states within the Interstate Wildlife Compact. Her client
had received a decades-long suspension of hunting and fishing privileges
after accumulating a series of tickets as a youth. The time-limit to appeal
such a suspension is thirty (30) days following an administrative decision,
but unfortunately the client had not retained legal counsel at the time
and did not appeal. Without the right to appeal the decision, Ms. Stancil
filed a Petition for Declaratory Order. This is essentially a petition
for equitable relief that was based upon an argument that the client should
not have received such a lengthy suspension based upon the statutes violated
at the time. This unique argument prevailed and Ms. Stancil's client
immediately had their rights reinstated.
In the alternative, we also work to avoid the suspension altogether. Recently,
I represented a client who was facing both federal and state charges for
illegal possession of wildlife, with a potential of 35pts against the
client’s hunting privileges. After our investigation and multiple
plea discussions, I was able to negotiated a plea deal in which the state
agreed not to pursue state charges, to include a $10,000.00 Sampson charge.
The federal prosecutors agreed to dismiss one of the two federal charges,
which would limit the violation to 15pts, thereby avoiding the suspension
hearing altogether and allowing our client to retain his privilege to hunt.
An appeal to the Commission is a difficult and challenging process that
requires competent and knowledgeable representation. Here are three tips
for you to build a strong case to get your rights reinstated:
Hire legal counsel to create an appellate battle plan. This is not the time for you to represent yourself in court: join forces
with a reputable law firm and begin preparing your appellate battle plan.
Your legal representatives will start by preparing a thorough written
analysis of the legal theories at issue in your case, which will include
the elements of each cause of action and defense you plan to allege and
of those you anticipate your opponent will raise.
Begin building the record. If it’s not in the record, it didn’t happen. There is nothing
more important to an appeal than ensuring that there is an adequate record
to present to the appellate board. The hearing record, written and documentary
evidence, along with certain mitigating documents are what the commission
uses when considering the appeal. A transcript of the hearing is mandatory.
Our wildlife attorneys utilize
Transcription Outsourcing, LLC to record accurate transcripts of witness interviews and appeal hearings
regarding cases on hunting privileges. These transcripts result in a much
stronger case to present to the Colorado Parks and Wildlife Commission.
Make good objections and get a ruling. Here are the worst words you can hear from an appellate court or commission:
“Great argument; not preserved.” To preserve the issue for
appeal, you need to raise an objection, seek a remedy and secure a ruling.
Make sure the trial record accurately reflects timely, meaningful objections,
made on clearly stated grounds and is followed by a ruling by the court
(or a clear request to rule).
If you have received a summons for a wildlife violation or have been given
a notice of a hearing by the Division of Parks and Wildlife, contact the
experienced Wildlife Attorneys at Feldmann Nagel Margulis for a consultation.
One of our attorneys can advise you, represent you for your wildlife violation
at the court level both state and federal, argue the case at the hearing
level to attempt to prevent or mitigate a suspension, and can also appeal
a decision that is made by the hearings examiner.