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Anderson v. Arizona Game and Fish Department - 11/8/2010

Arizona Court of Appeals Division Two Holds That A.R.S. § 17-340 Does Not Provide the Arizona Game and Fish Commission With the Authority to Impose Consecutive Sanctions.


In September 2007, Anderson was convicted of the unlawful taking of wildlife out of season.  The Arizona Game and Fish Commission (“Commission”) revoked his licenses and denied him the right to re-apply for a period of 5 years, pursuant to A.R.S. § 17-340.  In November 2007, Anderson was convicted of taking game in excess of the bag limit.  Pursuant to § 17-340, in July 2008 the commission ordered:

NOW, THEREFORE, IT IS ORDERED that any and all licenses to HUNT, FISH and TRAP in the State of Arizona issued to MR. RALPH E. ANDERSON be removed and HE is denied the right to secure additional license(s) for a period of TEN (10) years to run consecutively after his current revocation which expires on March 7, 2013.

The Superior Court affirmed the commission’s decision and Anderson appealed.  The Court of Appeals reversed in part and affirmed in part.

Anderson first argued that § 17-340(B)(2) did not provide the Commission with the authority to impose consecutive sanctions.  Section 17-340(A) provides in pertinent part:

Upon conviction . . . and in addition to other penalties prescribed by this title, the commission, after a public hearing, may revoke or suspend a license issued to any person under this title and deny the person the right to secure another license to take or possess wildlife for a period of not to exceed five years for:

1.       Unlawful taking, unlawful selling, unlawful offering for sale, unlawful bartering or unlawful possession of wildlife…

2.       For a second conviction or a second adjudication as a delinquent juvenile, for unlawfully taking or wounding wildlife at any time or place, the commission, after a public hearing, may revoke, suspend or deny a person’s privilege to take wildlife for a period of up to ten years.

After reviewing the language of the statute, the Court of Appeals found that the plain language of the phrase “[i]n addition to any other penalties prescribed by this title” does not explicitly authorize consecutive sanctions, but rather permits the sanctioning of an individual under multiple sections of the title for a single offense.  Moreover, to the extent that the language of the statute could be found ambiguous, the legislative history of § 17-340 reveals that the legislature originally included a clause granting the commission the authority to impose consecutive sanctions, but this authority was subsequently removed by amendments.  The Court of Appeals, therefore, found that § 17-340 does not provide the Commission with the authority to impose consecutive sanctions.

The Court rejected, however, the argument that the Commission lacked jurisdiction to sanction Anderson until he had completed the terms of his previous sanction.  The Court held that the plain language of § 17-340(B), providing that the Commission may revoke a person’s privilege to take wildlife “for a second conviction,” does not exempt from the Commission’s jurisdiction persons previously convicted who have not yet completed the terms of their sanction.  Additionally, the Court rejected Anderson’s assertion that because his licenses had already been revoked by previous conviction, the Commission lacked jurisdiction to revoke his licenses.  The Court noted that, although the Commission’s language may have been partially superfluous, § 17-340(A) clearly granted to the Commission the authority to revoke any licenses Anderson may have had.  In addition, the July 2008 order had the practical effect of revoking Anderson’s privilege to take wildlife for the remainder of the 10-year period.

Posted by: Christina Rubalcava 

Posted On: 12/1/2010