Fickett v. Martin

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss, CIVIL ACTION

DOCKET NO, AP-09-l1

;V1 M(I{ -' PElv' ­ ~ ~;:] (' !~'

CHRISTOPHER \V.

FICKErI',

Petitioner,

v. DECISION & ORIlER ON

SOC APllEAL

RONALD D. MARTIN,

CO?vf!vlISSIONER, .MAINE

DEPARTMENT OF INLAND

FISHERIES AND \\tlLDLIFE

Respondent.

The matter before the Court is an appeal by the Petitioner, Christopher Vir", Fickett.

pursuant to 5 M,R.S. §§ 1100t-l 1008 and Rule 80C of the Maine Rules of Civil

Procedure, from a decision by the Respondent, Ronald D. Martin, Commissioner, Maine

Department of Inland Fisheries and Wildlife ("Commissioner"), revoking the any

privilege the Petitioner had to use, receive, or apply for licenses, permits or registrations

issued by the tv1aine Department ofInland Fisheries and \\lildlife ("IFWS"). flaying

reviewed the administrative record, the parties' tilings. and heard the parties' respective

arguments at hearing. a remand is necessary for rFWS to address the issues raised below.

BACKGROUND

On January 5. 2009. the Petitioner pled guilty to, and was convicted oC three

Class E criminal offenses \\7ith respect to unlavvful acts he perpetrated '"hile taking

beavers on Rocky Stream and Northern Stream near Township 18 ED BPP in

Washington County, f\/1ainc: 0) IIunting or Possessing an /\l1imal or Bird During a

Closed Season in violation of 12 MRS § 11201(1); (ii) Failure to VisiCrraps in

Unorganized Territory in violation of 12 MRS § ] 2255( 1)(B); and (iii) Closed Season

Trapping in violation of 12 i\1RS § 12251(3). [n addition, the Petitioner was also

convicted of a civil violation for Failure to Label Traps in violation of 12 i\,·1.R.S. §

12254(2)(A).

The Petitioner's convictions stem from an investigation conducted by the Maine

Warden Service that began \vhen Agent Wayde Carter received information from a local

trapper that someone had set beaver traps close to heaver houses in the \vaters of Rocky

Stream and Northern Stream in possible violation administrative rules promulgated by

the IFWS. See Me., Dep't of Inland Fish and Wildlife 09 137 CMR 004-4.01(K)

(proscribing the [FWS administrative regulations governing the placement and setting of

beaver traps). The Court adopts the facts as provided in the "arrest reports" of Agent

Carter and Agent David Simmons. (Administrative Record Tabs 3 and 4) [hereinafter

As a consequence of the criminal convictions, the Commissioner delivered a

letter, dated January 27, 2009, and mailed February 27, 2009, to the Petitioner informing

him that he was deemed a "habitual vioI3tor." ostensibly under 12 M.R.S. § 10605( 1)(A),

and therefore, subject to a mandatory three-year suspension of any privilege to use,

obtain. or apply f~)r any licenses, permits, or registrations issued by IF\\lS under 12

~,tR,S. § I 0902( 4)(C). The Petitioner. by and through his counsel, made a timely request

for an administrative hearing pursuant to 12 M.R.S. §§ 10902(4)(C)(1) and 10905. (R.T.

7.) 'rhe IFWS obliged the Petitioner's request and held an administrative hearing before

the IF\VS "Department Review Board"l on April 10, 2009. (R.T. 8.) The IF\VS "Revie'\v

Board" issued a ~lay 5, 2009 Decision, authored by Deputy Commissioner Paul F.

Jacques. upholding the three-year license revocation imposed by the Commissioner by

letter on February 27, 2009. (RI'. 9 at I.) The May 2009 Decision makes no mention of

the Commissioner's "habitual violator" determination under 12 M.RS. § 10605.

sul~jecting the Petitioner to a mandatory three-year license suspension under 12 tvt. R.S.

§ 10901 (4)(C), but instead analyzed the Petitioner's administrative appeal through the

lens of I2 ~1.R.S. §§ 7077 and 10902(1), which affords the Commissioner some measure

of discn.::tion in determining the length of administrative license suspensions following

criminal convictions and civil violations of state gaming lmvs. ft is this discrepancy,

among others, that compels the Court to remand the appeal back to the IF\VS f{)r

additional clarification.

STADARD OF REVIE\V

The Court's revie\v of Respondent's May 2009 administrative decision is

confined by a deferential standard. Agency rulings may only be reversed or modified on

SOC appeal upon a finding that the administrative ruling is: (1) in violation of

constitutional or statutory provisions; (2) in excess of the statutory authority of the

agency; (3) made upon unlawful procedure; (4) afTected by bias or by error of law; (5)

unsupported by substantial evidence on the \'\'hoIe record; or (6) arbitrary or capricious or

characterized by abuse of discretion. 5 M.R.S.A. § 11 007(4)(C)( 1)-(6); see af.\'o Seider v.

1 The Court made inquiry to counsel for the Commisioner about the statutory authority establishing the

IFWS "Review Board," None could be found in any statute or rule. At hearing, Respondent's counsel

assured the Court that the "Review Board" has a historical exist~~nce within the IFWS administrative

framework and regularly reviews deciSions of the Commissioner on an independent basis. As represented

by Respondent's counsel. the "Review Board" generally consists of Deputy Commissioner Jacques, a

IFWS Game \Varden. and a third employee from within IFWS not particularly responsible for enforcement,

such as a wildliCc biokgist. The Petitioner does not question the allt!liJrity of the IF\VS "Review Board"

and t.ht~ ('uurt l') ()ati.;nt;~d it Ser\:L~S its r~urposc HJHi rCSixmSlbh

Board olExaminers' ofEyaminers u!,P,sychulogists, 2000 ME 206,'18,695 l\.2d 552,

555 ("The standard of revievi [on ~f.K Ci v. P. 80C appeal} is limited to whether the

[governmental agencyl abused its discretion, committed an error of la\v, or made findings

not supported by substantial evidence in the record."') (internal quotation mark omitted)

(citation omitted).

The Petitioner principally challenges the "habitual violator" designation made by

the Commissioner under 12 M.R.S. § l0605. \Vhen reviewing an agency's interpretation

of a statute that is both administered by the agency and within the agency's expertise, the

initial inquiry is whether the statute is ambiguous or unanlbiguous. Competitive Energy

Sen's., LLe v. Pub. Ufils. Comm '11, 2003 ME 12, ~ 15, 818 A.2d 1039, 1046. If the

statute is unambiguous, it is interpreted according to its plain language. Arsenault v.

Sec:v ~lSfate, 2006 tvlE Ill, ~ 11,905 A,2d 285,288, If, instead, the statute is

ambiguous, the court ,vill "defer to the interpretation of the agency charged with its

administration, if the agency's interpretation is reasonable:' Id. (citation omitted). The

Petitioner has the burden of demonstrating that Commissioner's action \vas based on an

error of law'. Fryeburg Health Care Center v. Dep 'f (~lHuman Sen'. , 1999 ME 122, ~I 7,

734 A2d 1141. 1143.

DISCUSSION

The Petitioner primarily argues that the Court should vacate Commissioner's

initial three~year administrative license revocation-ostcnsibly made in reliance on the 12

1\LR.s. § 10605 '"habitual violator" designation referenced in the January 27, 2009

Iettcr--because the Petitioner's three Class E criminal convictions stem from a single

"incident": and the IFWS improperly vic\ved the 12 l\1.R.S. § ] 2254(2)(A) Failure to

Label Traps violation as a crilninal penalty as opposed to a civil violation.] It is assumed

that the Petitioner's argument on appeal reflects the narro\v scope of the admini strati ve

hearing offered the Petitioner pursuant to 12 ?\1.R.S. § 10902(4 )(C)(2). Notv,:ithstanding

the nature of the Petitioner's attack concerning the substantive grounds guiding the

Commissioner's initial license revocation and subsequent Decision, the Court finds

certain procedural issues in need of additional clarification.

The IFWS Review Board's decision is difficult to rectifY, when cross-referenced

with the Commissioner's initial January 27,2009 revocation notice, as to what exactly it

reviewed and on what basis the Commissioner revoked the Petitioner's license privileges.

The Cornrnissioner's initial letter to Petitioner appears to employ the "habitual violator"

provision provided by 12 M.R.S. § 10605( 1)(A) as the basis for imposing a mandatOl:V

three-year revocation of license privileges administered by the IFWS. (R:f. 5 at L)

Contrary to the "habitual violator" designation referenced in the January 2009

notification letter, however, the IF\VS Review Board's May 2009 Decision suggests the

Commissioner utilized 12 l\:f.R.S. § 10902( I) to effectuate the Petitioner's license

revocation, \vhich gives the Commissioner some measure of discretion in detennining the

suspension period for "any conviction or adjudication for a ,..iolation" of otTenses

embraced by Title 12.

,

-- Or, as Petitioner's, counsel framed it during the Court's hearing on the matter, a single "course of

conduct."

] The "habitual violator" designation will appty to any person whose record, as maintained by the IfWS,

shows that "[t]he person has been convicted of3 or more criminal violations under this Part within the

previous 5-year period, except that, whenever more than one criminal violation is committed at the same

time, multiple convictions are deemed to be one onense," 12 MJtS. § !O605(! )(A) (eruphasis added). The

Petitioner expends most orhis energy arguing tbat the coupled with filets as they

Un,ei<'DeU in ibis eilS\" entitles him to relid" under Ibis {See Pdr.'S l.kl-5J

The discrepancy has consequences that \vou!d necessarily extend to define the

scope of the Petitioner's LFWS adrninistrative hearing, especially when he believed the

Commissioner had revoked his license privileges based on a perceived "habitual violator"

status. See 12 M.R.S. § 10905(3) ("The commissioner may not \\aive or reduce a

mandatory minimum suspension period established by statute except upon determination

by the commissioner that an inappropriate action contributed to or resulted in that

suspension. "). It is important, on remand, for the [FWS to specify the \vhether it

predicated its review of the Petitioner's license revocation on the "habitual violator"

designation under 12 l'v1.R.S § 10902(4 )(C), or on 12 M.R.S § 10902(1), \\'hieh affords

the Commissioner some measure of discretion in af1ixing the Petitioner'S license

revoeation period.

While the Court reserves judgment on the substantive issue of whether the

petitioner is properly subject to a three-year license suspension, the Court questions the

Commissioner's statutory basis for imposing a mandalO/:V suspension based on the

Petitioner's alleged "habitual violator" status, The parties appear to agree that the

statutory provision at issue, 12 M.R,S, § 10902(4)(C), is "ambiguous." As a matter of

statutory interpretation, the plain text of the statute fails to support that position.

Section 10902(4)(C) provides, "[i]fa habitual violator ... is convicted or

adjudicated of any violation of this Part, the Commissioner shall revoke all licenses and

permits held by that person." Iii. 'fhe Court construes this language to mean that a

mandatory revocation can occur only ({tier a person who has aheady been c1assined as a

"habitual violator" is convicted or adjudicated of another Title 12 violation. rather than

imposing mandatory administrative sanction on a person who rnerdy qualifies as a

"habitual violator." , the Petitioner. although 1',.",.",,,. 0,~r\l,p','{'il "habitual

violator" status fi)f the purposes of future violations of Part 12, was not a "habitual

violator" at the time he committed the violations subject to this appeal, and therefore ,is

not subject to a manda/my three~year license revocation. 4 Arsenault, 2006 MI': 111, ~l 11,

905 A.2d at 288.

The Court is mindful that the neither the Commissioner nor the IFWS appear to

have conducted the proceedings to spite the Petitioner or unjustly deprive him oflicense

privileges, especially in light of the criminal violations the Petitioner admits to have

preceded the administrative revocation. However, the Court is hesitant to rule on the

Petitoner's substantive claims unless and until IFWS and the Commissioner first clarify

the issues raised above.

The entry is:

1. M.R. Civ. P. 80C appeal o1'tl1e Petitioner, Christopher W. Fickett, is

SUSTAINED. The matter is REMANDED to the Respondent, Roland D. ~'1artin,

Conunissioner, Maine Department of Inland Fisheries and Wildlife, lor

proceedings consistent with this Order.

2. 'fhis order is incorporated into the docket by reference pursuant

to M.R. Civ. P, 79(a).

Date: March ')...J .. 2010 .......-.j~------r"""--\---~~--,-_._----

l'v . I'vfichaela Mfi· .

Justice, Maine Superior Court

Order entered upon the docket on 4/7/10.

\ At hearing, Respondent's counsel provided the Court with a copy of New England fVafer Cl'llter, fllc v.

Dep 'f oflnfand Fisheries alld WildWe, 550 A.2d 56, 58-9 (Me. 1988), to support a claim Ihat because the

*

Petitioner failed to specil1cally raise the "plain language" ,u'gument concerning 12 f-,tRX I0902(4)(C),

he thus failed to preserve the issue for the purposes of his M.R. eiv, P. SOB appeal. See id. ("Issues not

raisc'd at the administrative level are: deemed ullpreserved fix appellate review:'). However, the Court's

decision ()n the merits \)fthat argument will a\,ait cbritkation from the CmmniS'ii<mer as required in tbis

Order,

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, ss. CIVIL ACTION

DOCKET NO. AP-09- I11

1· I, "1'- ,'\ r>' i "

j ~-' ..I ~ !

CHRISTOPHER W.

FICKETT,

Petitioner,

v. DECISION ON M.R. CIV.

P. SOC APPEAL

RONALD D. MARTIN,

COMMISSIONER, MAINE

DEPARTMENT OF INLAND

FISHERIES AND WILDLIFE

Respondent.

The matter before the Court is an appeal by the Petitioner, Christopher W. Fickett,

pursuant to 5 M.R.S. §§ 11001-11008 and Rule 80C of the Maine Rules of Civil

Procedure, from a decision by the Respondent, Ronald D. Martin, Commissioner, Maine

Department oflnland Fisheries and Wildlife ("Commissioner"), revoking the Petitioner's

privileges to use, receive, or apply for licenses, permits or registrations issued by the

Maine Department of Inland Fisheries and Wildlife ("IFWS") for a duration of three

years. Having reviewed the administrative record, the parties' filings, and the

Commissioner's supplemental decision, the Court denies the petitioner's appeal.

BACKGROUND

On May 26, 20 10, IFWS issued a supplemental decision to clarify the issues

raised by the Court in its previous order remanding this matter. See Fickett v. Martin,

BANSC-AP-09-ll (Me. Super Ct., Pen. Co, Mar. 29, 2010). From the May 2010

decision, the Court finds the following information pertinent to the final disposition of the

Petitioner's M.R. Civ. B. 80C appeal:

The Petitioner was charged with violating (i) 12 M.R.S. § 11201(1), Hunting or

Possessing an Animal or Bird During a Closed Season; (ii) 12 M.R.S. § 12251 (3), Closed

Season Trapping; and (iii) 12 M.R.S. § 12255(1)(B), Failure to Visit Traps in

Unorganized Territory. (Record at Tab 1) [hereinafter R. at 1'. _ _.] Investigating IFWS

game wardens also issued the petitioner a civil violation for Failure to Label Traps in

violation of 12 M.R.S. § 12254(2)(A). On January 5, 2009, the Petitioner pled guilty to,

and was convicted of, each of the aforementioned Class E criminal offenses.

Evident from the both the administrative record and IFWS's supplemental

decision, the citations stem from an investigation spearheaded by Officer Wayde Carter

beginning on November 2,2008, after a local trapper notified IFWS wardens of potential

illegal trapping activities along Rocky Stream and Northern Stream near Township 18

ED BPP in Washington County, Maine. (See R. at T. 2.) Officer Carter issued

summonses for each of the criminal violations while meeting with the Petitioner at his

1

residence in Clifton, Maine on December 19, 2009. (R. at 1'. 1.)

As a consequence of the criminal convictions, the Commissioner delivered a

letter, dated January 27, 2009,2 to the Petitioner informing him that the IWFS considered

him a "habitual violator," and therefore, subject to a mandatory three-year suspension of

any privilege to use, obtain, or apply for any licenses, permits, or registrations issued by

I Officer James Martin cited the petitioner for a civil violation of 12 M.R.S. § I 2254(2)(A), failure to label

traps, on November 6,2008. Apparent from the May 2010 supplemental decision, the civil violation issued

by Officer Martin has no bearing on petitioner's "habitual violator" designation. See 12 M.RS.

I0605( I)(A) (defining a "habitual violator" as a person "convicted on or more criminal violations [of

fish ing, gam ing, or trapping laws 1with in the previous 5-year period")

)

L The date of the letter appears to be a typographical error and should read "February 27, 2009."

2

IFWS under 12 M.R.S. § 10902(4)(C).3 The Petitioner, by and through his counsel, made

a timely request for an administrative hearing pursuant to 12 M.R.S. §§ 10902(4)(C)(l)

and 10905. (R.T. 7.) The IFWS obliged the Petitioner's request and held an

administrative hearing before the IFWS "Department Review Board" on April 10, 2009.

(R.T. 8.) The Review Board issued a May 5,2009 Decision, authored Deputy

Commissioner Paul F. Jacques, upholding the three-year license revocation imposed by

the Commissioner by letter on February 27, 2009. (R.T. 9 at 1.) The May 2009 Decision

failed to specify the basis for revoking the Petitioner's license privileges. Compare 12

M.R.S. §§ 10605(l)(A) (affording the Commissioner a level of discretion in affixing a

license revocation period) with 10901 (4)(C) (requiring a mandatory revocation of license

privileges of no less than 3 years); (R. at T. 9.) Subsequent to the Court's order on

remand, the IFWS Review Board provided the May 26, 2010, supplemental decision that

provided the factual and procedural clarifications necessary to complete appellate review.

STANDARD OF REVIEW

The Court's review of Respondent's May 2009 administrative decision is

confined by a deferential standard. Agency rulings may only be reversed or modified on

80C appeal upon a finding that the administrative ruling is: (1) in violation of

constitutional or statutory provisions; (2) in excess of the statutory authority of the

agency; (3) made upon unlawful procedure; (4) affected by bias or by error of law; (5)

unsupported by substantial evidence on the whole record; or (6) arbitrary or capricious or

characterized by abuse of discretion. 5 M.R.S.A. § 11 007(4)(C)( 1)--(6); see also Seider v.

Board olExaminers olExaminers ofPsychologists, 2000 ME 206, ~ 8, 695 A.2d 552,

3

555 (liThe standard of review [on M.R. Civ. P. 80C appeal] is limited to whether the

[governmental agency] abused its discretion, committed an error of law, or made findings

not supported by substantial evidence in the record.") (internal quotation mark omitted)

(citation omitted).

The Petitioner challenges the "habitual violator" designation made by the

Commissioner under 12 M.R.S. § 10605. When reviewing an agency's interpretation of a

statute that is both administered by the agency and within the agency's expertise, the

initial inquiry is whether the statute is ambiguous or unambiguous. Competitive Energy

Servs., LLev. Pub. Uti/s. Comm'n, 2003 ME 12, ~ 15,818 A.2d 1039,1046. If the

statute is unambiguous, it is interpreted according to its plain meaning. Arsenault v.

,)'ec Y ofState, 2006 ME 111, ~ 11, 905 A.2d 285, 288. If, instead, the statute contains

ambiguous language, the court will "defer to the interpretation of the agency charged

with its administration, if the agency's interpretation is reasonable." /d. (citation omitted).

The Petitioner has the burden of demonstrating that Commissioner's action was based on

an error of law. Fryeburg Health Care Center v. Dep 't ofHuman Serv., 1999 ME 122, ~

7, 734A.2d 1141,1143.

DISCUSSION

At this point in the litigation, the IFWS has clarified that the Petitioner's "habitual

violator" status stems from the three summonses issued by Officer Carter on December

19,2010. The Commissioner's initial decision, in part, created confusion as to how the

petitioner could be deemed a "habitual violator" within the ambit of 12 M.R.S. §

10605(1 )(A), and therefore subject to a mandatory three-year revocation of trapping

4­

privileges under 12 M.R.S. § 10902(4)(C), given the language of its May 5,2009,

decision:

Mr. Fickett was convicted of Hunt or Possess animal or

bird during closed season and closed season on trapping

violation on 10/3112008, failure to visit traps in

unorganized town on 1115/2008, and fail to label traps on

11/6/2008. These violations were all Class E offenses and,

by its' [sic] nature, show that Mr. Fickett acted with

willfulness, recklessness, and carelessness.

(R. at T. 9.) On remand, the IFWS Review Board provided the Court with a more detailed

explanation of its findings:

Based on the evidence presented [at the April 10, 2009,

hearing], the Review Board found that Mr. Fickett was

convicted on January 5, 2009 of a Class E offense of

Hunting or Possession of Wild Animals During Closed

Season (12 M.R.S. § 11201)(committed on November 14,

2008, when Mr. Fickett was found in possession of a

beaver illegally taken by hunting out of season); a Class E

offense of Trapping During Closed Season (12 M.R.S. §

12251 ) (committed on October 31, 2008 when Mr. Fickett

set traps during the closed season for beaver); and a Class E

offense for Failure to Tend Traps (12 M.R.S. § 12255)

(committed on November 5, 2008 when Mr. Fickett failed

to tend traps set on October 31, 2008 within five days as

required by law).

(IFWS Review Board May 26, 2010 Supplemental Decision at 2-3.)

There is no question that the petitioner committed three substantive criminal

offenses during the course of 1FWS' s investigation into illegal trapping activities along

Rocky Stream in the late fall of 2008. Officer Carter's report supports the IFWS Review

Board's finding that each of the Class E criminal violations occurred on distinctly

different occasions. (See R. at T. 2.) Consequently, petitioner's argument that the 12

M,R.S. § 11201 possession offense and the 12 M.R.S. § 12251 closed season trapping

5

offense were "committed at the same time," and therefore, constitute "one offense" for

the purposes of applying the habitual violator provision, fails to withstand analysis. See

12 M,R.S. § 10605 (noting that the criminal violations "committed at the same" time will

be deemed "one offense,,).4 Consequently, at the time of the Commissioner's January 27,

2009, notice of revocation, (R. at T. 5), the IFWS could properly characterize the

Petitioner as a habitual violator. See 12 M.R.S. § 10605(1)(A) (defining a "habitual

violator" as a person "convicted of 3 or more criminal violations . , . [of fishing, hunting

or trapping laws] within the previous 5 year period,")

The only outstanding issue remaining in this litigation is whether the IFWS

Review Board properly interpreted the mandatory revocation provision provided under

12 M.R.S. 10902(4)(C) in upholding the three-year revocation of the petitioner's license

privileges. The Law Court has advised that "issues not raised at the administrative level

are deemed unpreserved for appellate review." New England Whitewater Ctr" Inc. v.

Dep't ofInland Fisheries & Wildlife, 550 A.2d 56, 58, 60 (Me. 1988); but see Farley v.

Town of Washburn, 1997 ME 218, ~ 5, 704 A.2d 347, 349 (noting that a court may

consider issues "where there is a sufficient basis in the record to alert the court and any

opposing party to existence of the issue"). The record discloses that the Court, not the

Petitioner, raised the statutory interpretation issue discussed during the March 23, 2010

hearing on this matter. Aside from the petitioner's failed effort to raise, and therefore,

properly preserve the statutory interpretation issue raised by the Court, the benefit of

interpreting a statute ultimately inures to the agency charged with its administration and

4 The petitioner's argument appears to have originated from the fact that Officer Carter initially noted the

12 M .R.S, § I 1201 (I) possession vio lation and the 12 M.R,S. § 12251 (3) closed season trapping vio lation

to have both occurred "on or about October 31,2008," (R. at T. I.)

6

the Court finds the Commissioner's interpretation of 12 M.R.S. § 10902(4)(C) reasonable

under the circumstances of this case. Arsenault, 2006 ME Ill, ~ 11, 905 A.2d at 288.

The Court, in its preceding Order remanding this matter to the Commissioner,

intimated that the language of 12 M.R.S. § 10902(4)(C) could not be interpreted to mean

that a "mandatory" suspension necessarily follows from conviction of three violations

without evidence of an additional conviction or adjudication of fishing, hunting, or

trapping laws. See Fickett, BANSC-AP-09-11, *6-*7; 12 M.R.S. § I0902(4)(C) ("If a

habitual offender, as defined in section 10605, subsection I, is convicted or adjudicated

of a [fishing, hunting or trapping] violation .... [t]hat person is ineligible to have a

license for a period ... [of] 3 years from the date of revocation."). Despite the Court's

initial impression of 12 M.R.S. § 10902(4)(C), the Court now construes this provision to

be ambiguous as to whether a person deemed a "habitual violator" must perpetrate, and

be convicted of, an additional fishing, hunting, or trapping violation before the

Commissioner may employ a three-year license revocation, or whether, as is the case

here, the Commissioner may use the three violations that constituted the substantive basis

for a "habitual violator" designation as the trigger-point for a "mandatory" license

revocation. The Commissioner has adopted the latter view consistent with IFWS' s

general mandate to "preserve, protect, and enhance the inland fisheries and wildlife

resources of this State," 12 M.R.S. § 10051, and that effort invariably includes denying

permits to those people who habitually violate the gaming laws. (See IFWS Review

Board May 26, 20 I0 Supplemental Decision at 3.) Insofar as the mandatory revocation

provision contained in 12 M.R.S. § 10902(4)(C) does not prohibit the Commissioner

from imposing a three-year license revocation in the case where a licensee has been

7

convicted of "3 or more criminal violations" and has thereby achieved habitual violator

status in a relatively short period of time, the Court finds the Commissioner's imposition

of a mandatory license revocation reasonable and entitled to deference for the purposes of

appellate review. Arsenault, 2006 ME III, ,r II, 905 A.2d at 288; see also S. D. Warren

Co. v. Bd. Of Envtl. Prot., 2005 ME 27, ~~ 4-5,868 A.2d 210,213-14.

The entry is:

I. The Petitioner's, Christopher W. Fickett, M.R. Civ. P. 80C appeal is DENIED.

2. This order is incorporated into the docket by reference pursuant

to M.R. Civ. P. 79(a).

Date: August .~, 2010 ~ ... '" ~_.

M~~~M~~i~~'-----

-

Justice, Maine Superior Court

8

Date Filed 6/10109 Penobscot Docket No. AP-2009-11

County

Action Rule BOC Appeal

ASSIGNED TO JUSTICE MICHAELA M. MURPHY

CHRISTOPHER FICKETT MAINE DEPARTMENT OF INLAND FISHERIES

vs. AND WILDLIFE

Plaintiff's Attorney Defendant's Attorney

MATTHEW ERICKSON. ESQ. Mark A. Randlett, Assistant Attorney Genera

-p-O-BOr15'82 6 State House Station

-B~R-~-04402=015'82 Augusta. Maine 04333-0006

POBOX 3370

BREWER ME 04412

Date of

Entry