Gray v. N.D. Game and Fish Dept.
David B. Gray, Plaintiff and Appellant
North Dakota Game and Fish
Dept., Defendant and Appellee
South Central Judicial District,
Judge Bruce A. Romanick
|Nature of Action:||Administrative Proceeding|
|Term:||09/2005  Argument: 09/09/2005|
|ND cite:||2005 ND 204|
706 N.W.2d 614
Listen to recording of oral argument in MP3 format
Appellant's Statement of the Issues:|
1. Appellant contends NDG&F violates the Constitution of the United States Art I sec 10 clause 3 by entering a wildlife violators compact with other states without first obtaining congressional approval. Usurpation of power.
2. Appellant contends that NDG&F having entered a compact does not have authority under Title 4 Sec. 112 to impose reciprocal punishments or judgements on citizens. Usurpation of power.
3. Does ND in fact enter a Confederation of Game and Fish Departments which is flat out forbidden by US Constitution Art 1 Sec 10 clause 1 which congress is not even allowed to approve of.
4. Should the NDG&F be allowed to violate the constitutional rights of the appellant by suspending his hunting privileges and depriving appellant his property with out due process of law. Why at least hasn't licence money been refunded?
5. Should the NDG&F be allowed to violate the constitutional rights of the appellant by requiring appellant to answer for a crime for which he already answered. i.e. commit double jeopardy on appellant.
6. Appellant contends he was outside the jurisdiction of ND when the event occurred and was not subject to any ND statues at that time. Ex po facto law.
7. Does NDG&F use an unconstitutional law as it abridges the privileges and immunities of the appellant as a citizen of the United States.
8. Should the NDG&F be allowed to interpret and applied a law unconstitutionally as it is unequal in protection and is arbitrary and capricious.
9. Does the NDG&F use an unconstitutional law as there is no presumption of innocence.
10. Does the NDG&F use an unconstitutional law as the appellant is denied a vigorous defense.
11. Does the NDG&F uses an unconstitutional law as it is unfair and unclear(charge) as to what the criminal behavior is. Overbroad and vague.
12. Does NDG&F abuse it's discretion to suspend under NDCC 20.1-16 as a conviction is required and by definition NDG&F does not have one.
13. Does NDG&F abuse it's discretion to suspend under NDCC 20.1-16 as the laws in Wyoming and North Dakota are dissimilar, making the action not in accordance with the law.
14. Dropped no merit
15. Appellant contends NDG&F imposes another punishment. The Wyoming suspension only punishes appellant for two years. NDG&F suspension punishes appellant for over twenty years. And punishes appellant's minor children and adult family members for 2yrs. NDG&F imposes another judgement on top of the Wyoming crime, double jeopardy. Multiple punishments.
16. The evidence submitted by the NDG&F unwittingly shows the Wyoming conviction was obtained illegally i.e. a bait and switch. Therefore the conviction is not entitled to full faith and credit. Interestingly this is evidence and a defense that appellant was not allowed to submit and argue at the hearing . If not for the NDG&F it would not be part of the record.
17. The NDG&F has a hearing with the OAH (office of administrative hearings) and where at severely restricts appellant's evidence and arguments. The rules of the agency in conjunction with the law did not afford appellant a fair hearing.
18. Appellant contends NDG&F has no court order and usurps judicial power of the courts in suspending licences.
19. Appellant contends that the law contains the word (may). As in "may suspend" therefore the NDG&F abuses discretion in suspending licences in this case. NDG&F is not in accordance with legislative intent or the law.
20. Appellant contends NDG&F should not be allowed to suspend as that is contrary to NDCC 20.1-0 1-26.
Appellee's Statement of the Issues:
I. Whether the Director's factual findings that Gray trespassed on lands in Wyoming posted with "No Trespassing" and "No Hunting" signs are supported by a preponderance of evidence, therefore supporting the Department's decision to suspend Gray's North Dakota hunting privilege pursuant to the Interstate Violators Compact, N.D.C.C. chapter 20.1-16.
II. Whether the conviction of trespass to hunt in Wyoming is sufficient to suspend Gray's North Dakota hunting privilege under N.D.C.C. chapter 20.1-16 although the precise elements of trespass to hunt in Wyoming and North Dakota differ.
III. Whether Gray has stated a constitutional claim for relief.
|Add Docket 20050103 RSS|
|1||03/24/2005 NOTICE OF APPEAL: 03/23/2005|
|2||05/02/2005 APPELLANT BRIEF|
|3||05/02/2005 APPELLANT APPENDIX|
|4||05/02/2005 DISK NONCOMPLIANCE (ATB) (scanned)|
|5||05/04/2005 RECORD ON APPEAL & Game & Fish Dept.'s Certificate of Record to the District Court|
|6||05/09/2005 DISK (e-mailed) TRA dated 10-27-04|
|7||05/31/2005 APPELLEE BRIEF|
|8||05/31/2005 DISK (e-mailed) - AEB|
|9||05/31/2005 APPELLEE APPENDIX|
|10||09/02/2005 Request for Radio/TV Coverage (ND Public Radio) (Authorized)|
|11||09/09/2005 APPEARANCES: David B. Gray; Dean J. Haas|
|12||09/09/2005 ARGUED: Gray; Haas|
|13||09/09/2005 ORAL ARGUMENT WEBCAST|
|14||11/29/2005 DISPOSITION: AFFIRMED|
|15||11/29/2005 UNANIMOUS OPINION: Sandstrom, Dale V.|
|16||11/29/2005 (CONCURRING SPECIALLY): VandeWalle, Gerald W.: CONCUR|
|17||11/29/2005 Costs on appeal taxed in favor of appellee|
|18||11/30/2005 Judgment Mailed to Parties|
|19||12/13/2005 PETITION FOR REHEARING|
|20||12/13/2005 Appendix to Pet/Rehearing|
|21||12/13/2005 DISK NONCOMPLIANCE (per)(see DNC entry for ATB) (scanned)|
|22||12/20/2005 ACTION BY SUPREME COURT (Pet/Rehearing). Denied|
|24||01/17/2006 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE|
|25||11/01/2012 EXPUNGED - Nonpermanent record items destroyed|