COLORADO COURT OF APPEALS                                       2016COA120


Court of Appeals No. 14CA2199
City and County of Denver District Court No. 13CV32393
Honorable Ross B.H. Buchanan, Judge


Bobby R. Farmer,

Plaintiff-Appellant,

v.

Colorado Parks & Wildlife Commission, Department of Natural Resources,
State of Colorado,

Defendant-Appellee.


                              ORDER REVERSED

                                  Division IV
                          Opinion by JUDGE HARRIS
                       Hawthorne and Román, JJ., concur

                          Announced August 25, 2016


Randy L. Brown, P.C., Randy L. Brown, Grand Junction, Colorado, for Plaintiff-
Appellant

Cynthia H. Coffman, Attorney General, Elaine J. Wizzard, Assistant Attorney
General, Denver, Colorado, for Defendant-Appellee
¶1    Bobby R. Farmer appeals from the decision of the Colorado

 Parks and Wildlife Commission (Commission) to suspend his

 wildlife license privileges for twenty years. Farmer contends that

 the Commission’s decision was arbitrary and capricious because it

 was not based on any standards designed to constrain the hearing

 officer’s unfettered discretion as to the duration of the suspension.

 We agree and therefore vacate Farmer’s suspension.

                           I.   Background

¶2    Farmer is a big game hunter and guide. In 2006, after

 working as a registered outfitter for more than fifteen years, Farmer

 allowed his Colorado outfitter’s license to lapse, though he

 continued to maintain the necessary permits to provide guiding

 services in Utah.

¶3    In 2008, the Division of Wildlife (DOW) received complaints

 from registered outfitters that Farmer was guiding hunts in

 Colorado without a license. DOW investigators initiated an

 investigation that spanned nearly three years and included

 undercover operations and interviews with numerous clients and

 associates of Farmer.




                                   1
¶4    In late 2011, Farmer was charged with six counts of illegal

 sale of big game wildlife in violation of section 33-6-113(2)(a), C.R.S.

 2015, a class five felony, for outfitting mountain lion hunts without

 the proper license. He subsequently pleaded guilty to count 1 of the

 complaint, which alleged that he had guided a mountain lion hunt

 for Justin Skalla on January 5, 2009. In exchange for his guilty

 plea, Farmer received a two-year (unsupervised) deferred judgment

 and sentence on the single count and the dismissal of the

 remaining counts. A condition of the deferred judgment agreement

 prohibited Farmer from engaging in hunting activities, including

 acting as a guide or outfitter, for two years.

¶5    Pursuant to section 33-6-113(2)(a), his guilty plea triggered an

 administrative hearing by the Commission to determine whether to

 suspend Farmer’s wildlife license privileges. Prior to the hearing,

 the hearing officer was provided with the DOW’s 300-page

 investigative file, which detailed the factual premise underlying all 6

 counts originally charged against Farmer. The hearing officer

 indicated that he had reviewed the file, and he asked Farmer a few

 questions based on the investigators’ reports. Though Farmer

 responded to the questions, his lawyer contended that the statute


                                    2
 permitted consideration only of the circumstances surrounding the

 offense of conviction, not of conduct charged but neither admitted

 to nor proven. Farmer then presented mitigating evidence related to

 the single count to which he had pleaded guilty.

¶6    After the hearing, Farmer received written notice that his

 hunting license had been suspended for twenty years. In his

 findings of fact, the hearing officer listed all six counts originally

 charged against Farmer and detailed the underlying facts. He

 further concluded that “[e]vidence in the state’s case report[]

 supports the fact that these violations did occur.” He explained the

 twenty-year suspension as follows:

            Mr. Farmer’s wildlife violation is considered
            serious in nature, and appears to represent
            deliberate and knowing unlawful conduct by
            the respondent[.] His offenses also appear to
            represent an intentional disregard for
            Colorado’s wildlife laws and regulations[.]
            Considering Mr. Farmer’s convictions in court,
            and in balancing his offenses, and the
            statutorily-authorized period of suspension
            available for his wildlife violation, pursuant to
            C.R.S. 33-6-113, a suspension period of 20-
            years of all of his privileges is warranted and
            ordered[.]

¶7    The hearing officer’s order included a list of “[p]revious cases

 involving Illegal Sale/Outfitting without Registration,” consisting of


                                     3
 thirteen names with corresponding suspension terms of between

 fifteen years and life. The hearing officer concluded that Farmer’s

 suspension term was proportional to those imposed on other

 similarly situated licensees.

¶8    Farmer appealed the hearing officer’s decision to the

 Commission. He argued that the hearing officer had erred in

 considering the unproven conduct and that the participating DOW

 investigator’s approval of the plea agreement, which called for a

 two-year prohibition on hunting activities, established that his case

 warranted a much shorter period of suspension.

¶9    The Commission affirmed the twenty-year suspension. Like

 the hearing officer’s order, the Commission’s decision listed each of

 the dismissed counts and an extensive factual basis for the charges.

 The Commission disputed that Farmer had pleaded guilty to any

 particular count of the complaint, suggesting instead that Farmer

 had agreed that a factual basis supported any of the violations, and

 further disputed that the hearing officer had considered any of the

 conduct underlying the dismissed charges. As explanation for its

 affirmance, the Commission stated:




                                   4
             Mr. Farmer’s wildlife-related misconduct is
             considered very serious in nature[.] His
             offenses reveal willful, deliberate and
             intentional wildlife-related criminal
             misconduct[.] Additionally, significant DOW
             and judicial resources were spent bringing this
             case to a conclusion[.] Such conclusion
             resulted in a criminal conviction against Mr.
             Farmer[.] These offenses considered together
             — and particularly with the law enforcement
             and judicial intervention — demonstrate by
             clear and convincing evidence an unacceptable
             pattern of knowing, flagrant and unlawful
             wildlife offenses which must be addressed.

¶ 10   The Commission’s decision included the hearing officer’s list of

  licensees and their suspension periods.

¶ 11   Farmer then initiated this action pursuant to section 24-4-

  106(7), C.R.S. 2015, for review of the agency’s decision. The district

  court affirmed.

                        II.   Standard of Review

¶ 12   Our review of a district court’s decision in a proceeding under

  the State Administrative Procedure Act (APA) is de novo. We sit in

  the same position as the district court and review the agency’s

  decision for abuse of discretion. Quercioli v. Colo. Dep’t of Nat. Res.,

  201 P.3d 1270, 1271 (Colo. App. 2008).




                                     5
¶ 13   We may set aside an agency’s decision when it abused its

  discretion or when the decision was arbitrary and capricious, based

  on findings of fact that were clearly erroneous, unsupported by

  substantial evidence, or otherwise contrary to law. § 24-4-106(7);

  Grand Cty. Bd. of Comm’rs v. Colo. Prop. Tax Adm’r, 2016 COA 2,

  ¶ 26. The agency’s findings of fact are entitled to deference unless

  they are unsupported by competent evidence or reflect a failure to

  abide by the statutory scheme. Grand Cty., ¶ 27.

            III.   Arbitrary and Capricious Agency Action

¶ 14   Farmer contends that he was deprived of due process because

  neither sections 33-6-106 and -113, C.R.S. 2015, nor any

  applicable regulations contain sufficient standards to constrain the

  Commission’s discretion in determining the length of his

  suspension. Although we do not consider this to be a due process

  issue, we agree that there were insufficient standards to guide the

  Commission’s decision, and thus conclude that it acted arbitrarily

  and capriciously when it suspended Farmer’s license.

                             A. Preservation

¶ 15   As an initial matter, the Commission contends that Farmer

  failed to preserve this issue for review because he did not raise it at


                                     6
  any point during his administrative hearing and he did not raise it

  in the district court until he filed his reply brief.

¶ 16   Ordinarily, an issue not raised before a hearing officer is

  waived. Chostner v. Colo. Water Quality Control Comm’n, 2013 COA

  111, ¶ 39. However, when the hearing officer has no authority to

  address the issue, it can be raised for the first time on appeal. See

  United Airlines v. Indus. Claim Appeals Office, 2013 COA 48, ¶ 27

  (because administrative law judge is not authorized to address

  constitutional issue, it need not be raised during administrative

  hearing); see also Clasby v. Klapper, 636 P.2d 682, 684 n.6 (Colo.

  1981) (“There was no need for the appellant to present his

  constitutional challenge to the board before raising that issue on

  appeal to the district court. Since the board could not rule on that

  claim, it would serve no purpose to impose such a requirement.”)

  (citations omitted). This is especially true when resolution of the

  issue does not require the hearing officer to make any factual

  determinations. See United Airlines, ¶ 29.

¶ 17   Farmer’s claim is that sections 33-6-106 and -113 do not

  provide sufficient standards to guide the hearing officer’s discretion.

  The hearing officer had no authority to address either the


                                       7
  constitutional or statutory merits of his argument. See Clasby, 636

  P.2d at 684 n.6. And this is a pure issue of law that requires no

  factfinding by the hearing officer. Thus, we may consider this issue

  even though it was not raised in the administrative hearing.

¶ 18      As for the argument that Farmer raised the issue for the first

  time in his reply brief in the district court, we note that the timing

  did not prejudice the Commission as the district court allowed the

  Commission to fully address the merits of Farmer’s argument in a

  surreply. On appeal, the Commission chose not to respond to

  Farmer’s due process argument, but we requested supplemental

  briefing. Therefore, the issue has been fully briefed in this court as

  well.

¶ 19      Farmer’s claim presents a pure issue of law, the parties have

  had an opportunity to brief the merits of the claim in the district

  court and on appeal, the factual record is sufficiently developed,

  and we would apply a de novo standard in any event. Under these

  circumstances, we will exercise our discretion to consider Farmer’s

  claim. See Grohn v. Sisters of Charity Health Servs. Colo., 960 P.2d

  722, 727 (Colo. App. 1998) (Issues raised in reply briefs are not

  properly preserved on appeal “where the opposing party was unable


                                      8
  to respond.”); see also United States v. Jarvis, 499 F.3d 1196, 1202

  (10th Cir. 2007) (a court can exercise discretion to address

  unpreserved issue of law where parties have briefed the issue).

             B. Statutory Scheme for License Suspensions

¶ 20   The Commission is a part of the Department of Natural

  Resources with authority to regulate the taking, possession, and

  use of wildlife. § 33-1-106, C.R.S. 2015. Pursuant to section 33-1-

  106(1)(e), the Commission may provide for the issuance of licenses

  for hunting, fishing, trapping, or possession of wildlife. And under

  section 33-6-106, and any rules and regulations adopted under

  articles 1 to 6 of title 33, the Commission may suspend or revoke

  such a license.

¶ 21   Section 33-6-106 creates a license suspension scheme similar

  to the point system of the Division of Motor Vehicles (DMV).

  Convictions for violations of wildlife laws result in points assessed

  against a person’s license; if a person accumulates twenty points

  within a five-year period, the Commission may suspend the

  person’s license for a period not to exceed five years. § 33-6-106(1).

  However, under section 33-6-113(2)(a), in lieu of any point




                                     9
  assessment, a person convicted of illegal sale of wildlife (big game)

  faces a license suspension of anywhere from one year to a lifetime.

¶ 22   Any person who is considered for suspension has a right to a

  hearing to show cause why his or her license should not be

  suspended. § 33-6-106(3). According to the Commission, the

  hearing is a nonadversarial proceeding, see Woodrow v. Wildlife

  Comm’n, 206 P.3d 835, 838 (Colo. App. 2009), where the licensee

  bears the burden of proof to show mitigating circumstances and to

  persuade the hearing officer that, in spite of the conviction or

  convictions, his or her license should not be suspended.

¶ 23   Finally, section 24-4-104, C.R.S. 2015, directs that “[e]very

  agency decision respecting the . . . suspension . . . of a license shall

  be based solely upon the stated criteria, terms, and purposes of the

  statute, or regulations promulgated thereunder, and case law

  interpreting such statutes and regulations pursuant to which the

  license is issued or required.” § 24-4-104(2).

             C. Sufficiency of the Commission’s Standards

¶ 24   Farmer contends that the lack of standards to guide the

  hearing officer’s decision constitutes a due process violation. While

  some courts have identified this issue as a procedural or


                                     10
  substantive due process problem, see, e.g., Elizondo v. State, Dep’t

  of Revenue, 194 Colo. 113, 117, 570 P.2d 518, 521 (1977); Cendant

  Corp. & Subsidiaries v. Dep’t of Revenue, 226 P.3d 1102, 1108

  (Colo. App. 2009), others frame it as an arbitrary and capricious

  exercise of authority prohibited by the APA. See, e.g., Feeney v.

  Colo. Ltd. Gaming Control Comm’n, 890 P.2d 173, 176-77 (Colo.

  App. 1994).1 Under either framework, the crux of the issue is that

  agency decision-making must demonstrate the use of sufficient

  standards to ensure rational and consistent results in individual

  agency actions. Zamarripa v. Q & T Food Stores, Inc., 929 P.2d

  1332, 1342 (Colo. 1997). While we conclude that Farmer’s claim is

  more appropriately analyzed under the statutory framework, the

  substance of the issue remains the lack of sufficient standards.

¶ 25   Everyone would agree that an administrative agency cannot

  validly engage in quasi-judicial decision-making without sufficient

  standards. Cottrell v. City & Cty. of Denver, 636 P.2d 703, 709

  (Colo. 1981); Squire Rest. & Lounge, Inc. v. City & Cty. of Denver,

  890 P.2d 164, 166 (Colo. App. 1994); see also State Farm Mut. Auto.

  1Other courts conceive of the problem as a violation of the
  nondelegation doctrine. See Cottrell v. City & Cty. of Denver, 636
  P.2d 703, 709 (Colo. 1981).  

                                    11
  Ins. Co. v. City of Lakewood, 788 P.2d 808, 816 (Colo. 1990).

  Sufficient standards are “necessary to give fair notice of the criteria

  to be used so that a case may be prepared, to ensure that all

  decision makers are using uniform criteria, and to provide a

  meaningful basis for judicial review.” State Farm, 788 P.2d at 816.

  Just as importantly, standards “protect against unnecessary and

  uncontrolled exercise of discretionary power.” Cottrell, 636 P.2d at

  709.

¶ 26     To determine whether there are sufficient standards to guide

  an agency’s discretion, “the appropriate analysis is to determine

  first whether sufficient statutory standards or safeguards exist to

  fulfill these functions. Second, if those standards and safeguards

  are inadequate, it must be determined whether additional

  administrative standards and safeguards accomplish the necessary

  protection from arbitrary action.” Id. at 709-10.

¶ 27     Under Cottrell, we begin the analysis by looking at the

  standards provided in the statutory provision which provides for the

  suspension, section 33-6-113. This statute, however, provides no

  standards. Rather, the statute merely provides that, upon

  conviction for the illegal sale of big game, “the commission may


                                     12
  suspend any or all wildlife license privileges of the person for a

  minimum of one year to life.” § 33-6-113(2)(a). There is no further

  statutory guidance on when a conviction warrants suspension or for

  how long.2

¶ 28   We look to the Commission’s rules and regulations to identify

  any applicable standards. But there are no regulations providing

  any standard for the suspension of wildlife license privileges.

  Although the Commission has general rulemaking authority, § 33-

  1-104(1), C.R.S. 2015, and the legislature has more specifically

  authorized the promulgation of rules related to licenses, § 33-1-

  106(1)(e), the Commission has not established any rules governing

  the suspension of wildlife privileges. Thus, under this scheme,

  neither the statute nor regulations provide standards to guide a



  2 In contrast, the statute does provide criteria for determining
  whether a suspension may be set aside before the term has expired.
  Under section 33-6-106(9)(a), C.R.S. 2015, a licensee may petition
  the Commission to end a suspension early. The Commission may
  end a suspension if (A) the person is unlikely to violate article 6
  again; (B) the person has not been convicted of or pleaded guilty or
  nolo contendere to any violation of articles 1-6 after the suspension
  was imposed; and (C) the suspension is the person’s first in
  Colorado. § 33-6-106(9)(c)(I). The Commission may also consider
  whether the person has been convicted of or pleaded guilty or nolo
  contendere to any misdemeanor or felony. § 33-6-106(9)(c)(II).

                                    13
  hearing officer’s determination whether to suspend a licensee’s

  wildlife privileges for one year or a lifetime.

¶ 29   In addressing Farmer’s claim that this lack of standards leads

  to arbitrary conduct, we find Elizondo v. Department of Revenue,

  194 Colo. 113, 570 P.2d 518 (1977), instructive. In Elizondo, the

  DMV had the authority to grant probationary driver’s licenses to

  drivers whose permanent licenses had been revoked. However, the

  statute contained no standards or constraints on the exercise of

  this power. And although the DMV was statutorily authorized to

  promulgate rules regulating the granting of probationary licenses, it

  had declined to exercise this authority.

¶ 30   Because neither the statute nor any regulations circumscribed

  the exercise of this power, hearing officers were afforded “unfettered

  discretion,” and thus the scheme provided no “assurance that each

  hearing officer will not, consciously or subconsciously, follow

  standards quite different from those applied by his or her

  colleagues.” Id. at 118, 570 P.2d at 521. The supreme court

  concluded that without any constraint on the hearing officers’

  discretion, “judicial review is a hollow gesture.” Id. Thus, to

  “reduce significantly the possibility that the decision process will be


                                      14
  arbitrary,” the court remanded for a new hearing and concluded

  that the DMV could not deny any request for a probationary license

  until it promulgated rules to guide the hearing officers’ discretion in

  the matter. Id. at 119, 570 P.2d at 522.

¶ 31   While we recognize that specific standards are not required,

  either the statute or administrative regulations must provide at

  least some guiding principle for an agency’s decision. See Douglas

  Cty. Bd. of Comm’rs v. Pub. Utils. Comm’n, 829 P.2d 1303, 1311

  (Colo. 1992) (distinguishing Elizondo to uphold agency’s broad

  discretion because statute required agency to make a finding of

  reasonableness and other statutes and regulations guided the

  agency’s determination of whether utility’s request was reasonable).

¶ 32   We are not persuaded by the Commission’s reliance on Kibler

  v. State, 718 P.2d 531 (Colo. 1986), or Douglas County Board of

  Commissioners v. Public Utilities Commission. In Kibler, the plaintiff

  claimed that a statute governing the revocation of a nursing license

  was unconstitutionally vague because it failed to sufficiently

  delineate the proscribed conduct and provide standards for the

  imposition of discipline. There, however, the statute proscribed a

  range of conduct and enumerated various penalties that could be


                                    15
  imposed based on the severity of the underlying conduct. Thus, as

  the court concluded, the statute appropriately provided the nursing

  board with the discretion to “address the varied degrees of

  culpability” associated with the listed misconduct. 718 P.2d at 535.

¶ 33   Here, in contrast, the statute only contemplates one type of

  misconduct, a conviction under section 33-6-113, yet the

  Commission is given unfettered discretion to impose a suspension

  for anywhere from one year to a lifetime. Unlike the statute in

  Kibler, the imposition of a suspension is not a matter of matching

  the more culpable conduct listed in the statute with a more severe

  penalty, but instead applying any term of suspension to the same

  underlying misconduct. Therefore, the reasoning in Kibler is not

  applicable to the statutory scheme at issue here.

¶ 34   And in Douglas County, although the Public Utilities

  Commission (PUC) had broad discretion to order “reasonable

  improvement[s],” the statute specifically required that the PUC

  make a finding of reasonableness before approving such

  improvements. 829 P.2d at 1312. The supreme court concluded

  that the reasonableness standard was sufficiently specific,

  particularly where other PUC rules and related statutes guided the


                                   16
  reasonableness inquiry. Id. at 1312-13. Again, unlike the statute

  at issue here, the statute upheld in Douglas County provided a

  standard to guide the agency’s discretion.

¶ 35   Section 24-4-104 requires that suspension of a license be

  based solely upon stated criteria, terms, and purposes of the

  statute or regulations promulgated to implement the statute. We

  discern no stated criteria or terms upon which the hearing officer

  could have based his decision to impose a twenty-year suspension

  of Farmer’s license.

¶ 36   The hearing officer and the Commission insist that they did

  not consider the unproven conduct described in the reports

  provided by the DOW investigators. Indeed, the Commission

  asserted that had the hearing officer considered the facts

  underlying the other charges, he would likely have imposed a

  lifetime suspension. Still, the hearing officer’s order and the

  Commission’s decision refer to “offenses,” “offenses taken together,”

  and a “pattern . . . of wildlife offenses,” which seem to suggest

  consideration of conduct beyond the one unlicensed hunt with

  Skalla in January 2009 that formed the basis of count 1 of the




                                    17
  complaint.3 Nevertheless, we take the hearing officer and the

  Commission at their word and assume that they considered only

  the facts surrounding Farmer’s offense of conviction.

¶ 37   But that assumption only raises additional questions about

  how the hearing officer arrived at a twenty-year suspension.

  Contrary to the Commission’s assertion that “inherent factors”

  provide sufficient guidance for determining the length of a

  suspension, we cannot discern what factors underlying Farmer’s

  misconduct contributed to his twenty-year suspension.

¶ 38   According to the DOW’s reports, Farmer donated a hunt to the

  Safari Club International, and Skalla paid the club $4500 for the

  hunt. Farmer and Skalla hunted in Utah for several days, but

  when the mountain lion they were tracking crossed the border, they




  3 Like the district court, we must take exception with the
  Commission’s finding that the “court’s disposition. . . does not
  appear to make reference to any single violation that Mr. Farmer
  committed.” The plea agreement and deferred sentencing
  stipulation both make clear that Farmer pleaded guilty to count 1 of
  the complaint (which referenced the Skalla hunt in January 2009)
  in exchange for the dismissal of all other counts. Farmer
  acknowledged that there was a factual basis to support his guilty
  plea to count 1, but he did not otherwise admit during the court
  proceedings to any violations of the statute.  

                                   18
  followed it and Skalla killed the animal in Colorado. Skalla tipped

  Farmer $400.

¶ 39   The Commission contends that factors such as the level of

  mens rea and whether the violation is a felony or a misdemeanor

  provide sufficient guidelines for imposing a license suspension. The

  hearing officer and the Commission justified Farmer’s long

  suspension on the ground that his violation represented “willful,

  deliberate and intentional wildlife-related criminal misconduct.”

  But the mens rea required for a violation of section 33-6-113 is

  knowing (willful), not intentional or deliberate. There may be cases

  — though this is not one of them (the facts underlying count 1 do

  not suggest that Farmer intentionally provided unauthorized guide

  services in Colorado) — where the facts establish a higher mens rea,

  but in general every licensee facing suspension will have engaged in

  willful criminal misconduct amounting to a felony offense.

  Accordingly, these factors could not be a useful guide for

  distinguishing among licensees based on degree of culpability.

¶ 40   The Commission also found relevant that significant DOW and

  judicial resources were expended in bringing the case to a

  conclusion. Setting aside whether the cost of prosecution is a


                                   19
  proper factor to consider in an aggravation analysis (one might

  reasonably worry that it would chill a defendant’s exercise of the

  right to trial), the record shows that Farmer pleaded guilty,

  resulting in an unsupervised deferred judgment and sentence.

  Imagining a less expensive resolution of a criminal case would be

  difficult.

¶ 41    Nor are we persuaded that the agency’s action, though guided

  by no standards or criteria, was not arbitrary because other,

  similarly situated licensees also received long suspensions. For one

  thing, the range of suspensions imposed on licensees who

  committed a single violation of the statute is quite broad: fifteen

  years in some cases, a lifetime suspension in others. In the

  absence of any further information about the licensees or the

  criteria used to distinguish among them, we are left to wonder why

  similarly situated licensees received different periods of suspension.

  Moreover, if a conviction for a single violation of section 33-6-

  113(1)(a) warrants in all cases a fifteen-year to life suspension, we

  must also wonder what conduct would merit a suspension of less

  than fifteen years. The legislature contemplated that suspensions

  under section 33-6-113 would range from one year to a lifetime.


                                    20
  The hearing officer’s decision to impose, in every case, a minimum

  suspension term of fifteen years for a single violation of the statute

  does not give complete effect to the legislature’s intent.

¶ 42   In sum, we are simply unable to determine how or why the

  hearing officer arrived at a twenty-year suspension term based on

  Farmer’s offense of conviction. The absence of any standards to

  guide the Commission’s discretion contravenes section 24-4-

  104(2)’s express directive that licensing decisions be based solely on

  stated criteria and hinders effective judicial review. At oral

  argument, the Commission insisted that its unfettered discretion to

  impose any term of suspension meant that a reviewing court would

  be obligated to affirm Farmer’s suspension under any

  circumstance, whether the suspension was for one year or a

  lifetime. That assertion proves the point: judicial review is a

  meaningless gesture without adequate constraints on a hearing

  officer’s discretion. Elizondo, 194 Colo. at 118, 570 P.2d at 521.

¶ 43   Thus, because neither the statute nor any applicable

  regulations provide sufficient standards to guide the agency’s

  suspension decision, we conclude that the Commission’s action in

  suspending Farmer’s license was arbitrary and capricious. See


                                     21
  Feeney, 890 P.2d at 177 (license revocation would be arbitrary

  without sufficient standards). Because there are no stated criteria

  governing the suspension decision, we reverse the decision of the

  district court and vacate Farmer’s suspension.

¶ 44   We decline to remand for a new hearing. In crafting a remedy,

  we seek to restore the parties to the status quo before the agency’s

  arbitrary and capricious conduct. See Hackett v. Xerox Corp. Long-

  Term Disability Income Plan, 315 F.3d 771, 776 (7th Cir. 2003).

  Here, Farmer’s license was suspended under defective procedures,

  so the status quo prior was no suspension; thus, any remedy must

  vacate the suspension. If we were to remand instead, although the

  hearing officer could adjust Farmer’s term of suspension, he could

  not find that the lack of standards was anything but arbitrary and

  capricious. Id. Accordingly, remanding to the hearing officer would

  not provide Farmer a complete remedy for the arbitrary and

  capricious suspension of his license under defective procedures.

  Id.; cf. Berge v. United States, 949 F. Supp. 2d 36, 42-43 (D.D.C.

  2013) (Court may “forego the futile gesture of remand to the agency”

  where there is only one appropriate outcome.).




                                   22
¶ 45   Though the Elizondo court remedied the DMV’s violation of

  due process by remanding for a new hearing that comported with

  due process standards, 194 Colo. at 119-20, 570 P.2d at 522-23,

  there, the status quo before the arbitrary and capricious agency

  action was that the claimant did not have a probationary license;

  thus, the appropriate remedy to correct the defective procedures

  was to provide the claimant with the proper procedures for

  obtaining a probationary license. Hackett, 315 F.3d at 776. Here,

  in contrast, Farmer already had wildlife privileges before the

  defective suspension proceedings, and thus those must be restored.

  Id. We express no opinion on whether the Commission could, after

  adopting appropriate standards to guide the hearing officer’s

  suspension decision, institute new suspension proceedings against

  Farmer.

                    IV.   Remaining Contentions

¶ 46   In light of our conclusion that the suspension was arbitrary

  and capricious, we need not resolve Farmer’s other contentions.

                           V.   Conclusion

¶ 47   We reverse the order of the district court and vacate Farmer’s

  suspension.


                                    23
JUDGE HAWTHORNE and JUDGE ROMÁN concur.




                     24
