                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1689
                              Filed August 16, 2017


ROBERT J. SCHULTZ,
    Plaintiff-Appellant,

vs.

IOWA DEPARTMENT OF NATURAL RESOURCES,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Lucas County, David L.

Christensen (first petition) and Terry Rickers (second petition), Judges.



      Plaintiff appeals the district court opinion affirming the agency’s decision

denying his request for a resident hunting license. AFFIRMED.




      Verle W. Norris, Corydon, for appellant.

      Thomas J. Miller, Attorney General, and David L. Dorff, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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BOWER, Judge.

      Robert Schultz appeals the district court opinion affirming the agency’s

decision denying his request for a resident hunting license. We find the agency

properly applied the law after the case was remanded back to the agency by the

district court. The agency’s decision is supported by substantial evidence. Other

issues raised on appeal have not been preserved for our review. We affirm the

district court’s opinion affirming the agency’s ruling Schultz was not entitled to a

resident hunting license.

      I.      Background Facts & Proceedings

      Schultz purchased a resident hunting license in Iowa for several years

prior to 2010. In 2009, the legislature amended the residency requirements for

fishing and hunting licenses.    See 2009 Iowa Acts ch. 144, §§ 34, 35.           A

conservation officer noticed Schultz was at a trailer on his father’s property only

on weekends or during hunting season, and this raised “red flags” about his

residency in Iowa.

      The Iowa Department of Natural Resources (DNR) sent Schultz a letter

requesting information about his residency status. Schultz responded he was

employed in Medina, Minnesota; he did not receive mail in Iowa; he did not pay

any utility bills, as his father paid them; he considered his father’s home in

Chariton, Iowa, to be his residence; and he had no vehicles registered in Iowa.

The DNR additionally determined Schultz listed a Minnesota address on his tax

returns, he paid property taxes in Iowa, his job in Minnesota was a five-hour drive

from Chariton, and Schultz did not own a vehicle—he either drove a company

vehicle or his father’s vehicle. In June 2010, the DNR informed Schultz “the
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totality of the circumstances indicate that Mr. Schultz was claiming Iowa

residence solely for hunting purposes,” and he therefore, did not meet the

residency requirements found in Iowa Code section 483A.1A(10)(a) (2010).

       Schultz appealed the agency’s decision.             A hearing before an

administrative law judge (ALJ) was held on May 27, 2011. During the hearing,

evidence was presented to show Schultz had both Iowa and Minnesota driver’s

licenses.   The ALJ noted under section 483A.2, a person cannot obtain a

resident hunting license if the person claims any resident privileges in another

state. The ALJ determined Schultz had claimed resident privileges in Minnesota

by obtaining a driver’s license there and so could not be considered a resident of

Iowa for purposes of obtaining a hunting license. The DNR affirmed the ALJ’s

decision.

       Schultz filed a petition for judicial review (CVCV032267). The district court

entered a decision on December 6, 2012, making the following rulings: (1) the

2009 amendments to section 483A.1A did not operate retroactively; (2) Schultz

was required to meet current residency requirements; (3) the statute was not void

for vagueness; (4) the statute did not violate the Privileges and Immunities

Clause; (5) the statute did not violate the Equal Protection Clause; (6) the statute

did not violate the Due Process Clause; and (7) Schultz had the burden of proof

to show he was a resident of Iowa. The court determined a Minnesota driver’s

license was not a resident privilege of Minnesota and the DNR should not have

based its decision on section 483A.2. The court also determined the ALJ should

not have made an adverse inference because Schultz did not specify how much
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time he spent in Iowa.     The court reversed the decision of the DNR and

remanded for further proceedings.

      The ALJ held a hearing on remand on June 27, 2013. No new evidence

was presented, and the hearing consisted solely of legal arguments. Looking at

the evidence previously submitted, the ALJ concluded:

             In light of the paucity of relevant evidence produced by
      Schultz, and the other evidence submitted by the department
      showing Schultz’s extensive physical and legal ties to the state of
      Minnesota, I must conclude that Schultz has not carried his burden
      of proof to establish that he is a resident of the State of Iowa for
      purposes of enjoying resident hunting privileges. Accordingly, the
      department’s decision must be affirmed.

The DNR affirmed the decision of the ALJ.

      Schultz filed a new petition for judicial review (CVCV032487) on

November 8, 2013.     The official agency record from the remand was never

transmitted to the district court. Schultz filed a report stating he had not been

able to obtain the complete agency record from the DNR but he submitted the

record from CVCV032267 and his copies of the proceedings on remand.

      The district court found the earlier decision on judicial review affirmed

parts of the DNR decision. The court stated the ALJ “then confined his decision

on remand to the issues of Schultz’s driver’s license, the usage of an adverse

inference, and substantial evidence,” and concluded these were the only issues

properly before the court. The court concluded there was substantial evidence in

the record to support the DNR’s decision finding Schultz was not a resident of

Iowa within the meaning of section 483A.1A(10)(a).       The court affirmed the

decision of the DNR. Schultz now appeals the decision in CVCV032487.
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       II.    Agency Records

       On its own motion, the Iowa Supreme Court noted pursuant to Iowa Code

section 17A.19(6), the original or a certified copy of the entire agency record

must be transmitted to the district court upon the filing of a judicial review petition

in a contested case. The supreme court pointed out it had previously held the

absence of an agency record in the district court left it unable to reach the merits

of the case and such a deficiency required summary affirmance of the district

court’s decision. Alvarez v. IBP, Inc., 696 N.W.2d 1, 3-4 (Iowa 2005). The court

asked the parties to submit statements concerning the lack of the agency record

in this case and to address whether summary affirmance was warranted. The

issue was ordered to be submitted with the appeal.

       Schultz stated he asked the DNR to transmit the agency record to the

district court but the DNR was unable to locate the records. Schultz stated he

asked the DNR to transmit the agency record in CVCV032267 to the district court

and he submitted his own copies of the proceedings on remand, so the record

was substantially complete. The DNR agreed it had not fulfilled its duties under

section 17A.19(6) to transmit the agency record to the district court but stated the

district court had before it everything necessary to rule on the petition for judicial

review. The DNR stated summary affirmance would be unjust in this case.

       The Iowa Supreme Court has stated, “While transmission of less than the

full agency record would not necessarily mandate dismissal of an appeal, there

must at least be substantial compliance with the law requiring such transmittal

and a showing of no prejudice.” Id. at 4. We conclude there was substantial

compliance with the requirement in section 17A.19(6) to transmit the agency
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record to the district court. The district court had a certified record of all of the

proceedings in CVCV032267, when the case was remanded back to the DNR.

No additional evidence was taken during the hearing on remand, and Schultz

provided the district court with his copies of the remand proceedings.

Furthermore, neither of the parties is claiming prejudice, as both ask for the

appeal to proceed on the current record. We conclude summary affirmance

would not be appropriate here.

       III.   Decision on Remand

       A.     Schultz claims the ALJ did not follow the directives of the district

court in the remand decision. In the ALJ’s first decision, the ALJ stated, “I find

dispositive to the ultimate issue the parties’ stipulation that Schultz holds both

Iowa and Minnesota driver’s licenses.” The first decision was based on the ALJ’s

application of section 483A.2. The court’s ruling on the first petition for judicial

review stated,

               The ALJ’s determination that a driver’s license is a resident
       privilege of Minnesota was incorrect. . . . While Petitioner should
       not have held two driver’s licenses under the laws of each state, the
       fact that he held a Minnesota Driver’s license did not make him a
       resident of the state. The ALJ should not have found that “the
       appellant holds a privilege of residence in another state” because
       he held a Minnesota driver’s license, and his reliance on that fact to
       find him statutorily ineligible for resident hunting privileges in Iowa
       was in error. It should not have been a fact in his determination.

       The district court’s decision became the law of the case on remand. See

State ex rel. Goettsch v. Diacide Distribs., Inc., 596 N.W.2d 532, 537 (Iowa

1999). “The doctrine of the law of the case represents the practice of courts to

refuse to reconsider what has once been decided.” State v. Grosvenor, 402

N.W.2d 402, 405 (Iowa 1987). “It is a rule which provides that the legal principles
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announced and the views expressed by a reviewing court in an opinion, right or

wrong, are binding throughout further progress of the case upon the litigants, the

trial court and this court in later appeals.” Id.

       In the remand decision, the ALJ improperly stated he believed “this was

an erroneous conclusion by the district court.”       Whether the district court’s

decision was right or wrong, it still must be followed on remand. See id. The ALJ

did not rely on this factor alone, however, but noted several other factors, as well

as Schultz’s Minnesota driver’s license, to reach the conclusion Schultz was not

a resident of Iowa for purposes of chapter 483A. In the ruling on the second

petition for judicial review, the court found the consideration of the Minnesota

driver’s license as one factor among many was not an erroneous application of

law.

       The Iowa Supreme Court has stated chapter 483A “provides a list of

nonexclusive factors to consider in determining whether a person has a ‘principle

and primary residence or domicile’ in Iowa.” Democko v. Iowa Dep’t of Nat. Res.,

840 N.W.2d 281, 288 (Iowa 2013). On remand, rather than relying upon the

Minnesota driver’s license as the dispositive factor to determine residency under

section 483A.2, the ALJ considered it as one factor in a list of nonexclusive

factors under section 483A.1A(9), defining “principal and primary residence or

domicile,” and section 483A.1A(10)(a), defining “resident.” We conclude the ALJ

did not make an erroneous interpretation of the law.              See Iowa Code

§ 17A.19(10)(c).

       B.     Schultz claims the ALJ continued to draw an adverse inference

from the fact he did not testify at the first administrative hearing, contrary to the
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ruling on the first petition for judicial review. The first decision by the ALJ noted

Schultz had the burden of proof to establish he met the requisites for a resident

hunting license. The ALJ stated it would have been helpful to have information

about the amount of time Schultz spent in Iowa versus Minnesota and noted

Schultz did not testify at the hearing, where this issue could have been raised.

The ALJ stated he could have made an adverse inference based on the lack of

information provided by Schultz on the issue. In the ruling on the first petition for

judicial review, the district court stated the ALJ was not entitled to draw an

adverse inference against Schultz on this issue because Schultz answered

questions in an interrogatory, “although not as thoroughly as the agency might

have liked.”

       On remand, the ALJ did not use the term “adverse inference.” The ALJ

again noted Schultz had the burden of proof and did not present evidence on the

amount of time he spent in Iowa. The ALJ did not make any inferences based on

Schultz’s lack of evidence on this issue but found Schultz failed to meet his

burden of proof. In the ruling on the second petition for judicial review, the district

court stated the ALJ’s decision “was based on relevant evidence submitted by

Schultz and stipulated to by both Schultz and the DNR. His remand decision

was not influenced by an adverse inference like his initial decision.”             We

conclude the ALJ did not make an erroneous application of the law on this issue.

       IV.     Sufficiency of the Evidence

       Schultz claims the decision finding he was not entitled to a resident

hunting license is not supported by substantial evidence. Schultz states there

was not sufficient evidence in the record to support the agency’s decision finding
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he did not meet the definition of a resident found in section 483A.1A(10)(a). He

claims the evidence showed he was a resident of Iowa.           We will uphold an

agency’s factual findings if they are supported by substantial evidence in the

record. Iowa Code § 17A.19(10)(f).

       Section 483.1A(10)(a) provides a “resident” is a person who:

               Has physically resided in this state as the person’s principal
       and primary residence or domicile for a period of not less than
       ninety consecutive days immediately before applying for or
       purchasing a resident license, tag, or permit under this chapter and
       has been issued an Iowa driver’s license or an Iowa nonoperator’s
       identification card. A person is not considered a resident under this
       paragraph if the person is residing in the state only for a special or
       temporary purpose including but not limited to engaging in hunting,
       fishing, or trapping.

The phrase “[p]rincipal and primary residence or domicile” is defined as:

       the one and only place where a person has a true, fixed, and
       permanent home, and to where, whenever the person is briefly and
       temporarily absent, the person intends to return. Relevant factors
       in determining a person’s principal and primary residence or
       domicile include but are not limited to proof of place of employment,
       mailing address, utility records, land ownership records, vehicle
       registration, and address listed on the person’s state and federal
       income tax returns. A person shall submit documentation to
       establish the person’s principal and primary residence or domicile
       to the department or its designee upon request. The department or
       its designee shall keep confidential any document received
       pursuant to such a request if the document is required to be kept
       confidential by state or federal law.

       In determining whether a person is a resident having a principal and

primary residence in Iowa, the statute contains “a nonexclusive list of factors, and

thus requires the use of a multifactor, totality-of-the-circumstances approach.”

Democko, 840 N.W.2d at 290. On remand, the ALJ considered the following

factors in determining Schultz was not a resident of Iowa: (1) he listed a

Minnesota address on his tax returns; (2) he worked in Medina, Minnesota, which
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was a five-hour drive from Chariton, Iowa; (3) he held a Minnesota driver’s

license; and (4) his Minnesota address was used on some bills. While there was

also evidence showing Schultz’s ties to Iowa—he paid property taxes in Iowa, he

had an Iowa driver’s license, and he received mail at his parents’ address in

Chariton, Iowa—the ALJ could properly conclude Schultz had “extensive physical

and legal ties to the state of Minnesota.” These extensive ties to Minnesota

showed Iowa was not the one and only place where Schultz had his principal and

primary residence. See Iowa Code § 483A.1A(9).

      “Substantial evidence supports an agency's decision even if the

interpretation of the evidence may be open to a fair difference of opinion.” Gits

Mfg. Co. v. Frank, 855 N.W.2d 195, 197 (Iowa 2014). “Accordingly, the district

court and the appellate court should not consider the evidence insubstantial

merely because the court may draw different conclusions from the record.” Id.

We determine the agency’s conclusion Schultz was not a resident of Iowa, as the

term is defined in section 483A.1A(10)(a), is supported by substantial evidence.

      V.     Other Issues

      On appeal, Schultz raises other issues.         He claims: (1) the 2009

amendments to section 483A.1A are void for vagueness; (2) the agency

improperly applied the 2009 amendments retroactively; (3) the Iowa Savings

Statute precludes retroactive application of the amended statutes; and (4) the

agency improperly determined he had the burden of proof to establish residency.
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       Schultz’s notice of appeal was filed in CVCV032487.1 The district court’s

decision in CVCV032487 stated:

       In particular, [the district court on the first petition] held that the
       2009 amendments to Iowa Code Section 483A.1A do not operate
       retroactively; that the Iowa savings statute does not operate to
       preclude the DNR from requiring Schultz to meet residency
       requirements; that the amended residency law is not void for
       vagueness; that the amended statute does not violate the
       Privileges and Immunities Clause, the Equal Protection Clause, or
       the Due Process Clause; and that the administrative tribunal did not
       err in holding that Schultz had the burden of proof.
               However, [the district court] reversed [the] ALJ with respect
       to [the] ALJ’s consideration of Schultz’s Minnesota driver’s license;
       his adverse inference relating to Schultz’s reluctance to provide
       additional information; that [the] ALJ erroneously applied applicable
       law and regulations; and the decision was not supported by
       substantial evidence.
               [The] ALJ then confined his decision on remand to the
       issues of Schultz’s driver’s license, the usage of an adverse
       inference, and substantial evidence. Accordingly, [the district court]
       did not issue a general remand and those affirmed issues are not
       subject to further review.

       “It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “When a district

court fails to rule on an issue properly raised by a party, the party who raised the

issue must file a motion requesting a ruling in order to preserve error for appeal.”

Id. Here, Schultz did not file a motion requesting the district court to enter a

ruling in CVCV032487 on the additional issues he now wishes to raise on appeal.

We conclude Schultz has not preserved error on these issues, and we do not

address them. See id. at 541.

1
     Schultz’s statement addressing the question about the agency record raised by the
Iowa Supreme Court states this case involves an appeal of two separate decisions and
lists both case numbers, but the record does not show a notice of appeal was filed in
CVCV032267.
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      We affirm the district court’s opinion affirming the agency’s ruling Schultz

was not entitled to a resident hunting license under chapter 483A.

      AFFIRMED.
