2 NICS App. 149, Ames v. Hoopa Valley Tribal Council (November 1991)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

David Dale Ames v. Hoopa Valley Tribal Council and Hoopa Valley Department of Public Safety

No. C-90-026 (November 14, 1991)

SUMMARY

David Ames was discharged from his position as a Hoopa Valley law enforcement officer on grounds he had withheld criminal information about his brother's illegal killing of an elk. The Hoopa Valley Tribal Court upheld Ames' discharge, finding that the charge of withholding criminal information was justified.

The Court of Appeals reversed. The appellate panel found there was not substantial evidence in the record to justify the trial court's finding that Ames had withheld criminal information. Furthermore, the panel concluded that officials in the Hoopa Valley Department of Public Safety, as well as Ames' own family, had conspired to keep Ames from finding out about the illegal killing. The court therefore entered an order that Ames be reinstated as a law enforcement officer and that he be awarded back pay.

FULL TEXT

Before:

Chief Justice Rosemary J. Irvin, Associate Justice Calvin E. Gantenbein, and Associate Justice John L. Roe.

MEMORANDUM OPINION AND ORDER

GANTENBEIN and ROE, Associate Justices:

This matter was heard by the Hoopa Valley Court of Appeals and concerned an order of the Hoopa Valley Tribal Court upholding appellant David Ames' discharge as a Hoopa Valley law enforcement officer. The trial court had found that the evidence did not support the charge that the appellant, hereafter referred to as Ames, had filed a false report in violation of Section 14:20 of the Hoopa Valley Department of Public Safety's General Order Manual. However, the trial court upheld Ames' discharge on the grounds that he had withheld criminal information in violation of Section 14:21 of the Manual.

2 NICS App. 149, Ames v. Hoopa Valley Tribal Council (November 1991) p. 150

The sole question to be determined by the Court of Appeals is whether there was substantial evidence to support Ames' discharge on the grounds of withholding criminal information.

The Court of Appeals heard arguments from both parties, reviewed the case records and files, including the transcript of the trial court proceedings, and made a site inspection where the elk in question was hung. Being fully advised of the facts and circumstances, the court issues its Memorandum Opinion as follows.

I. FACTS

Keith Taylor was appointed Director of Public Safety by the Hoopa Valley Tribe on April 1, 1990. He testified that one of his major concerns upon being appointed Director was the cross-deputization of Hoopa Valley Tribal Police Officers as Humboldt County Deputy Sheriffs. David Ames was a particular focus of Taylor's concern. On April 3, 1990, Taylor had a discussion with Ames regarding his conduct as an officer. Taylor also conducted, with the aid of a sergeant, a fairly exhaustive review of Ames' radio logs and activity reports. On April 13, 1990, Taylor concluded that Ames was not a good officer and suspended him without pay. A month later, on May 13, 1990, Taylor discharged Ames for filing a false report and for withholding criminal information, in violation of Sections 14:20 and 14:21 of the Department of Public Safety's General Order Manual.

Ames testified that he was told by an anonymous person, "I heard your brother killed an elk"--or words to that effect. The person then asked whether Ames knew this had happened. Ames responded that he hadn't known, that he had just returned from a martial arts exhibition. Ames took no action in response to the information.

The Department of Public Safety dispatcher, Angelica Preciado, testified that Ames told her that he had learned his brother had killed an elk, but that he couldn't report it. She was unable to recall when Ames told her this, or his exact words.

The Fish and Game officer, Jack Bushey, first testified that Ames knew or should have known of the elk hanging in the carport behind one of the two Ames families' houses. However, Bushey later testified that the elk was not hung in a carport but in a shed. He further testified that it was so dark when he was at the Ames houses that he needed a flashlight to walk up onto the porch, and that he did not go around the house to investigate where the elk was hung. He testified that he was informed that the elk had hung behind the Ames houses for two days, which the record indicates would have been February 13th and 14th, 1990.

The record of the trial court proceedings shows that Ames himself was not staying in the Ames families' two houses on the dates of February 13th, 14th and 15th, 1990, but did return on the night of February 15th to pick up clothing to go on a trip. The elk would have been removed from hanging

2 NICS App. 149, Ames v. Hoopa Valley Tribal Council (November 1991) p. 151

and butchered by the time Ames returned to pick up his clothes on February 15,1990.

The record also is clear that the Fish and Game officers and other law enforcement officers, as well as the tribal police and the Ames family, all purposely withheld any information from Ames regarding the elk his brother, Tim Ames, had killed.

II. CONCLUSIONS

The information Ames heard on his return from the martial arts exhibition about his brother killing an elk did not constitute criminal information. There was not probable cause to believe that a criminal act had been committed. There was no information as to where, when or how an elk may have been killed by his brother. There was no information that the elk was killed within the exterior boundaries or the jurisdiction of the Hoopa Valley Tribe. There was no information that an elk had been illegally killed. The additional information necessary to provide Ames with knowledge that a crime had been committed was withheld from him both by his family and his fellow law enforcement officers. Prior to his brother Tim's confession, the only information available to Ames regarding the killing of an elk was merely rumor, and the Department of Public Safety had no policy regarding the reporting of rumors.

The dispatcher's testimony was not clear as to what knowledge, if any, Ames had prior to his brother's confession, and at what point in time Ames told her about learning his brother had killed the elk.

Fish and Game officer Bushey's testimony, including his conclusion that Ames must have known about the elk hanging on the Ames property, is not based on fact nor supported by the record.

The testimony conditionally admitted at trial, along with other, irrelevant testimony admitted by the Tribal Court, appears to have so influenced the court's decision that prejudicial error occurred.

Based on the foregoing, the Court of Appeals concludes that there was not sufficient credible or substantial evidence that Ames had withheld criminal information in violation of Section 14:21 of the Department of Public Safety's General Order Manual. It is further concluded that the local law enforcement agencies and Ames own family conspired to keep any information about the criminal act of killing the elk from Ames.

The record is clear that there were reasons the Director of Public Safety wanted to fire Ames, but the record does not support his discharge on the grounds that he withheld criminal information.

2 NICS App. 149, Ames v. Hoopa Valley Tribal Council (November 1991) p. 152

Based on the foregoing it is now, therefore ordered, adjudged and decreed as follows:

1.    The trial court's decision upholding David Ames' discharge on the grounds that he withheld criminal information is reversed.

IRVIN, Chief Justice, concurring:

This case is one of first impression for the Hoopa Valley Court of Appeals. In determining whether the evidence is substantial enough to support a finding by the agency that David Ames withheld criminal information, this court may look to the decisions of other courts for guidance, even though the decisions of other tribal courts and of federal or state courts are not controlling in this court.

U.S. federal courts, in interpreting the standard of "substantial evidence" from the Administrative Procedures Act, require a court of appeals to review records and set aside agency findings and conclusions which are unsupported by substantial evidence. This does not authorize the court to weigh evidence and substitute its own judgment, but requires the court to consider evidence on both sides to determine whether evidence in support of an administrative conclusion can fairly be said to be substantial in face of opposing evidence. Willapoint Oysters v. Ewing, 174 F.2d 676 (9th Cir. 1949), cert. denied, 338 U.S. 860,70 S. Ct. 101,94 L. Ed. 527 (1949), reh'g denied, 339 U.S. 945, 70 S. Ct. 793,94 L. Ed. 1360 1950).

While it is within the purview of the agency to draw reasonable inferences from the evidence, a substantial evidentiary basis must exist to support such inferences--they cannot be based purely on speculation. N.L.R.B. v. Arkansas Grain Corporation, 392 F.2d 161 (1968). The presumption is that facts exist justifying an administrative decision. However, the presumption is rebuttable if the decision can be shown to be unreasonable or arbitrary. Fairmont Foods, Inc. v. Butz, 389 F. Supp. 1 (D. Pa. 1975). Finally, the requirement of the Administrative Procedure Act that administrative findings accord with substantial evidence does not forbid administrative

2 NICS App. 149, Ames v. Hoopa Valley Tribal Council (November 1991) p. 153

utilization of probative hearsay evidence--although findings, to be valid, cannot be based upon hearsay alone, or upon hearsay corroborated by a mere scintilla. The test whether evidence is "substantial" is whether there is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Willapoint, 174 F.2d 676.

The provision that David Ames was held to have violated is Section 14:21 of the Department of Public Safety's General Order Manual. That provision is ''Withholding Criminal Information" and is defined as follows:

Members receiving or possessing facts, information, or evidence relative to a criminal offense or case shall not retain such facts, information or evidence through ulterior motives, desire for personal credit or aggrandizement, but shall report the information or evidence in accordance with established Departmental procedures.

This jurist cannot find substantial evidence to uphold the action of the Department and the Tribal Court in finding that David Ames violated Section 14:21. The testimony conditionally admitted into evidence at the beginning of the Tribal Court's review so prejudiced the court that prejudicial error occurred. There is no real evidence that David Ames knew an elk was hung near his residence. It is true that Angelica Preciado, the tribal police dispatcher, testified that Ames admitted "he knew about [the shooting] two or three days after it happened," and that she told him ''he should have reported it." Ames' response, Preciado testified, was that ''he couldn't do it because it's his family." Questioned further, however, Ms. Preciado was unsure as to when her communication with Ames occurred, nor could she remember the exact words used. At most, Ames' alleged admission is a scintilla of evidence.

This jurist would take judicial notice of the fact that news travels fast on the reservation. It is highly likely David Ames knew something about the incident, but exactly what and when is unclear. Even if he had heard a rumor, there was no policy for treatment of rumors in the Department. The record suggests that there were reasons why the Department wanted to fire David Ames, but the evidence does not support the charge which caused his discharge.