Administrative rule R657-57

Division variance rule

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R657-57-1. Purpose and Authority.

(1) Under authority of Sections 23A-2-304 and 23A-2-305 this rule is established to provide authority, standards and procedures for granting remedial relief to persons precluded from obtaining or using a wildlife document because of an event or condition beyond their control.

R657-57-2. Definitions.

(1) The terms used in this rule are defined in Section 23A-1-101.

(2) In addition:

(a) "CWMU" means cooperative wildlife management unit, as defined in Section 23A-7-102;

(b) "Event or condition" means a circumstance in a person's life beyond their control that precludes or substantially limits their ability to obtain or use a wildlife document;

(c) "Harvesting" means, for purposes of this rule, killing an animal;

(d) "Hunt day" means spending any time in the field hunting the permitted animal species in a single day, during lawful hunting hours, and within the prescribed season;

(e) "Immediate family member" means a person's spouse, child, stepchild, grandchild, brother, sister, parent, stepparent, grandparent, mother-in-law, or father-in-law;

(f)(i) "Limited entry hunt" means any hunt identified in the proclamations and guidebooks of the Wildlife Board as:

(A) a premium limited entry or limited entry hunt; and

(B) that awards a bonus point to unsuccessful permit applicants pursuant to R657-62-8.

(ii) "Limited entry hunt" further includes antlerless moose hunts and CWMU hunts available to the public through a Division administered drawing.

(g) "Once-in-a-lifetime hunt" means any hunt for which a wildlife document is issued to take a bull moose, bighorn sheep, bison, or mountain goat.

(h) "Substantially precluded" means participating in no more than one hunt day during the prescribed hunting season because of a qualifying event or condition set forth in R657-57-6.

(i) "Variance" means remedial relief granted by the Division or Wildlife Board to restore a person's opportunity to obtain or use a wildlife document which is completely lost or substantially impaired because of an intervening event or condition; and

(j) "Wildlife document" means any license, permit, tag, certificate of registration, or wildlife permit voucher issued by the Division.

R657-57-3. Division Variance Authority.

(1) The Division may issue variances to qualified individuals, subject to the standards, limitations, requirements, and procedures in this rule.

R657-57-4. Division Variance Authority Scope.

(1)(a) The Division may grant a season extension variance extending the hunting season on an applicant's wildlife document to the same or substantially similar hunt in the following year, provided:

(i) the variance request involves a wildlife document for a:

(A) once-in-a-lifetime hunt under Rule R657-5;

(B) conservation permit hunt under Rule R657-41;

(C) limited entry landowner permit hunt under Rule R657-43;

(D) poaching-reported reward permit hunt under Rule R657-5;

(E) CWMU hunt obtained through the operator or landowner under Section R657-37-9; or

(F) a wildlife exposition permit under Rule R657-55;

(ii) the applicant was substantially precluded during the prescribed hunting season from using a wildlife document because of a qualifying event or condition set forth in Section R657-57-6;

(A) the qualifying event or condition was not the result of the applicant's willful misconduct or gross negligent acts or omissions; and

(B) the applicant was unsuccessful in harvesting an animal for which the wildlife document was issued;

(iii) the season extension occurs the following year and is restricted to the same species, gender, unit, weapon type, and season as the original wildlife document;

(iv) any changes in unit descriptions and season dates in the extension year are applied; and

(v) the variance is otherwise requested and issued in compliance with the standards, requirements and procedures set forth in this rule.

(b) Any waiting period associated with a wildlife document for which a season extension variance is granted begins on the date the original wildlife document is obtained.

(c) Notwithstanding the limitations in Subsection (1)(a) on wildlife documents eligible for season extension variance relief, the division may grant a season extension variance for a limited entry hunt, provided:

(i) the applicant possessing the limited entry permit was substantially precluded from participating in the hunt for COVID-19 related personal health concerns or general public health restrictions imposed by the federal government, a state, or a local government;

(ii) the season for the limited entry hunt began on or after March 1, 2020 and ended on or before July 1, 2020; and

(iii) the variance relief sought and extended is otherwise in compliance with the provisions of this rule.

(2)(a) The Division may grant a variance by restoring forfeited bonus points and waiving an incurred waiting period, provided:

(i) the variance request involves a wildlife document for a:

(A) limited entry hunt or once-in-a-lifetime hunt; or

(B) any other hunt that triggers a waiting period to participate in a Division administered drawing;

(ii) the applicant was substantially precluded during the prescribed hunting season from using a wildlife document because of a qualifying event or condition set forth in Section R657-57-6; and

(A) the qualifying event or condition was not the result of the applicant's willful misconduct or gross negligent acts or omissions; and

(B) the applicant was unsuccessful in harvesting an animal for which the wildlife document was issued;

(iii) the variance is otherwise requested and issued in compliance with the standards, requirements and procedures set forth in this rule.

(b) The Division may not restore a bonus point on a wildlife document that did not cause a bonus point forfeiture.

(3)(a) The Division may grant a variance by restoring forfeited preference points, provided:

(i) the variance request involves a wildlife document obtained through a Division administered drawing and for which preference points are awarded to unsuccessful applicants and forfeited by successful applicants;

(ii) the applicant was substantially precluded during the prescribed hunting season from using a wildlife document because of a qualifying event or condition set forth in Section R657-57-6; and

(A) the qualifying event or condition was not the result of the applicant's willful misconduct or gross negligent acts or omissions; and

(B) the applicant was unsuccessful in harvesting an animal for which the wildlife document was issued;

(iii) the variance is otherwise requested and issued in compliance with the standards, requirements and procedures set forth in this rule.

(4)(a) The Division may grant a variance by awarding a bonus or preference point to a person who filed an untimely wildlife document application in a Division administered drawing, provided:

(i) the variance request involves a wildlife document for any hunt identified in Subsections (2)(a)(i) or (3)(a)(i);

(ii) the applicant was significantly impaired from filing a timely application in a Division administered drawing because of a qualifying event or condition set forth in Section R657-57-6;

(iii) the untimely application was rejected and a bonus or preference point was not awarded for the selected species;

(iv) the applicant would have been eligible to receive the bonus or preference point had the application been timely filed; and

(v) the variance is otherwise requested and issued in compliance with the standards, requirements and procedures set forth in this rule.

(5)(a) An individual applying for a variance on a permit awarded through a Division administered drawing may only apply for and receive one season extension variance for each permit received.

(b) An individual applying for a variance on a Conservation permit, CWMU permit redeemed from a private voucher, or a Limited Entry Landowner Permit, may apply for and receive a maximum of two season extension variances for each permit received.

(c) An individual who has already been provided the maximum number of season extensions for their relevant permit, but who is still unable to hunt, is limited to restoration of preference or bonus points, a refund, or both, so long as they otherwise qualify.

(d) An individual receiving a variance for a CWMU permit or Limited Entry Landowner permit redeemed from a private voucher must receive permission from the CWMU Operator or respective landowner to hunt during the variance period.

(6)(a) A Division administered drawing for purposes of Subsections (2) and (5) does not include a drawing conducted at a wildlife exposition pursuant to Rule R657-55.

(b) Permits distributed through a wildlife exposition pursuant to Rule R657-55 are eligible for the same variance relief and are subject to the same variance restrictions as permits distributed via a Division administered drawing.

(7) The Division may not refund wildlife document fees, except as authorized in Sections 23A-4-207, 23A-4-301 and R657-42-5.

R657-57-5. Group Applications.

(1) Except as provided in Subsection (2), all members of a group successful in obtaining a wildlife document pursuant to R657-62-7 are eligible to receive the same variance relief granted by the Division to any single member of the group under R657-57-4(2) or (3).

(2) Group members are not eligible to receive a refund of the wildlife document fee unless otherwise authorized by Sections 23A-4-207, 23A-4-301 and R657-42-5.

R657-57-6. Qualifying Events and Conditions.

(1) The Division's authority to grant a variance consistent with the requirements of this rule is limited to persons that are completely or substantially precluded during the prescribed season from participating in the hunting activity authorized by an eligible wildlife document, or precluded or substantially impaired from filing a timely wildlife document application in a Division administered drawing because of:

(a) personal illness or injury;

(b) the death, or significant injury or illness of an immediate family member;

(c) mobilization or deployment under orders of the United States Armed forces, a public health organization, or public safety organization in the interest of national defense or a national emergency; or

(d) COVID-19 related personal health concerns or general public health restrictions imposed by the federal government, a state, or a local government.

R657-57-7. Variance Application.

(1) A person may request a variance pursuant to the requirements of this rule by filing an application with the Division within 120 days of the:

(a) last day of the hunting season for which a season extension variance is requested; or

(b) drawing application deadline for which a bonus or preference point variance is sought.

(2) The Division may not grant a variance under this rule when the application is received beyond the 120 days limitation period set forth in Subsection (1).

(3) An application for a season extension variance under Subsection R657-57-4(1), a bonus point restoration and waiting period waiver variance under Subsection R657-57-4(2), or a preference point restoration variance under Subsection R657-57-4(3) shall contain the following information and documentation:

(a) name, address and telephone number of the applicant;

(b) a brief statement of the variance relief sought;

(c) the original wildlife document for which a season extension variance is sought with an undetached and unnotched tag;

(d) a statement verifying the applicant was substantially precluded from participating in a qualified hunt because of:

(i) personal illness or injury;

(ii) the death, or significant injury or illness of an immediate family member;

(iii) mobilization or deployment under orders of the United States Armed Forces, or a public health or public safety organization in the interest of national defense or a national emergency; or

(iv) COVID-19 related personal health concerns or general public health restrictions imposed by the federal government, a state, or a local government; and

(e) corroborating documentation of the qualifying event or condition listed in Subsection (3)(d), in the form of:

(i) a physician's written statement describing and confirming the qualifying injury or illness of the applicant or an immediate family member;

(ii) a photocopy of the deceased immediate family member's certified death certificate;

(iii) a photocopy of the military orders, or a letter from an employment supervisor on official public health or public safety organization letterhead stating;

(A) the branch of the United States Armed Forces, or name of the public health organization or public safety organization from which the applicant is deployed or mobilized; and

(B) the nature and length of duty while deployed or mobilized; or

(iv)(A) a physician's written statement explaining and verifying that underlying health conditions place the applicant at risk of life-threatening COVID-19 complications, if contracted, and that participation in the permitted activity will significantly increase the applicant's risk of contracting COVID-19; or

(B) a photocopy of the COVID-19 related federal, state, and local laws, orders, or directives substantially precluding the applicant from participating in the permitted activity.

(4) An application for a bonus or preference point variance under Subsection R657-57-4(4) shall contain the following information and documentation:

(a) name, address and telephone number of the applicant;

(b) a brief statement of the variance relief sought;

(c) a description of the wildlife document application and permit type for which a bonus or preference point variance is sought, including the wildlife species and sex, season dates, and weapon type;

(d) a statement verifying the applicant was precluded or substantially impaired from submitting a wildlife document application because of:

(i) personal illness or injury;

(ii) the death, or significant injury or illness of an immediate family member; or

(iii) mobilization or deployment under orders of the United States Armed Forces, or a public health or public safety organization in the interest of national defense or a national emergency.

(e) corroborating documentation of the qualifying event or condition listed in Subsection (3)(d), in the form of:

(i) a physician's written statement describing and confirming the qualifying injury or illness of the applicant or an immediate family member;

(ii) a photocopy of the deceased immediate family member's certified death certificate; or

(iii) a photocopy of the military orders, or a letter from an employment supervisor on official public health or public safety organization letterhead stating:

(A) the branch of the United States Armed Forces, or name of the public health organization or public safety organization from which the applicant is deployed or mobilized; and

(B) the nature and length of their duty while deployed or mobilized.

(5) The Division may reject an application that is incomplete or that contains false or misleading information.

(6) The Division may require the applicant to provide additional information, documentation, or clarification in conjunction with an application to determine eligibility for a variance.

(7) The Division should make its written decision within 30 days of receiving an application for variance and mail a copy of the decision to the applicant.

R657-57-8. Division Review of Variance Applications.

(1) The Division will:

(a) review variance applications submitted pursuant to this rule;

(b) determine facts relative to variance requests;

(c) apply the provisions of this rule to relevant facts; and

(d) grant or deny variance requests in accordance with this rule.

(2) Any variance request granted or denied shall be reviewed and approved by the Division director/designee before notice of decision is provided to the variance request applicant.

R657-57-9. Variance Denial.

(1) The Division shall deny a variance request where the applicant:

(a) fails to satisfy the variance criteria set forth in this rule;

(b) is under a judicial or administrative order suspending his/her Utah hunting privileges for the species at the time:

(i) the variance request is filed or at any time during an extension season; or

(ii) the wildlife document application period expired for a bonus or preference point variance;

(c) was legally ineligible to receive or use the wildlife document for which a season extension variance is sought;

(d) is legally ineligible to hunt during the extension season;

(e) is legally ineligible to use the weapon type authorized by the wildlife document during the original hunting season or the extension season;

(f) provides false or misleading information on a material fact in the variance request application; or

(g) provides false or misleading information on a material fact in a previous variance request application.

(2) The Division may deny a variance request when it is contrary to sound public policy, wildlife management objectives, Division policies and interests, or the interests sought to be served by this rule.

R657-57-10. Wildlife Board Appeals.

(1) A person may appeal the Division's decision on a variance application to the Wildlife Board pursuant to the requirements of this rule. The appeal request must be in writing and received by the Division within 30 calendar days of the issuance date on the Division's decision.

(2) The appeal shall contain the following information and documentation:

(a) name, address and telephone number of the petitioner;

(b) a statement of the variance relief sought and justification for the relief;

(c) a description of the wildlife document application for which the variance is sought, including the document number, species and sex, season dates, and weapon type;

(d) the original wildlife document for which the variance is sought;

(e) a statement describing the degree of lost opportunity because of an event or condition; and

(f) corroborating documentation of the event or condition listed in Subsections R657-57-7(3)(d) and (4)(d), which may include:

(i) a physician's written statement;

(ii) a certified death certificate photocopy;

(iii) a photocopy of the military orders;

(iv) a letter from an employment supervisor on official letterhead;

(v) court documentation; or

(vi) a photocopy of relevant COVID-19 laws, orders, or directives.

(3) The Wildlife Board may reject a variance appeal that is incomplete or that contains false or misleading information.

(4) The Wildlife Board may require the petitioner to provide additional information, documentation, or clarification in conjunction with the variance appeal.

(5) The Wildlife Board may set a time and date for a hearing on the variance appeal where the petitioner may be given an opportunity to address the Wildlife Board concerning the appeal.

(a) The Wildlife Board will provide the petitioner notice of the date, time, and location of the hearing.

(b) Failure to participate in the hearing may result in dismissal of the variance appeal.

(6) The Wildlife Board may sustain, overturn, or modify the Division's decision which is the subject of the variance appeal, provided the relief granted is consistent with the standards, limitations, requirements, and procedures in Sections R657-57-11 through R657-57-13.

(7) The Wildlife Board will prepare a written decision on the variance appeal and mail a copy to the petitioner.

R657-57-11. Wildlife Board Variance Authority.

(1) Except as provided otherwise in this rule, the Wildlife Board may grant a variance to any regulation promulgated in Title R657 of the Administrative Code or in proclamation concerning the acquisition or use of a wildlife document, provided the event or condition justifying the variance:

(a) is not the result of the applicant's willful misconduct or gross negligent acts or omissions;

(b) substantially precludes the applicant from participating in the activity authorized by the wildlife document; or

(c) completely or significantly impairs the applicant from filing a timely application in a Division administered drawing; and

(d) is of a nature that it deprives opportunity from the applicant in a substantially more severe manner than other similarly situated individuals.

(2) The Wildlife Board is limited to considering only those variance applications on which the Division has issued a letter indicating the variance relief sought is beyond its legal authority to grant.

(3) The Wildlife Board shall consider the Division's recommendation on a variance request.

(4) The Wildlife Board may grant a variance that extends a wildlife document season no more than one year into the future.

(5) The Wildlife Board may award a bonus or preference point pursuant to a variance request only when the applicant would have received such a point had the event or condition not intervened.

(6) The Wildlife Board may not grant a variance:

(a) where the request is filed with the Division beyond the 120-day deadline established in R657-57-7(1);

(b) where the applicant is not substantially precluded from participating in the prescribed wildlife activity;

(c) for a season extension on any hunt not identified in R657-57-4(1)(a)(i) as eligible for a season extension;

(d) where the applicant was successful in harvesting an animal for which the wildlife document was issued; or

(e) in direct conflict with any provision of the Wildlife Code or elsewhere in statute.

(7) The Wildlife Board may not refund wildlife document fees, except as authorized in Sections 23A-4-207 and 23A-4-301.

R657-57-12. Variance Guidelines.

(1) The Wildlife Board may use the following guidelines in considering and deciding variance appeals and requests submitted pursuant to this rule:

(a) monetary cost of the wildlife document;

(b) degree of difficulty in obtaining the original wildlife document;

(c) future opportunity to obtain the same or similar wildlife document;

(d) extent of lost opportunity;

(e) time actually engaged in the activity authorized by the wildlife document relative to the overall season length;

(f) time available to engage in the activity authorized by the wildlife document prior to the event or condition precluding further activity;

(g) impact on wildlife management objectives;

(h) degree of difficulty in tracking and monitoring season extensions into the future;

(i) applicant's fault or contribution in failing to mitigate the degree of lost opportunity;

(j) nature of the event or condition contrasted against the advisability of attempting to insure optimal opportunity;

(k) objective of a variance is to restore lost opportunity, not provide increased opportunity; and

(l) consistency with previous variance request decisions.

(2) Nothing herein shall be construed as limiting or prohibiting the Wildlife Board from considering additional factors in its discussions and deliberations concerning variance appeals and requests.

R657-57-13. Wildlife Board Variance Denial.

(1) The Wildlife Board shall deny a variance appeal or request where the applicant:

(a) fails to satisfy the variance criteria set forth in this rule;

(b) is under a judicial or administrative order suspending his/her wildlife document privileges at the time the variance request is filed or at any time while the variance would be in effect;

(c) was legally ineligible to apply for, obtain, or use the original wildlife document for which a variance is sought;

(d) is legally ineligible to engage in the activity proposed for authorization in a variance;

(e) is legally ineligible to use the weapon type or implement authorized by a wildlife document during the original season or the proposed substitute season;

(f) provides false or misleading information on a material fact in the variance request application or the appeal; or

(g) provides false or misleading information on a material fact in a previous variance request application or appeal.

(2) The Wildlife Board may deny a variance appeal or request when it is contrary to sound public policy, wildlife management objectives, Division policies and interests, or the interests sought to be served by this rule.

R657-57-14. Fraud, Deceit, or Misrepresentation.

Any variance obtained under this rule by fraud, deceit or misrepresentation is void.

R657-57-15. Finality of Decision.

(1) The decision of the Wildlife Board on any variance appeal or request under this rule constitutes final agency action and is not subject to:

(a) further administrative review; or

(b) judicial review under Title 63G, Chapter 4 of the Utah Code, Utah Administrative Procedures Act.

(2) The variance relief authorized in this rule is discretionary and neither a right nor entitlement in form or substance. The Division and Wildlife Board shall exercise sole discretion in determining whether relief will be granted and to what extent.