Attorneys for Appellant Attorneys for Appellee
Steve Carter Frank J. Deveau
Attorney General of Indiana Geoffrey Slaughter
Michael D. Chambers
Frances Barrow Indianapolis, Indiana
Deputy Attorney General
Indiana Supreme Court
Indiana Department of Natural
Resources and Larry D. Macklin, in
His Official Capacity as Director
of the Indiana Department of
Appellants (Defendants below),
Newton County, Indiana,
Appellee (Plaintiff below).
Appeal from the Jasper Superior Court, No. 37D01-0004-OV-33
The Honorable J. Phillip McGraw, Judge
On Direct Appeal
January 29, 2004
Factual and Procedural Background
Newton County adopted two ordinances purporting to impose requirements on purchases of land
in the County by government agencies. The trial court found that the
acquisition of land by the Department of Natural Resources violated the ordinances and
set aside the transaction. The trial court also held unconstitutional the Game
Bird Habitat Act, which gave the agency the authority to purchase the land.
We hold that the ordinances are invalid exercises of county authority and
that the Game Bird Habitat Act is constitutional.
In 1988 the Indiana Department of Natural Resources (DNR), through its division of
Fish and Wildlife, leased approximately 122 acres of land in Newton County from
Steven Brandt. The property has been used as a Game Bird habitat
since that time. In March 1998, Brandt proposed selling the property to
DNR. After the purchase offer, but before the contract was signed, the
Newton County commissioners adopted two ordinances. The first, the Farm Preservation Ordinance
(FPO) purported to require any government agency desiring to purchase more than twenty
acres in Newton County to complete the procedures specified in the ordinances before
acquiring the land. The ordinances required the agency to prepare a statement
of intent to purchase the land. The statement was to include a
statement of the effects the acquisition would have on Newton Countys economy, environment,
and tax base, a demonstration of the need for the property and some
other items. The statement was to be submitted to the Board of
Commissioners of Newton County who would then initiate a twelve-month process that included
public hearings on the proposed acquisition. The second ordinance, Land Acquisition Notice
Act (LANA) also applied to acquisitions by government agencies and required thirty days
notice of any proposed acquisition of more than ten acres. Both FPO
and LANA imposed a fine for violation.
After these ordinances became effective, DNR closed its purchase of Brandts land.
DNR did not give the required notice or file the required statements.
The County sued, contending the sale was void as in violation of both
ordinances. The trial court agreed that the sale violated the ordinances and
set aside the land sale. The trial court also ruled that DNR
had no authority to purchase Brandts land because the Game Bird Habitat Act,
Ind. Code § 14-22-8-7(c) (1998), is unconstitutional. That statute authorizes the DNR
to acquire land from willing sellers for game bird habitats. The trial
court found the statute unconstitutionally vague and also a violation of separation of
powers. Because the trial court held a state statute unconstitutional, this appeal
was taken directly to this court pursuant to Appellate Rule 4(A)(1)(b).
I. Validity of the Ordinances
The State contends the ordinances are invalid exercises of county authority and therefore
provide no basis to invalidate DNRs purchase of Brandts land. Newton County
responds that the Home Rule Act,
Ind. Code § 36-1-3-1 (1998)
provides the authority to create and enforce the two ordinances. The Home
Rule Act abrogated the traditional rule that local governments possessed only those powers
expressly authorized by statute, because it expressly broadened a governmental units authority to
include not only all powers granted it by statute, but also all other
powers necessary or desirable in the conduct of its affairs even though not
expressly granted by the statute. I.C. § 36-1-3-4(b); City of Gary v. Indiana
Bell Tel. Co., Inc., 732 N.E.2d 149, 153 (Ind. 2000); City of Crown
Point v. Lake County, 510 N.E.2d 684, 685-86 (1987). Despite these generous
delegations of authority to units of local government, section 8(a)(3) of the Home
Rule Act expressly prohibits a unit from imposing duties on other political subdivisions.
Nor may it impose duties on activities regulated by a state agency.
I.C. § 36-1-3-8(a)(7).
The ordinances by their terms apply to government agencies which presumably include the
United States and units of local government. The Home Rule Act expressly
prohibits the imposition of duties on other units of local government, and the
County concedes that the ordinances are invalid as applied to federal agencies by
reason of the Supremacy Clause of the Constitution of the United States.
Despite the immunity enjoyed by government agencies both below and above the State
in the hierarchy of governmental units, the County maintains that the ordinances may
regulate the state itself. The County correctly points out that neither DNR,
an arm of state government nor the State itself is a subdivision.
It is also true that nothing in the Home Rule Act in express
terms prohibits a county from regulating the State. But the short answer
to these points is that a county cannot prevent a state agency from
carrying out statutorily authorized actions.
The ordinances purport to allow a county ordinance to trump the States statutory
land acquisition authority. An impermissible conflict with state law will be found
if the Ordinance seeks to prohibit that which a statute expressly permits. Hobble
ex rel Hobble v. Basham, 575 N.E.2d 693, 697 (Ind. Ct. App. 1991).
Cf., Hopkins v. Tipton County Health Dept, 769 N.E.2d 604, 608 (Ind.
Ct. App. 2002). The Home Rule Act explicitly denies this power to
a county. Hobble noted that local governments may impose additional, reasonable regulations,
and [to] supplement burdens imposed by non-penal state law, provided the additional burdens
are logically consistent with the statutory purpose. Hobble, 575 N.E.2d at 697.
The County ordinances do not supplement any burdens imposed by the state.
Rather, the state law is frustrated by the county ordinance. Moreover, the
state law does not impose burdens on anyone. It simply authorizes the
DNR to act and does not require permission from local authorities. In
short, The Game Bird Habitat Act expressly grants DNR the authority to acquire
land to achieve its purposes, and the ordinances seek to regulate the State
in that activity. That is not within the Countys power.
II. Constitutionality of the Game Bird Habitat Act
DNRs authority to purchase Brandts property in Newton County is derived from the
Game Bird Habitat Act. The County contends that the Act is unconstitutional,
and therefore the purchase was unauthorized and void. The trial court agreed
and set aside the sale on that ground, independent of its holding that
the ordinances were valid. If the Countys sole interest in the constitutionality
of the Game Bird Habitat Act were its claim that DNR is not
authorized to acquire land, the Countys standing to raise the issue would, as
the State argues, be at best highly questionable. But the County has
a legitimate interest in upholding the challenged validity of its ordinances just as
it does in seeking interpretation of statutes that affect its governance. Bd. of
Commrs of the County of Howard v. Kokomo City Plan Commn., 263 Ind.
282, 296, 330 N.E.2d 92, 101 (1975). The most obvious flaw in
the ordinances is their conflict with the Act. If the Act is
invalid that conflict evaporates. Accordingly, the constitutionality of the Act is also
relevant to the validity of the ordinances. The County therefore properly raises
the issue of the constitutionality of the Game Bird Habitat Act.
In order to constitute a valid delegation of authority to a state agency,
legislation must provide sufficient standards to guide the agency in its exercise of
that authority. Barco Beverage Corp. v. Ind. Alcoholic Beverage Commn, 595 N.E.2d
250, 253-54 (Ind. 1992) (The only limitation on the delegation of authority to
administrative bodies is that reasonable standards must be established to guide the administrative
body. The standards, however, only need to be [as] specific as the
circumstances permit, considering the purpose to be accomplished by the statute.) (citations omitted);
cf., Ind. Dept of Envtl. Mgmt. v. Chem. Waste Mgmt., Inc., 643 N.E.2d
331, 340 (Ind. 1994) (standards that guide an administrative agency may be described
in very broad and general terms.) (citations omitted). Newton County argues that
the Act fails this test. First, the County contends the terms willing
seller and game bird habitat lack sufficient definition. Second, the County points
out that the terms have not been refined by any regulations. Third,
the County points out that the legislature failed to provide any specific procedures
for acquiring game bird habitats.
We do not agree that the legislature must supply more specific definitions for
the terms willing seller and game bird habitat to guide the agency.
To be sure, statutory terms must be understandable, but they need not be
rigorously precise. Mutual Film Corp. v. Indus. Commn. of Ohio, 236 U.S.
230, 245-46 (1915); Barco Beverage Corp., 595 N.E.2d at 254. Newton County
sets out a parade of horribles that it contends may constitute examples of
a willing seller under the statute. These for the most part are
examples of how the State might seek to employ tactics to coerce an
otherwise reluctant landowner to sell to the State. Newton County points to
no evidence whatsoever that DNR has wasted public funds, purchased land for wrongful
uses, or coerced residents into selling their land. More importantly, there is
no such evidence as to the Brandt sale. To be sure, there
may be litigable issues on the fringes of the term willing seller, but
there is no doubt that Brandt is one. He approached DNR and
proposed the sale.
The term game bird is defined by statute to mean pheasant, quail, grouse,
wild turkey, and Hungarian partridge. Ind. Code § 14-22-8-2 (1998). A
particular bird is a game bird or it is not, and a potential
habitat is a place where a game bird can live. We see
no need to define the terms with any greater specificity. The birds
are identified with precision. Habitat as we take it, means these creatures
may reasonably be expected to occupy the site in the course of their
natural activity. Game Bird Habitat may present some issues if, as the
County posits, DNR attempts to use this statute to buy an asphalt parking
lot. Courts can deal with these if they occur. The terms are
sufficiently specific to have content. This regulatory framework may be less than
wholly precise, but perfection has never been required of administrative bodies. Chem.
Waste Mgmt., Inc., 643 N.E.2d at 340.
We also find unpersuasive Newton Countys argument that the terms willing seller and
game bird habitat need definition by DNR regulations. Newton County cites the
following passage in Indiana Dept of Envtl. Mgmt.: Such terms get precision from
the knowledge and experience of men whose duty it is to administer the
Statutes, and then such Statutes become reasonably certain guides in carrying out the
will and intent of the Legislature. 643 N.E.2d at 340. We do
not take this to require DNR to promulgate rules or guidelines to interpret
statutory terms. Rather it merely acknowledges that regulations may fulfill that purpose.
If no ambiguity exists within the statute itself an agency may determine
if facts or circumstances exist upon which the law makes or intends to
make its own action depend so long as the agency does not make
the law itself. State ex rel. Standard Oil v. Review Bd. of
Employment Sec. Div., 230 Ind. 1, 8, 101 N.E.2d 60, 63 (1951).
In this case, the statute confers the authority to determine whether or not
a particular plot of land is a suitable habitat for the named species.
Finally, there is no evidence that DNR interpreted these terms improperly with
respect to the Brandt acquisition. The statute is not so unclear as
to be void on its face, and there is no claim that its
application here is outside the boundaries of game bird habitat or willing seller.
The judgment of the trial court is reversed. This case is remanded
with instructions to dismiss the Countys complaint.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.