[NOTE: ON JUNE 25, 2001, UNDERWOOD TOOK JUDICIAL REVIEW IN THE WARRICK SUPERIOR COURT #2 (CAUSE NUMBER 87D02-0106-CP-167). ON DECEMBER 4, 2001, COURT DISMISSED WITH PREJUDICE (FOR FAILURE TO FILE AGENCY RECORD).]
1. Carl Underwood was not a resident of Indiana on December 13, 1994, when he procured his Lifetime Comprehensive Hunting License, which is a resident license.
2. Pursuant to IC 14-22-11-13, Carl Underwood's license 4732 is void and, as such, does not confer a right or privilege to engage in the pursuit mentioned in the license.
STATEMENT OF THE CASE
1. The Department of Natural Resources (the "Department") is the state agency responsible for the protection and management of fish and wildlife resources within the State of Indiana pursuant to Indiana Code (IC) 14-22-1-1.
2. In Chapter 11 of IC 14-22 the Department is tasked with issuing licenses and enforcing the proper use of those licenses.
3. At IC 14-22-11-15 the Legislature established a process to be followed by the Department if it is determined a license or permit is to be revoked.
4. The Legislature saw fit to include another Section at IC 14-22-11-13, which deals with "Resident license falsely procured by nonresident." In this section such a license is declared "void" and, as such, "does not confer a right or privilege to engage in the pursuit mentioned in the license or permit."
5. In this case the Department confiscated Underwood's license "on-the-spot" and declared the license void. The Department took the position that Underwood was a nonresident who procured a resident license, thereby being in violation of IC 14-22-11-13.
6. Subsequently, the Department informed Underwood that he could appeal this declaration to the Natural Resources Commission (the "Commission") and Underwood did appeal on July 21, 2000.
7. IC 4-211.5, the Administrative Orders and Procedures Act (AOPA), as well as 312 Indiana Administrative Code (IAC) 3 govern the conduct of this proceeding.
8. As defined in IC 4-21.5-1-15, "ultimate authority" means the individual or panel in whom the final authority of an agency is vested.
9. In accordance with IC 14-10-2-3, the Commission is the ultimate authority for the Department for this type proceeding.
10. This case was assigned to Tim Rider, Administrative Law Judge (ALJ) for the Commission's Division of Hearings.
11. The Department filed a Motion for Summary Judgment on September 15, 2000. Underwood objected to that Motion as well as the methodology used by the Department regarding the confiscation of his license.
12. The Department has taken the position that IC 4-21.5-3-6 is the governing statutory provision for this type action, while Underwood maintains that he had a legal right to hold his license until the department filed an action under IC 4-21.5-3-8.
CONCLUSIONS OF LAW
13. The ALJ determined that the Department is correct and this action is governed by IC 4-21.5-3-6(a)(2). The Department was allowed to declare Underwood's license void under IC 14-22-11-13 and that order would have become effective absent Underwood's timely filing of his request for review.
14. Underwood has objected to being deprived of the use of his license "without due process." Pursuant to IC 4-21.5-3-6(e) Underwood was entitled to file a petition for stay of effectiveness of the Department's order. Such a filing would have required the ALJ to conduct a preliminary hearing "as soon as possible" to determine whether the order should be stayed. Underwood filed no such petition.
15. While the ALJ did determine that the procedure followed by the Department was correct, he denied the Department's Motion for Summary Judgment by finding that Underwood's residency status on the day he applied for the Indiana Lifetime Comprehensive Hunting License is a question of fact.
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16. The ALJ also determined that the burden of going forward with the evidence would be placed upon Underwood as the party attempting to change the "status quo." The status quo" here is that Underwood's license has been declared void and Underwood is asking the ALJ to reverse that determination.
17. As stated in Finding 7, this proceeding is governed AOPA as codified at IC 4-21.5. The AOPA addresses generally who must carry the burden of proof as follows:
"At each stage of the proceeding, the agency or other person requesting that an agency take action or asserting an affirmative defense specified by law has the burden of persuasion and the burden of going forward with the proof. . . ." See IC 4-21.5-3-14(c).
In accordance is a procedural rule adopted by the Commission:
(b) An affected person who is aggrieved by a determination of the director; a delegate of the director; a board (other than the commission when acting as the ultimate authority); a delegate of the board (other than an administrative law judge); a person who has been delegated authority under 312 IAC 2-2;...may apply for administrative review of the determination under IC 4-21.5 and this rule. (See 312IAC 3-1-1).
18. At issue in the present case is a determination made by a delegate of the director (an Indiana Conservation Officer) that Underwood was not an Indiana resident at the time he applied for the license; and therefore, the license was void and must be confiscated.
19. Underwood asks the ALJ to reverse this agency action mentioned in Finding 18. The Commission has many times placed the burden of proof on the person asked that an agency action be reversed beginning with Brown v. DNR and Peabody Coal Company, 6 Caddnar 136 (1992), and repeated in numerous decisions since that time.
20. When the ALJ conducts a haring to review evidence, the hearing is conducted de novo. The ALJ is required to weight evidence and reach independent conclusions rather than deferring to the initial determination rendered by the delegate of the director. (See Indiana Department of Natural Resources v. United Refuse Co., 1993 Ind., 615 N.E.2d 100).
21. The standard of proof to be applied by the ALJ to this type proceeding is "preponderance of the evidence." The parties do not dispute this procedural application and numerous cases have found this standard applicable to administrative proceedings, including recently the Commission in Boyd, et al. v. Department of Natural Resources and Floyd Commissioners, 8 Caddnar 5 (1997).
FINDINGS OF FACT
22. Underwood executed his Application for Indiana Lifetime Comprehensive Hunting License on December 13, 1994.
23. On the application Underwood listed his address as 5144 Lenn Road, Newburgh, Warrick, Indiana 47630 and his telephone number as (812) 853-3352.
24. Underwood's license was issued as license number 4732.
25. Indiana Conservation Officer Eddie Gammon Jr. testified that he became suspicious of Underwood's status as an Indiana resident. Gammon knew that the address listed by Underwood on his license application was actually the residence of a Ralph Brown. Gammon checked tax and drivers license records and could find no evidence that Underwood was an Indiana resident. Therefore, Gammon confiscated Underwood's license.
26. On July 10, 2000, the Department sent a letter to Underwood, RE: Notice of Void Lifetime Comprehensive Hunting License. In the letter the Department announces that license 4732 is null and void; alleges that Underwood's address at all relevant times was PO Box 1384, Robbinsville, NC 28771; and informs Underwood of his right to appeal this decision to the Commission.
27. Underwood presented no evidence, which would establish his Indiana residence as of December 13, 1994
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(date of his license application).
28. The Department presented evidence which indicated that Underwood did not file an Indiana state tax return for the years 1993, 1994, or 1995 and that Underwood has no driving record in the state of Indiana.
29. Underwood did not carry his burden of going forward with the evidence.
30. However, even if the burden were to be placed on the Department as Underwood feels it should, evidence presented by the Department would, by a preponderance of the evidence, indicate that Underwood was not a resident of Indiana on December 13, 1994.