Content-Type: text/html Cause #: 01-012d.v9.html

CADDNAR


[CITE: Laverty & Citizen Coalition of Beverly Shores v. Town of Beverly Shores & DNR, 9 CADDNAR 24 (2001)]

[VOLUME 9, PAGE 24]

Cause #: 01-012D and 01-016D
Caption: Laverty and Citizen Coalition of Beverly Shores v. Town of Beverly Shores and DNR
Administrative Law Judge: Lucas
Attorneys: pro se (Laverty); pro se (Weiss); Gunning; Ellis
Date: August 20, 2001

Final Order of Dismissal For Mootness

For the reasons set forth below, a final order of dismissal for mootness should be entered:

1. An issue is moot if the issue is no longer "live" or if the parties "lack a legally cognizable interest in the outcome." Bartholomew County Hospital v. Ryan (1982), Ind. App., 440 N.E. 2d 754, 757, quoting United States Parole Commission v. Geraghty (1980), 445 U.S. 388, 396. 23. A general application of the doctrine of mootness would preclude a determination of the substantive issues raised by these administrative proceedings because the permit expired on March 31, 2001. The permit is no longer "live."

2. The "public interest exception" is a deviation from the general application of the doctrine of mootness. This exception "may be invoked only upon the confluence of three elements: the issue involves a question of great public importance, which is likely to recur in a context which will continue to evade review." Ridenour v. Furness (1987), Ind. App., 504 N.E. 2d 336, 342, quoting Bartholomew at 759. Also, Ogden Dunes v. DNR, Beverly Shores and NIPSCO, 4 Caddnar 31 (1987).

3. The first element of the public interest exception is satisfied: the question is one of great public importance. The Claimants contest an initial determination by the Deaprtment of Natural Resources to grant a special purpose deer control permit. In the "Report, Findings of Fact and Conclusions of Law and Interlocutory Order of the Administrative Law Judge" entered on March 13, 2001, he found after a stay hearing that an overpopulation of white-tailed deer was causing property damage in the Town of Beverly Shores. At the same time, he found several witnesses had safety concerns as to the methodologies approved in the permit. Without making a determination of the persuasiveness of the underlying testimonies, they are sufficient to demonstrate a question of great public importance.

4. The record also appears to support the second element of the public interest exception: immunocontraception is being considered as an alternative to the methodologies approved in permit. Yet the testimony was that even if the immunocontraception "program is implemented, it would take a period of time for it to effectively cull the deer population in the area to a manageable size." Although not a certainty, the issue presented in these proceedings appears likely to recur.

5. The third element of the public interest exception is not satisfied: the issue is not likely to continue to evade review. If another permit to control populations of white-tailed deer is sought by the Town of Beverly Shores and approved by the Department, the parties can fully adjudicate the propriety of the permit. As an alternative, the Natural Resources Commission has adopted at 312 IAC 3-1-15 a mechanism by which a person may, in writing, request the Department of Natural Resources to interpret a statute or rule administered by the Department as applicable to a specific factual circumstance.

6. With the expiration of the special purpose deer control permit on March 31, 2001, these proceedings are moot.