Cause #: 02-035D
Caption: Reed v. Department of Natural Resources
Administrative Law Judge: Wilcox
Attorneys: Russell, pro se; Ellis
Date: September 10, 2002
BACKGROUND
On March 13, 2002, Russell Reed, (hereinafter "Reed"), filed an appeal of the Department of Natural Resources' (hereinafter "DNR") denial of an educational permit to exhibit alligator snapping turtles for commercial purposes. A prehearing conference was held on March 27, 2002 in Indianapolis. The parties attempted a resolution following the prehearing conference but failed to reach agreement. The Department filed a Motion for Summary Judgment on May 22, 2002. On May 13, 2002, Reed filed a Dispositive Motion.
STANDARD OF REVIEW
If the designated evidentiary materials show there is no genuine issue of material fact, summary judgment is appropriate, and, as a matter of law, the moving party is entitled to judgment. Chester v. Indianapolis Newspapers, Inc.Chester v. Indianapolis Newspapers, Inc., 553 N.E. 2d 137, 139 (Ind. App. 2Dist. 1990). Summary judgment is appropriate "to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law." United Farm bureau Mut. Ins. Co. v. Schult, 602 N.E. 2d 173, 174 (Ind. App.1 Dist. 1992) citing Bassett v. Glock, (1977), 174 Ind. App. 439, 368 N.E. 2d 18.
The moving party bears the burden of proving "the absence of a factual issue and its entitlement to judgment as a matter of law." Norman v. Turkey Run Community School Corp., 274 Ind. 310, 411 N.E. 2d 614, 615 (1980). "Once the movant has sustained this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial." Powell v. American Health Fitness Center, 694 N.E. 2d 757, 759 citing Stephenson v. Ledbetter, 596 N.E. 2d 1369, 1371 (Ind. 1992). "If the adverse party does not respond as required by this subsection, the administrative law judge may enter summary judgment against the adverse party." Ind. Code 4-21.5-3-23(f).
Ind. Code 4-21.5-3-23(b) provides that "summary judgment may not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the administrative law judge shall make a determination from the affidavits and testimony offered upon the matters placed in issue by the pleadings or the evidence."
GENUINE ISSUES OF MATERIAL FACT
A. Does Indiana Law preclude the Department of Natural Resources from permitting the commercial use of Alligator Snapping Turtles?
[VOLUME 9, PAGE 66]
Ind. Code 14-22-26 et seq. and rules promulgated at 312 IAC 9 et seq. govern the permitting of wild animals in Indiana. Ind. Code 14-22-26-3 provides that the "director may adopt rules under IC 4-22-2 to require and issue the following:
(1) A permit to possess a wild animal protected by statute or rule.
(2) A permit to possess a wild animal that may be harmful or dangerous to plants or animals. A separate permit is required for each wild animal described in this subdivision.
The term "wild animal" is defined at Ind. Code 14-8-2-318:
..(1) For purposes of IC 14-22, except as provided in subdivision (2), an animal whose species usually:
(A) lives in the wild; or
(B) is not domesticated....
Alligator Snapping Turtles are wild animals under this definition. Additionally, pursuant to
312 IAC 9-5-4(17), the Alligator Snapping Turtle (Macroclemys temmincki), is a threatened or endangered species in Indiana. 312 IAC 9-11-1 requires a person to have a permit in order to possess an endangered or threatened species. A permit is required to possess Alligator Snapping Turtles.
312 IAC 9-11-14 (c)(1) provides [emphasis deleted]:
(c) A person must not use a wild animal in any of the following manners:
(1) For a commercial purpose, unless the person is issued a commercial license by the United States Department of Agriculture.
(2) For a sporting purpose.
(3) As a public display.
A United States Department of Agriculture commercial license is required before an applicant may use a wild animal for a commercial purpose in Indiana. Nothing in the record supports a finding that Claimant has a commercial license by the United States Department of Agriculture.