For 2007,
Jacqueline A. Molden may apply for a renewal of her wild animal rehabilitation
permit for raccoons, opossums, skunks, ground hogs, mink and fox for the
premises at 3275 North 525 West, LaPorte, Indiana. As applicable to deer, her permit is
immediately suspended and Molden is disqualified from seeking a permit for
2007. She is prohibited from fencing or
otherwise restricting the movement of deer on or through her premises during
2007, except to the extent that structures may prohibit the entry of deer into
the premises or into areas within the premises.
After 2007,
Jacqueline A. Molden may include white-tailed deer within an application for a
wild animal rehabilitation permit. The
initial application after 2007 shall be considered as a new permit and not as a
renewal permit. As a condition for
approval of the initial permit, Molden must include an oath or affirmation to
the effect that she has reviewed the permit conditions, as well any statutes,
rules or nonrule policy documents reasonably identified by the Department,
which govern the rehabilitation and release into the wild of white-tailed deer.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On April 11,
2006, the Department of Natural Resources (the “DNR”) filed with the Natural
Resources Commission (the “Commission”) a Request for Revocation of a Wild
Animal Rehabilitation Permit (the “complaint”) that alleged “the intentional
violation [of] the law governing wild animal rehabilitation permits in 312 IAC
9-10-9” by Jacqueline A. Molden (“Molden”).
The complaint alleges that “Molden possessed four (4) white-tailed deer
longer than the 180 days allowed by law and without approval by an Indiana
Conservation Officer. Furthermore, upon
an inspection and notification by an officer of this violation, she was still
found to be in violation of the law on an inspection the following day, at
which time she still was in possession of one (1) white-tailed deer.”
2. The complaint
is an order that seeks to terminate Molden’s legal rights arising from her 2006
Wild Animal Rehabilitation Permit. The
complaint is governed generally by IC 4-21.5 (sometimes referred to as the
“Administrative Orders and Procedures Act” or “AOPA”) and more specifically by
IC 4-21.5-3-8(a). When an agency seeks to
issue an order that is described by IC 4-21.5-3-8(a), a copy of the complaint
shall be served upon the person to whom any resulting order would be
specifically directed. IC 4-21.5-3-8(b).
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3. The DNR has
the burden of proof with respect to a sanction sought under IC 4-21.5-3-8 and
has the burden of proof with respect to the complaint. See, generally, Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (Ind. App. 1991) and DNR and I & M v. Pheasant Ridge
Development. Co., Inc., 10 Caddnar 187 (2006).
4. Wild animal
rehabilitation permits are governed primarily by 312 IAC 9-10-9, a rule that
was adopted by the Commission under IC 14-22 (sometimes referred to as the
“Fish and Wildlife Code”). The
Commission is also the “ultimate authority” for adjudications under AOPA in
implementation of the Fish and Wildlife Code.
IC 14-10-2-3.
5. After the DNR
filed the complaint, an administrative law judge was assigned for the
Commission. The administrative law judge
scheduled a prehearing conference and served a copy of the complaint upon the
DNR and upon Molden. The DNR and Molden
have actively participated in the proceeding, including in a hearing conducted
in
6. 312 IAC 9-10-9
provides in pertinent part:
(a) This section governs a permit to possess a wild animal for
rehabilitation. The permit is required
for a mammal…and is available only to an individual who is a resident of
….
(l) A permit may be suspended, denied, or revoked under [AOPA] if the
permit holder fails to comply with any of the following:
(1) A permit issued under [312 IAC 9-10-9].
(2) [312 IAC 9] or [the Fish and Wildlife Code].
(3) Another applicable state, local, or federal law.
7. In her permit renewal
application, Molden requested authorization to rehabilitate the following
mammals within her premises at
8. A permit was
issued to Molden for 2006 consistently with the request described in Finding
7. Terms of the permit specified that
“The validity of this permit is…conditioned upon strict observance of all
applicable foreign, state, local or other federal law.” Also, “As soon as the animals are capable of
fending for themselves, they must be released into the wild. All animals should be released within 180
days. No non-releasable white-tailed
deer may be kept under this permit. If
an animal is not capable of fending for itself, a conservation officer must be
contacted for further instructions as to the disposition in accordance with
[Commission Information] Bulletin #45.”
Emphasis provided in the permit.
Claimant’s Exhibit A.
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9. As set forth
in Claimant’s Exhibit 3, Commission Information Bulletin #45 provides in
section 3:
As a condition of the rehabilitation permit, wild animals taken in for
rehabilitation are to be released within 180 days. If a rehabilitator intends to possess a wild
animal beyond this 180-day rehabilitation period, a conservation officer must
be contacted as to the disposition.
Reasonable extensions may be made to facilitate release back into the
wild if approved by a conservation officer prior to elapse of the conditional
timeframe (180 days). The time of year
and extensive injuries are factors that will be taken into consideration for the
release of the wild animals.
Disposition of Permanently Injured,
Non-Releasable Wild Animals,
Information Bulletin #45, Natural Resources Commission, 27 Ind. Reg. 4225 (Sept. 1, 2004).
10. Molden
received possession of three male and one female white-tailed deer fawns
between May 15, 2005 and May 29, 2005.
When received, these deer were sick or injured. Molden released each of the deer on October
3, 2005, at which time they were “in really good condition”. NRC Exhibit 6 and Molden testimony.
11. At their
release on October 3, 2005, Molden believed the deer were not capable of
fending for themselves. She based the
belief, at least in part, upon concerns the deer would wander toward a nearby road,
rather than gravitate toward their natural habitat, and upon concerns the deer
were socialized to humans and particularly vulnerable to hunters.
12. On January
25, 2006, Conservation Officer Robert L. Harlow (“Officer Harlow”) contacted
Molden to perform an inspection of the premises in association with her permit
renewal application. In a case report
prepared following the inspection, Officer Harlow wrote in pertinent part:
…Upon my arrival [at approximately 3:45 p.m.,] I observed Whitetail
Deer in a enclosure located behind and to the side of the home.
Mrs. Molden greeted me at the back of the house and asked what I needed
to see. I told her that I needed to look
at the facilities that she utilized for her rehabilitation of wild animals and
any animals she had on hand…. I then
asked about the deer and if she had any kind of a permit for them. Mrs. Molden said she didn’t know she needed a
permit for deer. As we walked to the
location of the
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deer I observed four deer inside an enclosure with a secured gate that
made escape unlikely. I asked if the
deer in the enclosure were the deer listed on her Report of Rehabilitation [NRC
Exhibit 6] form. Mrs. Molden told me
they were. I asked her why then on her
report it shows these deer as being released on 10/3/05. Mrs. Molden told me that she did release them
on 10/3/05 but they came back. She went
on to explain that behind the house there is a fence that encloses the property
with a gate in the very back. I observed
a fence that appeared to enclose the whole back portion of their property with
the smaller enclosure within it, where the deer are located. I asked if she released them why are they
here. She told me that when she released
them she opened the gate to the large enclosure but they came back and that she
does not like releasing them during the hunting season. I asked why she had the deer inside the
smaller enclosure and not the surrounding large one she told me that the deer
like to butt you with their head. I told
her the deer are captive and should have been released. I explained to her that the rules of the
permit are that the deer are to be leased after 180 days and she cannot deviate
from the time limit. I also explained to
her that if there are legitimate rehabilitation issues with a deer being
released after 180 days she should contact a Conservation Officer. However not releasing them because of a
hunting season would not be a legitimate reason. Mrs. Molden asked what am I supposed to do?
“bottle feed and raise them so someone can shoot them, I feel like a veal
farm”. …
Mrs. Molden had four deer in captivity which are listed on the Report
of Rehabilitation [NRC Exhibit 6]…completed by her. The report lists that the deer were released
on 10/3/05. These deer were not free
roaming but captive at the time of the inspection. She told me that she did release them but
they came back. If the deer came back
she would have had to open the gate to the large enclosure and get them into
the smaller one and then secure the gate to the smaller enclosure.
NRC Exhibit 2.
13. Officer Harlow
testified consistently with the information contained in NRC Exhibit 2. He also testified that Molden told him on
January 25, 2006 she would release the four deer on the evening of January 25.
14. Officer
Harlow returned to the premises on January 26, 2006 at approximately 2:46 p.m.
to determine if the four deer had been released. As set forth in a supplemental report [NRC
Exhibit 3], he observed:
When I arrived I was greeted by Jaqueline Molden at the back of the
house. I asked Mrs. Molden if she had
released the deer. Mrs. Molden told me
that the “boy’s” had left but the “girl” was still here. As we walked into the large enclosure I
observed the female deer. I told Mrs.
Molden that the deer needed to be released today, “right now”. We walked to the back of the enclosure where
a gate was located. The gate was closed
and latched and Mrs. Molden unlatched the gate and opened it. We walked through the gate with the deer for
quite a way and then returned to the area of the home.
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15. Officer
Harlow testified consistently with the information contained in NRC Exhibit 3. He also stated that when Molden was informed
she needed to immediately release the female deer, Molden responded “that she
didn’t want to release the deer during the hunting season.” Officer Harlow also testified he explained to
Molden that if there were a reason the deer could not be released, as far as
rehabilitation, she could contact a conservation officer. In response to a question by Molden,
16. Officer
Harlow testified he determined Molden possessed each of the four deer for a
period in excess of 180 days. This
determination was based upon the Report of Rehabilitation [NRC Exhibit 6]
showing that Molden took possession of the deer between June 15 and June 29 and
that she released them on October 3, 2005.
There was no notation in the report that Molden reassumed possession of
the deer after October 3, but on January 25, 2006 she had possession of
them. Molden does not dispute that the
four deer observed by Officer Harlow on January 25, 2006 were the same deer
that she described as having been released on October 3, 2005. Officer Harlow testified that prior to his
inspection on January 25, Molden had not requested of him, or to the best of
his knowledge of any other conservation officer, an extension of the 180-day
time limit to possess a white-tailed deer.
17. Lt. Jerry
Shepherd is the superior in the chain-of-command for the DNR’s Division of Law
Enforcement that includes Officer Harlow.
He reviewed the investigation reports by Officer Harlow and concurred in
the opinion that Molden had violated the terms of the permit and had violated
the requirements of 312 IAC 9-10-9. Based
upon his review of the investigation reports, Lt. Shepherd forwarded a
Memorandum [NRC Exhibit 1] to the DNR’s Division of Fish and Wildlife in which
he recommended revocation of the permit.
Shepherd also testified that Molden never requested an extension of time
from him to possess any of the four deer beyond the 180-day limit set forth in
312 IAC 9-10-9(a).
18. Linnea
Petercheff is the Operations Staff Specialist for the DNR’s Division of Fish
and Wildlife. She is the designee of the
DNR Director who issued the permit [Claimant’s Exhibit A]. Her business address and telephone number are
set forth on the permit. Petercheff
testified that Molden never requested an extension of time from her to possess
any of the four deer beyond the 180-day limit set forth in 312 IAC 9-10-9(a).
19. Molden
testified that the deer would return to the premises after their release on
October 3, 2005. She would open the
outer gate when there was shooting to allow the four deer to return and would
close the gate behind them. She would then
periodically re-release them but would again allow for the four deer to return
and would cause their renewed confinement.
Molden did not amend or supplement the Report of Rehabilitation [NRC
Exhibit 6] to reflect that she reassumed possession of the four deer after
October 3, 2005, but neither did she undertake any effort to hide the deer from
the DNR. Molden testified she welcomed
the inspection by Officer Harlow because she knew of the requirement for deer
to be released within 180 days of possession, and she hoped he could advise her
how to address what she considered to be a dilemma.
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20. The witnesses
offered several perspectives as to what would or might constitute a sufficient
legal basis for a conservation officer to provide, if requested, an extension
of time beyond the 180-day limit as set forth in 312 IAC 9-10-9(a). This subsection provides that “A white-tailed
deer must not be possessed under this section for more than one hundred eighty
(180) days unless a conservation officer inspects the animal and determines an
extended period may be reasonably expected to result in its rehabilitation.” Some guidance as to the Commission’s intent
in adopting this provision may also be provided by Information Bulletin #45:
“If a rehabilitator intends to possess a wild animal beyond this 180-day
rehabilitation period, a conservation officer must be contacted as to the
disposition. Reasonable extensions may
be made to facilitate release back into the wild if approved by a conservation
officer prior to elapse of the conditional timeframe (180 days). The time of year and extensive injuries are
factors that will be taken into consideration for the release of the wild
animals.”
21. Had Molden made a timely request for an
extension of time, it might have been granted.
There likely would have been no DNR complaint to revoke the permit. Even if the request were denied, the DNR
decision would have effectuated the opportunity for relief under AOPA. Molden would have been entitled to seek administrative
review under IC 4-21.5-3-5. Testimony
could have been received from zoologists, biologists, veterinarians or other
professionals with expertise concerning the health of deer released to the
wild. A decision could have been
rendered by the Commission as to whether a proper basis existed to support an extension
of the 180-day rehabilitation period. A
Commission decision would have had the benefit of the expertise offered by both
Molden’s and the DNR’s witnesses. The
Commission decision itself would then have been subject to judicial
review. Whether following an extension
approval or following an extension denial, an orderly disposition would have
resulted.A
22. This
proceeding is not ripe for a determination of what is a sufficient basis for
approval of the 180-day extension authorized by 312 IAC 9-10-9(a). Molden did not request such an extension. Awaiting an inspection and threatened
sanction by the DNR, before opening discussion of whether an extension might be
granted, does not constitute a reviewable request.
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23. The
preponderance of the evidence does not support a finding that Molden sought to
conduct a clandestine operation for the possession of the four white-tailed
deer. She was neither evasive nor
secretive. Molden was not forthcoming,
however, and failed to report repossession of the white-tailed deer following
their reported release on October 3, 2005.
Molden’s own testimony reflects that she understood repossession of the
four deer, after their October release, presented a problem relative to the
180-day rehabilitation period.
24. Also, Molden
testified to a lack of understanding of many of the requirements pertaining to
the rehabilitation of white-tailed deer.
In order to properly address her legal responsibilities as a permit
holder, she must understand the requirements.
Lack of understanding is not a defense to a permit revocation. Lack of understanding is a basis for permit
denial. If Molden is ever to hold a
rehabilitation permit for white-tailed deer, she must develop an understanding
of her legal obligations.
25. Although
there is some evidence to support that Molden should be prohibited from holding
a wild animal rehabilitation permit for any species, the preponderance of the
evidence is that the core problem is with the possession and rehabilitation of
white-tailed deer. This evidence does not
compel the revocation of the permit but does properly require a one-year
suspension of the opportunity to possess or rehabilitate white-tailed deer. A final order should be issued that is
consistent with this suspension.
A Other remedies are also available to Molden. The Commission has approved the use of a quasi-declaratory judge to seek interpretation of a rule. 312 IAC 3-1-15. The testimony suggests Molden may, in fact, wish to seek modification to the subject rule or the subject nonrule policy document rather than its interpretation. The Commission has adopted a nonrule policy document, “Petitions for Rule Change and for Nonrule Policy Document Change”, which is accessible on the Commission’s webpage or from the Legislative Services Agency at DIN: 20061011-IR-312060443NRA.