[CITE: Faulk v. DNR, 11 CADDNAR 272 (2008)]
[VOLUME 11, PAGE 272]
Cause #: 07-165D
Caption: Faulk v. DNR
Administrative Law
Judge: Jensen
Attorneys: Faulk;
Knotek
Date: March 20, 2008
FINAL ORDER ON
COMPETING MOTIONS FOR SUMMARY JUDGMENT
1. There exists no genuine issue of material fact and this proceeding can be and hereby is determined on summary judgment as a matter of law.
2. The Department’s Cross-Motion for Summary Judgment is granted.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW WITH
CASE HISTORY:
1. The instant proceeding was initiated by Claimant, Rodney L. Faulk, (Faulk) on August 12, 2007 by the filing of correspondence seeking administrative review by the Natural Resources Commission (Commission) of the Department of Natural Resources’ (Department) denial of his application for a wild animal possession permit.
2. A prehearing conference was conducted on September 11, 2007 during which the parties agreed that the facts relating to the instant proceeding are not in dispute and further agreed that the instant proceeding presents a question of law that is amenable to dispensation by summary judgment.
3. Based upon the representations of both parties a schedule for the filing of summary judgment motions as well as briefs in support, responses and replies was established.
[VOLUME 11, PAGE 273]
4. Faulk timely filed his Motion for Summary Judgment, Brief in Support and Designation of Evidentiary Material on September 25, 2007. Thereafter, the Department filed its Response to Claimant’s Motion and Cross-Motion for Summary Judgment along with its Brief in Support on November 5, 2007.
5. Faulk availed himself of the opportunity to file a Reply on November 26, 2007.
6. Wild animal possession permits are controlled by administrative rules found at 312 IAC 9-11-1 et seq., the adoption of such rules being authorized by Indiana Code § 14-22-26 and Indiana Code § 14-22-2-6.
7. The Department is the administrative agency charged with responsibility for the application of Ind. Code § 14-22-26 and 312 IAC 9-11-1.
8. Procedurally, the instant cause is governed by Indiana Code § 4-21.5-3 et seq., commonly referred to as the “Administrative Orders and Procedures Act,” or “AOPA” and administrative rules adopted by the Commission for the purpose of implementing AOPA in proceedings within the Commission’s subject matter jurisdiction, such rules being found at 312 IAC 3-1 et seq.
9. The Commission is possessed of jurisdiction of the subject matter and of the persons of the parties to this proceeding.
10. The Commission is the ultimate authority for the Department actions with respect to the subject matter of the instant proceeding. Indiana Code § 14-10-2-3.
[VOLUME 11, PAGE 274]
STATEMENT OF UNDISPUTED FACTS:
11. Faulk
submitted to the Department his Application for a Wild Animal Permit (Application)
on July 19, 2007 seeking authorization to possess a Capuchin monkey. Claimant’s Exhibit #1, “Application for
Wild Animal Permit”
12. Faulk
maintains, without protest from the Department, that Capuchin monkeys are
docile and non-aggressive mammals that are common pets in their native country
as well as within the
13. More
specifically, a Capuchin monkey is a primate from the Cebidae (Marmoset)
family, which is native to areas in Central and
14. The Department does not disagree with Faulk’s further contention that recapture of the animal, should it escape from captivity, would require only the use of net.
15. In a letter dated August 7, 2007, Faulk’s Application was denied by the Department for the reason that,
The DNR can issue a wild animal possession permit only
for those species listed in the rule governing wild animal possession permits
(312 IAC 9-11-1a). Capuchin monkeys are
not listed in 312 IAC 9-11, nor are they an endangered or threatened
species. Furthermore, an exotic mammal
that is from a family listed in 312 IAC 9-3-18.5 cannot be possessed except as
otherwise proved by statute or in this article (312 IAC 9). Capuchin monkeys
are in the family Cebidae, which is listed in 312 IAC 9-3-18.5(a)(5). There are no provisions for possessing
capuchin monkeys in Indiana Code. 14-22 or in
[VOLUME 11, PAGE 275]
16. Summary judgment for purposes of proceedings before the Commission is controlled by the application of Indiana Code § 4-21.5-3-23.
17. Following a motion for summary judgment being filed by a party, the administrative law judge is obligated to render a judgment immediately if it is determined that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. I.C. § 4-21.5-3-23 and Indiana Department of Environmental Management v. Schnippel Construction, Inc., 778 N.E.2d 407 (Ind. App. 2002).
18. A genuine issue of material fact exists when facts necessary for the disposition of a proceeding are either in dispute or are not in dispute but are capable of supporting differing inferences on the same issue. Schnippel, supra.
19. A party adverse to a motion for summary judgment must respond to the motion setting forth specific facts supporting the conclusion that a genuine issue of material fact does, in actuality, exist and “may not rely upon the mere allegations or denials made in the adverse party’s pleading as a response to the motion.” I.C. § 4-21.5-3-23(f).
20. The director of the Department is charged with the responsibility for establishing necessary rules to administer Indiana Code §§ 14-22 et seq. Indiana Code § 14-22-2-6[1].
[VOLUME 11, PAGE 276]
21. Under the authorization of Indiana Code § 14-22-2-6(a)(5) and Indiana Code § 14-22-26-3, 312 IAC 9-11-1 et seq. was adopted to set forth circumstances in which permits for the possession of wild animals are required.
22. As it pertains to this proceeding, a wild animal is “an animal whose species usually: (A) lives in the wild; or (B) is not domesticated.” Indiana Code 14-8-2-318.
23. Except under conditions not applicable to this proceeding Faulk is obligated to obtain a permit from the Department to possess a wild animal if the wild animal is “referenced in this rule” or “listed in this article as an endangered species or a threatened species.” 312 IAC 9-11-1(a).
24. The parties agree that the Capuchin monkey is not identified as either an endangered or threatened species for purposes of 312 IAC 9-11-1. See 312 IAC 9-3-19 and 312 IAC 9-1-14.
25. For purposes of the permitting scheme established by 312 IAC 9-11 et seq. wild animals are classified as Class I, Class II and Class III wild animals with Class I wild animals being those that because of the species’ “nature, habits, or status”, it is not a “threat to personal or public safety.” 312 IAC 9-11-5(1)
26. Class II and Class III wild animals are those that “may pose a threat to human safety” or that “present a real or potential threat to human safety,” respectively. 312 IAC 9-11-5(2) & (3).
[VOLUME 11, PAGE 277]
27. The parties do not dispute that the Capuchin monkey is best characterized as a Class I wild animal.
28. However, the Department maintains that a wild animal permit is issuable only for those Class I wild animals specified within 312 IAC 9-11-6, which include only rabbits and squirrels. Consequently, it is the Department’s position that the Capuchin monkey is simply outside the permitting mechanism set forth by 312 IAC 9-11.
29. Faulk, to the contrary, argues that 312 IAC 9-11-5 requires a person to obtain a permit to possess any mammal that poses no threat to personal or public safety, and that the Capuchin monkey, which without dispute falls within this category, is within the permitting scheme established by 312 IAC 9-11.
30. Clear and unambiguous administrative rule provisions are not open to statutory construction. Indiana Alcoholic Beverage Commission v. Osco Drug, Inc., 431 N.E.2d 823 (Ind. App. 1982), McCrary v. Department of Natural Resources, 10 CADDNAR 73, (2005).
31. Administrative rules must be read to give each provision meaning and each part must be considered in the context of the entire rule. Union Township School Corporation v. State Ex Rel. Joyce, 706 N.E.2d 183 (Ind. App. 1998), Ernst and Ernst v. Underwriters National Assurance Company, 381 N.E.2d 897 (Ind. App. 2 Dist. 1978), McCrary, supra.
32. An objective reading of 312 IAC 9-11-5 within the context of the remainder of 312 IAC 9-11 reveals an unambiguous administrative rule provision that is not subject to statutory construction.
[VOLUME 11, PAGE 278]
33. 312 IAC 9-11-5 reads:
The following classifications apply to a wild animal for which a permit for possession is required under IC 14-22-26 and this rule:
(1) Class I includes any wild animal which, because of its nature, habits, or status, is not a threat to personal or public safety.
(2) Class II includes any wild animal which, because of its nature, habits, or status, may pose a threat to human safety.
(3) Class III includes any wild animal which presents a real or potential threat to human safety.
34. Clear language of 312 IAC 9-11-5 reveals that the intent of this section is simply to identify, by general description, the wild animals that may be included within the classifications established by the Department.
35. 312 IAC 9-11-6 through 312 IAC 9-11-8 proceed to identify, by particular species, the wild animals that meet the general classification criteria set forth at 312 IAC 9-11-5.
36. Only those wild animals specifically identified within 312 IAC 9-11-6 through 312 IAC 9-11-8 have been chosen by the Department for regulation under the permitting scheme established by 312 IAC 9-11.
37. It is within the Department’s discretion pursuant to the express authority of IC 14-22-2-6 and Indiana Code § 14-22-26-3 to establish necessary provisions to regulate the possession of wild animals.
38. The Department is correct that the wild animal permit mechanism set forth at 312 IAC 9-11 does not contemplate the issuance of a permit for a Capuchin Monkey.
[VOLUME 11, PAGE 279]
39. The Department concedes that were this the end of the analysis, Faulk “could possess the animal without a permit from the Department.” Respondent Department of Natural Resources’ Memorandum In Support of Its Response to Claimant’s Motion for Summary Judgment and Cross-Motion for Summary Judgment, page 4.
40. However, the instant proceeding involves a Capuchin monkey which is a “species that is: (1) not native to Indiana,” Indiana Code § 14-8-2-87.
41. Therefore, in addition to being a wild animal, a Capuchin monkey also qualifies as an “exotic mammal.” Id.
42. The director of the Department is to establish by rule the “methods, means and time of: (A) taking, chasing, transporting, and selling; or (B) attempting to take, transport, or sell; wild animals or exotic mammals, with or without dogs, in Indiana or in a designated part of Indiana.” Indiana Code § 14-22-2-6(a)(4), 312 IAC 9-3-18.5(e).
43. The Department cites the authority of Indiana Code § 14-22-2-6(a)(4), for its adoption of administrative rules that identify numerous families of exotic mammals that may not be possessed “except as otherwise provided by statute or this article.” 312 IAC 9-3-18.5.
44. Included within the families of exotic mammals that may not be possessed by virtue of 312 IAC 9-3-18.5(c) is the Cebidae family, to which the Capuchin monkey belongs.
45. In the Department’s view, because possession of a Capuchin monkey is not contemplated by the wild animal permitting scheme established at 312 IAC 9-11, or any other provision provided by statute or administrative rule, by application of 312 IAC 9-3-18.5(c) no person, including Faulk, may possess a Capuchin monkey in Indiana.
[VOLUME 11, PAGE 280]
46. No doubt, in an effort to avoid the total prohibition on the possession of a Capuchin monkey that results from the coordinated application of 312 IAC 9-11 and 312 IAC 9-3-18.5, Faulk has concentrated on his contention that 312 IAC 9-11-5 requires that a wild animal permit be obtained from the Department in order to possess a Capuchin monkey.
47. The Department in cites Indiana Code § 14-22-2-6(a)(4) as the statutory authority for the adoption of 312 IAC 9-3-18.5. “Respondent Department of Natural Resources’ Memorandum in Support of Its Response to Claimant’s Motion for Summary Judgment and Cross-Motion for Summary Judgment”
48. Similarly 312 IAC 9-3-18.5 identifies its authorizing statutes as Indiana Code § 14-22-2-6 and Indiana Code § 14-22-32-6.
49. The citation of Indiana Code § 14-22-2-6(a)(4) and Indiana Code § 14-22-32-6 as authority for the adoption of 312 IAC 9-3-18.5(c) raises concerns as to the validity of that administrative rule subsection.
50. Despite the fact that no party has raised an issue of the validity of 312 IAC 9-3-18.5(c), the Natural Resources Commission is responsible for conducting a de novo review of the matters at issue. DNR v. United Refuse Co., Inc. 615 N.E.2d 100 (Ind. 1993), Clauss v. DNR, 11 CADDNAR 150 (2007).
51. Indiana Code § 14-22-2-6(a)(4) authorizes the Department to regulate the taking, the chasing, the transporting, and the selling or the attempt of these activities relating to exotic mammals and wild animals.
[VOLUME 11, PAGE 281]
52. As relevant to the instant proceeding “take” means “(A) to kill, shoot, spear, gig, catch, trap, harm, harass, or pursue a wild animal; or (B) to attempt to engage in such conduct.” Indiana Code 14-8-2-278.
53. “Chase”, for purposes of IC 14-22, means following wildlife without the intent to take.” Indiana Code § 14-8-2-39.
54. Taking and chasing, by statutory definition, do not involve a component relating to possession of an exotic mammal.
55. While to transport or sell an exotic mammal involves a component of possession, the possession of an exotic mammal does not involve a component of transporting or selling an exotic mammal. Consequently, the prohibition on the possession of the specified exotic mammals is also not authorized by the Department’s ability to regulate the transportation or sale of the identified exotic mammals.
56. The plain language of Indiana Code § 14-22-2-6(a)(4) clearly allows the Department’s regulation of taking, chasing, transporting and selling exotic mammals, but equally clear in the plain language of the statute is a lack of Departmental authority to regulate the possession of such mammals.
57. This result is equally true with respect to Indiana Code § 14-22-32-6 because that chapter prohibits only hunting, trapping or chasing of exotic mammals but makes no reference to possession.
58. Examination of additional statutory provisions indicates that the Department is authorized to adopt rules to require and issue permits for the possession of wild animals pursuant to Indiana Code § 14-22-26-3. While I.C. 14-22-26-3 enables the Department to adopt rules for the purpose of regulating a person’s possession of wild animals this statutory provision fails to go so far as to grant to the Department the ability to outright prohibit such possession.
[VOLUME 11, PAGE 282]
59. However, Indiana Code § 14-22-6-1 states that “a person may not take, chase, or possess a wild animal, except as provided by: (1) a statute; or (2) a rule adopted under IC 4-22-2 to implement this article.”
60. Application of 312 IAC 9-11 essentially eliminates the prohibition on the possession of wild animals set forth by Indiana Code § 14-22-6-1 by authorizing a person to possess any wild animal without regulation, except those specifically identified within 312 IAC 9-11-6 through 312 IAC 9-11-8.
61. While 312 IAC 9-3-18.5 is certainly not authorized by Indiana Code § 14-22-2-6(a)(4) or Indiana Code § 14-22-32-6, the Department can find the authority for the adoption of this rule through the coordination of Indiana Code § 14-22-6-1 and Indiana Code § 14-22-2-6(a)(5)(A), which authorizes the Department to adopt rules necessary to “implement the chapter.”
62. Essentially, the result of the Department’s adoption of 312 IAC 9-3-18.5 is to reinstate certain wild animal possession prohibitions that were imposed and are authorized by Indiana Code § 14-22-6-1, but which were practically eliminated by application of 312 IAC 9-11.
63. In short, the Department first exercised its authority as granted by Indiana Code § 14-22-26, in adopting 312 IAC 9-11 to de-regulate the possession of wild animals except for those wild animals identified at 312 IAC 9-11-6 through 312 IAC 9-11-8. Through the later adoption of 312 IAC 9-3-18.5, the Department created what might best be characterized as exceptions to 312 IAC 9-11’s de-regulation by reinstating Indiana Code § 14-22-6-1’s prohibition on the possession of the identified families of wild animals and exotic mammals.
[VOLUME 11, PAGE 283]
64. "In passing on the validity of administrative rules and regulations, the only concern of the court is to ascertain whether the will of the legislature has been obeyed. In reviewing the propriety of an administrative regulation, the court must first determine whether the regulation lies within the scope of the authority conferred, it looks to see whether the regulation harmonizes with the plain language of the statute, its origin and its purpose, and must ascertain whether the regulation is consistent with and reasonably necessary to carry out the purposes of the statutory provisions conferring the rule-making power, and then determine whether the regulation is reasonable and not arbitrary." McCrary, supra; citing Van Allen v. State of Indiana, 467 N.E.2d 1210 (Ind. App., 2 Dist., 1984) citing 73 C.J.S. Public Administrative Law & Procedure SECTION 93a, at 603-04 (1983).
65. Despite the fact that the authority for the adoption of 312 IAC 9-3-18.5(c) is stated erroneously the Department does, in fact, possess the authority to adopt the rule. Consequently, application of 312 IAC 9-3-18.5(c) is not deemed unenforceable.
66. While it is certain that the coordinated application of 312 IAC 9-11 and 312 IAC 9-3-18.5 is unnecessarily cumbersome and confusing these provisions are not entirely inconsistent with each other and are not beyond the scope of the authority conferred upon the Department by the Indiana legislature regarding its regulatory responsibility for wild animals and exotic mammals.
67. Consistent with general principles of statutory construction the rule provisions established at 312 IAC 9-11 and 312 IAC 9-3-18.5 must be read in coordination in an effort to give each their intended meaning.
[VOLUME 11, PAGE 284]
68. As stated in finding # 38, a wild animal permit for the possession of a Capuchin monkey is not contemplated by 312 IAC 9-11.
69. It is further determined that application of 312 IAC 9-3-18.5(c) serves to prohibit the possession of any exotic mammal belonging to a family identified at 312 IAC 9-3-18.5(a), which includes the Capuchin monkey, unless the possession of an animal belonging to that family is expressly authorized by a separate and distinct statutory provision or administrative rule.
70. No separate and distinct statutory provision or administrative rule authorizes the possession of a Capuchin monkey.
71. It
is determined that possession of a Capuchin monkey in
[1] With the exception of emergency rules adopted by the Director, the Commission is responsible to exclusively exercise the authority of the Department and the Director with respect to the adoption of rules. Indiana Code § 14-10-2-4(c).