CADDNAR

[CITE: Rockey v. DNR, 12 CADDNAR 273 (2010)]

 

 

[VOLUME 12, PAGE 273]

 

Cause #: 10-110D

Caption: Rockey v. DNR

Administrative Law Judge: Jensen

Attorneys: pro se (Rockey); Wyndham (DNR)

Date:   November 18, 2010                                                             

 

[See Editor’s note at end of this document regarding change in the decision’s original format.]

 

FINAL ORDER

 

48.  The Department’s denial of Rockey’s Application is affirmed.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

PROCEDURAL BACKGROUND

 

1.      The instant proceeding was commenced by Claimant, Rebecca Rockey (Rockey) on June 13, 2010 with the filing of correspondence seeking administrative review of the Respondent, Department of Natural Resources’ (Department), denial of her Application for Wild Animal Possession Permit (Application).

 

2.      The Department’s issuance of a Wild Animal Possession Permit is governed by Indiana Code §§ 14-22-26 and 312 IAC 9-11.

 

3.      Indiana Code §§ 4-21.5-3, commonly referred to as the Administrative Orders and Procedures Act, or AOPA, and administrative rules found at 312 IAC 3, control procedurally.

 

4.      For purposes of the instant proceeding the Natural Resources Commission (Commission) is the “ultimate authority”, which is “an individual or panel of individuals in whom the final authority of an agency is vested by law or executive order.”  Indiana Code § 4-21.5-1-15.

 

5.      The Commission possesses jurisdiction over both the subject matter of this proceeding and the persons of the parties. 

 

6.      The Commission appointed the undersigned administrative law judge to preside over the instant proceeding.

 

7.      A prehearing conference was scheduled and conducted on July 1, 2010 at which time an administrative hearing was scheduled for August 9, 2010.

 

8.      On July 6, 2010, Cecilia Lambert (Lambert) requested the opportunity to testify at the administrative hearing as an interested person instead of a witness for either party.  The administrative law judge, under the authority of Indiana Code § 4-21.5-3-25(f), authorized Lambert’s request in a written order issued on July 8, 2010.

 

9.      On August 9, 2010, the administrative hearing was conducted as scheduled.

 

10.  During the administrative hearing, Lambert sought to admit into evidence a DNA Analysis Report that had not previously been provided to either Rockey or the Department.  Lambert testified that she had received the DNA Analysis Report on Saturday before the Monday hearing and as such was unable to provide a copy to the other parties. See Entry Regarding Submission of DNA Analysis by the Respondent, Department of Natural Resources issued on August 12, 2010. 

 

11.  Prior to the administrative hearing, the Department had also submitted DNA for analysis but had not received the report of that analysis before the date of the hearing and had consequently decided to forego offering that evidence at that administrative hearing. 

 

[VOLUME 12, PAGE 274]

 

12.  Over the objection of the Department, Lambert’s offered DNA Analysis Report was admitted into evidence under the condition that the Department would have the opportunity to submit its DNA Analysis Report, when received.  The administrative law judge also advised the parties that if the Department submitted DNA evidence either party would be allowed an opportunity to present additional evidence related solely to the DNA Analysis Reports.  Id.

 

13.  On August 13, 2010, the Department submitted its DNA Analysis Report.

 

14.  On August 30, 2010, both parties notified the administrative law judge that they were not seeking an additional opportunity to submit evidence regarding the DNA Analysis Reports.

 

 

FINDINGS OF FACT

 

15.  Rockey sought the Wild Animal Possession Permit at issue for the purpose of possessing a coyote pup she had obtained on April 10, 2010.  Testimony of Rockey, Respondent’s Exhibit B.

 

16.  Rockey had come to possess the coyote pup on the day her husband hit and killed the mother on the road with his car.  Id.  The coyote pup, which was found lying next to the mother, was too young to survive on its own and Rockey placed it to nurse with her female Boxer dog that had recently lost all but one of its pups. Testimony of Rockey.

 

17.  Rockey took the coyote pup to the veterinarian for vaccinations allowed for coyotes.  The veterinarian directed Rockey to the local Sheriff’s Department to obtain the forms to apply for a Wild Animal Possession Permit.  Id.

 

18.  On or near May 30, 2010, the Department confiscated the coyote pup from Rockey and placed the animal at Hardy Lake Recreation Center from where Lambert, who holds a valid Wild Animal Rehabilitation License, was allowed by the Department to retrieve it.  Testimony of Lambert, Respondent’s Exhibit A.

 

19.  Rockey obtained and completed the Application and it was received by the Department on June 2, 2010.  Testimony of Rockey, Respondent’s Exhibit B.

 

20.  The Department denied Rockey’s Application on June 4, 2010.  Respondent’s Exhibit C.

 

21.  On June 4, 2010, Lambert filed a separate application for a Wild Animal Possession Permit for the same coyote pup.[1]  Respondent’s Exhibit A.  Therein, Lambert states under penalty of perjury under Indiana Code § 35-44-2-1 that the coyote pup is “non-releasable” and “highly socialized”. Id.

 

22.  Conservation Officer Steward testified that the longer the coyote pup was in the Rockey’s possession the more likely it was that it would be imprinted on humans and that it was possible that the coyote pup was already imprinted at the time it was confiscated.  He testified further that if the coyote pup was imprinted it would not be able to be released to the wild.  The Department offered no additional evidence regarding the imprinting or socialization of the coyote pup or the possibility for a successful release of the coyote into the wild.  

 

23.  Rockey took possession of the coyote pup on April 10, 2010 and it was confiscated on or near May 30, 2010 so Rockey’s possession of the coyote pup continued for nearly fifty (50) days and for a portion of that time the coyote pup lived inside Rockey’s home as an indoor pet. Testimony of Rockey, Respondent’s Exhibits A & B.

 

[VOLUME 12, PAGE 275]

 

24.  Lambert stated under penalty of perjury that the coyote pup is “non-releasable” and “highly socialized”.  Respondent’s Exhibit A.

 

25.  It is clear that Rockey discovered the need to obtain a Wild Animal Possession Permit only after having possessed the coyote pup for such a length of time and handled it in such a manner that it has been socialized to the extent that it cannot be released to live in the wild.   Rockey’s testimony that she and her family applied for the Wild Animal Possession Permit in order to take responsibility for a situation they created is also believed.

 

26.  The only conclusion to be reached is that the coyote pup is imprinted on humans and socialized to such an extent that it cannot be released to the wild.

 

27.  It is apparent from their demeanor, and Rockey acknowledged as much in her testimony, that she and her family have become attached to the coyote pup.

 

28.  A portion of the evidence presented at the administrative hearing pertained to the form of the Application, which appears straightforward on its face. The plain language of the application requires a person submitting a “first application” to have a veterinarian verify that the wild animal sought to be possessed has been immunized, is in good health and appears to be free of disease. Respondent’s Exhibit A, Respondent’s Exhibit B.  The requirement for the applicant to have the animal immunized and examined by a veterinarian infers, as Rockey believed, that an applicant for a “first permit” is required to be in possession of the wild animal before submitting an application.  Linnea Petercheff (Petercheff), Operations Staff Specialist for the Department’s Division of Fish and Wildlife, acknowledge that this has been an issue in the past and testified that the Application form is being modified to address this issue. [2]  However, Petercheff emphasized that Rockey’s Application was not denied because she took possession of the coyote pup before she obtained a Wild Animal Possession Permit.

 

29.  The Department denied Rockey’s Application because the coyote was not acquired legally[3].  Testimony of Petercheff, Respondent’s Exhibit C.

 

30.  On multiple occasions Rockey and her daughters have traveled nearly three hours from their home in Pekin, Indiana to Lambert’s facility in Bringhurst, Indiana to receive education on the proper care, maintenance and handling of the coyote pup as it grows to adulthood. Testimony of Rockey.  Rockey has also constructed an outdoor enclosure for the coyote that meets all the required specifications, including a six foot high fence with an overhang and padlocked door, a secondary perimeter fence and a buried fence around the perimeter of the fence to prevent the coyote from digging out.  Testimony of Rockey, Claimant’s Exhibits 1, 2, 3 and 4.

 

31.  A Certificate of DNA Breed Analysis from Canine Heritage reflects that the coyote pup has a “secondary” breed composition of Siberian Husky with Doberman Pinscher being “in the mix.”  Lambert’s Exhibit b.  Canine Heritage states that its breed analysis is conducted using “currently identifiable breeds”, which does not include genetic markers for coyote.  Lambert’s Exhibit b, Testimony of Petercheff.  It further reports that the “secondary” breed composition category “reports breeds that are easily recognizable” but “make up less than the majority of your dog’s DNA.”  Lambert’s Exhibit b.  The “in the mix” breed composition category reports “breed that have the least amount of influence on your pet’s composition and are most likely derived from multiple generations back in your dog’s lineage (e.g., great grandparent).”  Id.

 

[VOLUME 12, PAGE 276]

 

32.  Canine Heritage also acknowledges that its analysis consists of comparing the unknown sample to DNA markers found in purebred dogs and that “if your pet is made up of breeds outside of the identifiable breeds, the test results may be minimal and will indicate the best fit, or closest relatedness of the identifiable breeds used in the analysis.”  Lambert’s Exhibit b.   

 

33.  The USDA National Wildlife Research Center, Wildlife Genetics Lab also conducted a mitochondrial DNA Analysis of the coyote pup at issue in this proceeding.  Respondent’s Exhibit E.  That DNA analysis compared the coyote pup’s DNA to “many canid species including dogs, coyotes, wolves and foxes.”  Id.  By conducting this analysis the USDA Wildlife Genetics lab determined that the coyote pup’s DNA matched “other coyote samples by 99%” with 433 of 438 bases matched.  Id.  Furthermore, the analysis revealed that the coyote pup’s DNA matched “exactly” to a coyote from Illinois.  Id.

 

34.  The USDA Wildlife Genetics lab conducted a further analysis “looking at microsatellites.”  This analysis, considered in concert with the mitochondrial DNA analysis is used to ascertain “hybridization.”  This analysis revealed that the coyote pup’s “microsatellite signature” corresponded with 97.4 % reliability to the coyote group.  Id.

 

35.  Rockey acknowledged her belief that the mother of the coyote pup at issue in this proceeding was a coyote.  Rockey also stated her belief that the coyote pup was a coyote. 

 

36.  By its own acknowledgment, Canine Heritage’s comparison of a breed outside the identifiable purebred breeds will result only in the best correlation.  Because all the comparison completed by Canine Heritage was against DNA markers of purebred domestic dogs, the best result that could be expected was the identification of the closest matching domestic dog.  This evidence is not entitled to great weight in terms of the subject matter of this proceeding.

 

37.  For the subject matter of this proceeding, the USDA National Wildlife Research Center, Wildlife Genetics Lab, which is capable of comparing the coyote pup’s DNA sample to not only domestic dogs but also to coyotes, is a much more reliable analysis.

 

38.  A coy dog is a hybrid of a domestic dog and a coyote that would not be within the jurisdiction of the Department.  Absent evidence regarding the actual breeding or identification of the parents of this coyote pup that would indicate otherwise, the totality of the evidence in this proceeding clearly establishes that the coyote pup at issue in this proceeding is a coyote and is not a coy dog.

 

CONCLUSIONS OF LAW

 

39.  A coyote is a “wild animal.”  Indiana Code § 14-8-2-318.

 

40.  Rockey may only possess the coyote pup as authorized by law.  312 IAC 9-2-1.

 

41.  To obtain authorization to possess the coyote pup Rockey must obtain a Wild Animal Possession Permit under 312 IAC 11.

 

42.  For purposes of a Wild Animal Possession Permit, the coyote pup is characterized as a “Class II Wild Animal.”  312 IAC 9-11-7(a)(2).

 

[VOLUME 12, PAGE 277]

 

43.  Rockey’s Application must verify that she acquired the coyote pup lawfully. 312 IAC 9-11-2(i).

 

44.  A coyote may only be taken from the wild between the dates of October 15 through March 15.  312 IAC 9-3-12.

 

45.  Rockey took possession of the coyote pup at issue in this proceeding on April 10, 2010, which is outside the time allowed for coyotes to be taken from the wild. 

 

46.  Rockey did not acquire the coyote pup lawfully and the Department’s denial of her Application for that reason is appropriate.

 

47.  It is acknowledged that Rockey was unaware of the requirement to obtain the coyote pup between October 15 and March 15 and that Rockey’s possession of the coyote was unplanned.  Rockey’s willingness to comply with all of the Department’s requirements relating to her future possession of the coyote pup is also evident.  However, the clear legal requirements associated with 312 IAC 11 cannot be ignored.  

 

[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format.  The Final Order, Paragraph 48, has been relocated to the “Final Order” section at the beginning of this document.]