[CITE: Ogden (Remand) v. DNR, 13 CADDNAR 182 (2013)]
[VOLUME 13, PAGE 182]
Cause #: 10-135D
Caption: Ogden (Remand) v. DNR
Administrative Law Judge: Jensen
Attorneys: pro se (Ogden); Wyndham (DNR)
Date: July 9, 2013
[NOTE: THE FOLLOWING ENTRY IS A FINAL ORDER FOLLOWING REMAND. SEE Ogden v. DNR, 12 CADDNAR 272 (2010).]
33. The Department’s denial of Ogden’s application for a Wild Animal Possession Permit is affirmed.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. On July 12, 2010, the Department of Natural Resources (Department) notified Darlene N. Ogden (Ogden) of its determination to deny her application for a Wild Animal Possession Permit, which notice included an order to relinquish the raccoon, for which the permit was sought, to a wild animal rehabilitator or to a conservation officer.
2. On July 15, 2010, Ogden filed correspondence with the Natural Resources Commission (Commission) seeking administrative review of Department’s denial of her application for the Wild Animal Possession Permit and an order staying the effectiveness of the Department’s order to relinquish possession of the raccoon.
3. The issuance of a Wild Animal Possession Permit is governed by 312 IAC 9-11-2, which is administered by the Department.
4. The Commission is the “ultimate authority”, as defined at Indiana Code § 4-21.5-1-15, for the instant proceeding. Indiana Code § 14-10-2-3; 312 IAC 3-1-2.
5. The Commission possesses jurisdiction over the subject matter of the instant proceeding and of the parties.
6. On August 10, 2010, through a telephone conversation, Ogden informed the administrative law judge that she had moved to Oklahoma and could not be present for the stay hearing as originally scheduled for August 11, 2010. The stay hearing was continued until August 24, 2010.
7. During the stay hearing conducted on August 24, 2010 it was revealed that the raccoon had been relocated to Oklahoma and that Ogden no longer intended to possess the raccoon in Indiana and for these reasons on August 25, 2010 the administrative law judge issued a notice of proposed dismissal pursuant to 312 IAC 3-1-9(d) on the basis that the issue of Ogden’s application for a Wild Animal Possession Permit was moot. The parties were allowed ten days to file a motion requesting that a final order of dismissal not be issued.
8. Also on August 25, 2010 the administrative law judge issued an order denying Ogden’s request for a stay of effectiveness as to the Department’s order to relinquish possession of the raccoon.
9. The Department had not on or before September 1, 2010 and has not since that time sought to file any cross petition or counterclaim in this proceeding.
10. Ogden did not respond to the notice of proposed dismissal.
11. On September 1, 2010, the Department filed a motion requesting that Ogden’s request for administrative review not be dismissed. In its motion the Department did not contest the administrative law judge’s preliminary determination that the issue of Ogden’s application for the Wild Animal Possession Permit was moot. Instead, the Department’s motion requested that the Commission enforce its previous order for Ogden to relinquish possession of the raccoon by the issuance of a Commission order for Ogden to return the raccoon to Indiana.
12. A final order of dismissal of Ogden’s request for administrative review was entered over the objection of the Department on September 7, 2010. The dismissal had the effect of leaving intact the Department’s denial of Ogden’s application for a Wild Animal Possession Permit, which had the contemporaneous effect of allowing the Department to take all lawful action with respect to the disposition of the raccoon.
13. Despite the fact that the dismissal of Ogden’s request for administrative review gave full force and effect to the Department’s denial of Ogden’s permit application and allowed the Department to take all lawful authority to enforce its orders, the Department sought judicial review of the final order of dismissal.
14. Following an order of the Marion Superior Court remanding the matter back to the Commission for determination on the merits, the Department renewed its request for a Commission order requiring Ogden to return the raccoon to the state of Indiana.
15. The administrative law judge rejected the Department’s request that Ogden be ordered to return the raccoon to the State of Indiana for multiple reasons including the determination that the Department Director is possessed of “authority under Indiana Code § 14-22-10-5 to seize and confiscate a wild animal that has been illegally taken” without need for a Commission order. See “Order Denying Department’s Motion for Order Requiring Claimant to Return Raccoon to the State of Indiana.” Furthermore, the administrative law judge noted that in making the request the,
“Department whisks aside the Lacey Act, 16 USC 3371-3378, which creates a federal crime for the knowing transportation of an illegally captured animal across state lines. To grant the Department’s motion for an order requiring Ogden to return the raccoon to the State of Indiana would require her to cross multiple state lines with the knowledge of the Department’s belief that the raccoon was illegally obtained. If the Natural Resources Commission were to issue the order requested by the Department such order would be a mandate for Ogden to ignore the Lacey Act. Such an order will not issue.”
[VOLUME 13, PAGE 183]
16. An administrative hearing was scheduled and conducted on April 25, 2013.
17. A raccoon is a Class II Wild Animal for which a Wild Animal Possession Permit is required. 312 IAC 9-11-7(a)(8).
18. “A person who wishes to possess a wild animal, described as Class I or Class II in this rule, must obtain a permit under this rule before the person takes possession of the animal.” 312 IAC 9-11-2(b).
19. “An application must show the wild animal was lawfully acquired. A receipted invoice, bill of lading, or other evidence approved by the director shall accompany the application to establish compliance with this subsection.” 312 IAC 9-11-2(i).
20. The Department denied Ogden’s Wild Animal Possession Permit application for the following reasons:
First of all, you did not acquire the raccoon legally. Your application indicates that you obtained this raccoon from the wild on May 20, 2010. The regulations in 312 IAC 9-11-2(i) that govern the wild animal possession permit require a person to obtain the animal legally. Raccoons can be taken from the wild during the trapping season. The trapping season for raccoons begins on November 15 of year and ends on January 31 of the following year.
Secondly, a wild animal rehabilitation permit is required by law in 312 IAC 9-10-9 to take in sick, injured or orphaned wild animals, and you did not have a rehabilitation permit from the Indiana Department of Natural Resources (DNR) Division of Fish and Wildlife when you acquired this raccoon.
Respondent’s Exhibit 5.
21. “An individual may do the following: (1) Take raccoons and Virginia opossums from 8 a.m. on November 8 until noon on January 31 of the following year.” 312 IAC 9-3-14(a)(1).
22. Ogden acknowledged that she acquired the raccoon, approximately four weeks in age, on May 20, 2010, when she found it, apparently orphaned, along the side of the road. Respondent’s Exhibit 2.
23. Ogden clearly did not obtain the raccoon lawfully.
24. Ogden did not dispute the Department’s contention that she was required to possess a valid wild animal rehabilitation permit in order to take in any orphaned wild animal.
25. Ogden did not possess a valid wild animal rehabilitation permit on May 20, 2010.
26. In an attempt to comply with the law Ogden took the orphaned raccoon to a licensed wild animal rehabilitation center in Bloomington but the center would not accept the raccoon because they were full. Ogden acknowledged being referred to a second facility but admitted to making no further attempts to turn the raccoon over to a licensed wild animal rehabilitator.
27. Ogden’s stated reason for not making further efforts to locate a licensed rehabilitator was because she wanted to keep the raccoon.
28. Ogden admitted being aware of the need to possess a Wild Animal Possession Permit before acquiring the wild animal.
29. Ogden obviously was not aware that she would find an orphaned raccoon on May 20, 2010 and as such she clearly did not have and had not applied for the Wild Animal Possession Permit before acquiring the raccoon.
30. Ogden was aware of the likelihood that her application for the Wild Animal Possession Permit would be denied because of her failure to obtain the raccoon lawfully and her failure to acquire the Wild Animal Possession Permit before acquiring the raccoon.
31. The testimony at the administrative hearing clearly revealed Ogden’s desire and expectation for the Department to grant an “exception” to 312 IAC 9-11-2.
32. Regardless the circumstances, the Department, and the Commission, are without authority to grant exceptions to any law or administrative rule, including the administrative rule governing Wild Animal Possession Permits. See Rockey v. DNR, 12 CADDNAR 273, (2010).