CADDNAR

[CITE: Howe v. DNR, 13 CADDNAR 20 (2012)]

 

 

[VOLUME 13, PAGE 20]

 

 

Cause #: 12-011D

Caption: Howe v. DNR

Administrative Law Judge: Jensen

Attorneys: pro se (Howe); Ewbank (Hidden Valley Lake POA); Wyndham (DNR)

Date: March 20, 2012

 

FINAL ORDER

 

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

 

55.  The Department’s issuance of the Permit to the POA is affirmed.

 

           

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

PROCEDURAL BACKGROUND

 

1.      The instant proceeding was initiated by correspondence filed with the Natural Resources Commission (“Commission”) by Ashley and Darryl Howe and Carol Schwegel (“Schwegel”), on January 9, 2012 and January 11, 2012, respectively.  (Hereinafter the Howes and Schwegel will be referred to collectively as “the Claimants”) The correspondence filed by the Claimants seeks administrative review of the Department of Natural Resources’ (“Department”) issuance of a Special Purpose Deer Control Permit (hereinafter “the Permit”)  to Hidden Valley Lake Property Owners Association, Inc. (“the POA”).

 

2.      This proceeding is governed by I.C. 4-21.5, commonly referred to as the Administrative Orders and Procedures Act, or AOPA, and rules adopted by the Commission at 312 IAC 3-1 to aid in the implementation of AOPA. 

 

3.      Included within Schwegel’s correspondence was a request for stay of effectiveness of the Permit, which was joined by the Howes at the prehearing conference.  By operation of Indiana Code § 4-21.5-3-5, the Permit’s stated effective date of January 16, 2012 was deferred by fifteen (15) days, pending a hearing to ascertain whether a further stay of effectiveness was appropriate.

 

4.      A prehearing conference was scheduled and conducted on January 20, 2012 and a hearing on the Claimants’ request for stay was scheduled for January 31, 2012.  During the prehearing conference the parties agreed that the hearing on the request for stay, scheduled for January 31, 2012, should be converted to serve as a hearing on both the request for stay and the administrative hearing on the merits of the Claimants’ requests for administrative review.

 

5.      The Department, through its Division of Fish and Wildlife, is responsible for the administration and implementation of I.C. 14-22-8 et seq., the statutory authority under which the Permit was issued. 

 

6.      The Commission is the ultimate authority.  Indiana Code § 4-21.5-1-15 and 312 IAC 3-1-2.

 

7.      The Commission is possessed of jurisdiction of the parties and the subject matter of this proceeding.

 

8.      A verbal order lifting the stay of effectiveness of the Permit was issued on January 31, 2012 followed by the issuance of a written order on February 1, 2012 denying the requested stay of effectiveness of the Permit.

 

9.      These Findings of Fact and Conclusions of Law with Nonfinal Order serve to address the merits of the Claimants’ requests for administrative review in accordance with Indiana Code § 4-21.5-3-27.

 

FINDINGS OF FACT

 

10.  William Minnery (“Minnery”) is the President of the POA Board, which has received numerous complaints about deer related damage to lawns and landscaping.  He also expressed familiarity with the deer’s contribution to the destruction of ground vegetation that is resulting in increased erosion within the Hidden Valley Lake community (“HVL”) and sedimentation of the lake.  Minnery also expressed concern that a recent water testing program revealed high concentrations of E. coli in surface runoff streams within the HVL a part of which may be attributed to excessive deer feces.  Testimony of Minnery. 

 

11.  The POA was formed to provide, among other things, for the maintenance of “parks, recreational facilities and other community enterprises or improvements…”  Stipulated Exhibit I (pg. 59).  No dispute was offered to the POA’s authority to seek and obtain the Permit.

 

12.  The Claimants noted that under a previous special purpose deer control permit issued to the POA, one hunter, James Barnum (“Barnum”), took 35 deer, including seven antlered deer, while no other hunter took over 17 deer.  Claimant’s Exhibit 9H. 

 

13.  A copy of the POA’s previous special purpose deer control permit was not admitted into evidence so it is uncertain whether it contains the same conditions as the Permit at issue in this proceeding.  However, the Permit at issue here requires that any antlered deer “that has a total of more than seven antler points” must have one antler removed and be “surrendered or disposed of, as specified by a conservation officer or Chad Stewart, the deer management biologist”.  Stipulated Exhibit I (pg. 1).  For argument it is assumed that this condition also applied to the previous permit although that assumption is not supported by evidence in the record.

 

14.  Barnum stated that the antlered deer he took were “spikes” or had fewer than four points but acknowledged that no one besides him actually saw the antlered deer that he took.  Barnum explained that he called, or possibly emailed, Bruce Keller, the HVL’s Community Manager, and reported taking antlered deer under seven points and no further verification was required.  Testimony of Barnum.

 

[VOLUME 13, PAGE 21]

 

15.  The reporting structure maintained by the POA is arguably subject to potential abuse that could simply be eliminated by requiring a photograph of any antlered deer for verification of the number of points on the antlers.  However, the record lacks evidence that the POA did abuse a previous permit or would abuse the Permit at issue here.  Furthermore, the POA has specified that “no antlered deer shall be taken during the 2011 – 2012 cull season.”  Stipulated Exhibit I (pg. 21). 

 

16.  Under its first special purpose deer control permit the POA established that the hunting would occur on 10-acre tracts of property and would be facilitated by the Dearborn County Sheriff’s Department.  Before obtaining the first permit the POA conducted a survey of HVL residents and determined that of those residents responding there was a majority who agreed with the POA’s planned efforts to control the deer population.  Stipulated Exhibit I (pg. 63).  Under the first permit only nine deer were taken and as a result the POA, for its second special purpose deer control permit, established a different hunting scheme, most components of which were maintained for the Permit.  Testimony of Keller.   The POA modified the hunting scheme to allow for hunting by individuals other than Dearborn County Sheriff’s Deputies in an increased number of smaller zones but the POA did not conduct a second survey of HVL residents and refused to allow the Claimants to conduct such a survey in conjunction with this Permit.  Testimony of Ashley Howe, Testimony of Minnery.  Actions of the POA or matters relating to the POA’s communication with the HVL residents is a matter of local governance over which the Commission is without control or involvement.  

 

17.  Some highlights of the hunting scheme to be used under the Permit include the allowance of hunting with only archery equipment on “all community property within HVL” as approved by POA Community Manager.  Stipulated Exhibit I (pg. 22).  Hunting will be allowed in approximately 38 zones comprised of community property that may be extended by using adjacent private property if the owner of the private property grants permission and executes a waiver.  Claimant’s Exhibit 2I, Id.  The POA also established hunter qualifications that include the completion of a qualified hunter safety education course and satisfactory completion of a proficiency test.  Id (at pg. 24).  Hunting is required to occur only from an elevated position in order that arrows missing a deer or shooting through a deer will hit the ground instead of continuing in flight.  Id., Testimony of Keller, Testimony of Hemmerle. 

 

18.  Mark Hemmerle (“Hemmerle”), who is the chairperson of the POA’s Parks and Recreation Committee headed up the deer task force that was instrumental in developing the “Bow Hunting, Deer Culling Program Rules”.  Stipulated Exhibit I (pgs. 22 – 25).  Under the second POA permit, hunting was not allowed on weekends or other days when school was not in session or after regular school hours.  Testimony of Hemmerle.  However, under the Permit at issue here the POA will allow hunting at all times of the day and on weekends.  Id.  Hemmerle testified that the time restrictions required hunters to hunt during normal work hours making it difficult to get the hunter involvement necessary to accomplish the objectives of the permit.  Under the present scheme the time allowed for hunting under the Permit was shortened and was later in the year when temperatures are typically colder and fewer children are playing outdoors.  The number of hunters will now be approximately 20 instead of the previous number of 40.  Testimony of Hemmerle.  Hemmerle further testified that the POA’s conditions have been converted to actual rules under which the POA is able to assess fines for violations.

 

19.  From photographs and an HVL diagram, the hunting zones established by the POA visually appear, in some cases, to be relatively small, wooded, ravenous areas with homes in close proximity.  Claimant’s Exhibit 7A (pg. 1) & Claimant’s Exhibit 8B (pgs. 2-4).  The record is void of evidence establishing the actual size or dimension and topography of any of the hunting zones and likewise there is no evidence to establish the possible flight distance of an arrow.  The evidence is insufficient to establish that the hunting zones as established by the POA are unsafe. 

 

20.  Jennifer Hughes (“Hughes”) is the Stormwater Coordinator for the Dearborn County Soil and Water Conservation District (“DCSWCD”).  In this position she assists communities and construction sites in maintaining compliance with the storm water runoff requirements of 327 IAC 15-13 and 327 IAC 15-5, respectively.  Hughes holds a Bachelor of Science degree in Agriculture with a minor in Chemistry. Testimony of Hughes.

 

21.  Through a grant received by the DCSWCD, Hughes conducted water testing of 12 locations within and around HVL selected by a DCSWCD committee. Id.  Each of the 12 locations was tested one time per month for twelve months and monitored for E. coli, among other substances. Id.  The results of the water testing revealed high E. coli levels in both wet weather and dry weather conditions. Id.  Hughes explained that safe levels of E. coli for human body contact are “235 milliliters per hundred and our E. coli readings ranged …we had some that were unreadable they were so high….”  Id., Respondent’s Exhibit T.  All the streams tested empty into the lake within HVL that is used for recreational purposes, including swimming.  Testimony of Hughes. 

 

22.  Ashley Howe disputed whether the deer population was responsible for the increased E. coli levels testifying that she had observed raw sewage flowing from failing septic systems [1] within HVL to the streams that were tested. 

 

23.  Hughes’ testimony that the E coli. levels result from “a combination” of sewage and overabundant deer feces is not inconsistent with Ashley Howe’s observations or testimony.   

 

24.  In a 2008 report, Darrell Breedlove, District Forester, Selmier State Forest, recommended the elimination of deer browsing in two of five woodland areas included within HVL, and in a third area noted significant evidence of numerous deer. Stipulated Exhibit I (pgs. 38 – 48).  In all of the woodland areas reviewed, Breedlove’s report reveals that invasive species of plants such as garlic mustard, honeysuckle and multi-flora rose, also needed to be controlled.  Id., Testimony of Ashley Howe. 

 

[VOLUME 13, PAGE 22]

 

25.  Chad Stewart (“Stewart”) has served as the State Deer Biologist for the Department for the past 5 years.  Stewart holds a Bachelor of Science in Wildlife and Fisheries from Pennsylvania State University and a Master of Science in Natural Resources and Environmental Science from the University of Illinois.  Testimony of Stewart.  Stewart indicated familiarity with HVL since 2008.  Stewart testified that the number of deer personally observed on his first visit, which occurred before the POA began any deer management efforts, was “startling.” Id.  Stewart added that overpopulations of deer result in destruction of forest understory causing poor nesting for certain bird species and the influx of invasive plant species. Id.  In a December 21, 2011 document, Stewart concluded that;

 

Regeneration failure has previously been documented by a district forester, who has cited deer as a primary source for the problems within the community.  Additionally, the deer population remains high and will likely impair regeneration from occurring in the future without further reduction of the deer herd.

 

Respondent’s Exhibit U.

 

26.  Hughes noted that the vegetative understory has been damaged within the wooded areas and deer are now foraging in residential yards.  This depletion of the vegetative understory has left bare soil unprotected from “rain drop impact which then causes the soil to loosen and flow on down into the streams and lakes causing sediment and nutrient loading.”  Testimony of Hughes.

 

27.  The Department recommends management to maintain deer populations at “approximately twenty (20) deer per square mile.”  Testimony of Stewart, Claimant’s Exhibit 1C.  However, where a healthy ecosystem can maintain 20 deer per square mile a denuded habitat may require numbers of deer below 20 per square mile for regeneration to occur.   Testimony of Stewart. 

 

28.  The POA contracted with Vision Air Research, Inc. who conducted a Thermal Infrared Imaging White-Tailed Deer Count on March 16, 2011.  Stipulated Exhibit I (pgs. 28 – 36).  On behalf of Vision Air Research, Inc., Susan Bernatas, a Certified Wildlife Biologist, prepared the report that revealed the existence of 174 deer within the geographic area surveyed (hereinafter referred to as “the Survey Area”).  Id.

 

29.  The Claimants maintain that the deer count documented by Vision Air Research, Inc. is artificially high because the Survey Area is larger than the boundaries of the HVL. Claimant’s Exhibit 2B (pg. 6). 

 

30.  The geographic area included by Vision Air Research, Inc. for its deer count included “the Hidden Valley Lake community”, however, Vision Air Research, Inc.’s report expressly states that the “survey area was squared off to accommodate transect placement” Stipulated Exhibit I (pg. 29).  This squaring off would account for a portion of, and possibly the totality of, the discrepancy in land area noted by the Claimants. Claimant’s Exhibit 2B. 

 

31.  It is established that the HVL property consists of approximately 2.7 square miles.  Testimony of Ashley Howe, Claimant’s Exhibits 2A & 2G.  There exists no evidence in the record as to the number of square miles actually included within the Survey Area although Stewart opined that the Survey Area may have encompassed as many as six square miles.  Testimony of Stewart.

 

32.  The Claimants’ comparison of the land areas included within HVL against the Survey Area caused them to conclude that either 26 groups of deer, if you consider Claimant’s Exhibit 2F, or that 30 groups of deer, if you consider Claimant’s Exhibit 2E, are located within HVL.  Based upon these conclusions, the Claimants calculated a “deer count of 48 within the community”, if considering Claimant’s Exhibit 2F, or “77 deer within the Hidden Valley Lake community boundary” if considering Claimant’s Exhibit 2H.  The Claimant’s own estimations are inconsistent from one occasion to another and as such are not reliable.  

 

33.  The POA included with its application for the Permit documentation indicating that the Survey Area used by Vision Air Research, Inc. is the equivalent of the land area within HVL and estimated “there were 174 deer counted within HVL”  Claimant’s Exhibit 1C (emphasis added).  The POA’s statement is not accurate because all 174 deer were not located within the HVL property boundary; however, the POA also provided a copy of Vision Air Research, Inc.’s report, which clearly reveals that the Survey Area was not exactly the same as the HVL boundary.  Stipulated Exhibit I (pgs. 28 – 36).  As evidenced by Stewart’s belief that the Survey Area may have included as many as six square miles as compared to HVL’s 2.7 square miles, the POA’s statement did not mislead the Department in reviewing the application.  Testimony of Stewart.

 

34.  Vision Air Research, Inc.’s report indicates that 174 deer exist within the Survey Area in March 2011.  Deer give birth to fawn(s) in summer with many does giving birth to multiple fawns. Testimony of Stewart, Respondent’s Exhibit U.  Based upon this information the Department estimated that “with fawns being born the following summer, densities likely exceeding 80 to 90 deer/mi²”, would exist by the summer of 2011.  Respondent’s Exhibit U.  This would equate to an increase of up to forty percent (40%) or a total of up to 243 deer within the HVL[2].  It is understood that Stewart’s reference to the number of deer within the HVL is actually a reference to the number of deer in the Survey Area.

 

35.  The POA authorized hunting during the regular 2011 archery season that resulted in the taking of approximately 30 deer, bringing the estimated deer population to approximately 213 deer within the Survey Area.[3]  Claimant’s Exhibit 2F, Testimony of Ashley Howe.  

 

36.  Using Stewart’s estimation that the Survey Area may have included up to six square miles based upon a deer population of 213 deer within the Survey Area the result is 35.5 deer per square mile within the Survey Area, which included HVL.

  

37.  The Department uses a “harvest per effort metric” that is based on the ratio of deer taken per hunter in the field, to determine when hunting should occur in Indiana’s state parks in order to maintain a healthy ecosystem.   Stewart explained that by using the metric, “if that number is above .1, which is one deer taken per 10 hunters, then chances are the deer population is still having an influence on the vegetation in that community.”  Therefore, the Department uses the .1 harvest per effort as a threshold for deciding whether hunting will occur in state parks the following year.  Testimony of Stewart.  Stewart noted that the taking of thirty deer within HVL during the regular 2011 archery season is important because the deer were taken by twenty hunters, which equates to “harvest per effort rate of 1.5, or one and a half deer per hunter which is about 15 times higher than the threshold we use to monitor and recommend hunting the subsequent year for state parks.”  Testimony of Stewart. 

 

[VOLUME 13, PAGE 23]

 

38.  Further extrapolation indicates that if the POA does not take additional deer under the Permit, a February 2012 deer herd of 213 could conservatively increase by an additional forty percent (40%) in the summer of 2012 when the does again give birth to fawns.  The deer herd would then approximate 298 deer, which equates to approximately 50 deer per square mile if the Survey Area does actually include six square miles.

 

39.  This extrapolation offers support for the proposition that managing HVL’s deer herd is a continual process, without which the HVL will have a “catastrophic population of deer in the next two years.”  Testimony of Barnum.  The intention of the POA is to continually manage the deer herd to reach a level at which only a few deer will need to be taken each year.  Testimony of Minnery.

 

40.  Deer do not know property boundaries, but instead maintain a home range of one square mile to “many square miles depending on the age and sex of the deer.”  Testimony of Stewart. Stewart explained that because deer move into and out of areas, looking at a smaller area, such as the boundary of only HVL, could achieve skewed results, either higher or lower, depending on where the deer were on a given day and time; whereas expanding the area under consideration actually “gives a better idea of the deer population”.  Id.  Based upon this, it is reasonable to conclude that the Survey Area was of an appropriate size and reveals an accurate estimation of the deer population for use in considering the POA’s application for the Permit.

 

41.  Trees, bushes and shrubbery located in residential landscaping, some of which is located immediately adjacent to residential dwellings, reveal an obvious browse pattern that extends to approximately five feet in height.  Testimony of LuAnn Roberts, Testimony of George Lortz, Respondent’s Exhibits B – E, G, L, M & Q, Stipulated Exhibit I (pg. 68).

 

42.  Residents of the Community frequently utilize deer repellant lawn sprays and fencing to deter deer from eating ground cover, trees and landscaping.  Testimony of Schwegel, Testimony of William Minnery, Testimony of LuAnn Roberts, Stipulated Exhibit I (pg 79). Schwegel is the only witness who reported having success with the sprays.  Testimony of Schwegel.  

  

43.  Deer in the Community are frequently seen in yards and very near residences; having been photographed grazing from sidewalks and next to decks.  Respondent’s Exhibits I & K.  It is not an uncommon occurrence to see a herd of 8 – 15 deer grazing in the Community.  Testimony of Mark Hemmerle, Stipulated Exhibit I (pgs. 68 & 80), Respondent’s Exhibit H. Deer use porches and decks as cover, Stipulated Exhibit I (pg. 80) and occasionally block people from entering garages.  Stipulated Exhibit I (pg. 79), Testimony of William Minnery. 

 

44.  Deer are responsible for the trampling death of a HVL resident’s pet dog.  Stipulated Exhibit I (pg. 7.2).

 

45.  The deer roaming within the Community do not display the natural fear characteristics of deer in the wild. Stipulated Exhibit I (pg. 79).

 

46.  Overwhelming evidence establishes that the deer population within the HVL is excessive. 

 

47.  Without question the evidence reveals that deer are responsible for the destruction of property within the HVL.  Testimony of George Lortz, Testimony of LuAnn Roberts, Stipulated Exhibit I (pgs. 8 – 16), Respondent’s Exhibits B – I, K – Q. 

 

CONCLUSIONS OF LAW

 

48.  On administrative review, the Commission conducts its review of the Permit de novo, giving no deference to the Department’s conclusions.  Citation.

 

49.  The Department is authorized to issue a permit “to a person that owns or has an interest in property being damaged or threatened with damage by a wild animal…” that will allow the person to “take, kill, or capture the wild animal.”  Indiana Code 14-22-28-1.

 

50.  The POA holds an interest in the community property of the HVL and is a proper person to be issued a special purpose deer control permit.   

 

51.  Property of the POA is being damaged.

 

52.  Deer are the cause of the damages complained of by the POA and residents of HVL.

 

53.  There exists no evidence upon which the trier of fact can conclude that the POA “would abuse the privileges” of the Permit such that the POA’s application should have been denied.  Indiana Code 14-22-28-4(2). 

 

54.  The evidence confirms that the Department’s issuance of the Permit to the POA was appropriate.

 

[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 55, has been relocated to the “Final Order” section at the beginning of this document.]