CADDNAR

[CITE: Collins v. Town of Ogden Dunes (Stay), 13 CADDNAR 214 (2013)

 

[VOLUME 13, PAGE 214]

 

 

Cause #: 13-195D

Caption: Collins v. Town of Ogden Dunes (Stay)

Administrative Law Judge: Lucas

Attorneys: pro se (Collins); Parkinson (Town); Wells (DNR)

Date: November 27, 2013

 

 

FINAL ORDER OF DISMISSAL WITH DENIAL OF CLAIMANTS’ STAY REQUEST

 

1. Statement of the Proceeding

 

On November 11, 2013, Connie G. Collins (“Collins”) and Gayla S. Pressner (“Pressner”) filed by United States Priority Mail 2-Day™ their “Petition for review of the Special Control Deer Permit” (the “Petition”) with respect to a Special Purpose Deer Control Permit (the “Special Permit”) issued by the Department of Natural Resources (the “DNR”) to the Town of Ogden Dunes (the “Town”) on October 28, 2013.  The Town and the DNR are collectively the “Respondents”.  The Natural Resources Commission (the “Commission”) received the Petition on November 14.   The Petition initiated a proceeding that is subject to IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC 3-1 to assist with its implementation of AOPA.  Under AOPA, the Commission is the “ultimate authority” for administrative reviews of special deer control permits issued by the DNR.  Howe v. DNR, 13 Caddnar 20, (2012); IC 4-21.5-1-15, IC 14-10-2-3; and 312 IAC 3-1-2.[1]

 

The Petition included a request for a discretionary stay of effectiveness of the Special Permit pursuant to IC 4-21.5-3-4(e).  This subsection provides in part:

 

(e) If a petition for review of an order described in [IC 4-21.5-3-4(a)] is filed within the period set by [IC 4-21.5-3-7] and a petition for stay of effectiveness of the order is filed by a party…, an administrative law judge shall, as soon as practicable, conduct a preliminary hearing to determine whether the order should be stayed in whole or in part. The burden of proof in the preliminary hearing is on the person seeking the stay. The administrative law judge may stay the order in whole or in part. The order concerning the stay may be issued after an order described in subsection (a) becomes effective. The resulting order concerning the stay…must include a statement of the facts and law on which it is based.

 

Although not specified in the Petition, a reasonable inference is the Collins and Pressner asserted the Special Permit was issued wrongly by the DNR under IC 4-21.5-3-4(a)(2) which authorizes the grant of a noncommercial hunting license.

 

“The appropriate standard for determining whether to grant a stay is the equitable standard applicable for whether to grant a preliminary injunction.  State ex rel. Indiana Alcoholic Beverage Commission v. Lake Superior Court, Room 4, (1972) 259 Ind. 123, 284 N.E.2d 746.  The relief provided in the AOPA by a stay process has similarly been characterized as ‘quasi-equitable’ or ‘administrative equitable’, Indiana Administrative Practice, ‘Administrative Hearings’, (Professional Education Systems, Inc., Eau Claire, Wisconsin, 1990), p. 37....”  In deciding whether to issue a stay in this proceeding, an administrative law judge considers:

 

1. Have the persons seeking the stay shown a reasonable likelihood of success on the merits?

2. Would the persons seeking the stay suffer irreparable harm if the stay is denied?

3. Does the threatened injury to the persons seeking the stay outweigh the harm to persons threatened by the granting of the stay?

4. Would the stay disserve the public interest?

Lesch v. DNR and Town of Dune Acres, 8 Caddnar 28, 29 (1998).

 

 

2. Preliminary Hearing

 

Conduct and Stipulations

 

A preliminary hearing was convened as scheduled on November 22 in Chesterton to consider the stay request.  Collins[2], the Town, and the DNR tendered stipulations through a “Revised Agreed Joint Stipulations of the Parties for Purposes of the Stay of Effectiveness Hearing” (Stipulated Exhibit I).  The stipulations included both exhibits and stipulations of fact.  Following the correction of scriveners’ errors, and applying defined terms from this Order, the stipulations of fact were admitted into evidence as follows:

 

1. The file of the [DNR’s] Division of Fish and Wildlife regarding the request of [the Town] for [the Special Permit], which consists of 53 pages and which [Collins and Pressner] and the Town have been provided copies by the [DNR], are true and accurate descriptions and representations of all documents contained in said file, and the file is hereby stipulated as admissible evidence at the [preliminary] hearing.

 

2. [The Town], by and through its Town Council President, Allen B. Johnson, sent a revised written application dated October 18, 2013 to Mr. Bob Porch, District 1 Wildlife Biologist for the [DNR] for the issuance of [the Special Permit] under IC 14-22-28-1.

 

3. The Town…is identified by the Porter County Assessor as the owner of parcel #64-02-35-003.017 and commonly referred to here as the…Fire Station.

 

4. The Town of Ogden Dunes Park and Recreation is identified by the Porter County Assessor as the owner of parcel #64-26-454-004.000-017 and commonly referred to as Hillcrest Park.

 

5. The Town…is identified by the Porter County Assessor as the owner of parcel #64-02-480-021.000-017 and commonly referred to as “Suerenity Park”.

 

6. Indiana Code 14-22-28-1 provides that the director (of the Division of Fish and Wildlife) may issue to a person that owns or has an interest in property being damaged or threatened with damage by a wild animal protected by Title 14, Article 22 of the Indiana Code a free permit to take, kill, or capture the wild animal.

 

7. The [DNR] has the statutory authority to issue to the Town…a Special Purpose Deer Control permit under IC 14-22-28-1.

 

8. Ecologist John Ervin, of Valparaiso, Indiana conducted an updated assessment of the vegetation of the Town of Ogden Dunes, Indiana, and prepared a written report dated October 4, 2013 titled “Three Years of the Vegetation of the Town of Ogden Dunes, Indiana” containing observations and interpretations and effects of deer foraging.

 

9. On October 28, 2013, Mark Reiter, Director of the [DNR’s] Division of Fish and Wildlife issued [the Special Permit] to the Town…with the effective date of that permit being November 15, 2013 and the expiration date being March 31, 2014.

 

10. The [Special Permit] provided that the authorized activity can be only at the locations of Suerenity Park, behind the Fire Station, and Hillcrest Park.

 

11. Pursuant to [the Special Permit], four (4) designated shooters whose names must be available upon request and on file at the Town office are authorized to shoot deer under the permit.  The names of the shooters shall be given to the DNR District Wildlife Biologist (Bob Porch) and Indiana Conservation Officer District 10 headquarters prior to shooting any deer.

 

12. Pursuant to [the Special Permit], all authorized shooters must have a copy of the permit in their possession when taking and transporting deer under the authority of the permit, and the [Town] and shooters assume all responsibility for safety while carrying out the [Special Permit].

 

[VOLUME 13, PAGE 215]

 

13. Pursuant to the [Special Permit], deer can only be killed with the following center-file rifles: .308 with a suppressor and .223 with a suppressor.  Suppressors must be used in accordance with federal law.

 

14. Pursuant to the [Special Permit], the use of bait to concentrate deer at the approved shooting locations is permitted, and all shooting must take place from elevated stands.

 

15. Pursuant to the [Special Permit], no spotlight, searchlight, or other artificial light may be used, no shooting may be done from a motor-driven conveyance, and no shooting may be conducted within, into, upon or across a public highway.

 

16. Pursuant to the [Special Permit], shooting hours are from ½ hour before sunrise until ½ hour after sunset.

 

17. Pursuant to the [Special Permit], no more than 80 deer may be taken under the permit, and each deer taken must be utilized for human consumption.  No part or portion of the carcass may be sold.  The “Authorization to Possess Deer Taken On A Deer Control Permit Form” must accompany all deer taken at all times.

 

18. Pursuant to the [Special Permit], for every deer that has a total of more than seven antler points, one antler must be removed from the skull and surrendered or disposed of as specified by a Conservation Officer or the District Biologist by the expiration date of the permit.

 

19. Pursuant to the [Special Permit], a log sheet must be completed that includes the date, time, and sex of each deer killed and disposition of each carcass.  The log sheet must be returned to the District Wildlife Biologist by April 15, 2014.

 

 

Intervention by the Machucas

 

Immediately following entry of the stipulations on November 22, the “Notice of Motion and Motion to Intervene: Declarations of Jon Machuca and Joan Machuca” was considered.  Jon Machuca and Joan Machuca are collectively the “Machucas”.  Without objection by the Town or the DNR, their motion to intervene was granted, and they were designated additional Claimants.  The Town stated its determination not to object was on condition the Machucas would be bound by all actions that occurred previously, including the stipulation described in the previous paragraph.  The Machucas’ motion to intervene was granted but conditioned upon them being bound by all actions that had occurred previously, including entry of the stipulations.  Collins, Pressner, and the Machucas are collectively the “Claimants”.  The Claimants, the DNR and the Town are collectively the Parties.

 

 

Summary of Testimony

 

Robert Porch

 

The preliminary hearing was then received testimony and other evidence.  The first witness called by the Claimants was Robert Porch.  He is a private lands wildlife biologist with DNR’s Division of Fish and Wildlife and has been employed there as a biologist for 37 years.  He is very knowledgeable concerning the habits of white-tailed deer.  His immediate supervisor is Patrick Mayer.  Testimony of Robert Porch.

 

Over the last three years, Porch has discussed with the Town methods for controlling deer populations, other than shooting deer.  His opinion is alternative methods are not reasonable and are ineffective.  “There has been no major wildlife findings that would suggest that new alternatives” for deer population control, other than killing deer, “are now possible.”[3]  DNR participates in identifying types of firearms to be used in a deer hunt governed by IC 14-22-28-1.  The DNR requires firearms that can result in a “clean and efficient” kill.  Porch Testimony.

 

Porch reviewed the Town’s permit application.  The Town contended in the application: “White-tailed deer population within the municipal boundaries of the Town of Ogden Dunes, Porter County, Indiana have damaged and continue to threaten with damage Town-owned other public and private property.”  DNR is aware of the general dynamics of the area of the Town, with the Indiana Dunes National Lakeshore and other nearby communities.  Porch and his supervisor, Patrick Mayer, drove around the community and viewed “obvious deer damage”, which included “browse lines”.  Mayer took images which help document the damage, but Porch also visually identified obvious deer damage in the Town.  Porch Testimony.

 

Porch reviewed “Three Years of the Vegetation of the Town of Ogden Dunes, Indiana” (October 4, 2013), a report by ecologist, John Ervin.  In the report, Ervin described browse lines attributed to deer, a dominance of invasive species, periodic herbivory resulting in growth habits in woody plants that are distinct from those of undisturbed plants, and areas of trampling of soil by repeated congregation or movement of deer.  Porch observed conditions in the Town that are consistent with the report.  Porch Testimony.

 

The largest landowner in extreme northern Porter County, which includes the Town, is the Indiana Dunes National Lakeshore.  The Indiana Dunes National Lakeshore has documented the presence of “too many deer in this immediate area,” but until 2012 it did not participate in deer culls.  Again, in 2013 the Indiana Dunes National Lakeshore applied to the DNR for a permit to conduct a deer cull, and the permit was granted.  Some areas to which the DNR permit to the Indiana Dunes National Lakeshore applies are contiguous to the Town.  During the last decade, a grain farmer about one or two miles from the Town has received deer depredation permits “which reflect crop damage.”  The Shirley Heinze Land Trust, which has small holdings near the Town, has also approached the DNR seeking “deer harvest relief.”  With the loss of native predators, such as wolves, deer populations are excessive.  In the absence of permits to control populations, damage results to flora.  The DNR needs to work with communities “to keep this deer population at a level that the ecosystem can survive.”  If each community and entity would took the number of deer authorized to be taken by the DNR through a special purpose deer control permit, and otherwise as authorized by the agency, “there is still going to be plenty of deer.”  White-tailed deer have demonstrated they are a “resilient” species that is resistant to population control.  Porch Testimony.

 

Porch said his professional opinion is that the Special Permit would help prevent some of the damage caused by deer to property owners in the Town.  At the same time, “you need almost a cumulative-type effort.  If, perhaps, the Indiana Dunes National Lakeshores starts culling deer, and Ogden Dunes does not, you’re almost promoting the safe haven and perhaps increasing the problem.”  Documentation demonstrates areas surrounding the Town are over-populated with deer.  If deer hunting activities increase in the surrounding areas, there may be an increase in populations within the Town if effectiveness of the Special Permit were stayed.  “The only way to reduce deer depredation, deer overpopulation problem, is to remove some of the deer….  As sad as it is, killing deer is the solution.”  Porch Testimony.

 

[VOLUME 13, PAGE 216]

 

John Ervin

 

The second witness called by the Claimants was John Ervin.  Ervin was employed by DNR’s Division of Entomology in 1988.  He obtained a Bachelor of Science from Purdue University in 1991.  He held a teaching assistantship from Ball State University between 1997 and 1999.  Subjects included botany, invertebrate zoology, entomology, ecology, and evolution.  He has engaged in independent study in entomology, ecology, chemistry, mathematics, physics, philosophy, and anthropology.  From 1994 to 2000, Ervin was an ecologist aid to the Northeast Regional Ecologist of DNR’s Division of Nature Preserves.  Ervin was employed as a land steward for Indiana Field Office of The Nature Conservancy from 2000 to 2005.  He was the Lake Michigan Coastal Region Ecologist for the DNR’s Division of Nature Preserves from 2005 to 2011 and is currently doing business as “Primal Elegance-Sustainable Living Solutions” in Valparaiso.  Testimony and Resume included in “Revised Agreed Joint Stipulations of the Parties for Purposes of the Stay of Effectiveness Hearing” (Stipulated Exhibit I). 

 

The Town contracted with Ervin to perform a study of vegetation within the Town.  Ervin has experience in animal and plant populations, specifically in Northwest Indiana.  The experience includes the study of deer populations in Northwest Indiana.  His first specific interest in the study of the effects of deer populations in the Town was in late 2011.  The 2011 study was a quantitative study.  His study in 2013 was similar to Porch’s, a qualitative visual study.  Testimony of Ervin.

 

In 2011, Ervin observed an absence of vegetation on a variety of levels within a deer’s reach.  “That included the herbaceous layer and the shrub and small tree layers.”  Trees were stunted and plant mortality was demonstrated that he attributed to deer.  Ervin Testimony.

 

In early September 2013, Ervin conducted a visual assessment of the level of damage to vegetation by deer compared to what he observed in 2011.  As summarized in “Three Years of the Vegetation of the Town of Ogden Dunes, Indiana”:

 

Succinctly, there was no significant visual difference in the 2013 vegetation when compared to previous years.  Observations were conducted on two directed visits, and additional observations were recalled from casual visits throughout 2013.  Referring to the defined observations: (1) Browse lines are evident in both green spaces and residential plantings.  (2) Invasive species are dominant throughout the Town.  (3) Multiple branching and root-suckering continue among wild trees, and significant stunting is evident on yews, arborvitae, holly, and deciduous shrubs in residential landscapes.  (4) Trampling is significant along trails, and in resting areas.

 

These simple conclusions, while re-confirming deer impacts, do little to describe causality.  Particularly troubling is the fact that many deer have been removed from the Town, yet there are no outstanding changes that would indicate that management ever occurred.  The only reasonable inference is that a large population is still present—perhaps as large as when the hunts started.

 

Ervin Testimony and “Three Years of the Vegetation of the Town of Ogden Dunes, Indiana” included in “Revised Agreed Joint Stipulations of the Parties for Purposes of the Stay of Effectiveness Hearing” (Stipulated Exhibit I). 

 

Following the September visual assessments that formed the basis for his written report, Ervin observed “some re-growth of plants trying to re-grow, and then it appeared that the deer had removed the fresher new more palatable growth.”  He concluded deer will continue to damage both private and public property within the Town based upon current population levels. Ervin concurred with Porch the crux of the problem of excessive deer populations is a “region-wide issue” that requires cooperative culls from various jurisdictions, including prominently the Indiana Dunes National Lakeshore.  If the Town ceased to participate in culls, the result would distract from the regional response and might cause the Town to become a “safe haven” for deer where populations become even more excessive.  “It has to be a concerted effort for a long-term effect.”  Ervin Testimony.

 

During his professional career, Ervin has observed efforts at other Indiana locations, including Pokagon State Park and Douglas Woods, to re-establish an ecological balance through the application of deer culls.  “And whenever the culls have occurred…, over time there has been a positive response by the plant community and as well the rest of the biota.  The return of the plant communities are the basis for the food chain….  If the culls were not to occur, would it be detrimental?  Yes.  I agree with that, and I further wish to state that if the culls do not occur it would be detrimental to the deer as well.  The overpopulation will promote disease amongst the population, which we’ve seen at several places, chronic wasting and other diseases.  So, we’re not just talking about the ecosystem itself, we’re talking about the animal specifically—the deer specifically being influenced negatively by overpopulations.”  Ervin Testimony.

 

Ervin determined that leafy plants were eaten by deer rather than another mammal, such as a rabbit, squirrel, or chipmunk, because deer cause leaves to be torn off.  “Deer do not have the front teeth that grazers have.”  Deer “rip and tear”.  To determine deer browse on twigs and other wood growth, they tend to be gnawed.  “There’s a certain height deer browse to, so something six feet up is unlikely to be eaten by a rabbit.”  Ervin Testimony.

 

Allen Johnson

 

The third and final witness called by the Claimants was Allen Johnson, President of the Town Council.  He has served in the position since April 2012.  Johnson has been a resident of the Town since 1974.  With input from other members of the Town Council, he prepared the application for the Special Permit.  The purpose for the application was to help “reduce the amount of damage that’s occurring in Town.”   DNR provided him the “number 80” for deer authorized to be culled.  Although he has not observed the culling process, his belief is that the cullers (and perhaps the Town Marshall) determine whether a carcass is fit for human consumption.  Prior to November 22, 2013, deer were culled under the Special Permit during one day.  It was reported to Johnson eight deer were culled on that day.  Johnson Testimony.

 

A task force was created in the early part of 2012, which met for about five months, to study the consequences of deer populations in the Town.  The task force did not make recommendations as a group.  “There were about six people on the task force, and they each wrote their own opinions of various subjects related to deer.”  In August 2012, the Town Council authorized Johnson and his designee to apply to the DNR for a permit to conduct a deer cull in the fall and winter of 2013 and 2014:

 

Paul Panther made the motion that the Town Council President and/or his designees be permitted on behalf of the Town…to prepare and submit to the [DNR] a request for a permit to conduct a deer cull during the fall/winter of 2013-2014.  Bill Gregory seconded the motion.  The vote of the Council was as follows: Bill Gregory,yes; Allen Johnson, yes; Paul Panther, yes; Tom Clouser, yes; and Charlie Costanza, no.  The motion was passed four to one.  A motion was made by Tom Clouser authorizing various reasonable expenditures, if necessary, in conjunction with the preparation and submission of a cull permit request for the season 2013-2014 including reasonable costs for the services of the Town’s legal firm.  Paul Panther seconded the motion.  The vote of the Council was as follows: Bill Gregory, yes; Allen Johnson, yes, Paul Panther, yes; Tom Clouser, yes; and Charlie Costanza, no.  The motion was passed four to one.

 

[VOLUME 13, PAGE 217]

 

Johnson Testimony and “Ogden Dunes Town Council Meeting Monday, August 5, 2013” minutes included in “Revised Agreed Joint Stipulations of the Parties for Purposes of the Stay of Effectiveness Hearing” (Stipulated Exhibit I). 

 

For the Special Permit, the deer cull can occur only at Suerenity Park, behind the Fire Station, and at Hillcrest Park.  The Town owns the land at Suerenity Park and behind the Fire Station.  Hillcrest Park is owned by the Town’s Park and Recreation Department.  On September 25, 2013, the Park Department’s Board gave approval for deer culling under the Special Permit to occur at Hillcrest Park.  Johnson gave the Town Marshall authority to begin the cull.  Signs and yellow tape mark off Suerenity Park and Hillcrest Park to inform the public a deer cull is occurring, and notices have been published on the Town’s website and television channel.  The Town Council’s policy is that culls will only occur days in which Portage Township Schools are operating.  Johnson Testimony

 

The Respondents questioned the Claimants’ witnesses.  The Respondents did not call additional witnesses.  The hearing was adjourned.

 

 

Motions Following the Completion of Testimony

 

Following adjournment, the DNR made a motion based on Trial Rule 41(B).  Upon the weight of the evidence that has been admitted, mainly from Claimants’ questioning and evidence stipulated into the record, “and the law that there has been shown no right for relief.  Specifically, the Claimants have failed to meet the requirements set forth” by the Notice of Preliminary Hearing on Stay Request entered on November 14. 

 

The Town joined in the DNR’s motion.  The Town added that in order to be issued a special permit, “there need to be two things demonstrated: first, that you’re a property owner; and, secondly, you had damage and threatened damage to the property.  Necessarily, the burden on the Claimants here is to negate both of those particular…facts.  Frankly, the Claimants have not demonstrated the negative.  They haven’t demonstrated that the Town does not own property.  In fact, it is has been stipulated the Town owns property.  And they have not negated the fact the Town has suffered damage or has damage threatened to its property here.  The second thing [the Claimants] need to demonstrate is irreparable harm.  In fact, the Claimants have not demonstrated any harm.  They haven’t had a witness come up and demonstrate any harm.  Now, I believe that the harm the Claimants might present is that they might have the loss of the enjoyment of the deer.  In fact, that has been one of the claims in the past….  But that’s not irreparable….  The third thing that [the Claimants] need to demonstrate is that the harm to them outweighs the harm to the Town in not conducting the cull, and that’s just not something that they can prove….”  They have shown no harm.  Fourth, the administrative law judge “has to consider the public interest here.  And, as Mr. Porch testified and Mr. Ervin testified, if the Town does not conduct a cull, it creates a safe haven for the deer to once again overpopulate them….  The National Lakeshore has not [historically] conducted a cull, thus creating conditions for an increasing overpopulation of deer.  So the National Lakeshore has been the safe haven for the deer.  Now, if one of the constituent communities in Northwest Indiana does not participate in a collective effort to control the overpopulation, it’s like a weak link.  The chain is going to be broken.  The public interest would be disserved by the grant of the stay.”

 

The Town’s attorney stated. “I would be prepared to make a motion to consolidate a hearing on the merits, at this point, and dismiss the case entirely.”  He then rested.

 

The Claimants reminded the administrative law judge they had prepared “an opening statement.  We also have addressed all four of those questions that you laid out for us, and we have that all in written form with our supporting assertions.”

 

The administrative law judge took the Respondents’ motions under advisement.  He reiterated he would accept the written opening statement but emphasized, that like closing arguments, an opening statement is not evidence.  He said he would make a disposition of the motions by Thanksgiving Day but might not yet address in writing the stay request.[4]

 

 

3. Final Order with Respect to Stay Request

 

The Parties stipulated the DNR has the statutory authority to issue to the Town a Special Purpose Deer Control permit under IC 14-22-28-1.  The stipulation is consistent with a plain reading of IC 14-22-28-1 that authorizes such a permit by the DNR’s director “to a person that owns or has an interest in property being damaged or threatened with damage by a wild animal protected by [IC 14-22] a free permit to take, kill, or capture the wild animal.”  This authority applies to damage caused or threatened by white-tailed deer living in the wild. Howe v. DNR, 13 Caddnar 20, 23 (2012).

 

Generally, an Indiana state administrative agency has only those powers conferred on it by the Indiana General Assembly.  Powers not within the legislative grant may not be assumed by the agency nor implied to exist in its powers. Bell v. State Board of Tax Commissioners, 651 N.E.2d 816, 819 (Ind. Tax Ct. 1995).  The only powers conferred on the Commission or its administrative law judge, and pertinent to this proceeding, are those governing to licensure under IC 14-22-28-1 and more broadly under IC 14-22 (sometimes referred to as the “Fish and Wildlife Code”). 

 

Many if not most assertions by the Claimants are directed to matters outside Commission powers.  The Commission does not oversee the Town’s policy choices, the conduct of its public meetings, the administration of local government functions, or the interface with its constituents.  The Commission is not empowered to issue or deny an application for a special purpose permit based on an individual or group opinion of the effect on property values.  Permitting is not an opportunity to evaluate the esthetics of hunting and its consequences.  Hunting is a lawful activity authorized by the Indiana General Assembly.  Even if assertions outside Commission authority were placed in evidence, they would not support a stay.

 

As to matters within Commission authority, the stipulations and testimonies of the three witnesses called by the Claimants are not in material dispute.  The administrative law judge finds that all testimonies by Porch, Ervin, and Johnson referenced in this Order are more-likely-than-not accurate and are persuasive.  Taken individually or a whole, the stipulations and testimonies do not support the requested stay.  Indeed, they are entirely consistent with issuance of the Special Permit:

 

1. The Claimants have not shown a reasonable likelihood of success on the merits. 

 

The permit authorized by IC 14-22-28-1 would allow a deer cull only at Suerenity Park, the area behind the Fire Station, and Hillcrest Park.  The evidence is unrefuted that the Town owns or has an interest in Suerenity Park and the area behind the Fire Station.  Hillcrest Park is owned by the Town’s Park and Recreation Department, and the Park and Recreation Department has given authorization for the deer cull there.  The Claimants have offered no evidence to refute that the Town is a person with authority to make the application.

 

[VOLUME 13, PAGE 218]

 

The testimonies of Porch and Ervin, persons who are knowledgeable and have professional expertise in the management of wild white-tailed deer, are replete with descriptions of damages to flora that were likely caused by and continuing to be caused by the deer.  These are suffered within the Town and part of a condition that is endemic to neighboring portions of extreme northern Porter County.  No doubt mammals other than deer eat plants, but the testimonies support a conclusion that deer are the direct cause of significant damage.  The Claimants provided no evidence on which another conclusion could reasonably be reached.

 

Site conditions on public and private property in the Town support issuance of a permit under IC 14-22-28-1 to kill white-tailed deer.  The testimony of Porch is persuasive: “The only way to reduce deer depredation, deer overpopulation problem, is to remove some of the deer….  As sad as it is, killing deer is the solution.”

 

The Claimants have presented no evidence to support a conclusion that non-lethal methods are effective for controlling wild, free-ranging deer populations.  Even if they offered such evidence, and killing was shown not to be the only solution, IC 14-22-28-1 does not require a permit applicant to show its proposed solution is uniquely effective.  The Commission is not authorized to deny a permit to a qualified applicant on the basis another solution might also be effective.

 

2. The Claimants would not suffer irreparable harm if the stay is denied.

 

The testimonies of the three witnesses demonstrate deer populations in the Town, and perhaps more significantly among the Town and nearby properties (including Indiana Dunes National Lakeshore), provide convincing documentation that the Special Permit will not in the fall and winter of 2013-2014 cause the deer’s extinction or local extirpation.  Indeed, the suggestion is unrestricted and excessive deer populations may lead to diseases (such as chronic wasting disease) that would put the species at risk.  A healthy ecosystem that includes healthy deer is dependent upon reasonable population controls. 

 

3. The threatened injury to the Claimants does not outweigh the harm to the Town by the granting of the stay.

 

The Claimants have not presented evidence they have suffered any harm to an interest that is protected by law.  Their injury has not been shown to outweigh the harm to the Town by granting the stay.

 

4. The stay would likely disserve the public interest.

 

The testimonies by Porch and Ervin suggest that, at best, the Town’s efforts in the last two years have caused excessive deer populations to remain constant.  If the Town does not complete a deer cull this fall and winter, populations may increase either by removing a marginally effective local control or because a safe haven is created for the influx of nearby deer populations that are being culled.  In particular, the Indiana Dunes National Lakeshore is the largest landholder and has recently reversed its former policy of not conducting culls.  In concert with the Indiana Dunes State Park, the City of Portage, a local grain farmer, the Indiana Dunes National Lakeshore, and others, the Town is an important constituent helping to bring wild white-tailed deer populations into control.  The public interest would be disserved by granting the stay. 

 

The DNR’s motion under Indiana Trial Rule 41(B) (joined by the Town) would result in an involuntary dismissal of the Claimants’ request for stay on the grounds that, upon the weight of the evidence and the law, they have shown no right to relief.  Unless inconsistent with AOPA or 312 IAC 3-1, the administrative law judge may apply the Trial Rules.  In some circumstances, the administrative may enter a final order of dismissal.  IC 4-21.5-3-7 and 312 IAC 3-1-9.  Granting the motion and entering a final order of dismissal of the request for stay are not inconsistent with AOPA and 312 IAC 3-1-9.  Also, this proceeding is similar to proceedings considered in 2011 (Young, et al. v. Town of Ogden Dunes and DNR, Administrative Cause No. 11-178D) and in 2012 (Gaul, et al. v. Town of Ogden Dunes and DNR, Administrative Cause No. 12-203D) in which, for reasons that differed but held in common the challenges of short timeframes associated with the issuance and execution of special permits under IC 14-22-28-1.  An important benefit is that granting a final order of dismissal would exhaust administrative remedies and allow the Claimants to seek judicial review of denial of the stay.  The DNR’s motion to dismiss under Trial Rule 41(B) should be granted. 

 

A final order of dismissal is entered with respect to Claimants’ stay request because upon the weight of the evidence and the law, they have shown no right to relief.  The dismissal applies only to the stay request and not to the Claimants’ petition for administrative review of the underlying Special Permit. 

 

The Town’s request to consolidate does not identify a provision of AOPA, 312 IAC 3-1, or the Trial Rules on which it is based.  The request to consolidate is therefore denied but may be reconsidered based following a disposition of judicial review or if no Party elects to seek judicial review. 

 

A person that wishes to seek judicial review must file a petition for judicial review in an appropriate court within 30 days of this order and must otherwise comply with IC 4-21.5-5.  Service of a petition for judicial review is also governed by 312 IAC 3-1-18.