CADDNAR

Standing:

14.  On December 8, 2014, the Department and the City filed their “Joint Motion to Dismiss” (“Motion”) the Petition in its entirety.

15.  On December 10, 2014, Peavler timely filed “Petitioner’s Response to Respondents’ Joint Motion to Dismiss”.

16.  On December 10, 2014, an “Order Denying Respondents’ Joint Motion to Dismiss” was issued.  The administrative law judge concluded that Peavler is “a citizen of the State of Indiana who has stated both a personal interest and a pecuniary interest in the subject matter of this proceeding and is also a person on whose behalf the Department is obligated to protect and properly manage wildlife resources, including deer.”  Consequently, Peavler demonstrated that he possessed the requisite standing to initiate the instant proceeding.

17.  The “Order Denying Respondents’ Joint Motion to Dismiss”, attached as Exhibit A, is hereby incorporated by reference as if restated herein.

18.  The parties stipulated to the admissibility of the transcript of Peavler’s testimony from a Preliminary Injunction Hearing in the Marion County Superior Court Number 5 before the Honorable Robert Altice.  Stipulated Exhibit I. 

19.  Within the transcript testimony is Peavler’s explanation that he walks the trails, bird watches and enjoys “all facets of nature” as do members of birding groups that he leads within the park.  Peavler offered that the guided birding tours are conducted over a period of six weeks in the spring and fall for 3 days each week.  Peavler added that he also conducts birding tours each Sunday morning.  Some of the tours are for a fee while some are not; Peavler does profit financially from some of the tours.  Id. At pgs. 3 & 4.

20.  A dispute exists between Peavler and the City as to the legality of the tours Peavler conducts for a fee but the City does not object to Peavler conducting the free tours.  Testimony of John Williams, Stipulated Exhibit I.  The legality of Peavler conducting paid tours is an issue between the City and Peavler with respect to whether Peavler possesses the requisite authority to conduct the activity.  Id.  That dispute has no bearing on Peavler’s standing here.

21.  Peavler has standing to initiate the instant proceeding.  Moody v. Johnson County Surveyor, 13 CADDNAR 162 (2013), Huffman v. Indiana Office of Environmental Adjudication, et. al., 811 N.E.2d 806 (Ind. 2004); Bieda v. B & R Development and DNR, 9 CADDNAR 1, 2 (2001); Lesch v. DNR and Town of Ogden Dunes, 8 CADDNAR 28, 29 (1998); Wells v. DNR, Cass County Board of Com's, and American Timber Bridge & Culvert, 7 CADDNAR 186 (1997); Wawasee Property Owners, et al. v. Wawasee Real Estate and DNR, 11 CADDNAR 88, 2007.

[VOLUME 14, PAGE 4]

Standard of Review:

22.  The interrelationship between the Commission and the Department dictates that:

the director or a Department employee delegated by the director issues all ‘licenses’ for the Department. The Commission is the ‘ultimate authority’ for the Department under the AOPA. The Department makes the day-to-day licensing decisions, but these are subject to administrative review by the Commission.  …. Working properly together, the Department and the Commission form a complete administrative record supportive of reasoned agency action. Administrative review forms an element of policy making in which the Commission as ultimate authority for the Department has an important role.

Juday Creek, et al. v. Ralph Williams and Associates and DNR, 8 CADDNAR 90, 92 (1998)

23.  Indiana Code § 4-21.5-3-14(c) specifies that the person requesting the agency to take action bears the burden of persuasion and the burden of going forward, collectively referred to as the burden of proof.  Id. 

24.  The level of proof required in administrative proceedings is typically by a “preponderance of the evidence”, which “refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not.”  Collins & Costanza v. Town of Ogden Dunes, 13 CADDNAR 269, 273 (2014) citing Bivens v. State, 642 N.E.2d 928 (Ind. 1994).

25.  Peavler alleges that the Department erred in the issuance of the Permit.  Therefore, Peavler must have presented proof sufficient to establish that it is more likely than not that the Permit was erroneously issued to the City.

26.  In conducted administrative review, “the administrative law judge conducts proceedings de novo.” Wheeler, et al. v. Peabody, DNR and Town of Zionsville, 9 CADDNAR 193, 194 (2004) See also Sedberry v. Department of Natural Resources, 10 CADDNAR 14, (2005).

27.  “An administrative law judge must independently weigh the competent evidence and make findings based exclusively on the record. … Pursuant to IC 4-21.5-3-27(a) and IC 4-21.5-3-27(b), the administrative law judge performs a duty similar to that of a trial judge sitting without a jury. An administrative law judge who gives deference to an agency's interpretation of a statute has not conducted the appropriate de novo review.”  Sedberry, supra at 16, citing Indiana-Kentucky Elec. v. Commissioner, IDEM, 820 N.E.2d 771, 781 (Ind. App. 2005).

Findings of Fact:

28.  The Department issued the Permit to the City on November 10, 2014 authorizing the City to take deer between November 27, 2014 and January 31, 2015 “within the boundaries of Eagle Creek Park in Indianapolis, Indiana only” as follows:

1.     All activities authorized herein must be carried out in accordance with and for the purposes described in the application submitted.  The permittee must comply with all conditions, including all required information and reports.

2.     The permittee must comply with applicable state, local and federal law.

3.     Valid for use by permittee named above with the designated shooters as described in condition #4.

4.     Deer may be taken only by A&T Wildlife Management Services staff and Contractors and USDA-APHIS Wildlife Services Personnel.  All shooters must have a copy of this permit in their possession when taking and transporting deer under the authority of this permit.  The permittee and shooters assume all responsibility for safety while carrying out this permit.

5.     Deer can only be taken with equipment that is legal during the Indiana deer firearms season, as well as the following center-fire rifles: .223 and .308, with or without suppressors.  Suppressors must be used in accordance with federal law.

6.     The use of bait is authorized under this permit.

7.     Shooting must be done only from a stationary motor-driven conveyance or an elevated stand.  Shooting may take place at any time of day.  No shooting may be conducted within, into, upon or across a public highway.  Artificial lighting such as night vision equipment is permitted when shooting between sunset and sunrise.

8.     No more than 350 deer may be taken under this permit.  Each deer taken under this permit must be utilized for human consumption or donated for human consumption.  If a deer carcass is found to be unsafe for human consumption, the carcass may be buried or incinerated.  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.

9.     For every deer that has a total of eight or more antler points, one antler must be removed from the skull and surrendered or disposed of, as specified by an Indiana conservation officer or the district wildlife biologist, by the expiration date of this permit.

10.  The permittee is responsible for carrying out and abiding by all permit conditions.

Stipulated Exhibit III, pg. 1.

29.  The City is the owner of Eagle Creek Park.

30.  The City’s goal associated with the Permit was stated in the Permit application as follows:

The goals of the Eagle Creek Park deer management program is to establish and maintain white-tailed deer populations that allow for a sustainable relationship between biological diversity and habitat structure through comprehensive research, monitoring education and effective management.  Utilizing sharpshooting the primary goal is to get deer numbers low enough to have adequate ecological regeneration to benefit the park’s overall flora and fauna, meet social carrying capacity, evaluate the removal process and use the evaluation to formulate future management plans.

Stipulated Exhibit IV, pg. 2 (GOAL)

31.  Peavler notes that portions of the City’s application were modified at the direction of the Department.  For example, the City’s statement that the primary goal “is to get deer numbers low enough to have adequate ecological regeneration to benefit the park’s overall flora and fauna, meet social carrying capacity” is a near verbatim copy of language suggested to the City by Shannon Winks (“Winks”), District 7 Wildlife Biologist.   In an email dated September 18, 2014, Winks suggested to Brenda Howard (“Howard”), who Winks described as an ecologist for Eagle Creek Park, as follows:

Number of deer culled needs to be mentioned, however, we suggest taking out the goal of deer per square mile and replace it with a statement saying that your goal is: to get deer numbers low enough to have adequate ecological regeneration, meet social carrying capacity, etc.

Testimony of Winks; Claimant’s Exhibit 3, pg. 2, item 6.

[VOLUME 14, PAGE 5]

32.  Similarly, on November 7, 2014 Winks also conveyed to Howard the following suggestion of Josh Griffin (“Griffin”), the Department’s South Region Private Lands Supervisor:

Page 11- listed under #5, A-Number of deer to be culled.  Citizen surveys done in this manner are not scientifically accurate and have no scientific merit.  The only thing this tells us is that there are at least 78 deer in the park.  These numbers should ultimately be struck from the request.  They are not needed given the documented damage that has occurred, and you have cited, in this request (Jenkins study).  It is not responsible management to request that more deer be removed from an area than what may currently exist.  Being that the citizen survey is anecdotal and has no scientific validity, it seems easiest to exclude this information.  Ultimately, this portion of the document needs only to identify the number of deer to be culled.

Testimony of Winks & Griffin; Claimant’s Exhibit 4, pg. 2, item 2.

33.  John Williams (Williams), the City’s Director of Parks and Recreation, considered a number of methods of obtaining deer population estimates for Eagle Creek Park.  However, his research indicated that some methods are cost prohibitive with many having wide margins of error.  Because the City had evidence of the damage provided through multiple years of deer browse reports and the Department’s vegetation inspection the City did not employ any method of estimating the deer population within Eagle Creek Park.  Testimony of Williams, Respondents’ Exhibit A & Stipulated Exhibit IV.

34.  One method of estimating population is the “aerial survey” that “usually entails hiring a helicopter, pilot, and sometimes an infrared operator and GPS data specialist depending on the technique used.”  Claimant’s Exhibit 6.  Clearly, aerial surveys can quickly become cost prohibitive.  Id.  Another method is the “spotlight survey” “done by driving a specific route after dark, spotlighting and counting the visible deer.”  Id.  

35.  Williams observed that Eagle Creek Park is an “open range” park that allows animals to enter and leave at will, which dictates that the population is not static.  Consequently, Williams observed the least costly counting methods, such as the “spotlight survey” would become increasingly costly because of the necessity to repeat the activity multiple times in order to ensure the reliability of the counts. 

36.  The evidence in the record supports Williams’ observations that the costs associated with conducting a deer population survey did not appear prudent in light of the margins of error associated with the methodologies employed and because establishing an estimate of the deer population was not necessary to obtaining the Permit.

37.  Highlighting Griffin’s statement that “It is not responsible management to request that more deer be removed from an area than what may currently exist,” in conjunction with the fact that the City had engaged in no activity designed to obtain an estimated population of deer within Eagle Creek Park, Peavler questioned the appropriateness of the Department’s issuance of the Permit that authorized the City to cull up to 350 deer from within Eagle Creek Park.

38.  Griffin clarified through testimony that his intent in recommending the removal of the reference to the citizen survey data was to avoid the presentation of what appeared to be conflicting information within the application.  It is commonly recognized that deer are wild animals that instinctively avoid contact with humans.  Therefore, it is reasonable to accept Griffin’s hypothesis that if 78 deer were actually seen by citizens in Eagle Creek Park that the population of deer is actually much greater.  Griffin’s opinion is bolstered by the results of the deer browse studies that had been commissioned by the City, the vegetation inspection conducted by Winks and his own observations of the vegetation damage existing within Eagle Creek Park in 2010 – 2012.  Griffin acknowledged that vegetative damage cannot be directly correlated to exact deer populations; however, he observed that the citizen surveys only establish that there are at least 78 deer within the park when the extent of the observable damage indicates a much greater population.  Griffin’s recommendation to remove a reference to scientifically invalid and inaccurate citizen surveys the results of which appeared contradictory to the conclusions of scientifically based studies is harmless.

39.  The fact that 142 deer were taken over the weekend on November 28 – 30, 2014, clearly establishes a deer population in excess of 78 deer exists within Eagle Creek Park.  Testimony of Don Colvin.

40.  It is customary for the Department’s Division of Fish and Wildlife to provide assistance to member of the public in properly completing permit applications.  Testimony of Winks.

41.  The evidence establishes no clandestine purpose or improper motive associated with the Department’s suggested revisions to the City’s application for the Permit.

42.  With respect to Peavler’s concern that allowing up to 350 deer to be culled would essentially eradicate the deer herd within Eagle Creek Park, Griffin explained that such result was a “near impossibility” even if sharpshooters took deer day and night using bait.  Griffin elaborated that as deer are culled the ability to take additional deer decreases because of a variety of factors.  Most obviously is the fact that fewer deer remain alive to be culled but additionally deer frightened by the activity and noise along with other environmental changes associated with the culling activity will leave the area despite the baiting that is occurring. 

43.  With respect to the baiting of the deer Tim Julien (“Julien”) clarified;

Bait allows us to put the deer in front of a backstop.  Bait isn’t about how many deer we kill.  It’s about putting deer in a safe environment.

Stipulated Exhibit II, pg 24, lines 15-18.

44.  Peavler established that the Department did not comply with certain protocols established in the Department’s Division of Fish and Wildlife “Policies and Procedures for Division of Fish and Wildlife” entitled “Human Conflicts with White-tailed Deer” and identified as PO 66, (“PO 66”).  Testimony of Winks, Testimony of Linnea Petercheff, Claimant’s Exhibit 7.

45.  Particularly, Winks did not complete a “Standard Deer Conflict Report” as required by PO 66 upon being contacted by the City with respect to the deer damage at Eagle Creek Park.  Testimony of Winks, Claimant’s Exhibit 7, pg. 2 (Section A, Paragraph 1).

46.  Winks did not request the accompaniment of a conservation officer when she conducted her inspection of Eagle Creek Park on October 24, 2014 as required by PO 66.  Testimony of Winks, Claimant’s Exhibit 7, pg. 10 (Paragraph 5).

47.  Additionally, the Department did not ascertain how and why the individual sharpshooters were selected as required by PO 66.  Testimony of Linnea Petercheff, Claimant’s Exhibit 7, pg. 7, (Subsection 5C).

48.  Griffin did encourage the City to allow public hunting within Eagle Creek Park as recommended in PO 66.  Griffin was not advised as to the reason for the City’s rejection of that option.  Testimony of Griffin.

49.  The City considered opening to Eagle Creek Park to a public hunt but concluded that such a hunt would not cull the necessary numbers of deer as efficiently as could be accomplished using sharpshooters.  The City determined that acting under the Permit using qualified shooters and the services of a contractor to manage the deer cull and coordinate with City personnel was preferred in terms of reaching goals in a shorter period of time while providing for public safety as opposed to allowing public hunting to occur in a less regulated, less managed environment over a longer period of time by individuals of unknown shooting proficiencies.  Testimony of Williams.

50.  The City clearly considered numerous alternatives before choosing to use sharpshooters to conduct the deer cull.  Stipulated Exhibit IV, pgs. 3-10.  The City outlines its consideration of efficacy, cost, safety, and humaneness associated with various methods of reducing the deer population using means of “fencing”, “feeding ban”, “scare devices”, “repellants”, “landscape alteration”, “trap and translocate”, “contraception”, “sterilization”, “regulated hunting”, “trap and kill” as well as “predator reintroduction” in its application for the Permit.  Id. 

51.  The City’s application for the Permit includes deer browsing assessments conducted by George R. Parker, Forest Ecologist, from 2003 through 2007.  The reports focus on the Eagle’s Crest Nature Preserve consisting of 296 acres located west of the Eagle Creek Reservoir and Spring Pond Nature Preserve, a 44 acre forested site located east of the Eagle Creek Reservoir.  Stipulated Exhibit IV, “Assessment of White-tailed Deer Browsing on Understory Vegetation within Spring Pond and Eagle’s Crest Nature Preserves in Eagle Creek Park, Indianapolis, Indiana”, August 1, 2003, June 25, 2004, May 27, 2005, July 11, 2006 and June 1, 2007.  In 2003, Parker concluded that, “Browsing within Spring Pond Nature Preserve is severe.  Browsing within Eagle’s Crest Nature Preserve is heavy.”  Each year thereafter until Parker’s final assessment in 2007 a similar opinion was reached and within each assessment report is Parker’s determination that “the number of white-tailed deer exceeds the capacity of their habitat.”  Id. 

[VOLUME 14, PAGE 6]

52.  In 2012, Williams became aware of the problems related to deer at Eagle Creek Park through staff reports and reports from the membership of the Eagle Creek Park Foundation.  Williams commissioned an updated assessment to be conducted by Michael A. Jenkins (“Jenkins”), an Associate Professor of Forest Ecology within the Department of Forestry and Natural Resources at Purdue University.  Jenkins holds a Bachelor Degree in Botany, a Masters Degree in Forestry along with a PhD in Forest Ecology, has served 10 years with the National Park Service and has authored numerous publications.  Testimony of Jenkins.

53.  Jenkins visited Eagle Creek Park in June and July, 2013 to assess the Eagle’s Crest Nature Preserve and the Spring Pond Nature Preserve by determining: “(1) severity of browse damage based upon indicator species, (s) woody species composition and stem density in forest understories, and (3) severity of browse on woody species in forest understories.”  Stipulated Exhibit IV, “Effects of herbivory by white-tailed deer on forest vegetation in Eagle’s Crest and Spring Pond Nature Preserves, Eagle Creek Park, Indianapolis, Indiana”, October 7, 2013.   

54.  Jenkins concluded,

Based upon the results of this study, I conclude that Eagle’s Crest and Spring Pond Nature Preserves exhibit degraded plant communities resulting from long-term chronic herbivory by white-tailed deer. Indicator species analysis based upon earlier work by Webster and Parker (2000) and Webster et al. (2001) placed both preserves in the severe impact class. 

Demographic observations of jack-in-the-pulpit suggest a shift in gender and reproductive status consistent with populations under severe environmental stress.  The understory of both preserves are dominated by unpalatable and browse-resistant species.  Overall, the understory stem densities of both preserves are quite low and reflect the impacts of heavy long-term browse pressure.  This browse pressure is particularly pronounced at Spring Pond NP where most species exhibited browsing rates greater than 75%.

The low density of canopy species regeneration in the understory, combined with the rarity of preferred browse species in the herbaceous layer, suggest that the vegetation communities of both preserves are shifting in both composition and structure towards and alternate state defined by reduced plant species diversity and reduced recruitment of canopy trees.  While reducing deer populations through controlled hunts is controversial, recent research in Indiana State Parks suggests that such hunts can successfully reduce deer abundance and allow the recovery of native plant communities.  (Jenkins 2011).

Id.

55.  Overpopulations of deer result in significant hazards to people through deer-vehicle collisions as well as deer becoming acclimated to human presence creating an environment predisposed to deer attacks upon domestic animals and people, particularly during fawning season.  Claimant’s Exhibit 6.  Additionally the consequences to native plant species and other animal species, particularly songbirds and small mammals can be dramatic.  Id.

56.  Under the Permit “deer may be taken only by A&T Wildlife Management Services staff and contractors and USDA-Aphis Wildlife Services Personnel.”  Stipulated Exhibit III, pg. 1.

57.  The record is void of any evidence associated with USDA-Aphis Wildlife Services (“USDA-Aphis”).  Likewise, the record is void of evidence identifying USDA-Aphis personnel or their marksmanship competencies, the entity’s qualification to provide the services anticipated, to provide for site safety or any other data associated with its expected service under the Permit.

58.  There is no evidence in the record to suggest that A&T Wildlife Management Services is involved in any manner in the selection or screening of USDA-Aphis or its personnel.

59.  A&T Wildlife Management Services (“A&T”) is a sole proprietorship owned by Tim Julien (“Julien”).  Stipulated Exhibit II, pg. 16, line 5 & 6.  Julien is the holder of a “Nuisance Wild Animal Control Permit” originally issued by the Department on January 26, 2014 with an effective date of January 1, 2014 and amended on April 4, 2014 without impact to the effective date.  Exhibits to Peavler’s Amended Petition for Administrative Review.

60.  Julien’s Nuisance Wild Animal Control Permit authorizes the taking of identified “species of wild animals that are causing or threatening to cause damage to property or posing a health or safety threat to persons or domestic animals in accordance with 312 IAC 9-10-11”.  Id.  As issued, Julien’s Nuisance Wild Animal Control Permits do not authorize him to take deer.  Id.   

61.  The City and A&T entered into a contract, (hereinafter referred to as “A&T Contract”) with respect to the deer cull authorized by the Permit that is to occur in essentially two phases.  Included within the A&T Contract is “‘Attachment A’ Services by Contractor [A&T] Wildlife Damage Management and Related Services”, which requires, in part;

General Requirements

1.     Contractor shall prepare a plan of action to implement several phases of the Wildlife Damage Management Program using techniques supported by Indiana Department of Natural Resources Division of Fish and Wildlife.

2.     Contractor shall identify all Wildlife Damage Management practices and equipment that shall be used in the culling and removing of deer from Eagle Creek Park.

3.     Contractor shall be available to interpret the contract documents, equipment used, the checking of designated culling sites, and consultation in the event of unforeseen conditions.  …

…

Coordination and Quality Control

1.     Contractor shall submit a final progress report to Owner [City].  The report shall include an updated project schedule.

2.     Contractor shall attend pre-site selection layouts and final project site completion inspection meetings.

3.     Contractor shall conduct conferences with Owner’s representatives as may be required.

4.     Contractor shall attend public information meetings.  A copy of citizen correspondence shall be forwarded to Owner.

5.     Contractor shall coordinate with parks staff and meet IMPD/Park Rangers (public safety) requirements prior to any Wildlife Damage Management activities in Eagle Creek Park.

Eagle Creek Deer Management Plan of Action and Related Services

1.     A&T Wildlife Management Services (later referred to as Management Hunt Coordinator or MHC) shall use Indiana Department of Natural Resources Division of Fish and Wildlife (IDNRFW), Urban Deer Technical Guide as a key reference for developing their plan of action to cull deer at Eagle Creek Park.

2.     MHC shall assist DPW Parks with writing and obtaining IDNRFW “Special Purpose Deer Control Permit”. It is the intended purpose to allow for Sharpshooters in a very restricted environment with Wildlife Damage Management procedures followed.

3.     MHC primary goal shall be to manage the deer population for the overall benefit of the Parks’ flora and fauna by first reducing the number of deer in the park and evaluating the removal process.

….

[VOLUME 14, PAGE 7]

Phase I

1.     MHC shall manage a Sharpshooter event using participants from the Wounded Warrior Outdoors, Inc. (WWO) augmented with local veteran participation as needed.  This is a very controlled program requiring a great deal of preparation and planning.

2.     MHC contingency plan shall allow for local veterans to participate in the event to supplement the effort if time or other conditions do not allow full support and participation of the Wounded Warriors Outdoors, Inc.

3.     MHC support team shall be pre-qualified as employees of MHC.  Their qualifications shall be predetermined and range from X-military, retired law enforcement, hunter education and firearms safety instructors.

4.     MHC team shall have experience with Wildlife Damage Management in sensitive areas.  Team members shall be responsible to support the veterans and logistics of the cull.  There shall be no less than 10 persons employed during the Wildlife Damage Management Program.

5.     MHC shall survey, scout, locate and coordinate with the Wounded Warrior Outdoors, Inc. (WWO) prior to conducting the cull to determine the best and safest locations. It is anticipated to be a three-day event.

6.     MHC shall be responsible for all site preparation with blind (shooting positions) selection and construction.  Ground blind locations are selected with attention to safe shooting backgrounds. Simple blinds shall be set up and removed in short time frames, i.e. less than five minutes.

7.     MHC may or may not use pre baiting as required as part of Wildlife Damage Management Program.  Baiting is contingent to permissions included with the special purpose deer control permit.

8.     MHC shall have all pre cull activities out of sight of park visitors.

9.     MHC shall be present during the cull at all times and responsible for all coordination between public safety, participants, sharpshooters, park staff, and WWO.

10.  MHC shall transport all culled deer off site for processing.  All meat shall be distributed for human consumption using all legal donation venues.  These venues include but are not limited to Hoosiers for the Hungry, Farmers and Hunters Feeding the Hungry, or selected from DNR state maintained distribution list, and/or used by participants.  No venison shall be sold, traded or bartered and the meat harvested shall be used to the maximum extent practical.

Phase II

1.     MHC shall assist the City in applying for IDNRFW Special Purpose Deer Control Permit.

2.     MHC shall conduct all sharpshooter activities at night after normal park operating hours.

3.     MHC shall coordinate all sharpshooters to remove deer from park property for processing.

4.     MHC shall immediately retrieve and load all harvested deer for transport with minimal visible impact to park areas.

5.     MHC shall transport all culled deer off site for processing.  All meat shall be distributed for human consumption using all legal donation venues.  These venues include but are not limited to Hoosiers for the Hungry, Farmers and Hunters Feeding the Hungry, or selected from DNR state maintained distribution list, and/or used by participants.  No venison shall be sold, traded or bartered and the meat harvested shall be used to the maximum extent practical.

6.     MHC shall attempt to remove 50 or more deer in total during the Wildlife Damage Management Program.  The goal is to learn lessons providing future management information and make and environmentally positive impact by the removal of deer.

Stipulated Exhibit III, Contract, Attachment A, pgs. 1-4.

62.  Through the A&T Contract the City maintained significant control over A&T’s activities requiring recognition of Department supported techniques, the identification of the equipment and practices to be utilized, as well as consultation with the City regarding the selection of designated shooting areas and locations.  A&T was obligated to coordinate its activities with City personnel, including representatives of the Indianapolis Metropolitan Police Department and Park Rangers, and required to meet those entities requirements.  Through the A&T Contract, A&T was ordered to conduct portions of the deer cull using the Wounded Warriors Outdoors, Inc. with the added requirement that in the event a contingency became necessary that local veterans would be utilized.

63.  Portions of Julien’s responsibilities have included coordinating with Wounded Warrior Outdoors, Inc., selecting food service personnel, carcass retrievers and the development and implementation of a safety and security plan in conjunction with City professionals.  Testimony of Julien, Testimony of Williams.

64.  The first phase of the deer cull occurred on November 28-30, 2014 (hereinafter referred to as “Phase I”) with the actual shooting being conducted by “participants from the Wounded Warrior Outdoors, Inc. augmented with local veteran participation as needed.”   Stipulated Exhibit III, Testimony of Julien.  Also present during Phase I were one, 5-6 person logistical group who provided food and drinks to shooters and staff throughout each of the three days and a second, 5-6 person logistical group responsible for field dressing and transporting killed deer to processing facilities.  A&T’s only paid staff at Eagle Creek Park during Phase I was Julien and Paul Brooker.  Testimony of Julien.  During Phase I, shooting areas were established as districts with each district being under the immediate control of a commander, with whom Julien had the ability for immediate contact at all times.  Id.

65.  Also for Phase I, the City engaged its Public Safety Command Center and had personnel present from its Department of Homeland Security, the Indianapolis Metropolitan Police Department, including its Park Rangers.  Testimony of Williams; Testimony of Don Colvin.  At all times throughout Phase I, Julien was also capable of immediate contact with all City personnel at Eagle Creek Park and similarly all City Personnel were capable of immediate contact with Julien and the district commanders.  Id.

66.  During Phase I it became necessary to implement the safety and security plan when an intruder entered Eagle Creek Park, which had been closed to visitors while the shoot was occurring.  Evidence indicates that all shooting was immediately stopped at the order of City officials and only restarted when City officials authorized the resumption of activities.  Testimony of Julien, Testimony of Colvin, Testimony of Williams.

67.  Further shooting within Eagle Creek Park will be conducted by USDA-Aphis.

68.  Further responsibility of A&T with respect to the deer cull authorized by the Permit will be to provide carcass retrieval services and to facilitate the processing of meat for donation.  Testimony of Julien.

Conclusions of Law:

69.  Indiana Code §§ 14-22-28 et seq. governs the Permit.

70.  Indiana Code § 14-22-28-1 specifies as follows:

Sec. 1. The director may issue to a person that owns or has an

interest in property:

(1) being damaged;

(2) threatened with damage; or

(3) on which a health or safety threat to persons or domestic

animals is posed;

by a wild animal protected by this article a free permit to take the wild animal.

71.  Indiana Code § 14-22-28-2 requires:

Sec. 2. Notwithstanding any other prohibition or requirement of

this article or the rules adopted under this article, the director shall

prescribe the following:

(1) The manner of taking the wild animal.

(2) The expiration of the permit.

(3) The rules the director considers necessary.

(4) The disposition of the animal.

[VOLUME 14, PAGE 8]

72.  In nearly the exact same language as Indiana Code § 14-22-28-1 & 2, 312 IAC 9-10-11 states:

Sec. 11. (a) The director may without fee issue a temporary permit to control a nuisance wild animal that is:

(1) causing damage or threatening to cause damage to property; or

(2) posing a health or safety threat to persons or domestic animals.

The method and dates of control and disposition of the animal shall be set forth in the permit.

However, the Department contends that application of 312 IAC 9-10-11 applies to “nuisance wild animal control permits”, which are also controlled by Indiana Code § 14-22-28 while “special purpose deer control permits” are issued solely under the authority of Indiana Code § 14-22-28, without application of 312 IAC 9-10-11.

73.  Petercheff testified in response to Adriana Katzen’s questioning as follows at the administrative hearing:

Katzen:  Ms. Petercheff, just so the court is clear and the record is clear, what is the difference between a nuisance wild animal control permit issued under 312 IAC 9-10-11 and a special purpose deer control permit issued under IC 14-22-28?

Petercheff:  A nuisance wild animal control permit is a permit that I issue to individuals to do nuisance wild animal control for species other than deer, or endangered species, or migratory birds.  It’s a permit that can be issued to a landowner or to a company but it allows certain species of wild animals to be taken under the authority of that permit.  Some are to companies to do it for hire some are to individuals to take certain wild animals on their own property.  That’s issued differently from the special purpose deer control permit…is issued for certain situations involving towns or other legal entities for special situations involving an abundance of deer on their particular property.

74.  Contrary to the position adopted by the City and the historical application of the Department, 312 IAC 9-10-11 does govern the Permit.

75.  Both Indiana Code §§ 14-22-28 and 312 IAC 9-10-11 apply to the taking of nuisance wild animals.

76.  Indiana Code §§ 14-22-28 and 312 IAC 9-10-11 are identical in their applicability requirements and those requirements are stated in nearly identical language.

77.  There exists no statutory authority for 312 IAC 9-10-11 except Indiana Code §§ 14-22-28.

78.  Petercheff testified that the Department does not apply 312 IAC 9-10-11 to migratory birds, endangered species or deer.  While 312 IAC 9-10-11 does exempt migratory birds and endangered species from its application, it does not exempt deer from its application.  312 IAC 9-10-11(0)(1&2).

79.  Petercheff testified that the Department does not apply 312 IAC 9-10-11 to municipalities or other legal entities with an abundance of deer.  The language of 312 IAC 9-10-11 offers no exemption for municipalities.

80.  Upon adoption of 312 IAC 9-10-11 the Department became obligated to its application to all manner of issues controlled by Indiana Code §§ 14-22-28, unless the issue was expressly exempted from the application of the rule.  The Department cannot exercise its discretion to apply or not to apply a valid and otherwise applicable administrative rule to one situation falling within the scope of the governing statute, in this case Indiana Code §§ 14-22-28, but not to another situation also falling within the scope of that same statute.

81.  The Permit at issue in this proceeding is not exempt from the application of 312 IAC 9-10-11.

82.  An administrative law judge who gives deference to an agency's interpretation of a statute has not conducted the appropriate de novo review.”  Sedberry, supra at 16, citing Indiana-Kentucky Elec. v. Commissioner, IDEM, 820 N.E.2d 771, 781 (Ind. App. 2005).

83.  It is hoped that the following brief historical background of 312 IAC 9-10-11 will provide added clarity.

84.  Before 2002, 312 IAC 9-10-11 did not contain the requirement that a person assisting a landowner in the control of a nuisance wild animal obtain a permit following successful completion of a written examination and satisfaction of continuing educational requirements.  312 IAC 9-10-11, Nuisance Wild Animal Control Permit, 20 IR 10, July 1, 1997.

85.  However, in 2002, the requirements stated at subsection (d), which are of particular interest to Peavler, were added to the administrative rule for the first time.[2]  26 IR 3, December 1, 2002 and August 20, 2002 Natural Resources Commission Meeting Minutes.

86.  The hearing officer’s report associated with the 2002 amendment of 312 IAC 9-10-11 contains a Department of Natural Resources, Division of Fish and Wildlife Response that offers insight regarding the Department’s believed need for the desired new requirements, as follows:

The original rule was written over 20 years ago when nuisance animals were not as common as they are today and when trappers performed most of the nuisance control.  Furthermore, many permit holders now perform nuisance wild animal control services as a full-time or part-time business.  The DNR is required to issue free permits for the control of nuisance wild animals (IC 14-22-28).  The DNR is also required by statute to provide for the protection, care, management, survival and regulations of wild animals regardless of whether the wild animals are present on public or private property in Indiana (IC 14-22-2-3).  Many other permits issued by the DNR regulate businesses in some way for protection of the resources involved.  At this time, permittees are not required to be trained or educated in the trapping and handling of wild animals in order to obtain this permit.

These proposed changes are intended to make sure that all permit holders understand the laws and have at least some basic education in the trapping and handling of wild animals and the pertinent regulations. 

Trappers who are helping landowners without charging a fee will be exempted from the testing and continuing education requirements. 

Report of Public Hearing, Public Comment, DNR Responses and Recommendation for Final Adoption, July 2, 2002, pg. 61.

[VOLUME 14, PAGE 9]

87.  Throughout the process of adopting the amendments to 312 IAC 9-10-11, to add the subsections of importance to this proceeding, which are now subsections (d) and (f); there is no mention of exempting municipalities from the application of 312 IAC 9-10-11.  In fact, two individuals identifying themselves as municipal employees expressly requested exemption from the examination requirements, with one of them stating “I feel that federal, state and municipal employees should be exempt from the written examination requirement, if conducting animal control procedures while in the performance of their duties with that government agency.”  Id. at 46. 

88.  The Department rejected the request for such an exemption noting that an exemption exists for “resident landowners and tenants” to obtain a permit and address the nuisance wild animal themselves. Id.

89.  The Department’s response is contrary to the position that municipalities were to be exempt from the application of 312 IAC 9-10-11.

90.  Through its consideration of the hearing officer’s report regarding the amendments proposed for 312 IAC 9-10-11, the Commission, at its meeting conducted on August 20, 2002, also considered comments offered by Julien seeking revisions to the proposed rule language.  One revision requested by Julien was premised upon his belief that “anybody that offers services to the public should take the test” not only those people who offered the service for a fee.  August 20, 2002 Natural Resources Commission Meeting Minutes, pg. 8.  Julien also requested that a Department recommended revision to subsection (e) of the proposed rule (now subsection (f)) be rejected.  The revision sought by the Department would allow an unpermitted person to assist a person holding a nuisance wild animal control permit under subsection (d) only if the holder of the permit provided direct supervision “on site”. 

91.  The Department agreed to withdraw its suggested revision to subsection (e) and accepted Julien’s request that application of subsection (d) be broadened to require any person assisting a private landowner, whether charging a fee or not, to complete the written examination.  Id. at pg. 9 & 11.

92.  “The DNR and the Commission, on administrative review, have only the powers granted to them specifically by the Indiana General Assembly.” Alexander v. Oak Park Conservancy District, 9 Caddnar 9 (2000); and, Dyer Baptist Church v. Town of Dyer and DNR, 8 Caddnar 79 (1998).  As authorized at Indiana Code § 14-10-2-4 and 14-22-2-6, the Department and Commission may also adopt administrative rules that have the effect of law.  Indiana Code § 4-22-2-3(b).

93.  In large part, Peavler bases his opposition to the Permit upon the Department’s failure to comply with PO 66, which “is not a rule adopted by the Commission for [Department] functions.”  Collins & Costanza v. Town of Ogden Dunes, 13 CADDNAR 269, 273 (2014).  As was also noted in Collins, PO 66 was also not posted by the Commission, on behalf of the Department, as a nonrule policy document under Indiana Code § 4-22-7-7, and “a party to an AOPA proceeding cannot rely on a nonrule policy document until posted in the Indiana Register.” Collins at 273, citing Mega Oil, Inc. v. Department of Natural Resources, 7 CADDNAR 129, 130 (1996).

94.  Therefore, the violations of PO 66 committed by Department personnel cannot form the basis of any action contrary to the Department’s issuance of the Permit.

95.  The evidence of record clearly establishes that Eagle Creek Park is owned by the City.

96.  The evidence clearly demonstrates that the property within Eagle Creek Park has been subjected to significant damage resulting from deer browsing.

97.  The Permit clearly complies with the requirements set forth in Indiana Code § 14-22-28-2 by providing an expiration date, specifying the disposition of the deer, the manner of taking the deer as well setting a variety of additional conditions upon the Permit.

98.  Peavler established that A&T and Julien have not complied with the requirements of 312 IAC 9-10-11(d) with respect to deer.

99.  However, 312 IAC 9-10-11(f) provides that:

(f) An individual who does not hold a permit under this section may assist a permittee, but only if the permittee directly supervises or coordinates the activities of the unpermitted person.  A copy of the permit must be on the person when conducting any authorized activities.

100.         As specified in Findings 61 through 66, all activity undertaken by A&T and Julien under the authority of the Permit has been under the direct supervision and coordination of the City, which is the permittee under 312 IAC 9-10-11.  For this reason, A&T is, in this instance, exempt from the requirements of 312 IAC 9-10-11(d).

101.         Peavler has failed to put forth any evidence associated with USDA-Aphis’ compliance with 312 IAC 9-10-11 for consideration by the administrative law judge.

102.         If the conclusion reached in Finding 91 is deemed erroneous, it is further concluded that the subject matter associated with A&T is now moot.  The uncontested testimony of Julien established that A&Ts involvement in the shooting of deer within Eagle Creek Park concluded as of November 30, 2014 and A&Ts only remaining association with the City under the Permit is to coordinate the transport and processing of deer carcasses.  With the clarification that 312 IAC 9-10-11 is applicable to the Department’s future review of applications for Special Purpose Deer Control Permits, it is reasonable to conclude that those issues will not present a recurring theme.

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