1. The wild animal permit for the bear known as "Lefty" is revoked as Mr. Frecker is no longer the owner.
2. Mr. Frecker shall complete construction of the double cage within 30 days of receipt of the order. This construction will be to the satisfaction of the Director or his authorized representative.
3. Mr. Frecker shall install locks which are not capable of being forced open by a bear on all cage doors.
4. Competent adult supervision shall be utilized in all aspects of maintenance of the bears, especially when cage doors are being opened.
5. The bears will not be walked on a leash outside an enclosed structure that makes escape unlikely.
6. Mr. Frecker shall post warning signs as directed by a conservation officer.
FINDINGS OF FACT
1. On April 15, 1988 the Department of Natural Resources (the "Department") filed a complaint requesting the revocation of three permits held by Mr. Larry Frecker, which allow him to possess three American black bears ("the Bears").
2. IC 4-21.5, IC 14-2-7-21 and 310 IAC 3.1-10-11 apply to this proceeding.
3. The Department is an agency as defined in IC 4-21.5-1-3. The Director is the ultimate authority for the Department with respect to this proceeding.
4. Mr. Frecker holds three valid permits to keep three American Black Bears on his property.
5. IC 14-2-7-21 ("the statute") gives the Director the authority to issue rules in regard to permits to possess wild animals. This authority applies to wild animals protected by statute or rule or those that may be harmful or dangerous to plants or animals and are not native to Indiana.
6. American black bears are not protected by statute or rule, may be harmful or dangerous to plants or animals, and, at the present time are not native to Indiana. Therefore, they are covered by the statute.
7. The Director has the authority under the statute to immediately revoke a previously issued permit. However, to put citizens on notice as to what the criteria are as to how an individual may obtain and keep a permit, rules must be written. In this case 310 IAC 3.1-10-11 ("the Rule") applies. For the Director to revoke a permit, some standard imposed by the Rule must be violated.
8. The Rule specifies that bears (all species) are covered and require a permit. Mr. Frecker has applied for and been granted three permits. It must be assumed that Mr. Frecker's permits were properly issued, there being no evidence to the contrary.
9. Absent the discovery of fraud at the time of permit request (there is no evidence of any in this case), a permit may be revoked under the following conditions:
a. animal is not confined in a cage or enclosure which provides ample room for exercise and which makes escape unlikely;
b. animal is not handled in a sanitary or humane manner;
c. animal is chained or tethered to some sort of anchorage; or,
d. animal is used for commercial, public display (non-education) or sporting purposes.
10. There is no credible evidence that conditions listed in paragraphs b, c, or d above exist in this case; and therefore, the only possible basis for permit revocation is the condition in paragraph a.
11. Evidence presented at the hearing indicates that the bears have ample room for exercise so whether escape is unlikely is the only basis for dispute. The decision in this cause rests on this issue.
12. Evidence indicates that in July, 1987 and March, 1988 a bear belonging to Mr. Frecker was seen out of its cage.
13. The July 1987 escape was prior to Mr. Frecker obtaining his permits. Since the Department saw fit to issue wild animal permits subsequent to this episode, it must be assumed that deficiencies existing at the time of that escape had been corrected.
14. The March 1988 escape was caused by a faulty lock. There was no evidence that the cage was faulty in any way. This escape resulted in property damage to dwellings in the area and created a fear in the concerned citizens of the area that another escape was possible and could be potentially dangerous.
15. Evidence shows that Mr. Frecker has not lived at the site where the bears are kept.
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He testified that he is in the process of moving there now. However, there is no requirement in the Statute or the Rule that the permit holder live at the wild animal site.
16. A petition signed by the concerned citizens of the area was entered into evidence. This petition requested that Mr. Frecker's permits be revoked because the bears were in close proximity to a school. Mr. Frecker does not live full-time at the site, and there have been two escapes. None of these factors are grounds for permit revocation under the Rule.
17. Mr. Frecker has completed construction of a double cage enclosure which was depicted in testimony by Conservation Officer Steven T. Gerber as being very secure. In addition, Mr. Frecker has replaced the faulty lock with a much more secure model.
18. The evidence shows that at the present time Mr. Frecker has enclosed his bears in such a way as to make escape extremely unlikely. Therefore, there is no basis under the Rule to revoke his permits.