[AFFIRMED ON JUDICIAL REVIEW ON PROCEDURAL GROUNDS. TRIAL COURT DECISION FOLLOWS NRC FINDINGS. APPEAL BY WRIGHT DISMISSED BY COURT OF APPEALS.]
The cougar owned by Martin D. Wright and Kris Wright will be impounded by the Department and disposed of according to law or, in the alternative, the Wrights will be allowed to place the cougar with a lawful new owner provided the placement is approved by the Department.
FINDINGS OF FACT
1. On September 26, 1988 the Division of Law Enforcement Department of Natural Resources issued a Complaint to Confiscate a Wild Animal (the "Complaint") against Martin D. Wright and Kris Wright (the "Wrights") who reside at 63 North County Line Road, Crown Point, Porter County, Indiana.
2. IC 14-2-7-21 (the "Statute"), 310 IAC 3.1-10-11 (the "Code"), IC 4-21.5 and 310 IAC 0.6 apply to this proceeding.
3. The Department of Natural Resources (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. The Concerned Citizens of the Area (the "Citizens") represented by Debbie Morris, were granted Claimant Intervenor status on October 7, 1988.
5. The Claimant alleges that the Wrights have possessed a cougar since at least September, 1987, without obtaining a permit as required by the statute and the code.
6. The issue at bar, as determined by the parties, is whether a permit can be issued to the keeper of the wild animal if it is impossible for the keeper to document legal ownership.
7. The Department filed a motion for summary judgment as to the issue on October 20, 1988.
8. The Respondents' brief argues that since the permit application was filed just prior to the effective date of 310 IAC 3.1-10-11 (new rule), the permit application should have been processed under 310 IAC 3-9-7 (old rule).
9. The Respondents maintained that under the old rule there is no requirement to document legal acquisition prior to permitting a wild animal.
10. It is immaterial which rule applies to this case because the old rule (at paragraph (e)) contains the same requirement to document legal acquisition as is found in the new rule (at paragraph (d)).
11. The Respondents presently possess a cougar unlawfully (without a permit) and no permit can be obtained to make the possession lawful due to lack of documentation of legal acquisition.
12. No genuine issue as to any material fact exists in this case and, therefore, the Claimant is entitled to judgment as a matter of law.
PORTER CIRCUIT COURT FINDINGS
On December 12, 1989, the Porter Circuit Court in Cause No. 64DOl-8906-MI-1310K made the following order of Court: A hearing was held before the Court June 15, 1989, Petitioners Martin Wright and Kris Wright being present by their attorney Larry Rogers and the State of Indiana and Department of Natural Resources being present by its attorney general Daniel McInerny. The Department of Natural Resources was required by this Court to file its written motion to dismiss together with appropriate memoranda, and the Petitioners were given ten days thereafter to file a response.
On June 22, 1989, the attorney general filed This motion to dismiss. The Petitioners contend that this filing was not timely inasmuch as the Court required such filing within five days. It should be noted that although the matter was filed in open court June 22, 1989, the motion to dismiss when transmitted to the clerk was filed pursuant to Trial Rule 5(E). Thus, the mailing of said motion to dismiss by the deputy attorney general constituted filing within the prescribed period of time by the Court. Thus, the motion to dismiss was timely filed.
The sole issue in the case is whether the Petition filed by Martin and Kris Wright was timely filed; if it was not, this Court lacks jurisdiction pursuant to statute. While Petitioners indicate that they are only appealing the final recommendation of the administrative law judge in this administrative action and not his recommended order, the provisions of the Administrative Adjudication Act (IC 4-21.5 et. seq.) provide that judicial review be had only from final orders by the ultimate authority of the agency. In this case, the Director of the Department of Natural Resources is the ultimate authority. It is he who issued his final order on April 14, 1989, authorizing seizure of the cougar animal by the Department of Natural Resources. It was not, however, until May 9, 1989, pursuant to the Director's order of May 3 that the animal was seized. Clearly, the provisions of IC 4-21.5-3-29(d) require that a party file an objection to an order of an administrative law judge for judicial review with the ultimate authority responsible for reviewing that order, such time limitation being within fifteen days after the order was served. Here the administrative law judge issued his recommended order February 2, 1989. There were no objections filed to the recommended order. Thus, Petitioners are precluded from seeking judicial review of the final order of the administrative agency.
Therefore, the statutory procedure to perfect an appeal for judicial review was not timely filed. This Court lacks jurisdiction. The petition filed by Martin D. and Kris Wright on June 2, 1989 is hereby dismissed.
Also, this Court notes in the Department of Natural Resource's Reply to Memorandum in opposition to Respondent's Motion to Dismiss and Request for Sanctions filed July 19, 1989, that the Department filed a "Request for Sanctions." Court finds that such request for sanctions is in addition to being raised for the first time in such reply memorandum as being too late, is also without merit. There was a genuine issue of dispute between the parties which has now been resolved by this Court's order.
Therefore, the Petition as aforesaid filed by the Wrights against the Department of Natural Resources is dismissed. The possession of and legal title to the cougar animal in question hereby rests with the Department of Natural Resources of the State of Indiana.
Raymond D. Kickbush, Judge
Porter Circuit Court
APPEALS COURT ENTRY
An appeal of the decision by the Porter Circuit Court was taken by Martin and Kris Wright in Indiana Court of Appeals Cause No. 64AO3-9004-CV-00154. on July 19, 1990, an entry by the Clerk stated as follows: "Clerk hereby dismisses this cause pursuant to A.R. 8.1. Daniel Rock Heiser, Clerk."