[CITE: DNR v. Foster, 5 CADDNAR 131 (1990)]
[VOLUME 5, PAGE 131]
Cause #89-259L
Caption: DNR v. Foster
Administrative Law Judge: Tim Rider
Attorneys: McInerny, DAG; Lewis
Date: May 23, 1990
ORDER
Lifetime
comprehensive hunting license number 0177 issued to Michael L. Foster is
revoked.
FINDINGS OF FACT
1.
On December 5, 1989, the Department of Natural Resources (the
"Department") filed a complaint to Revoke a Lifetime Comprehensive
Hunting License (the "Complaint") (No. 0177) issued to Michael L.
Foster (the "Respondent") on October 15, 1985.
2.
The Complaint charged that the license was procured by misrepresentation in
that the Respondent was not a resident of Indiana at the time the license was
procured.
3.
IC 4-21.5, IC 14-2-7, and 310 IAC 0.6 apply to this proceeding.
4.
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.
5.
The Respondent has presented two defenses to the Complaint: that he was a
resident of Indiana up to and on October 15, 1985, and that the doctrine of
latches would preclude the revocation of his license.
6.
The Respondent further maintains that even if the license is revoked, a pro
rata refund should be forthcoming because the Respondent's father made an
honest mistake when he purchased the license for his son (the Respondent).
7.
IC 14-2-7-5.7 (c) states that the Director may issue to residents of Indiana
lifetime licenses to hunt.
8.
The Respondent maintains that he has been a resident of Indiana since birth and
continues to be a resident of Indiana, because even though he lives and works
in Tennessee, he intends to return to Indiana someday and he maintains a
mailing address (his father's home) for professional publications.
9.
The Department argues that this is not enough to be able to claim the benefits
of Indiana residency and maintains that all circumstances must be examined.
10.
Both parties cite the case of State
Election Board v. Bayh (Ind. 1988), 521 N.E.2d
1313, in support of their position.
11.
The Bayh
case tends to support the position of the Department. In Bayh, the court found Bayh to be a
resident of Indiana even though he was working for a law firm in Washington, DC
because he owned no real estate in DC, voted in Indiana elections, filed
Indiana tax returns, etc.
12. In the case at bar, the Respondent and his family resided in
Tennessee in 1985 in a home that they owned. In fact, in 1988 Mr. Foster told
CO Jeff Barker that he had lived in Tennessee for the last six years. No
evidence was presented that Mr. Foster returned to Indiana to vote or voted absentee.
Most importantly, Mr. Foster did not file Indiana tax returns in 1984 or 1985.
13.
Applying the factors considered by the Indiana Supreme Court in Bayh to the Respondent's circumstances gives rise to the
conclusion that Mr. Foster has not done enough to be able to claim continued
Indiana residence since he moved to Tennessee about 1982.
14.
The doctrine of laches would not apply here, because
the State did not delay the prosecution of this action, but rather, followed
normal legally mandated procedures. In addition, the Respondent was not
prejudiced by any delay that might have occurred.
15.
In regard to the Respondent's request for a refund, IC 14-2-7-5.7 (c) states
that no part of a lifetime hunting license is refundable.
16.
Evidence shows that the Respondent's father purchased the license for his son
in good faith. Literature produced by the Department did seem to indicate that
an Indiana resident could purchase a license for a friend or relative, that
person not necessarily being
[VOLUME 5, PAGE 132]
an Indiana resident.
17.
The possible misrepresentation cited by the Department would be the listing of
the Respondent's address as being in Seymour, Indiana rather than in Tennessee.
18.
It follows that if the Respondent is deemed not to be a resident of Indiana,
then the listing of his father's address as his own would be a form of
misrepresentation.
19.
Even if this incorrect address is determined to be an inadvertent
misrepresentation, there is no statutory provision which would allow a refund
to be ordered.
20.
Further, the Respondent received value far exceeding what the license cost if
the cost of a nonresident hunting license is considered.