CADDNAR


[CITE: Burns Harbor Fish Co., Inc. v. DNR, 5 CADDNAR 198 (1991)]

 

[VOLUME 5, PAGE 198]

 

Cause #: 89-276D

Caption: Burns Harbor Fish Co., Inc. v. DNR
Administrative Law Judge: Rider
Attorneys: Kovachevich; Schaefer, DAG
Date: March 13, 1991

ORDER

 

[NOTE: THE JASPER CIRCUIT COURT AFFIRMED THIS DECISION ON JUDICIAL REVIEW. SEE OPINION BURNS HARBOR FISH COMPANY, INC. V. INDIANA NATURAL RESOURCES COMMISSION AS SET FORTH FOLLOWING THE ADMINISTRATIVE DECISION.]

The decision by the Director, Department of Natural Resources not to issue trawl net permits is affirmed.


FINDINGS OF FACT

 

1. The Claimant, Burns Harbor Fish Company, Inc. (Burns), is a company in the business of commercial fishing on the Indiana waters of Lake Michigan.

 

2. Burns holds commercial fishing licenses numbers 4, 13, 17, and 18.

 

3. In November 1989, Burns filed a request for the Department to re-issue its trawl permit for 1990, along with its commercial license renewal.

 

4. On December 8, 1989, the Department of Natural Resources ( the "Department") issued a study prepared by Dan Brazo, a fisheries biologist employed by the Department, entitled "Experimental Commercial Trawling in Indiana Waters of Lake Michigan." (the "Brazo Study").

 

5. Based on the Brazo Study, which concluded that trawl nets should be banned due to loss of sublegal perch, Burns' trawl net application was denied by the Director.

 

6. On December 29, 1989, Burns filed a request for review of said denial.

 

7. The Natural Resources Commission is an agency as defined in IC 4-21.5-1-3 and is the Ultimate Authority for this proceeding.

 

8. IC 4-21.5, IC 14-2, 310 IAC 0.6, and 310 IAC 3.1 apply to this proceeding.

 

9. IC 14-2-7-12(d) gives the Director the authority to establish rules in regard to the kind and amount of fishing gear to be employed on Lake Michigan.

 

10. 310 IAC 3.1-8-3(f)(1) specifies that a temporary or annual permit may be issued which would allow fishing with a trawl net.

 

11. Based on the conclusions in the Brazo Study, the Director decided that the trawl nets presently available should not be permitted under the IAC.

 

12. The Department previously had filed a motion for summary judgment asserting that the decision not to allow commercial trawl permits was based on a valid scientific study and could, therefore, not be attacked as an arbitrary and capricious act.

 

13. The motion was denied by the Administrative Law Judge on June 13, 1990, because Burns provided other data and asserted the study was "incomplete and incorrect" thereby raising a question of material fact.

 

14. The issues for this hearing were therefore narrowed by the above ruling to the accuracy of the supporting data in the Brazo Study.

 

15. Brazo conducted a two year study of the use of experimental trawl permits issued to two commercial fishermen, Burns and M. Hagerty Fish, Inc. The objective of the study was the following: a. determination of trawling effort and harvest levels; b. determine the sizes of fish caught; c. determine the catch of non-target species (including sublegal size yellow perch) and; d. determine mortality of non-target species.

 

16. Among the findings of the Brazo Study relevant to the Burn's appeal was the large number of sublegal size yellow perch returned to the water by the commercial trawlers. (Table 2 of the Brazo Study.) Trawler A (Burns) estimated that 98.3% of the sublegal yellow perch returned were dead, Trawler B estimated that it returned 19,000 sublegal yellow perch caught and released with a mortality rate of only 6%. However, the Department observed an additional 17,000 sublegal size yellow perch during monitoring rides in 1989 with an estimated mortality of 91%. Brazo estimates that at least 70,000 sublegal yellow perch may have been returned to Lake Michigan. (Brazo Study, p.2 paragraph 6 line 23.) The overall mortality rate on the trawls was 91%.

 

17. Burns contends that the Brazo Study is flawed because the Trawler B data was

 

[VOLUME 5, PAGE 199]

 

based on gear different from Burns. The Claimant used "ribbed cod end" gear; however, Trawler B described its gear as "squared frame", Brazo testified that was only a difference in terminology by the fishermen and that he personally observed that both trawlers used essentially the same system.

 

18. Burns also contends that it had a lower sublegal catch than Trawler B. However, the data submitted by the claimant does not support this contention. Claimant reported 5,600 pounds of sublegal yellow perch were returned to Lake Michigan and at 6 fish per pound, a total of 33,000 individuals. Trawler B reported 19,000:.(Brazo Study page 2). In addition to the above capture of fish, fishermen are entitled to keep up to 25% of their catch in sublegal size yellow perch. It is unlikely, based on economics, that a fishermen would not retain all the yellow perch, regardless of size, he would be entitled to retain under the law. It was Brazo's personal observation that fishermen retain as much sublegal yellow perch as permitted under the law.

 

19. Burns submitted further data from April 1989. It consisted of only 30 observations. Burns used the data to support its theory that a longer "hold" of the net under water before retrieval reduces the number of sublegal yellow perch. Burns data (a graph) had no more than four data points to support each of the longer "holds", and the longest "holds" had only two points. This one month data had insufficient data points to provide a meaningful or scientific conclusion.

 

20. A Burn's witness, Mr. Marinovich, the ..manufacturer of the Claimant's nets, testified that "in time" he could develop acceptable trawl gear. This indicates that such gear is not presently available.

 

21. The Brazo Study was performed under scientific protocols relative to monitoring of the Lake Michigan fishery. The additional data presented by Burns for April 1989 was not and contained too few data points to be meaningful.

 

22. The trawling program was initiated as an experiment. Even under those conditions, significant losses of sublegal size yellow perch were observed. It certainly would not be irrational to conclude that larger losses would occur if this type of gear would be employed on a wider, full scale commercial basis.

 

23. The Brazo Study's conclusion that trawling should not be permitted has a sound basis in the data collected and analyzed.

 

24. The Indiana Court of Appeals has defined the meaning of an "arbitrary and capricious" act in Furness v. Ridenour: An arbitrary and capricious administrative act is one which is willful and unreasonable, without consideration and in disregard of facts of circumstances in the case; the act is one without some basis which would lead a reasonable and honest person to the same conclusion. 504 N.E.2d 336, at 341. The decision not to approve trawls was based on a consideration of the facts and provides a basis for a reasonable conclusion and was not arbitrary and capricious.

 

25. If Mr. Marinovich developed a new trawl net which would mitigate the problem of the taking of sublegal perch, the Department would be free to rescind the trawl net ban.

__________________________________________________________________

[NOTE: CADDNAR citation does not apply to Jasper Circuit Court entry.]


JASPER CIRCUIT COURT (CAUSE NO. 37C0l-9107-CP-135)

FINDINGS OF FACT

1.
That the Petitioner, Burns Harbor Fish Company, Inc., hereinafter called Burns, is an Indiana Corporation and is in the business of commercial fishing on the Indiana waters of Lake Michigan and holds four commercial fishing licenses under Numbers 4, 13, 17 and 18.

 

2. That the Respondent, Indiana Natural Resources Commission, Department of Natural Resources, hereinafter called DNR, is a political subdivision of the State of Indiana.

 

3. That in the years 1988 and 1989, the DNR issued two special trawl permits on an "experimental basis" for the purpose of collecting data on the effectiveness of trawls in harvesting perch from Lake Michigan. One permit was issued to Burns and the other permit was issued to M. Hagerty Fish Company.

 

4. That in November, 1989, Burns filed a request for DNR to re-issue its trawl permit for the year 1990, along with its annual license renewal.

 

5. That on or about December 8th, 1989, DNR issued a study prepared by Dan Brazo, Ph.D., a fisheries biologist employed by DNR, entitled "Experimental Commercial Trawling in the Indiana waters of Lake Michigan." Hereinafter the "Brazo Study."

 

6. Based upon the Brazo Study, which concluded that trawl nets should be banned due to the loss of sublegal perch, Burns's trawl net application was denied by the Director of the Indiana Natural Resources Commission.

 

7. On or about December 28th, 1989, Burns filed a request for review of DNR's denial of the request to issue the trawl permits for the year 1990.

 

8. The matter was heard before an Administrative Law Judge on December 17, 1990, and on March 13, 1991, the Administrative Law Judge entered his non-final order affirmed the decision of the Director, Department of Natural Resources, not to re-issue trawl net permits.

 

9. The final order of DNR not to issue the trawl net permit was entered on April 30, 1991, and this cause followed.

 

10. Burns alleges that the DNR's denial of a trawl permit was arbitrary, capricious, unreasonable and violative of due process because the Brazo Study ignored the clearly ascertainable standards of the Fish & Wildlife Regulations, failed to consider Burns' April 1989 trawl data, and was inaccurate and incomplete.

 

11. The Court further finds that the decision of DNR not to approve a program of commercial trawl netting for perch or to further extend the experimental use of those trawl nets was based on the Brazo Study, a copy of which appears as Joint Exhibit No. II in Volume 3, Tab 11, of the transcript.

 

12. The Brazo Study was based on a two-year study of the use of experimental trawl permits issued to Burns and M. Hagerty Fish Company. The objective of the Brazo Study was as follows:

 

a) Determination of trawling efforts and harvest levels,

b) Determination of the sizes of fish caught,

c) Determination of the catch of non-target species, including sublegal-size yellow perch, and

d) Determination of mortality of non-target species.

 

13. The Brazo study estimated that at least 70,000 sublegal yellow perch may have been returned to Lake Michigan, with an overall mortality rate of 91 percent.

 

14. Burns has contended that the Brazo Study was flawed because Burns used different gear and a different procedure than M. Hagerty Fish Company.

 

15. Dr. Brazo testified that the only difference was in the terminology used by the fishermen, and that he had personally observed that both Burns and M. Hagerty Fish Company used essentially the same system.

 

16. Burns also contended that the Brazo Study was flawed in that it did not consider Burns' April 1989 data.

 

17. Dr. Brazo further testified that one month's data had insufficient data points to provide a meaningful or scientific conclusion.

 

18. Even if this Court accepted the fact that in April of 1989, Burns was able to avoid catching sublegal perch in excess of the state regulation of 25 percent, this Court would be left to speculate as to whether the smaller number of sublegal perch caught by Burns was due to the net it was using, the way it was trawling, or that it was the result of the area it was fishing and the size of the fish in the school of fish that it located.

 

19. The Court further finds that Burns' witness, Steve Marinovich, an expert net maker, testified that if he had the time and patience he could construct a net that would exclude small fish. Mr. Marinovich made approximately the same statement on Page 15, Volume I of the transcript and again on Page 30, Volume 1 of the transcript. The inference that can be drawn from said statements is that such nets do not yet exist.

 

20. The Court further finds that the Administrative Law Judge found that the Brazo study was performed under scientific protocols relative to monitoring of the Lake Michigan fisheries. The Administrative Law Judge further found, pursuant to the evidence presented to him, that the acts of DNR were not arbitrary or capricious, as those terms are defined under Furness v. Ridenour, 504 N.E.2d 336.

CONCLUSIONS OF LAW

Based upon the foregoing findings of facts, the Court now makes and enters the following conclusions of law:

 

1. To the extent that any finding of fact shall constitute a conclusion of law, it shall be deemed as such; to the extent that any conclusions of law herein shall constitute a finding of fact, it shall be deemed as such.

 

2. A reviewing court is bound by the findings of facts made by an administrative agency or an administrative law judge, if the findings of facts are supported by the evidence.

 

3. In reviewing the sufficiency of evidence to support a finding of fact, a reviewing court will overturn an agency's findings only if it finds that the evidence upon which the agency relied was devoid of probative value or so meager as to lead to the conviction that the findings do not rest upon a rational basis.

 

4. A reviewing court may not substitute its own opinions for those of an administrative agency or an administrative law judge.

 

5. On judicial review, a court is not to weigh conflicting evidence.

 

6. The reviewing court must look at the evidence most favorable to the party that prevailed at the administrative proceedings in an effort to determine whether there exists substantial and probative evidence which would support the findings and decisions of the administrative agency or administrative law judge.

 

7. Judicial review shall be limited to a determination of whether the agency possessed jurisdiction over the matter and whether its order was made in accordance with the proper legal procedures, was based upon substantial evidence, and did not violate any constitutional, statutory, or legal principle.

 

8. Arbitrary and capricious action on the part of an administrative agency means willful and unreasonable action without consideration and in disregard of the facts and circumstances of the case, or action taken without some basis which would lead a reasonable and honest man to such action. Indiana Board of Pharmacy v. Crick (1982), 433 N.E.2d 32.

 

9. The decision of DNR to prohibit further use of commercial trawling gear was within the authority granted to DNR by Indiana Code 14-2-7-12(D), which empowers DNR to regulate the types of fishing gear.

 

10. Burns, by its Verified Petition for Judicial Review, is really asking this Court to re-weigh the evidence, which this Court is not permitted to do. However, even if this Court were permitted to weigh the evidence, the weight of evidence would seem to favor DNR since its decision was based upon a two-year scientific study, while the evidence most favorable to Burns would be Burns' one-month experiment on the use of the trawl net plus the testimony of a professional net maker as to how trawl nets can be developed in the future.

 

11. Based upon the record of this case, the Court concludes that the actions of DNR were not arbitrary, capricious, or an abuse of discretion.

 

12. The law is with the Respondent, Indiana Natural Resources Commission, Department of Natural Resources, and against the Petitioner, Burns Harbor Fish Company, Inc., and the decision of the Indiana Natural Resources Commission, Department of Natural Resources, entered on April 30, 1991, should be confirmed.

JUDGMENT

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the decision of the Indiana Natural Resources Commission, Department of Natural Resources, entered on April 30, 1991, in Cause No. 89-246D is hereby confirmed.

E. Duane Daugherty, Judge
Jasper Circuit Court