Content-Type: text/html Cause #: 93-160d.v6.html

CADDNAR


[CITE: DNR v. Farley, d/b/a Farley's Fish Farm 6 CADDNAR 94 (1993)]

[VOLUME 6, PAGE 94]

Cause #: 93-160D
Caption: DNR v. Farley, d/b/a Farley's Fish Farm
Administrative Law Judge: Teeguarden
Attorneys: Davidsen; Farley, pro se
Date: August 26, 1993

ORDER

Aquaculture permit 93-218 issued to Farley's Fish Farm is hereby suspended for ninety (90) days, commencing with the date the permit was revoked by the Department of Natural Resources in accordance with the Department's Emergency Order.

FINDINGS OF FACT

1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.

2. IC 4-21.5, IC 14-2, and 310 IAC 3.1 apply to these proceedings.

3. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 with respect to contested matters involving Fish and Wildlife permits.

4. The DNR is the state agency charged with the responsibility of regulating and permitting activities involving fish and wildlife.

5. In December of 1992, Larry Farley, doing business as Farley's Fish Farm, ("Farley") applied for an aquaculture permit ("Permit") from the DNR.

6. The DNR issued permit 93-218 to Farley on January 26, 1993.

7. The permit was issued under the provisions of 310 IAC 3.1-10-18 and allowed Farley to ". . . import, raise, sell, or transport triploid grass carp . . . " in Indiana.

8. Farley owns an extensive fish breeding and distribution business.

9. The only way a grass carp may legally be possessed in Indiana is pursuant to 310 IAC 3.1-10-18.

10. 310 IAC 3.1-10-18(d) requires the permittee to deliver and stock the fish in the pond. The permittee must also keep records of where the fish was stocked and file reports quarterly with the DNR.

11. On April 12, 1993, an Indiana Conservation Officer ("CO") in Seymour, Indiana, observed an employee of a Farley Fish Farm truck sell several grass carp to an individual.

12. The individual took the fish and left the area.

13. The CO stopped the vehicle and ascertained that no one in the vehicle was a Farley employee and that the fish were indeed grass carp.

14. During the course of the CO's investigation, two persons from Arkansas had returned to the truck in other vehicles.

15. The buyer testified that he bought the grass carp from Farley, and since he was in a hurry, he took them and left.

16. The truck contained a half dozen different varieties of fish.

17. Clearly, there was a violation of the provisions of 310 IAC 3.1-10-18.

18. The violation primarily occurred because the Farley truck driver placed the grass carp where the buyer could take it before there was a Farley employee available to assist with stocking.

19. These permits are annual permits. Subsequent to the filing of the complaint to revoke, the DNR issued an emergency order revoking Farley's permit pending the outcome of these proceedings.

20. The NRC has the power to revoke a Fish and Wildlife permit for violations of 310 IAC 3.1.

21. The NRC inherently has the power to impose a lesser penalty on the permittee.

22. All administrative hearings held pursuant to IC 4-21.5 are de novo. See Indiana Department of Natural Resources v. United Refuse Company (1993 Ind. Sup. Ct.) 615 N.E.2d 100. As such, an administrative law judge is required to independently weigh the evidence and issue a nonfinal order based on his own findings and not merely make his (her) decision on whether or not the DNR's initial action has a reasonable basis.

23. After weighing all the evidence, it appears that a complete revocation of the permit is unduly harsh.

24. An adequate penalty is a ninety (90) day suspension of the permit.