[CITE: Tiller v. DNR, 10 CADDNAR 5 (2005)]
[VOLUME 10, PAGE 5]
Cause #: 03-016P
Caption: Tiller v. DNR
Administrative Law Judge: Lucas
Attorneys: pro se; Boyko
Date: January 13, 2005
FINAL ORDER
The facts are not in material dispute and summary judgment is granted under IC 4-21.5-3-23. A declaratory judgment is issued under 312 IAC 3-1-15 to the effect that there are no ascertainable standards for the implementation of the licensure provisions of 312 IAC 5-10-2(2). Lacking ascertainable standards, the licensure process fails minimum due process requirements, and the Department of Natural Resources must suspend the issuance of licenses under 312 IAC 5-10-2(2). The effective date of this order is stayed until April 1, 2005 in order to allow the Department sufficient time to establish a process, with ascertainable standards, for administration of licensure under 312 IAC 5-10-2(2).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Tom Tiller ("Tiller") resides at 3125 Old Dunlapsville Road, Liberty, Indiana.
2. The Department of Natural Resources (the "DNR" is a state agency that is subject to IC 4-21.5 (sometimes referred to as the "Administrative Orders and Procedures Act" or "AOPA") and rules adopted by the Natural Resources Commission (the "Commission") at 312 IAC 3-1. The "Commission" is the "ultimate authority" for the DNR as provided in IC 14-10-2-3.
3. James Gerbracht ("Gerbracht") is an employee of the DNR. The DNR administers real estate located in Union County and Franklin County, Indiana known as Brookville Lake. The real estate includes both land and water. Gerbracht's professional responsibilities include assisting with the DNR's administrative responsibilities for Brookville Lake.
4. Tiller initiated this proceeding to obtain administrative review under AOPA and 312 IAC 3-1 from an interpretation by Gerbracht of 310 IAC 2.1-9-2(2). More particularly, the basis for administrative review is 312 IAC 3-1-15. This section provides in pertinent part:
Sec. 15. (a) A person may, in writing, request the department to interpret a statute or rule administered by the department as applicable to a specific factual circumstance. The request must:
(1) describe with reasonable particularity all relevant facts;[VOLUME 10, PAGE 6]
petition for administrative review under IC 4-21.5-3. The response constitutes a determination of status under IC 4-21.5-3-5(a)(5).
....
5. On December 9, 2002, Tiller made a written request to DNR Director, John Goss, for an interpretation of 310 IAC 2.1-9-2(2). The request stated in substantive part:
Pursuant to 312 IAC 3-1-15, I am requesting the department to provide an interpretation of why 310 IAC 2.1-9-2(2) is not administered as written and intended.
(1) During the waterfowl migratory season from October 1 through March 1, a person must not (unless a permit has been issued by the dept. under this subdiv.) either operate a watercraft or otherwise enter the (Brookville) lake upstream from the Dunlapsville Causeway to the State Road 44 bridge and within the bounds of elevation 748 feet mean sea level. The part of the Brookville lake north of the Dunlapsville Causeway, within the bounds of the (748 ft above m.s.l.) summer pool water level, is permanently (for the recurring period of Oct. 1 thru March 1) designated as a "Waterfowl Resting Area" and "CLOSED" by both posted signage and publication. The Waterfowl Resting Area closure is contravened by Special Waterfowl Hunts permitted by the Brookville Lake property manager's office.
(2) The intent of 310 IAC 2.1-9-2(2) is clearly to close the Waterfowl Resting Area to provide migrating waterfowl with an environment in which to rest undisturbed by persons.
(3) The only persons directly affected by enforcement of the closure rule 310 IAC 2.1-9-2(2) would be the very hunters who take advantage of the special hunts in the Waterfowl Resting Area (W.R.A.) permitted during the 14 days as printed on the attached handout from the Brookville Lake property manager's office. It should be noted that enforcing the W.R.A. closure, as written, would not affect any aspect of the Special Hunts in the Elly's Creek Marsh Area nor the waterfowl hunting permitted on the other approximately 4,200 acres of the Brookville lake open during the full waterfowl hunting season.
(4) The relief sought is simply for the [DNR] to direct the various divisions to apply the rules of 310 IAC 2.1-9-2(2) as intended and as written:
(a.) The Wildlife Management Div. to not approve Special Waterfowl Hunts in the W.R.A. during the closure period.
(b.) The Law Enforcement Div. to fully and fairly enforce the closure rule.
(c.) The Brookville Lake property manager to cease permitting waterfowl hunters to use the W.R.A. for Special Waterfowl Hunts and to clearly post the defined area boundaries.
6. The Tiller written request set forth in Finding 5 meets the procedural requirements of 312 IAC 3-1-15(a).
7. Serving as the DNR Director's delegate, Gerbracht on December 23, 2002 responded to Tiller's written request in a letter that stated in substantive part as follows:
[VOLUME 10, PAGE 7]
Your letter has been forwarded to me for reply. It seems that your questions and concerns are the same as stated in your letter of December 16, 1999 (copy attached). I have also attached a copy of the January 10th, 2000 response by our Assistant Director, John Bergman. I cannot expand or improve on his letter except to say that the property has management authority for the operation of Brookville Lake and the Waterfowl Resting Area. But because of your inquiry, we have revisited our regulations and statutes and are operating the area as authorized by those regulations.
Let me say that out of a 60 day waterfowl season this year, Brookville has allowed waterfowl hunters to enter and enjoy the sport of duck hunting for a total of 14 days. That leaves 46 days that birds are not bothered or harassed. The purpose of a Waterfowl Rest Area as opposed to a Waterfowl Refuge is to provide a level of shelter for migrating birds but also to allow hunters the opportunity to harvest some of those birds that ordinarily would not be available. It's a way of protecting the migrating waterfowl and still allow recreational use of that renewable resource.
8. The January 20, 2000 letter by Bergman, that was incorporated by reference into Gerbracht's letter of December 23, 2002, stated in substantive part:
I have received your letter concerning the wildlife management program at Brookville Lake. Of particular interest to you seems to be the operation of the Waterfowl Resting Area located on the north end of the reservoir. With that in mind, I will try and clarify the establishment and operation of this area.
First, let me say that this area is not "closed" to all but waterfowl hunters. Anyone interested in entering this area can contact the property office and if a waterfowl hunt is not taking place at the time, then the office may issue a permit for entry by the public into this section of the reservoir property. This could be for bird watching, hiking or educational field trips. It certainly is not operated as a "private" hunting preserve as stated in your letter although at certain times, waterfowl hunting by the public is the primary permitted activity. This information is available from the officer prior to the season each year.
Second, you wish to know under what "authority" we operate the facility and make such determinations. I believe the overriding statute governing the DNR usage is IC 14-10-2 and IC 14-11-1 and IC 14-19-1. As for Brookville's resting area, the formation of this area is two fold. The first is covered by the Department of Natural Resources watercraft regulations (310 IAC 2.1-9-2) that actually define the water portion of the area and exclude the entry of watercraft between October 1 and March 1 except by special permit. This permit is available in Brookville's office as stated at the first of this letter. The second part of the establishment of the area is covered by the General Property Regulations
[VOLUME 10, PAGE 8]
312 IAC 8-2-1 that allow a sign to be posted to regulate a particular use.[FOOTNOTE A.] That is the authority which Brookville has used to establish the land portion. These signs are recorded with our Division of Law Enforcement as required and thus enforceable.
In closing, you may not agree in the methods used to operate the resting area and that is your right, but we are operating under the regulations given to use to deal with such matters.
9. The Gerbracht letter set forth in Finding 7 (including incorporation by reference of the Bergman letter set forth in Finding 8) meets the procedural requirements of a timely response under 312 IAC 3-1-15(b).
10. On December 31, 2002, Tiller filed multiple items of correspondence with the Commission in response to the Gerbracht letter. In response to a request for clarification by the Commission's Division of Hearings, Tiller identified the purpose and intent for filing the items of correspondence in a letter filed on January 22, 2003. Together these documents meet the procedural requirements of a timely request for administrative review under 312 IAC 3-1-15(d).
11. Effective January 1, 2002, 310 IAC 2.1-9-2(2) was recodified at 312 IAC 5-10-2(2). The recodification made no substantive changes. Review of Tiller's written request as described in Finding 5, and review of Gerbracht's letter described in Finding 7 (including incorporation by reference of the Bergman letter in Finding 8), are unchanged by the recodification. The legal conclusions and final order would be the same whether references were made to 310 IAC 2.1-9-2(2) or to 312 IAC 5-10-2(2).
12. As relevant to this proceeding, 312 IAC 5-10-2 provides:
Sec. 2. The following zones are established for Brookville Lake.
....
(2) From October 1 through March 1, a person must not (unless a license is issued by the [DNR] under this subdivision) operate a watercraft or enter the lake upstream from the Dunlapsville Causeway to the State Road 44 bridge and within the bounds of elevation seven hundred forty-eight (748) feet mean sea level.
13. The statutory authorities for the Commission's adoption of 312 IAC 5-10-2-2 are IC 14-10-2-4, IC 14-11-2-1, IC 14-15-3-18, and IC 14-15-7-3.
14. As pertinent to this proceeding with respect to permanent rules, IC 14-10-2-4 provides:
Sec. 4. (a) The [C]ommission shall adopt rules under IC 4-22-2 to carry out the [C]ommission's duties under this title.
....
(c) ...[W]henever the [DNR] or the [DNR D]irector has the authority to adopt rules under IC 4-22-2, the [C]ommission shall exclusively exercise the authority.
15. As provided in pertinent part in IC 14-11-2-1:
Sec. 1. The [DNR] may adopt rules under IC 4-22-2 for the conduct of the following:
[VOLUME 10, PAGE 9]
....16. As provided in pertinent part in 14-15-3-18:
Sec. 18. (a) The [DNR] may adopt rules under IC 4-22-2 to:
....
(2) prescribe areas for special use;
on those lakes and reservoirs financed either wholly or in part with state or federal money.
(b) The rules adopted under subsection (a) may do the following:
(1) Establish zoning of lakes for the protection of users.
(2) Establish quiet areas in which the use of watercraft may be limited or prohibited for the purposes of fish and wildlife management.
....
17. As provided in IC 14-15-7-3:
Sec. 3. (a) The [DNR] may adopt rules under IC 4-22-2 to implement this article concerning the following:
(1) Applications for and the issuance of permits and certificates required by this article.
(2) The conduct of watercraft races.
(3) Standards of safety for boats used to carry passengers for hire, the determination of the maximum weight that may safely be carried on boats, and the inspection of boats.
(4) The safe operation of watercraft upon public water where unusual conditions or hazards exist, such as any of the following:
(A) An obstruction in or along public water.
(B) Watercraft traffic congestion.
(C) A beach, boat launch, marina, dam, spillway, or other recreational facility on or adjacent to public water.
(5) The placement, location, and maintenance of the following structures upon public water:
(A) Buoys.
(B) Markers.
(C) Flags.
(D) Devices that are used for the purposes of swimming or extending the use of water skis, water sleds, or aquaplanes.
(6) The establishment of zones where the use of watercraft may be limited or prohibited for the following purposes:
(A) Fish, wildlife, or botanical resource management.
(B) The protection of users.
(7) The regulation of watercraft engaged in group or organized activities or tournaments.
(b) In a rule adopted under subsection (a)(4) or (a)(6), the [DNR] may establish a zone where:
(1) the operation of all or some types of watercraft is prohibited;
(2) particular activities are restricted or prohibited; or
(3) a limitation is placed on the speed at which a watercraft may be operated.
[VOLUME 10, PAGE 10]
18. The statutes cited in Finding 13 provide sufficient authority for the adoption of 312 IAC 5-10-2.
19. The DNR's property manager for Brookville Lake issues licenses to persons to operate a watercraft or to otherwise enter Brookville Lake within the area described in 312 IAC 5-10-2(2). These licenses are described here as "Brookville Lake Licenses" to help distinguish them from other types of permits or licenses issued by the DNR. A Brookville Lake License may be in the form of a badge, card, paper, or other similar documentation.
20. The unmistakable language of 312 IAC 5-10-2 authorizes the Department to issue a Brookville Lake License, and authorization to issue a license may properly be delegated to a property manager.
21. What 312 IAC 5-10-2 does not do is to provide ascertainable standards for determining when and under what conditions a Brookville Lake License may properly be issued. As written, the rule section allows an unlimited number of licenses for any reason or no reason at all. The section provides no guidance as to when an applicant is qualified or when disqualified.
22. Decisions by state agencies must be based on ascertainable standards. Standards must be stated with provisions sufficient to provide citizens with fair warning of the criteria by which the decisions will be made. cLARKSON v. Dept. Ins. Of State of Ind., 425 N.E.2d 203 (Ind. App. 1981).
23. Standing alone, 312 IAC 5-10-2 does not provide ascertainable standards upon which to administer a licensure system and to accord due process.
24. The parties agree that the area described by 312 IAC 5-10-2(2) identifies a "Waterfowl Resting Area". If "Waterfowl Resting Area" has a commonly understood meaning, the phrase may give foundation to a rational basis for establishing a licensure system.
25. In Indiana, the term "migratory birds" is defined in IC 14-8-2-162, and the term "migratory water fowl" is defined in IC 14-8-2-163 to have the same meaning set forth in IC 14-22-7-1 which defines the term as a "wild goose, brant, or wild duck." Similarly, there is a reference in 50 CFR 20.105 to the "...annual hunting of certain waterfowl (ducks, geese [including brants]), coots and gallinules in the 48 contiguous United States." There is general agreement on both the state and federal levels that the term "waterfowl" includes ducks, geese, and brants.
26. The "area" is that described within rule section itself.
27. The uncertainty arises in seeking to identify what, in this context, "resting" means. The conclusion is not intuitive that an area specially designated for waterfowl "resting" is one where they are periodically "hunted".
28. In any event, the parties fundamentally disagree on the consequences of having a site designated as a "Waterfowl Resting Area".
29. Tiller submits the September 17, 2004 affidavit of David E. Russell, Visiting Assistant Professor of Zoology at Miami University, Oxford, Ohio. Russell states that a review of documents, from multiple states including Indiana, shows "a consistent pattern of protection of wildlife present within prescribed waterfowl resting areas." According to Russell, illustrative of this pattern are the following:
[VOLUME 10, PAGE 11]
a. State of Indiana, Department of Natural Resources, Division of Fish and Wildlife, publication on rules governing Fishing and Hunting at Blue Grass Fish and Wildlife Area, specifying that: "Hunting in waterfowl resting area is not allowed."
b. State of Illinois, Department of Natural Resources, General Hunting and Trapping Regulations, defining "Waterfowl rest area" as a location within which "no public activity or presence is allowed for a specified period of time, except as authorized by the Department."
c. State of Illinois, Department of Natural Resources, Duck, Goose and Coot Hunting Regulation referenced Closed Areas as including "waterfowl refuges and rest areas" and stating that violation of closed area restrictions is a petty offense.
d. State of Illinois Redwing Slough/Deer Lake Hunter Fact Sheet for 2004-2005, declaring: "It shall be unlawful... To hunt or trespass for any purpose on any portion of this area posted as a wildlife refuge or waterfowl resting area."
e. State of Illinois Powerton Lake Hunter Fact Sheet for 2004-2005 Season, stating: "Approximately 60% [of 1,426-acre Powerton Lake] is open to waterfowl hunting. The remaining is maintained as a waterfowl rest area."
f. State of Utah Administrative Rule R657-9-32 ("Closed Areas"), which states that a certain "waterfowl rest area" at Farmington Bay is a closed state waterfowl management area in which "a person may not trespass...except during prescribed seasons, or for other activities as posted without prior permission from the division."
g. State of North Dakota regulation on Waterfowl Rest Areas, describing certain "waterfowl rest areas," and stating that all such areas shall be "closed to goose or waterfowl hunting during [September 25 through December 31, 2004], and...closed to small game hunting and fishing from September 25 through November 30" with certain exceptions.
30. The Department observes that, on the federal level, even though an area is designated as a "national wildlife refuge", hunting or fishing is often permitted. For example, 50 CFR 32.1 specifies the considerations that go into determining whether a "wildlife refuge area" will be open "to the hunting of migratory game birds, upland game, or big game" and such a determination must be "compatible with the principles of sound wildlife management." General requirements pertaining to hunting activities are set forth in 50 CFR 32.2, while 50 CFR 32.3 "spells out the procedure for publishing refuge-specific hunting regulations. The analogous process for opening a wildlife refuge area to fishing is detailed" in 50 CFR 32.4 through 50 CFR 32.6. "The federal regulations also list, state by state, those refuge areas open to hunting and/or fishing.... Hunting and fishing regulations applicable to each wildlife refuge are also then listed state by state," including those applicable to Big Oaks National Wildlife Refuge, Muscatuck National Refuge, and Patoka River National
[VOLUME 10, PAGE 12]
Wildlife Refuge and Management Area. 50 CFR 32.7; 50 CFR 32.30 through 32.70; and, 50 CFR 32.33.
31. In his affidavit of September 29, 2004, however, Gerbracht observes: "To the best of my knowledge, the term 'Waterfowl Resting Area' is not defined in any Indiana or federal policies or regulations and was developed in the late 1960's or early 1970's since there were areas where access was limited by the Indiana Administrative Code [FOOTNOTE B] or signage."[FOOTNOTE C]
32. "Wildlife Resting Area" is not helpful to providing ascertainable standards for licensure under 312 IAC 5-10-2(2). The phrase has no common meaning. There is no statute, regulation, or rule to otherwise give substance to the concept of "Wildlife Resting Area". The affidavit of David Russell suggests the Department's Division of State Parks and Reservoirs may use the phrase in a way that is inconsistent with usage in other states, and perhaps even elsewhere in the Department. The Department's reference to federal regulations, that specify considerations used to determine whether a federal wildlife refuge area will be open to hunting, really underlines the problem. There are no parallel state rules to specify considerations that go into determining whether a state "Wildlife Resting Area" will be open to hunting.
33. A state agency may issue statements in the conduct of its affairs that interpret, supplement, or implement a statute. Where these statements are not adopted as rules and are not intended to have the effect of law, they are required to be delivered to the Legislative Services Agency for publication in the Indiana Register as Nonrule Policy Documents. IC 4-22-7-7(a) and IC 4-22-7-7(b).
34. Following recommendations by the Department, the Commission could adopt a nonrule policy document to identify how licensure under 312 IAC 5-10-2 is to be administered or how a "Wildlife Resting Area" is to be evaluated at Brookville Lake or on all properties administered by the Department. Just as there is currently no statute, regulation, or rule, however, there is currently no policy to help implement 312 IAC 5-10-2 or to assist in the administration of a "Wildlife Resting Area".
35. The relief sought by Tiller cannot be granted in whole. Nothing inherent to the wording of 312 IAC 5-10-2 prohibits the issuance of licenses for wildlife hunts, or, for that matter, for any other purpose. Indeed, inherent to the structure of the rule section is that licenses of some nature could properly be issued. Unfortunately, the concept of "Wildlife Resting Areas" is steeped in tradition (or, more accurately, irreconcilable traditions) but barren of legal substance. For this reason, viewing 312 IAC 5-10-2 as a vehicle to manage a "Wildlife Resting Area" also does not provide ascertainable standards for administration of the licensure system.
36. Although there are facts in dispute, there are no material facts in dispute that would preclude granting of summary judgment under IC 4-21.5-3-23.
37. A central "fact" in this proceeding is that today there are not ascertainable standards for administering licensure under 312 IAC 5-10-2. The rule does not identify a rational basis. Since there is no definition for or process to evaluate the management of a "Wildlife Resting Area", this phrase also provides no rational basis.
38. The licensure process, established by
[VOLUME 10, PAGE 13]
312 IAC 5-10-2, lacks ascertainable standards for administration. Lacking ascertainable standards, the process fails, and the Department must suspend the issuance of licenses based upon 312 IAC 5-10-2(2).
39. Even so, it must also be considered that the Department's relationship to the licensure program under 312 IAC 5-10-2 is not in the ordinary posture of the regulator. The Department is the owner of a leasehold interest at Brookville Lake, and is acting in the capacity of a proprietor, as well as a regulator. Also, the "Wildlife Resting Area" at Brookville Lake has been administered for decades, according to the current traditions, without legal contest. Citizens rightfully expect predictability and the opportunity to provide input into fundamental policy decisions affecting state land usage. The Department must be accorded a reasonable time period to establish a process, with ascertainable standards, for the administration of 312 IAC 5-10-2.
40. The effective date of this order should be stayed until April 1, 2005 in order to allow the Department to develop and implement a licensure process under 312 IAC 5-10-2 that provides ascertainable standards for its administration.
FOOTNOTES:
A. As provided in 312 IAC 8-2-1: "Sec. 1. (a) A sign may be posted to authorize a particular use, to identify conditions upon a particular use, or to establish prohibitions against a particular use within a DNR property or a portion of a DNR property. A sign may close an area to entry by the public.
(b) A person must not violate a sign posted under this section."
B. The reference to "Indiana Administrative Code" is interpreted as being an intended reference to state "rules", since the Indiana Administrative Code was not established until 1979.
C. In his September 29 affidavit, Gerbracht also reflects upon techniques to achieve improved waterfowl hunting success. Depending upon a determination by the Department or the Commission of what a "Waterfowl Resting Area" is, these techniques may be important to developing a licensure process with discernable standards. Reference to the techniques is not, in itself, germane to determining what is the meaning or purpose of a "Wildlife Resting Area".