CADDNAR

[CITE: Stark v. DNR, 11 CADDNAR 358 (2008)]

 

[VOLUME 11, PAGE 358]

 

Cause #: 06-038D

Caption: Stark v. DNR

Administrative Law Judge: Jensen

Attorneys: pro se (Stark); Wyndham (DNR)

Date: May 9, 2008

 

 

FINAL ORDER

 

174. The Department’s denial of Stark’s rehabilitation permit is reversed.

 

175. The Department’s denial of Stark’s breeder’s license is hereby modified to a suspension of said license with which Stark has, effective on the date of this order, fully complied. 

 

176. The Department is hereby ordered to renew Stark’s rehabilitation permit upon submission by Stark, at his sole option, an application for the renewal of said rehabilitation permit.  This order shall not relieve Stark of the obligation to otherwise comply with 312 IAC 9-10-9.

 

177. The Department is hereby ordered to renew Stark’s breeder’s license upon submission by Stark, at his sole option, an application for the renewal of said breeder’s license.  This order shall not relieve Stark of the obligation to otherwise comply with 312 IAC 9-10-4.

 

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

CASE SUMMARY

 

1.      Through correspondence filed with the Natural Resources Commission (“Commission”), on February 24, 2006, by Claimant, Tim Stark (“Stark”), the instant proceeding was commenced for the administrative review of a determination by the Department of Natural Resources (“Department”) to deny the renewal of Stark’s game breeder’s license (“breeder’s license”)  and wild animal rehabilitation permit (“rehabilitation permit”).

 

2.      The Department issued notice of its denial of Stark’s breeder’s license and rehabilitation permit in separate letters both dated February 8, 2006, which Stark attached to his February 24, 2006 correspondence.

 

 

3.      The Department stated that Stark’s breeder’s license renewal was denied because of violations of administrative rules governing game breeder licenses, specifically citing that Stark’s license did not allow the “possession, breeding or sale of white-tail deer.”  The Department’s denial notice continues that Stark’s annual reports reflect his possession of a white-tail deer that “was not inspected by a conservation officer nor was notification made to the DNR of your intent to acquire this animal legally within five (5) days, as required by 312 IAC 9-10-4(c).”

 

[VOLUME 11, PAGE 359]

 

4.      Similarly, the Department cited violations of administrative rules governing wild animal rehabilitation permits and conditions of Stark’s 2005 rehabilitation permit as the bases for the denial of that renewal application.  More specifically the Department advised Stark,

a.       Based on your 2005 annual report of wild animals taken in for rehabilitation, a white-tailed deer was not released within 180 days (312 IAC 9-10-9a) nor was a conservation officer contacted for an extension of time.  White-tailed deer are to be released into the wild within 180 days or euthanized, unless otherwise directed by a conservation officer (312 IAC 9-10-9).  Please also note the enclosed non-releasable policy for white-tailed deer.

b.      Several animals, including 2 red foxes, 2 barred owls and 1 coopers hawk, that were given to you by another rehabilitator, were not listed on your 2005 report of wild animals taken in under your rehabilitation permit (312 IAC 9-10-9).

 

Stipulated Exhibit 12.

 

5.      A prehearing conference was scheduled and conducted on March 30, 2006.

 

6.      Through Stark’s correspondence and verbally during the prehearing conference, Stark maintained that the white-tail deer referenced as having been at the root of the majority of the Department’s cited violations pertaining to both his breeder’s license and rehabilitation permit had been placed in his possession by Department Conservation Officers following the seizure of the animal from an individual who unlawfully possessed it.   Therefore, Stark questioned the Department’s determination that a violation occurred as a result of his failure to release the animal or obtain an extension of time for possession of the animal.  With respect to the other noted violations, Stark advised that there had been mistakes made that could have been addressed if an opportunity had been provided before the Department issued its denial of his renewal applications.

 

7.      On April 6, 2006 the Department, through the filing of a Status Report notified the administrative law judge that it was making inquiries into Stark’s claims that Department Conservation Officers had placed the white-tail deer in Stark’s possession and further advised that a federal investigation of Stark by the U.S. Fish and Wildlife Service (“USFWS”) was underway. 

 

8.      Included within the Department’s Status Report was a request that judgment in the instant proceeding be withheld until the USFWS investigation “yields more relevant information.”  See Status Report, filed April 6, 2006.

 

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9.      The Department’s motion to withhold judgment was denied for the reason that the Department’s action in denying Stark’s license and permit were “presumably based upon information within the knowledge of the Department on or before February 8, 2006.  … Consequently, the relevance of future conclusions resulting from a federal investigation to this proceeding is not entirely clear.”  See Entry With Respect to Respondent, Department of Natural Resources, Status Report, issued April 11, 2006   

 

10.  A status conference was conducted on April 19, 2006 at which time the administrative law judge was advised by Stark that many of his records had been seized by federal investigators and ultimately he sought to delay the administrative hearing in the instant matter until he could have his records available for preparation purposes. 

 

11.  During the April 19, 2006 status conference the Department was advised that it would be prohibited from presenting evidence obtained through the federal investigation, or otherwise, that was not in the knowledge of the Department on or before February 8, 2006.  This prohibition was ordered for the reason that the Department’s action of denying Stark’s license and permit was required to be supported by evidence within the Department’s knowledge on or before the denials were issued, and the Department would not be allowed to support those denials with after acquired evidence.   See Report of Status Conference and Correction Regarding Burden of Proof, issued April 20, 2006.

 

12.  The parties were also advised of the administrative law judge’s determination that under the circumstances of the present case, it would be the Respondent, Department, who would bear the burden of going forward and burden of persuasion and ultimate burden of proof.  This determination resulted from the realization that the Department’s denial of Stark’s breeder’s license and rehabilitation permit renewals amounted to the imposition of penalties for violations against which Stark was afforded no previous opportunity for administrative review. See Report of Status Conference and Correction Regarding Burden of Proof, issued April 20, 2006.

 

13.   Following a lengthy delay, despite federal authorities maintaining possession of Stark’s records, Stark indicated his desire to proceed with the administrative hearing in this matter. 

 

14.  An administrative hearing was conducted on March 5, 2008.

 

 

15.  Substantively the instant proceeding involves Indiana Code §§ 14-22-20 et seq. and 312 IAC 9-10-4 et seq., which controls game breeder’s licenses and 312 IAC 9-10-9, which governs wild animal rehabilitation permits, all of which are administered by the Department.

 

[VOLUME 11, PAGE 361]

 

16.   The Commission is the “ultimate authority,” as defined at Indiana Code § 4-21.5-1-15, for the Department except in limited instances not applicable to the instant proceeding.  312 IAC 3-1-2.

 

17.  The Commission possesses jurisdiction over the subject matter of the instant proceeding and the persons of the parties.

 

18.  To the extent that any finding of fact is construed to be a conclusion of law, it shall be included as an additional conclusion of law.  To the extent a conclusion of law is construed to be a finding of fact, it shall be included as an additional finding of fact.

 

 

FINDINGS OF FACT

 

19.  On November 1, 2004 Master Conservation Officer Gary Pennington (“Pennington”) confirmed a report that Terry L. Wright (“Wright”) possessed an antlered white-tail deer (“the subject deer”) that was housed in an enclosed shed located on Skyaire Road.  Respondent’s Exhibit A, Testimony of Pennington.

 

20.  The Department’s Law Enforcement Division sought prosecution of Wright for his possession of the subject deer without appropriate permits.  Respondent’s Exhibit A, Testimony of Major Felix Hensley, (“Hensley”).

 

21.  The white-tail deer “appeared to be very healthy and supported a nice 12-point rack.”  Testimony of Pennington, Respondent’s Exhibit A.

 

22.  No one involved with the subject deer wanted to see it euthanized.  Testimony of Hensley, Testimony of Sergeant Kim Wolsiefer (“Wolsiefer”), Testimony of Stark.

 

23.  The Department was required to provide for the safe-keeping of the subject deer until the conclusion of the prosecution against Wright or receipt of a court order authorizing earlier disposition of the animal because the possibility existed that it would be ordered to return the animal to Wright if the prosecution proved unsuccessful.  Testimony of Wolsiefer, Testimony of Hensley.

 

24.  Pennington contacted Carol Zurschmeide (“Zurschmeide”) in an effort to identify someone to pick up the subject deer.  Testimony of Pennington.

 

 

25.  Zurschmeide, who at the time held a wild animal rehabilitation permit issued by the Department, did not have a trailer or suitable facilities for a deer of that size.  Testimony of Pennington, Testimony of Zurschmeide.

 

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26.  Zurschmeide had no experience with an imprinted adult white tailed deer but is of the opinion that imprinted deer can be rehabilitated for release.  Testimony of Zurschmeide.

 

27.  Pennington was told by Zurschmeide that in recent years Stark had received button buck white-tail deer under his rehabilitation permit that he did not report.  Zurschmeide provided further that instead of releasing the button bucks, Stark sold them to Rick Davis (“Davis”), who operated an elk farm in Henryville, Indiana.  Testimony of Pennington, Respondent’s Exhibit A.

 

28.  Zurschmeide was originally identified by Pennington as a confidential informant.  Respondent’s Exhibit A.

 

29.  During her testimony, Zurschmeide was observed to be hesitant during questioning about the report of Stark’s activities to Pennington.  While not outright denying having made the report, Zurschmeide stated that she did not recall making the report, stating only that “I really don’t know why I would have.”[1]  Testimony of Zurschmeide.

 

30.  Stark testified that while he does not approve of Davis’ high fence hunting operation, he has known Davis all his life and has done business with Davis.  Stark explained that he has raised deer fawns that were offspring of deer owned by Davis.  These fawns were raised until “they came off the bottle” and then were returned to Davis.  Testimony of Stark.

 

31.  Several factors combine to support the conclusion that Zurschmeide did, in fact, make the report to Pennington about Stark.  Zurschmeide was aware of Stark’s raising of fawns for Davis.  Testimony of Zurschmeide.  Zurschmeide has a significant level of respect for Stark and the two are friends such that Zurschmeide may have preferred Stark did not become aware of her report to Pennington, which explains the hesitant and uncertain nature of her testimony on this point.  Testimony of Zurschmeide.  However, Zurschmeide stated clearly her dislike for high fenced hunting and the release of rehabilitated wildlife in areas where hunting occurs.  Observation of her demeanor indicates that the wildlife take precedence with Zurschmeide and despite her relationship with Stark it is that commitment to the wildlife that makes reasonable the conclusion that Zurschmeide, in good faith, offered the information about Stark to Pennington.    

 

32.   “TIA’s”, or “mini-strokes,” have “chiseled away” at Zurschmeide’s memory and is the reason why she is no longer a license animal rehabilitator.  She transferred certain rehabilitation animals to Stark after her first stroke because she was being hospitalized. Testimony of Zurschmeide.

 

[VOLUME 11, PAGE 363]

 

33.  Based upon the information received from Zurschmeide, Pennington, with the assistance of other Conservation Officers, initiated an investigation of Stark with part of that investigation including the placement of the subject deer at Stark’s facility “to find out what he would end up doing with the deer.” Respondent’s Exhibit A, Testimony of Pennington, Testimony of Wolsiefer.

 

34.  Stark agreed to take possession of the subject deer for the Department and picked up the animal from Wright on November 9, 2004.  Respondent’s Exhibit A.

 

35.  Prior to seeing the subject deer, Stark asked about the size of the animal and its antlers.  Testimony of Pennington, Testimony of Wolsiefer.  The Department attributed Stark’s inquiries to the potential monetary value of the deer as a result of its “very good genetics.”[2]  Testimony of Pennington.  However, the size of the subject animal and the antlers are also reasonable considerations associated with loading and transporting the animal.  Testimony of Wolsiefer.

 

36.  The evidence indicates unequivocally that one reason for placing the subject deer in Stark’s possession was for safe keeping until the conclusion of the Wright prosecution or receipt of an order authorizing disposition of the animal.  Testimony of Wolsiefer, Testimony of Stark, Stipulated Exhibit 15.

 

37.  A second undisputed reason for placing the subject deer at Stark’s facility was to facilitate the Department’s investigation of Stark.  Testimony of Pennington.

 

38.  However, the Department maintains that a third reason for placing the subject deer with Stark was for rehabilitation.  Testimony of Pennington, Testimony of Wolsiefer, Testimony of Hensley.

 

39.  There exists significant dispute between the Department and Stark regarding the intent that the subject deer be rehabilitated and this dispute is at the heart of the violations cited by the Department as grounds for denying renewal of Stark’s rehabilitation permit. 

 

40.  The only rehabilitation that the Department could have contemplated related to imprinting because all evidence establishes with absolute certainty that the subject deer was otherwise perfectly healthy and uninjured. 

 

41.  Stark, who has been a rehabilitator of wild animals for several years, advised Pennington on November 9, 2004 that the subject deer was probably imprinted, meaning that it was accustomed to human interaction.  Imprinted deer pose a potential hazard to people and are often rendered unable to survive in the wild.  As a result of the imprinting, Stark advised Pennington that the subject deer would possibly not be releasable.  Testimony of Pennington.

 

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42.  Pennington acknowledged understanding the Department’s requirement that non-releasable white-tailed deer be euthanized, but when confronted on cross examination failed to acknowledge that Natural Resources Commission Information Bulletin #45 (“IB 45”), mandates the euthanization of white-tailed deer that are unlawfully possessed.  Stipulated Exhibit #14.   

 

43.  With respect to why Stark was selected to keep the subject deer, Pennington’s testimony referred to many things including, “number one, Mr. Stark did have a way he could transport the deer up to his facility but also the reason we decided to contact Mr. Stark was the fact that we thought he was taking deer illegally and either giving or selling these deer to the deer and elk farm up at Henryville.”  Testimony of Pennington.

 

44.  On cross examination, when asked why the subject deer was in need of rehabilitation Pennington testified that his concern was “public safety” because “at the time, it was right before the rut of deer season…my concern was, it is an antlered deer that’s been around people.  I am no professional when it comes to rehabilitation personally.  The deer did have a very big rack on it and my concern was turning that deer loose at that time and possibly injuring someone else if it was imprinted.  I did not know positively whether that deer was imprinted at that time or not.”

 

45.  Pennington testified with respect to what is to be done with an unlawfully possessed deer that “an illegally possessed deer…it depends whether it’s imprinted or not, if it is imprinted it’s possibly, now the laws changed to where it needs to be euthanized.”  When confronted again with IB 45’s requirement that unlawfully possessed deer be euthanized Pennington avoided a direct response by explaining once again the Department’s need to maintain possession of the subject deer until the conclusion of the Wright prosecution.

 

46.  Ultimately Pennington testified, “You (Stark) were advised that the deer was seized for evidence at that point until the determination of the outcome of the other case” but Pennington added that “at that point we did not know whether or not the deer was imprinted or not, my concern like I said was that the deer had its antlers, it was before the rut of the season.”

 

47.  Only when asked specifically by Department counsel’s leading questioning, such as “You indicate in your report on page two (referring to Respondent’s Exhibit A) that he, or Mr. Stark, advised that he would transport and rehab the deer, is that your understanding?” and “He advised you at the time you took the deer there that he would keep and rehab the deer, correct?”, did Pennington testify that Stark was asked to rehabilitate the subject deer. 

 

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48.  The whole of Pennington’s testimony reflects the secondary nature of the Department’s interest in Stark rehabilitating the subject deer.  Testimony of Pennington.

 

49.  In fact, Pennington being admittedly unaware of whether the subject deer was imprinted precluded him from making it clear to Stark that rehabilitation was a purpose for Stark’s possession. 

 

50.  Stark maintained possession of the subject deer from November 9, 2004 until August 31, 2005. Testimony of Hensley, Testimony of Wolsiefer, Testimony of Stark.  

 

51.  As one might expect during an investigation designed to determine what Stark would do with the subject deer, Department Conservation Officers were in periodic contact with Stark and his facility from November 9, 2004 until August 31, 2005.  Pennington and Wolsiefer confirmed the continuing presence of the animal at Stark’s facility on at least four (4) occasions including, January 26, 2005, February 1, 2005, February 24, 2005 and March 28, 2005.   Respondent’s Exhibit A, B and C, Testimony of Pennington, Testimony of Wolsiefer. 

 

52.  Pennington’s and Wolsiefer’s March 28, 2005 visit to Stark’s facility was the first attempt of the Department to effectuate the subject deer’s release.  Testimony of Pennington.  The Conservation Officers arrived without a trailer or tranquilizers in the apparent anticipation that Stark would provide the necessary supplies and equipment.  Testimony of Pennington.  Stark vehemently objected to the release of the subject deer for the reason that the animal was imprinted.  Testimony of Pennington.  Despite his objections, Stark allowed the use of his trailer and, while Pennington believed Stark’s efforts were feeble, Stark assisted in the unsuccessful effort to load the non-tranquilized animal into the trailer.  Testimony of Pennington.

 

53.  Conservation Officers did not make a second attempt to remove the subject deer from Stark’s facility until August 31, 2005, when Hensley and Wolsiefer arrived with a stock trailer but again without tranquilizers.  Once again Stark objected to the Conservation Officers’ intent to release the subject deer but assisted nonetheless in the loading of the non-tranquilized animal into the trailer.  Testimony of Wolsiefer, Testimony of Hensley.

 

54.  Wolsiefer tape recorded the conversation between himself, Hensley and Stark that occurred on August 31, 2005 without Stark’s knowledge.  Stipulated Exhibit 17, Testimony of Wolsiefer.

 

55.  The Department’s Division of Law Enforcement obtained special authorization from then Department Director Kyle Hupfer to release the subject deer into a high fenced no hunting area of Charlestown State Park.  Testimony of Hensley.     

 

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56.  Wolsiefer testified that Conservation Officers discussed the release of the subject deer with Stark on each of the visits to Stark’s facility.

 

57.  Conservation Officers advised Stark that they needed to video tape the subject deer’s release.  Testimony of Wolsiefer.

 

58.  Stark was disallowed from releasing the subject deer on his own property, but was instead instructed that the animal would be released on State property.  Respondent’s Exhibit A, Testimony of Hensley.

 

59.  Whether the Department’s Conservation Officers made known their intent to release the subject deer is not determinative of the Department’s intent that Stark rehabilitate the animal or Stark’s knowledge of the Department’s intent.

 

60.  In fact, Wolsiefer’s testimony proves enlightening.  It establishes that while on November 9, 2004, when Stark took possession of the subject deer, it was unknown whether and to what extent the animal was imprinted, Testimony of Pennington, as early as January 26, 2005, when Conservation Officers first revisited Stark’s facility, they had determined that the subject animal was to be released.  There exists no evidence of consultation between Conservation Officers and Stark between November 9, 2004 and January 26, 2005 regarding the condition of the subject deer or whether the animal was imprinted.  The conclusion that must be drawn is that Conservation Officers were unconcerned for whether the subject deer was imprinted or whether Stark provided rehabilitation.

 

61.  Hensley, Pennington and Wolsiefer, who were most significantly involved with the subject deer, admitted their lack of knowledge of imprinted deer.  Testimony of Hensley, Testimony of Pennington, Testimony of Wolsiefer.

 

62.  Evidence indicates that Stark had discussed with Conservation Officers that through methods that might be characterized as harsh or violent, an imprinted animal could, once again, be made fearful of contact with humans, or “unimprinted.”  Testimony of Stark, Testimony of Wolsiefer. 

 

63.  Neither Wolsiefer, nor Hensley were present on November 9, 2004 and all available evidence indicates that the concept of “unimprinting” deer was discussed between Stark, Wolsiefer and Hensley on August 31, 2006.  Consequently, there is no indication that Department representatives were cognizant of Stark’s concept of “unimprinting” deer until after the subject deer had already been placed at his facility. While Pennington responded in the affirmative that Stark had claimed the ability to “unimprint” deer, Pennington indicated that the conversations, which he could not recall the details of, occurred during one of the visits to Stark’s facility after Stark already possessed the subject deer.  Stipulated Exhibit 17, Testimony of Hensley, Testimony of Wolsiefer, Testimony of Pennington.

 

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64.  If the discussions about “unimprinting” the subject deer had occurred between Conservation Officers and Stark prior to Stark taking possession of the animal on November 9, 2004, it would bolster the Department’s position that Stark was fully aware of the Department’s intent for him to provide rehabilitation services.  Under the circumstances, it appears that the Conservation Officers knowledge of Stark’s claimed ability to “unimprint” was obtained several months after Stark had taken possession of the subject deer and after Conservation Officers had predetermined to release the animal.

 

65.  Wolsiefer acknowledged that on August 31, 2005, when he and Hensley went to remove the subject deer from Stark’s facility, Stark disputed whether the subject deer had been placed at his facility for rehabilitation.  On that date Stark advised Wolsiefer and Hensley, “it should have been released on the spot, which it shouldn’t have been because it’s illegal to release an imprinted deer, or he should have had a bullet in his head and put down right then and there.”  Stipulated Exhibit 17.  Hensley responded that he believed from an unrelated discussion he had previously had with Zurschmeide that the subject deer, although possibly imprinted, could be rehabilitated but acknowledged “if it were presented to me the way that you are talking, I would have never allowed that to happen.”  Testimony of Wolsiefer, Stipulated Exhibit 17. 

 

66.  The Department’s predetermination to release the subject deer is exemplified the fact that they effectuated that release over the objection of Stark, a long term wild animal rehabilitator, based upon Zurschmeide’s belief that the animal could be rehabilitated, despite her lack of any experience with imprinted adult deer.  Conservation Officers did not even entirely follow Zurschmeide’s recommended release procedures.  While the subject deer was released into an area where hunting could not occur and from which the animal could not escape into a hunting area there was no evidence that Conservation Officers provided a food source as Zurschmeide indicated was her practice.  Testimony of Zurschmeide. 

 

67.  Stark’s conversation with Wolsiefer and Hensley on August 31, 2005 is particularly influential because he was unaware that he was being recorded and because at that time the Department had taken no negative action against Stark’s rehabilitation permit or breeder’s license.  During that conversation, Stark recounts events leading to his possession of the subject deer including his advisement to Pennington about the likelihood that the animal was imprinted and not releasable.  Stark’s statements to Wolsiefer and Hensley on August 31, 2005 are not inconsistent with the Department’s evidence at the administrative hearing.  Stipulated Exhibit 17.

 

68.  While it may have been Pennington’s intent that Stark rehabilitate the subject deer, no evidence was presented to establish that Pennington, or any other Department representative, made that intent clear to Stark.    

 

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69.  Indiana Conservation Officer Case Report, 05-10-081207, states that Pennington recorded the conversation between himself, Stark and Wright before Stark loaded the subject deer for transport to Stark’s facility on November 9, 2004. Stipulated Exhibit A. It is possible that this recording may have provided insight as to whether the Conservation Officer’s purpose of placing the subject deer at Stark’s facility was for rehabilitation, but this recording was not presented as evidence for consideration.

  

70.  When specifically asked whether Stark understood that the subject deer was placed at his facility for rehabilitation Wolsiefer added only that “I would assume so and I thought he did”.  Testimony of Wolsiefer.

 

71.  Stark did not identify the subject deer on his 2004 Report of Rehabilitation associated with his rehabilitation permit because “I did not think it was brought to me under rehabilitation, it was brought to me per request of  Conservation Officers because they needed it for a…to help pursue their case against the gentleman who was illegally possessing him.”  Respondent’s Exhibit A, Stipulated Exhibit 7, Testimony of Stark. 

 

72.  To the Department, Stark’s failure to identify the subject deer on his 2004 Report of Rehabilitation constituted not only a violation of Stark’s rehabilitation permit but was also assuredly viewed by Conservation Officers as being consistent with Zurschmeide’s report of Stark selling or giving away white tailed deer he had taken in for rehabilitation. 

 

73.  However, Stark’s failure to identify the subject deer on his 2004 Report of Rehabilitation is also consistent with his stated lack of knowledge that he was to provide rehabilitation for the subject deer.  Testimony of Stark, Stipulated Exhibit 7.

 

74.  It is certain that foremost in the mind of the Department’s Conservation Officers on November 9, 2004 was ensuring the placement of the subject deer with Stark in order to facilitate their investigation of him and to provide for the safe keeping of the animal until the conclusion of the Wright prosecution.

 

75.  On November 9, 2004 any intent on the part of the Conservation Officers to have Stark provide rehabilitation services was, most undoubtedly, secondary to their investigation of Stark.   

 

76.  There is no dispute that the release of the subject deer was discussed between Conservation Officers and Stark on multiple occasions from January 2005 to August 2005 and that these discussions would have conflicted with Stark’s cognizance that IB 45 required the subject deer, which had been unlawfully possessed by Wright, to be euthanized.  It is the belief of the trier of fact that each and every Conservation Officer involved in this situation knew exactly that IB 45 required the euthanization of the subject deer but because of the genetic quality of this particular white tailed deer not one of them, or Stark, wished to see IB 45’s requirements complied with.  This situation led Conservation Officers to the immediate decision to release the subject deer in violation of the rigid and inflexible mandates of IB 45.  A Conservation Officer’s stated intent to take an action that a citizen knows to be a violation of law or Department policy could reasonably lead to a certain degree of confusion for that citizen.  Therefore, in resolving the noted conflicts, a reasonable degree of deference must be afforded to that citizen.  Here, that citizen is Stark. 

 

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77.  At no time did Pennington, Wolsiefer or Hensley acknowledge IB 45’s requirement that the subject deer, being unlawful possessed by Wright, was required to be euthanized.  Testimony of Pennington, Wolsiefer and Hensley. 

 

78.  However, the Department was quick to establish that on multiple occasions Stark attempted to have Conservation Officers authorize a transfer of the subject deer to his game breeder’s license citing that such a transfer would be in violation of IB 45.  Testimony of Wolsiefer, Testimony of Hensley.

 

79.  The Department’s obvious intent to violate IB 45 and actual violation of IB 45 becomes particularly offensive when coupled with the Department’s, repeated attempts during the administrative hearing, to discredit Stark by raising his mere attempt to effectuate a violation of IB 45 by seeking to have the subject deer transferred to his breeder’s license.

 

80.  It is acknowledged that such a transfer of the subject deer to Stark’s breeder’s license would have afforded Stark the ability to legally possess, breed and even sell the subject deer or its offspring. 

 

81.  Stark did not deny his efforts to have the subject deer transferred to his game breeders license, stating the reason was “because he (the subject deer) would have had a heck of a lot better life at my place where he was … He was beyond that point of return.  He wasn’t partially imprinted he was completely imprinted.”  Testimony of Stark. 

 

82.  Stark’s first attempt to obtain transfer of the subject deer to his breeder’s license occurred sometime before January 5, 2005 with the request being made of Conservation Officer Charles “Frank” Routh (“Routh”).  Respondent’s Exhibit A, Testimony of Routh.

 

83.  Stark admitted that after Conservation Officers refused to support a transfer of the subject deer to his game breeder’s license, he essentially falsified his 2005 “Application for Game Breeder’s License” by listing the subject deer as a species of animal being kept under that license.  Stipulated Exhibit 2, Testimony of Stark, Testimony of Petercheff. 

 

84.  Stark testified that by doing so he had hoped that Linnea Petercheff, (“Petercheff”), would authorize the transfer of the subject deer to his game breeders license but his efforts proved unsuccessful.  Instead, Petercheff reiterated IB 45’s prohibition on the transfer of non-releasable white-tailed deer to game breeder’s licenses and emphasized that such deer must be euthanized.  Petercheff proceeded to warn Stark that violations of permit conditions and administrative rules governing those permits can result in permit suspension, revocation, or denial.”  Stipulated Exhibit 13.   

 

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85.  It is apparent from reading electronic mail correspondence dated September 1, 2005, between Petercheff and Wolsiefer that Petercheff was aware of the circumstances under which the subject deer came to be possessed by Stark and was also aware that Hensley and Wolsiefer released the subject deer.    Respondent’s Exhibit E.

 

86.  Again on February 13, 2006, only five (5) days after the date of the Department’s denial of Stark’s breeder’s license and rehabilitation permits, Stark complained again during a recorded telephone conversation with Wolsiefer that the subject deer was not brought to his facility for rehabilitation.  This conversation was also recorded by Wolsiefer without Stark’s knowledge rendering Stark’s statements particularly credible.  Testimony of Wolsiefer, Stipulated Exhibit 15.

 

87.  Stark was unaware of the investigation into his activities that was being conducted by Department Conservation Officers until after his rehabilitation permit and breeder’s license had been denied.  Stipulated Exhibit 15.

 

88.  Following conversations with Pennington and Wolsiefer on March 28, 2005 and Wolsiefer and Hensley on August 31, 2005, Stark testified that it had become apparent that the Conservation Officers had intended for him to provide rehabilitation services for the subject deer.  Consequently, Stark identified the animal on his 2005 Report of Rehabilitation, which he was required to submit to the Department with his 2006 rehabilitation permit renewal application.  Testimony of Stark, Stipulated Exhibit 8.

 

89.  In identifying the subject deer on his 2005 Report of Rehabilitation, Stark noted that the animal had been received on September 23, 2004 from Pennington and Conservation Officer Jim Hash and that it was released over his objection on August 15, 2005.  Stipulated Exhibit 8.

 

90.  Stark’s identified receipt and disposition dates associated with the subject deer are incorrect as the evidence clearly establishes that he took possession of the subject deer on November 9, 2004 and it was released by Wolsiefer and Hensley on August 31, 2005. 

 

91.  With the subject deer being in Stark’s possession from November 9, 2004 until August 31, 2005 he maintained possession of the animal for over 180 days.

 

92.  In denying Stark’s 2006 rehabilitation permit, the Department notes that a white-tailed is to be released within 180 days, “unless otherwise directed by a conservation officer” and also draws Stark’s attention to its “non-releasable policy for white-tailed deer.”  Stipulated Exhibit 12.

 

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93.  Petercheff’s testimony that Stark failed to release the subject deer when “instructed to do by a Conservation Officer” is contrary to the evidence received from all other Department witnesses during the administrative hearing. 

 

94.  Ironically, in denying Stark’s rehabilitation permit renewal, Petercheff continues citing the Department’s euthanization policy for non-releasable white tailed deer even after she was clearly aware of the Conservation Officers’ violation of that policy by releasing the subject deer after it had been unlawfully possessed by Wright. 

 

95.  The second stated reason for denying Stark’s rehabilitation permit related to a discrepancy between Stark’s 2005 Report of Rehabilitation and the Report of Rehabilitation for 2005 submitted to the Department by Zurschmeide.  Stipulated Exhibits 8 & 12, Respondent’s Exhibit H, Respondent’s Exhibit G.

 

96.  Zurschmeide’s 2005 Report of Rehabilitation indicates that, among other animals, she transferred 2 red foxes, 2 barred owls and 1 coopers hawk[3] to Stark. Stipulated Exhibit 12. 

 

97.  Stark’s 2005 Report of Rehabilitation indicates that he received 2 grey foxes from Zurschmeide but makes no reference to the 2 barred owls or the coopers hawk.  Stipulated Exhibit 8.

 

98.  When foxes are very young it is difficult to determine whether they are red or grey species.  Testimony of Stark, Testimony of Zurschmeide. 

 

99.  The foxes Zurschmeide transferred to Stark as red foxes were young but as they matured, after Stark had taken possession of them, Zurschmeide and Stark realized that they were actually grey foxes.  Stipulated Exhibit 8 & 12, Testimony of Zurschmeide, Testimony of Stark. 

 

100.          With respect to the barred owls and the coopers hawk, Stark never actually accepted transfer from Zurschmeide; as the birds were either released or euthanized.  Testimony of Stark.

 

101.          Zurschmeide does not hold the required federal or state permits to rehabilitate raptors or birds.  Testimony of Zurschmeide, Respondent’s Exhibit G.

 

102.          While apologizing to Conservations Officers present, Zurschmeide explained that Conservation Officers and others occasionally drop off birds to her with the request that she effectuate a transfer to Stark, who is knowledgeable in their care and is licensed to possess and rehabilitate them.  Testimony of Zurschmeide, Respondent’s Exhibit G.  Zurschmeide acknowledged that her acceptance of the birds violated the law but expressed that “with conservation officers bringing them to me I didn’t think I had anything to worry about.”  Testimony of Zurschmeide. 

 

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103.          Zurschmeide is not licensed to accept birds for rehabilitation and is not trained to address the needs of these birds nor is she allowed to euthanize them.  Testimony of Zurschmeide.

 

104.          Zurschmeide would care for the birds as best she knew for up to a week before delivering them to Stark.  Testimony of Zurschmeide.

 

105.          Due to her lack of training or knowledge in the care of birds or the regulations associated with the rehabilitation of birds she often delivered birds to Stark that were required by law to be euthanized or that were capable of flight without rehabilitation beyond the rest they had received while awaiting transfer to Stark.  Testimony of Zurschmeide.

 

106.          Stark added that if he had realized that Zurschmeide had listed the owls and coopers hawk on her 2005 Report of Rehabilitation as being transferred to him that he would also have identified them along with their disposition.  Because Zurschmeide was violating the law by having them and he didn’t actually take them in, he did not identify them on his 2005 Report of Rehabilitation.  Stark continued to explain with respect to birds received in the past, from Zurschmeide that in an effort to keep her from getting in trouble for accepting them, he has simply indicated on his reports that he received them from the person who brought them to Zurschmeide.  Testimony of Stark.

 

107.          Zurschmeide testified that the discrepancies between her and Stark’s 2005 Reports of Rehabilitation relating to the owls and the hawk were the result of her errors.  She explained that one of the barred owls had a broken wing and that pursuant to federal law Stark was required to immediately euthanize it.  Stark euthanized that owl “as soon as I took it up there.”  According to Zurschmeide, since Stark never accepted transfer of the owl he was not obligated to report it on his annual report.  The other owl was immediately released by Stark.  Testimony of Zurschmeide. 

 

108.          Zurschmeide was uncertain whether the cooper hawk was actually taken in by Stark or whether it was simply released upon arrival at Stark’s facility, indicating that she has very frequently made “dry-runs” to his facility with birds that could be released or needed to be euthanized immediately.  Testimony of Zurschmeide.

 

109.          Despite several occasions of being advised of derogatory statements made by Stark about her and her efforts at animal rehabilitation, Zurschmeide, while visibly taken aback by some of the statements attributed to Stark, never wavered in her testimony about the disposition of the animals she identified as being transferred to Stark.   

 

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110.          With respect to her 2005 Report of Rehabilitation, Zurschmeide offered no explanation for having failed to correct the errors relating to the disposition of the owls or coopers hawk except to say she did not change the report “because I’d already filled out my paperwork.” Testimony of Zurschmeide.

 

111.          Without doubt Stark’s best course of action would have been to identify the birds and their dispositions on his 2005 Report of Rehabilitation; however, there is no evidence contradicting Zurschmeide’s and Stark’s testimony that the transfer of the birds was not effectuated. 

 

112.          Petercheff has the authority to act, either solely or with input from other Division of Fish and Wildlife staff, upon applications for renewal of rehabilitation permits and breeder’s licenses.  Testimony of Petercheff.

 

113.          Beyond identifying the discrepancy that exists between Zurschmeide’s and Stark’s 2005 Reports of Rehabilitation, Petercheff made no effort to check into whether it was Stark’s or Zurschmeide’s report that was in error.  Testimony of Petercheff.

 

114.          Petercheff contacted Hensley and Conservation Officer Michael Rutherford (“Rutherford”) did a follow up inspection regarding the discrepancies she had identified in Stark’s 2005 Report of Rehabilitation.

 

115.          Rutherford’s inspection occurred on February 6, 2006 and he determined that Stark had only the two (2) grey foxes.  Respondent’s Exhibit D. 

 

116.          Petercheff issued denials of Stark’s rehabilitation permit and breeder’s license two days later. Stipulated Exhibits 11 & 12.

 

117.          Petercheff never made an inquiry to Stark about the identified discrepancies stating “I don’t have to do that, you (Stark) are required to submit by law accurate information about what you took in during the previous year.”  Testimony of Petercheff.

 

118.          Without further inquiry, however, it was impossible for Petercheff to determine whether it was Zurschmeide’s or Stark’s 2005 Report of Rehabilitation that was providing the inaccurate information.

 

119.          Stark’s Application for Game Breeder’s License seeking renewal for 2006 was accompanied by an Indiana Game Breeder’s License Annual Report for 2005.  Stipulated Exhibit 3.

 

120.          Even though the only animals Stark actually possessed were the two (2) grey foxes, Stark’s 2005 breeder’s license annual report indicates that he possessed two (2) grey fox, two (2) fox squirrel, two (2) grey squirrel, one (1) raccoon, three (3) ring neck pheasant and one (1) deer.  Stipulated Exhibit 3

 

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121.          Stark’s 2005 breeder’s license authorized his possession of fox squirrel, grey squirrel, raccoon, grey fox, ring neck pheasant and Virginia opossum so his actual possession of the animals noted would not have proved violative of his permit, except as it relates to the deer.  Stipulated Exhibit 5. 

 

122.           Stark offered no contest to the fact that errors existed on his 2005 Game Breeder’s License Annual Report and simply reiterated that the only animals he possessed, except for the exotic animals he possesses under federal licenses, were the two (2) grey foxes.

 

123.          Stark acknowledges that mistakes exist on the 2005 Game Breeder’s License Annual Report attached to his 2006 breeder’s license renewal application and offered no explanation for those mistakes.  “For me to have a suspension…fine.  They (the Department) came out, they did another inspection.  I didn’t deny anything, I wasn’t hiding anything, but yet I got absolutely no results whatsoever.  It’s like the re-inspection didn’t serve a purpose. … Totally scrutinized against to where they did not care one way or the other.  They just automatically seen where I made a clerical error like they’re too good for that and denied my license.”  Testimony of Stark.  

 

124.          Rutherford inspected Stark’s facility on December 21, 2006 with respect to Stark’s breeder’s license renewal application for 2006 and observed that Stark possessed only two (2) grey foxes.  Testimony of Rutherford, Stipulated Exhibit 3.

 

125.          Despite observing only two (2) grey fox during his December 21, 2005 inspection, Rutherford signed Stark’s 2006 breeder’s license renewal application answering “yes” to the question “Do the species type and number of animals and/or birds correspond with that reported?”  Stipulate Exhibit 3.

 

126.          No explanation was provided for how Rutherford was able to confirm that Stark’s animals on hand corresponded to the animals reported when Stark’s report indicated possession of numerous species of animals in addition to the two (2) grey fox Rutherford actually observed. 

 

127.          It was established that on occasion Conservation Officers sign off on game breeder’s license applications without conducting the required inspection.  Testimony of Routh.

 

128.          By listening to the recording of Stark’s February 13, 2006 telephone conversation with Wolsiefer, which occurred shortly after Stark received notice of the denial of his rehabilitation permit and breeder’s license, it is clear that Stark’s recollection and interpretation of events leading up to the denial has remained consistent throughout the events leading to this proceeding.  This consistency lends further credibility to Stark’s recollection of those events.  Stipulate Exhibit 15.

 

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129.          While the evidence does not reveal the exact number of years that Stark has held a game breeder’s licenses and wild animal rehabilitation permits, the evidence does reveal that he has certainly held his rehabilitation permit and breeder’s license continuously since before 2002 and it is inferred from the testimony that Stark has possessed these permits and licenses for many years. 

 

130.          At no time before Stark made application for his 2006 permit and license renewals has the Department issued any violation notice to Stark.  Stipulated Exhibit 15.

 

131.          In fact, during Hensley’s and Wolsiefer’s visit to Stark’s facility on August 31, 2005, Wolsiefer requested permission to video tape Stark’s facility as an example of what such a facility should look like.  Stipulated Exhibit 17.

 

132.          Furthermore, the Department, a few months previous to the Department’s denial of Stark’s rehabilitation permit and breeder’s license, had requested that Stark also take possession of tigers that had been seized by the Department from another person.  Stipulated Exhibits 15 & 17.

 

133.          Stark explained that his reason for establishing that Conservation Officers occasionally signed game breeder’s license renewal applications without actually doing the inspection and that they take birds to Zurschmeide knowing that she is not licensed to accept them was simply to show that everyone involved in this situation has at one time or another made mistakes and bent the rules.  Testimony of Stark.

 

134.          The evidence presented in the instant administrative hearing reveals an exclusive targeting of Stark for investigation by Conservation Officers with the knowledge of Petercheff.  As Hensley noted in his testimony, Stark did not do anything unlawful with the subject deer and as a result was not charged.  However, one is left with only the conclusion that Stark’s rehabilitation permit and breeder’s license renewal applications were subjected to additional scrutiny as a result of that investigation.  The evidence presented in the administrative hearing reveals that Conservation Officers and Petercheff alike were predisposed to the conclusion that Stark had committed violations of his rehabilitation permit and breeder’s license.  This predisposition, resulted in a determination by Petercheff, reached without benefit of proper inquiry or investigation, that Stark had submitted false information on his 2005 Report of Rehabilitation simply because it was inconsistent with Zurschmeide’s 2005 Report of Rehabilitation.  The inclination of Petercheff to believe that Stark was in violation of his rehabilitation permit resulted in an utter failure to acknowledge that Stark’s possession of the subject deer for a period of time greater than 180 days was outside of his control due to orders of the involved Conservation Officers. 

 

135.          While it does not excuse Stark’s paperwork errors associated with his 2005 Game Breeder’s License Annual Report, the Department must accept a share of responsibility for these actions.  The Department must generally acknowledge that actions in contravention of laws, administrative rules and Departmental policies taken by Conservation Officers, such as signing inspection reports without conducting inspections, of turning over birds to an unlicensed individual, and of releasing white tailed deer in violation of IB 45, instill in permit holders and the general public alike a sense of triviality assigned to those laws, administrative rules and Departmental policies.   

 

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CONCLUSIONS OF LAW

 

136.          As a holder of a rehabilitation permit Stark is authorized to possess wild animals for rehabilitation as specified within his permit.  312 IAC 9-10-9(5).

 

137.          Stark’s 2004 and 2005 rehabilitation permits allowed him to provide rehabilitation services for all mammals, reptiles and birds.  Stipulated Exhibit 6 & 7.

 

138.          White tailed deer accepted for rehabilitation “must not be possessed …for more than one hundred eighty (180) days unless a conservation officer inspects the animal and determines an extended period may be reasonably expected to result in rehabilitation.”  312 IAC 9-10-9(a).

 

139.          Annually, Stark was required to apply for a renewed rehabilitation permit and along with that application must also provide an annual report of rehabilitation specifying “(1) The species and condition of each animal. (2) The date the animal was received. (3) The name and address of the donor or others source. (4) The method, location, and date of disposition of the animal.”  312 IAC 9-10-9(i).

 

140.          An animal accepted for rehabilitation that is ultimately determined incapable of fending for itself must be disposed of following consultation with a conservation officer.  312 IAC 9-10-9(j).

 

141.          A game breeder’s license, or other wild animal possession permit, may be obtained for the purpose of maintaining possession of specified species of wild animals, including white tailed deer, provided the animal was lawfully acquired.  312 IAC 9-10-4(a) & (d).

 

142.          In order for Stark to add a species to his already valid breeder’s license, he was to obtain a Conservation Officer’s inspection within five (5) days of acquiring the animal and Division of Fish and Wildlife approval for the addition.  312 IAC 9-10-4(c).

 

143.          However, IB 45 establishes “guidelines for permanently injured and non-releasable wild animals taken in by licensed wildlife rehabilitators,” which, as relevant to the instant proceeding, dictates certain outcomes associated with white tailed deer as follows:

 

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1) All white-tailed deer taken in by a rehabilitator and deemed nonreleasable must be euthanized. It is the responsibility of the rehabilitator to cause the animal to be euthanized.

2) Injured or orphaned white-tailed deer may be given to licensed wild animal rehabilitators, but must be released within 180 days or euthanized. Orphaned or rehabilitated white-tailed deer obtained from the wild shall not be sold, given to licensed Indiana game breeders, possessed under a game breeder license or any other state or federal license, or transferred to the rehabilitator's game breeder license.

3) Nonreleasable white-tailed deer transferred from a rehabilitation permit to a valid game breeder license with authorization from a conservation officer prior to January 1, 2004, can still be possessed under the game breeder license.

4) White-tailed deer that are unlawfully possessed shall be euthanized.

 

Stipulated Exhibit 14.    

  

144.          Stark, who believed the subject deer was so significantly imprinted that it was not releasable, sought to have Conservation Officers and the Division of Fish and Wildlife approve a transfer of the animal to his breeder’s license, which action would have violated IB 45.

 

145.          The Department’s placement of the subject deer with Stark until the conclusion of the Wright prosecution or court ordered earlier disposition of the animal is understood and acceptable.

 

146.          However, the Department’s placement of the subject deer with Stark for rehabilitation, following the animal’s unlawful possession by Wright, was prohibited by operation of IB 45.  Stipulated Exhibit 14.

 

147.          The Department’s ultimate release of the subject deer, following the animal’s unlawful possession by Wright, was likewise prohibited by IB 45.  Stipulated Exhibit 14.

 

148.          Pennington acknowledged that if the subject deer were officially deemed non-releasable, as a result of imprinting, IB 45 would mandate the animal be euthanized.  In actuality, from the moment Pennington confirmed Wright’s unlawfully possession of the subject deer, the animal’s fate should have been sealed by IB 45’s requirement that “white-tailed deer that are unlawfully possessed shall be euthanized.”  Stipulated Exhibit 14.

 

149.          It is unreasonable to believe that Conservation Officers were unaware of IB 45’s requirement that unlawfully possessed white tailed deer be euthanized when they were very cognizant of the fact that IB 45 prohibited the transfer of the subject deer to Stark’s breeder’s license. 

 

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150.          It is acknowledged that IB 45 is a Non-Rule Policy that is not binding and does not have the full force or effect of law.  That reality does not grant to Department representatives or Conservation Officers the authority to violate certain of its provisions while selectively enforcing other of its provisions against Stark.

 

151.          The Department’s evidence establishes only that on November 9, 2004 Stark took possession of the subject deer for safe keeping purposes until the conclusion of the Wright Prosecution but fails to prove by a preponderance of the evidence that Stark knowingly accepted such possession under his rehabilitation permit.  The evidence does establish that Stark became aware in 2005 of the Department’s intent that the subject deer be rehabilitated and at that time the subject deer was identified by Stark on his 2005 Report of Rehabilitation.

 

152.          The Department’s act of basing its denial of Stark’s rehabilitation permit, even in part, upon Stark’s possession of the subject deer for greater than 180 days without obtaining an extension is implausible for the following reasons: 

a.       The Department has failed to prove that Stark was aware that Conservation Officers intended for him to take possession of the subject deer under his rehabilitation permit.  Absent acceptance of the animal under his rehabilitation permit, the 180 day possession restriction is inapplicable.

b.      If, for argument’s sake, Stark had knowingly accepted possession of the subject deer under his rehabilitation permit thereby rendering the 180 day possession restriction applicable, he remained without authority to release the animal without the involvement of the Conservations Officers because the subject deer had to be held until the conclusion of the Wright prosecution or court authority was granted to make earlier disposition of it.  Therefore, only the Conservation Officers, who did not want the subject deer released on Stark’s property and who wished to video tape the subject deer’s release were able to effectuate the release.  Testimony of Wolsiefer.

c.       On March 28, 2005 Conservation Officers attempted unsuccessfully, within the allowed 180 day possession period, over Stark’s objection but with his assistance to take possession of the subject deer for the purpose of effectuating its release. 

d.      Conservation Officers’ delay in making a second attempt to release the subject deer until five months later on August 31, 2005, after Stark had possessed the subject deer for greater than 180 days, is no fault of Stark’s. 

 

153.          Given the number of times Conservation Officers were in contact with Stark between November 9, 2004 and August 31, 2005 it is unreasonable to conclude that Stark needed to contact a Conservation Officer to obtain an extension of time to possess the subject deer. 

 

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154.          Stark was certainly “otherwise directed by a conservation officer” regarding the need to maintain possession of the subject deer and the conditions under which it was to be released. 

 

155.          Petercheff acknowledges her awareness of how Stark had come to possess the subject deer and the circumstances under which he possessed it.  Respondent’s Exhibit E. Therefore, it is reasonably inferred that Petercheff was also aware (1) of the number of times Conservation Officers were in contact with Stark, (2) that Conservation Officers had placed restrictions upon the subject deer’s release and (3) that Stark had objected to but not interfered with the Conservation Officers’ attempt to release the animal.  Petercheff, being fully aware of the situation with Stark’s possession of the subject deer, basing the denial of Stark’s rehabilitation permit, even in part, upon his failure to release the animal in accordance with 312 IAC 9-10-9(a) is preposterous.

 

156.          The Department’s denial of Stark’s rehabilitation permit for the reason that discrepancies exist between Zurschmeide’s and Stark’s 2005 Reports of Rehabilitation is also not supported by the evidence. 

 

157.          Petercheff admitted having failed to check into the discrepancy to ascertain whether it was Stark’s or Zurschmeide’s Report that was incorrect.

 

158.          The Department cannot deny Stark’s rehabilitation permit based upon the mere assumption that it was Stark’s rather than Zurschmeide’s report that was inaccurate.

 

159.          Zurschmeide accepted full responsibility for the discrepancies between hers and Stark’s 2005 Reports of Rehabilitation indicating that she incorrectly identified the species of the foxes and that while she had intended to transfer two (2) barred owls and a coopers hawk to Stark those transfers did not actually occur. 

 

160.          The Department offered no evidence in opposition to Zurschmeide’s testimony.

 

161.          The Department has simply failed to prove by a preponderance of the evidence that Stark’s 2005 Report of Rehabilitation was inaccurate.

 

162.          Stark’s breeder’s license must be renewed annually through the filing of an application that must be accompanied by an annual report identifying “for each species possessed under this license the number: (1) bought; (2) sold; (3) born; (4) traded; (5) gifted; (6) of deaths; and (7) on hand.”  312 IAC 9-10-4(j).

 

163.          Stark acknowledged having made errors on his 2005 breeder’s license annual report, including having identified the possession of a white tailed deer under his breeder’s license, which was not authorized by his 2005 breeder’s license.

 

164.          Stark admitted having essentially falsified the application for renewal of his breeder’s permit for the year 2005.  The falsification involved identifying the possession of a white tailed deer, the subject deer, in an effort to obtain the transfer of the subject deer to his breeder’s license for the year 2005.  While the issue of Stark’s falsification of his 2005 breeder’s license renewal application is not directly at issue here it did result in the issuance of a warning to Stark that must be taken into consideration.

 

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165.          The knowing falsification made by Stark that resulted in Petercheff’s issuance of a warning on January 6, 2005 followed by Stark’s additional errors on his 2005 annual report dated November 23, 2005, which also involved white tailed deer, reasonably necessitated agency enforcement action.[4]

 

166.          The Department is authorized to suspend, deny or revoke a breeder’s license if the license holder fails to comply with license provisions, Indiana Code §§ 14-22-20 or any applicable state, local or other federal laws. 

 

167.          The enforcement action taken by the Department should reflect both the seriousness of the immediate violation as well as consider past performance under the license including any pattern of violations. 

 

168.          The evidence reflects that Stark has held breeder’s licenses and rehabilitation permits without violation of any kind for a significant number of years. 

 

169.          The violation associated with Stark’s 2005 breeder’s license annual report indicates that, with the exception of the white tailed deer, he indicated possession of animals of species that he was authorized to possess but which he did not actually possess.  Of primary interest to the Department was Stark’s inclusion on his 2005 breeder’s license annual report the continuing indication that he possessed a white tailed deer that he was not authorized to possess and that he did not actually possess. 

 

170.          The Department’s cited violations do not involve substandard or inhumane care, see 312 IAC 9-10-4(e), or allegation of unlawfully acquired animals.

 

171.          The evidence is clear that Petercheff offered Stark no opportunity to discuss or correct the errors before issuing the denial notice on February 8, 2006.[5]   

 

172.          Evidence in this particular proceeding dictates that the disciplinary action taken by the Department against Stark’s breeder’s license should have been well short of an absolute denial of a permit.

 

173.          Essentially, Stark’s breeder’s license has been suspended for over two years for record keeping errors, which in light of the totality of the evidence is deemed to be an excessive enforcement action.