[CITE: Ogden v. DNR, 12 CADDNAR 272 (2010)]
[VOLUME 12, PAGE 272]
Cause #: 10-135D
Caption: Ogden v. DNR
Administrative Law Judge: Jensen
Attorneys: pro se (Ogden); Wyndham (DNR)
Date: September 7, 2010
FINAL ORDER OF DISMISSAL
You are notified the Administrative Law Judge, acting on behalf of the Natural Resources Commission, now enters a final order of dismissal of the instant proceeding for the following reasons.
[NOTE:
ON OCTOBER 7, 2010, THE DEPARTMENT FILED FOR JUDICIAL REVIEW IN THE MARION SUPERIOR COURT (49D06-1010-PL-044336). ON JULY 10, 2012, THE MARION SUPERIOR COURT ENTERED ORDER
OF REMAND. ON JULY 9, 2013, THE ALJ ENTERED FINAL ORDER ON REMAND. SEE Ogden (Remand) v. DNR, 13 CADDNAR 182 (2013).]
Following the conclusion of a Stay Hearing conducted on August 24, 2010, an Entry with Respect to the Natural Resources Commission’s Continuing Jurisdiction Over the Instant Proceeding, Notice of Proposed Dismissal and order Regarding Stay of Effectiveness of Respondent, Department of Natural Resources’, Order to Release or Relinquish Possession of Raccoon was issued wherein the administrative law judge noted her preliminary determination that “as long as the raccoon at issue in this proceeding is located outside the State of Indiana, the matters at issue in this proceeding are moot and this proceeding should be dismissed in its entirety.”
At issue in this proceeding is a Wild Animal Possession Permit applied for by Darlene Ogden (Ogden) to possess a raccoon, which is a wild animal. Indiana Code § 14-8-2-318. The approval or disapproval of a Wild Animal Possession Permit is controlled by the Department of Natural Resources (DNR) under 312 IAC 9-11, which states in relevant part that “a person must have a permit issued by the department under this rule to possess a wild animal…” 312 IAC 9-11-1(a). The requirement of 312 IAC 9-11 is applicable only to a person who intends to possess a wild animal in the State of Indiana.
The Department denied Ogden’s application and in doing so ordered Ogden to release the raccoon or relinquish possession of it to a DNR Conservation Officer or to a licensed Wildlife Rehabilitator. Ogden sought administrative review of the DNR’s denial of her application. She later sought temporary relief from the order to release or relinquish possession of the raccoon pending the outcome of this proceeding.
The only true and actual issue in this proceeding is the DNR’s denial of Ogden’s application. Any disposition of the raccoon, either during the pendency of this proceeding or following completion of this proceeding is tangential and incidental to that true and actual issue. The result of overturning the DNR’s denial of Ogden’s application would be Ogden’s authorization to maintain possession of the raccoon. The result of affirming the DNR’s denial of the application would be the DNR’s ability to determine the proper disposition of the raccoon. Any determination regarding the temporary placement of the raccoon pending the final determination of this proceeding would be nothing more than a means of maintaining a status quo until the parties had the opportunity to be heard under Indiana Code § 4-21-5-3. In any event the ultimate disposition of the raccoon is not the actual issue.
During a Stay Hearing Ogden’s father, Charles Ogden, testified to the fact that the raccoon was in the State of Oklahoma. Ogden herself testified against her own interests that the raccoon had been transported to Oklahoma where she is now living. The Department acknowledged that Ogden has provided a new mailing address in the State of Oklahoma. The only evidence in existence is that Ogden intends to possess the raccoon in the State of Oklahoma and not within the State of Indiana.
A tribunal will not retain jurisdiction when the issues involved in the proceeding have become moot. Indiana Law Encyclopedia Database, 2 Inc. Law Encycl. Appeals § 228 (updated August 2010). It has been long recognized that “an issue is deemed to be moot when the case is no longer live and the parties lack a legally cognizable interest in the outcome of its resolution or where no effective relief can be rendered to the parties. Poulard v. LaPorte County Election Board, 922 N.E.2d 734, 2010, see also Lake County Board of Elections and Registration v. Copeland, 880 N.E.2d 1288, 2008, Mikels v. Seligman & Latz of Indianapolis, 127 N.E.2d 107 (1955). When a principal issue in a proceeding is deemed moot, all “questions incidentally or indirectly involved” are also rendered moot. Indiana Law Encyclopedia, 2 Ind. Law Encycl. Appeals § 228, (updated August 2010), Mikels, supra.
Ogden cannot claim a remaining interest in the outcome of this proceeding to address the DNR’s denial of a permit to possess a wild animal in Indiana when she has no continuing interest in possessing the wild animal in Indiana. Therefore, the only true and actual issue in this proceeding, Ogden’s Wild Animal Possession Permit application, is moot. Therefore, the Natural Resources Commission cannot retain jurisdiction.
In its briefs, the DNR fails to address the issue of mootness but instead offers that under Indiana Code § 14-22-10-5 title to the raccoon, which the DNR alleges Ogden acquired unlawfully, remains vested in the State of Indiana. The DNR further alleges that the DNR Director has the authority to seize and confiscate and sell or dispose of the raccoon and imputes this authority onto the Natural Resources Commission. Any discussion of these contentions would be academic because the disposition of the raccoon is incidental and tangential to the actual and true issue that for the reasons stated above has been deemed moot.
The instant proceeding is deemed moot in its entirety and is hereby DISMISSED.