[CITE: Jackson v. DNR, 13 CADDNAR 53 (2012)]
[VOLUME 13, PAGE 53]
Cause #: 12-030P
Caption: Jackson v. DNR
Administrative Law Judge: Lucas
Attorneys: pro se (Jackson); Boyko (DNR)
Date: July 18, 2012
FINAL ORDER (II)
(1) Russell Alvin Jackson is ejected from and must refrain from entering a “DNR property” before January 9, 2013. As used in this order, a DNR property refers to each of the following:
A. Interlake State Recreation Area and Redbird State Recreation Area listed at www.in.gov/dnr/outdoor.
B. Nature preserves listed at www.in.gov/dnr/naturepreserve/4698.htm.
C. State fish and wildlife areas listed at www.in.gov/dnr/fishwild/3077.htm.
D. State forests and state recreation areas listed at www.in.gov/dnr/forestry/3631.htm.
E. State parks and reservoirs listed at www.in.gov/dnr/parklake/2392.htm#propertylist.
(2) Excluded from a DNR property as used in Part (1) of this Order are the following:
A. The public freshwater lakes identified in the “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Second Amendment), Indiana Register (June 1, 2011) at www.in.gov/legislative/iac/20110601-IR-312110313NRA.xml.pdf.
B. The rivers, streams, and lakes identified as navigable waterways in the “Roster of Indiana Waterways Declared Navigable or Nonnavigable”, Information Bulletin #3 (Third Amendment, Indiana Register (June 11, 2008) at http://www.in.gov/legislative/iac/20080611-IR-312080426NRA.xml.pdf.
Exercise of these exclusions is conditioned upon Jackson obtaining lawful access to, and refraining from extending beyond the boundaries of, any public freshwater lake or navigable water.
FINDINGS OF FACT AND CONCLUSIONS OF LAW (I)
A. Statement of the Proceeding and Jurisdiction
1. On February 1, 2012, Russell Alvin Jackson (“Jackson”) filed a petition for administrative review (the “petition for review”) from what he averred was an “unjust ejection from state parks on January 28, 2012 for one year” pursuant to 312 IAC 8-5-3 (the “subject ejection”).
2. 312 IAC 8-5-3 provides:
Sec. 3. (a) A property manager or another authorized representative may require a person to leave a DNR property or may otherwise restrict a person’s use of a DNR property.
(b) An ejection or restriction imposed under subsection (a) is effective immediately and applies for twenty-four (24) hours unless the property manager or other authorized representative specifies a shorter duration.
(c) Notwithstanding subsection (b), a property manager or another authorized representative may designate in writing that the ejection or restriction shall remain in effect for not more than one (1) year. An ejection or restriction under this subsection is subject to administrative review to the commission under IC 4-21.5.
(d) An ejection or restriction imposed under this section may be made applicable to all or a portion of particular DNR property, to multiple DNR properties, or to all DNR properties.
3. The petition for review initiates a proceeding that is governed by 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 to assist with its implementation of AOPA.
4. The Commission is the “ultimate authority” under AOPA over the subject matter of a petition for administrative review of a property ejection. Colton Lambermont v. DNR, 12 Caddnar 215 (2010)[1] citing 312 IAC 3-1-2. The Commission is the ultimate authority for this proceeding.
5. The subject ejection was delivered to Jackson by Jet D. Quillen, a Conservation Officer with the Division of Law Enforcement, Indiana Department of Natural Resources (the “DNR”) at Fort Harrison State Park, Lawrence, Indiana on January 28, 2012. He is an authorized representative of the DNR under 312 IAC 8-5-3. When Conservation Officer Quillen delivered the subject ejection, he stated the ejection was from all DNR properties for a period of one year effective from January 9, 2012[2]. Respondent’s Exhibit D.
6. The parties to this proceeding are Jackson and the DNR.
7. 312 IAC 8 is the article which governs use of a DNR property by a person who is a patron or guest of the DNR property. As applicable to this proceeding, “DNR property” is defined at 312 IAC 8-1.5-6 as follows:
Sec. 6. (a) Except as provided in subsection (b), “DNR property” means land and water where any of the following applies:
(1) The department has ownership.
(2) The department holds a lease, easement, or license.
(3) A dedication was made under IC 14-31-1.
(4) The department manages the property.
(b) Exempted from DNR property are each of the following:
(1) A public freshwater lake.
(2) A navigable waterway….
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8. Following receipt by the Commission’s Division of Hearings of the petition for review, an administrative law judge was appointed, and the proceeding was scheduled for a prehearing conference in Indianapolis, Indiana. Notice of the prehearing conference was mailed to the parties. An “Appearance for Respondent DNR” was filed on February 4, 2012. Jackson and the DNR’s attorney appeared as scheduled on March 13, 2012 for the prehearing conference.
9. During the March 13, 2012 prehearing conference, the applicable procedures were outlined to the parties. The parties discussed the issues, and they then conferred in the absence of the administrative law judge to discuss settlement possibilities. “The parties agreed a telephone status conference should be set for April 13 to encourage additional settlement discussions. If a settlement is not achieved, a mediator might then be appointed or the parties can help select the date and location for a hearing of the facts.” Report of Initial Prehearing Conference and Notice of Telephone Status Conference (March 14, 2012).
10. A telephone status conference was conducted as scheduled on April 13, 2012. The parties reported settlement discussions were unsuccessful. They did not express an interest in conducting discovery. They agreed a hearing of the facts should be set for June 12, 2012 in Indianapolis. Report of Telephone Status Conference and Notice of Hearing (April 13, 2012).
11. The parties appeared as scheduled in Indianapolis for a hearing of the facts on June 12, 2012. Jackson was present in person. The DNR was present by its attorney, Ihor Boyko. Four witnesses testified, and exhibits were offered into evidence. The hearing was adjourned following the completion of evidence.
12. Following adjournment and following the hearing, Jackson asked for clarity concerning what sites constituted a “DNR property” and would be included in the subject ejection. Jackson also asked whether he would be prohibited from canoeing or kayaking a public river or stream. The DNR and the administrative law judge offered informal perspectives, but clarity requires that these be formalized here.
13. Although the definition of “DNR property” at 312 IAC 8-1.5-6 speaks for itself, and includes property other than as set forth in this Finding, for the purposes of this proceeding the term means the following:
A. Interlake State Recreation Area and Redbird State Recreation Area listed at www.in.gov/dnr/outdoor;
B. Nature preserves listed at www.in.gov/dnr/naturepreserve/4698.htm;
C. State fish and wildlife areas listed at www.in.gov/dnr/fishwild/3077.htm;
D. State forests and state recreation areas listed at www.in.gov/dnr/forestry/3631.htm; and
E. State parks and reservoirs listed at www.in.gov/dnr/parklake/2392.htm#propertylist.
14. 312 IAC 8-1.5-6(b)(1) exempts public freshwater lakes from the definition for “DNR property”. For the purposes of this proceeding, the exempted lakes are the public freshwater lakes identified in the “Listing of Public Freshwater Lakes”, Information Bulletin #61 (Second Amendment), Indiana Register (June 1, 2011) at www.in.gov/legislative/iac/20110601-IR-312110313NRA.xml.pdf.
15. 312 IAC 8-1.5-6(b)(2) exempts navigable waterways from the definition for “DNR property”. For the purposes of this proceeding, the exempted waterways are the rivers, streams, and lakes identified as navigable waterways in the “Roster of Indiana Waterways Declared Navigable or Nonnavigable”, Information Bulletin #3 (Third Amendment, Indiana Register (June 11, 2008) at http://www.in.gov/legislative/iac/20080611-IR-312080426NRA.xml.pdf. In accord at common law with the concept that navigable waters are not part of adjacent state parks is Landmark West! v. City of New York, 802 N.Y.S.2d 340, 9 Misc.3d 563 (N.Y. City Ct. 2005).
16. The Commission has jurisdiction over the subject matter and over the persons of Jackson and the DNR. With completion of the hearing of the facts, the proceeding is ripe for disposition.
B. Hearing de Novo and Standard of Proof
17. As the “ultimate authority” AOPA, the Commission conducts this proceeding de novo. De novo review requires the Commission and its administrative law judge to consider and give proper weight to the evidence. Daniel v. Johnston & Fultz Excavating (Vinyl Seawall), 12 Caddnar 317, 318 (2011) applying DNR v. United Refuse Co., Inc., 615 N.E.2d 100 (Ind. 1993).
18. “At each stage of the proceeding, the agency or other person requesting that an agency take action…has the burden of persuasion and the burden of going forward with the proof of the request.” IC 4-21.5-3-14. If an agency seeks the imposition of a sanction, it has the burden of persuasion and the burden of going forward (sometimes collective referred to as the “burden of proof”). Peabody Coal Co. v. Ralston, 578 N.E.2d 751 (1992 Ind. App.).
19. DNR has the burden of proof with respect to the elements of a notice of violation. A. Lusher v. DNR, 11 Caddnar 124 (2007). The DNR has the burden of proof with respect to a civil penalty assessment. Yoder v. DNR & Bouwkamp, 12 Caddnar 88, 100 (2009).
20. Ejection from a DNR property under 312 IAC 8-5-3 is a form of sanction. On administrative review, the DNR has the burden of going forward and the burden of persuasion (collectively, the burden of proof) to presents evidence that supports the ejection. In this proceeding, the DNR has the burden of proof with evidence sufficient to support the subject ejection.
21. The standard of review under AOPA is ordinarily “preponderance of the evidence”. Indiana Dept. of Natural Resources v. United Refuge Company, Inc., 615 N.E.2d 100 (Ind. 1993).
22. “Preponderance of the evidence” refers to evidence which, when considered and compared with that opposed to it, has more convincing force, and which produces in the mind of the trier of fact, a belief that what is sought is more likely true than not. Fultz & Trenmoth v. DNR, 13 Caddnar 46 (2012) citing Bivens v. State, 642 N.E.2d 928 (Ind. 1994). The trier of fact must be convinced from a consideration of all evidence that the issue for which a party has the burden is more probably true than not true. Ken Schaefer Auto Auction v. Trustison, 198 N.E.2d 873 (Ind. App. 1964).
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23. The standard of review for ejection from a DNR property under 312 IAC 8-5-3 is preponderance of the evidence. The DNR has the burden of proof, by a preponderance of the evidence, to support the subject ejection.
24. Government possesses two distinct kinds of powers. These are its sovereign power and its power to do business. “Each of these types of power is limited by a distinct set of rules. In order to protect the rights of citizens, the power of the State is restricted by constitutional limitations.” When the State exercises its proprietary power or power to do business, the State has limitations similar to a private individual or corporation transacting the same business. Lambert v. State Dept. of Highways, 468 N.E.2d 1384, 1387 (Ind. App. 1984). When operating a campground, a State’s agency as a landowner acts in its proprietary capacity. Drake v. State, 416 N.Y.S.2d 734, 97 Misc.2d 1015 (1979).
25. At common law, operations of a place of amusement or entertainment generally have no obligation to serve all who seek service. Ordinarily, in the absence of a statute, a person denied access has no remedy other than for breach of contract from the purchase of an entrance fee. Annotation, Exclusion from Amusement Place, 1 A.L.R.2d 1165 (1948).
26. A “ticket of admission to a place of amusement is simply a license to view a performance that the owner or proprietor may revoke at will.” Ladd v. Uecker, 780 N.W.2d 216, 221 (Wis. App. 2010). The right of a proprietor to exclude a patron from an enterprise “has long been recognized at common law.” Phillips v. Graham, 86 Ill.2d 274, 427 N.E.2d 550, 556 (Ill. 1981).
27. The common law may be modified by statute. Both Federal and State laws apply to prohibit discrimination against protected classes. The public policy of Indiana is to provide all of its citizens with access to public convenience and accommodations without limitation “based solely on race, religion, color, sex, disability, national origin or ancestry.” IC 22-9-1-2(a). A “public accommodation” refers to “any establishment that caters or offers its services or facilities or goods to the general public.” IC 22-9-1-3(m). Jackson does not contend the subject ejection resulted from discrimination against a protected class.
28. At common law, the DNR could argue Jackson is admitted to a DNR property simply by a license that may be revoked at will. But the Commission has adopted a rule of reasonableness to review ejections from DNR properties under 312 IAC 8-5-3. If an ejection is supported at hearing by the evidence but the duration of the ejection is unreasonable, the duration may be shortened and made reasonable. Colton Lambermont v. DNR, 12 Caddnar 215 (2010). If an ejection is unsupported by evidence at hearing, the ejection is unreasonable and is revoked. Ronald Lambermont v. DNR, 12 Caddnar 219 (2010).
29. For the subject ejection to be affirmed, the DNR must show at hearing by a preponderance of the evidence that the ejection was reasonable. If the subject ejection is supported by the evidence but the duration was unreasonable, the duration may be shortened and made reasonable.
C. Summary of Evidence at Hearing
30. Robert F. Baker testified he is a Detective with the Fishers Police Department of Fishers, Indiana. He has been in law enforcement for 16 years and a Fishers Police Department Detective for approximately 14 years. He is assigned to general criminal investigations. Detective Baker has completed 53 law enforcement schools.
31. Detective Baker first became acquainted with Jackson during a 2008 investigation with another Detective. Jackson was reported to have entered DeVeau’s School of Gymnastics in Fishers (“DeVeau’s”). Detective Baker testified the facility is “primarily for young children to train in gymnastics.”[3] He was informed Jackson was “sitting and staring at the kids.” Baker testimony.
32. On November 18, 2011, Detective Baker was assigned an active investigation involving Jackson. Representatives of DeVeau’s told him Jackson was identified in the “facility a couple of times and standing outside of a window that they’ve now since blockaded so nobody can look in that window anymore. He was standing just watching the young children….” Detective Baker estimated these children were between eight and 14 years old. Baker testimony and Respondent’s Exhibit A, p. 4.
33. Detective Baker testified Jackson drives a “unique vehicle”. A “press release” for a “suspicious person” was distributed which identified the vehicle. A citizen took a “photograph of this vehicle. With that photograph and then the video from the Target Store…, I have [Jackson] on video parking at the Target Store walking from his vehicle, through the parking lot, through a small creek area (a wooded area, a little bit), and over across another street to DeVeau’s….” Detective Baker testimony.
34. On December 12, 2011, a representative of DeVeau’s told Detective Baker she wanted the Fishers Police Department to issue a criminal trespass notice to Jackson. On the same day, a representative of the Hamilton County Sports Complex told Detective Baker he wanted the Fishers Police Department to issue a criminal trespass notice to Jackson. Respondent’s Exhibit A, p. 5.
35. On December 14, 2011, Detective Trent Skaggs and Detective Baker went to Fort Wayne in search of Jackson. They located Jackson’s vehicle “at a movie theatre, the Rave, at an outdoor mall. [They] conducted surveillance until midnight. At approximately midnight, [they] found [Jackson] walking from the movie theatre to his vehicle. [Detective Baker] confronted [Jackson]. [Detective Baker] identified [himself] as a detective with the Fishers Police Department. [Detective Baker] explained to [Jackson] that [Detective Baker] was investigating [Jackson’s] suspicious activities. [Jackson] denied going into Deveau’s. [Detective Baker] provided [Jackson] with a form advising [Jackson] that [Jackson] is no longer wanted in Devau’s and Hamilton County Sports Complex. [Jackson] signed the Trespass Warning.” Respondent’s Exhibit A, p. 5.
36. Detective Baker also testified he “was able to track” Jackson to an outdoor mall in Fort Wayne where Jackson “had been in a movie theater most of the night, and it was about midnight when I caught him in the parking lot.” He delivered the Trespass Warning to Jackson, and Jackson signed the notice. The notice covered “DeVeau’s School of Gymnastics, the Hamilton County Sports Complex, and the A Plus Gymnastics Center inside the Hamilton County Sports Complex.” Detective Baker testimony.
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37. The Trespass Warning referenced in Finding 35 and Finding 36 stated in substantive parties as follows:
Russell A. Jackson, you are hereby notified by management and the Fishers Police Department that you are currently trespassing and are not allowed back on this property. The Fishers Police Department, acting as agents of the below property owners are issuing you a trespass warning by informing you that you are hereby prohibited from entering the below properties as well.
DeVeau’s School of Gymnastics- 9032 Technology Drive, Fishers IN
Hamilton County Sports Complex- 9625 East 150 St. Noblesville IN
A Plus Gymnastics Center- 9625 East 150 St. Noblesville IN
This notice is due to unwanted suspicious behavior on private property. Violations of this trespass notice may result in your possible imprisonment. I.C. 35-43-2-2 Criminal Trespass (a) A person who: (1) not having a contractual interest in the property, knowingly or intentionally enters the real property of another person after having been denied entry by the other person or that person’s agent.
This notice will remain effective until expressly removed by the owner of the property.
Respondent’s Exhibit B.
38. On cross-examination, Detective Baker testified he wrote the Trespass Warning.
39. On redirect, Detective Baker testified neither DeVeau’s nor the Hamilton County Sports Complex identified any business Jackson might legitimately have at their facilities. “They said they did not have any business with him.” Jackson did not have a child who was registered with either facility or who was taking lessons with either facility.
40. Captain David A. Dungan is the logistics officer for DNR’s Division of Law Enforcement. He has served in this capacity for approximately nine months. Captain Dungan was sworn as a Conservation Officer in 1996. He was initially assigned to Fort Harrison State Park. Within a year, he was assigned to general duties for District 4 with its headquarters at Mounds State Park, Madison County. “We’re statewide officers. We have full police powers, but we…are more specifically tasked with outdoor recreational activities: hunting, fishing, boating, ATV operation, and then, as well, we do handle any and all other law enforcement related duties as they may arise….” He completed the Division of Law Enforcement’s “boot camp” and a law enforcement school. Dungan testimony.
41. Captain Dungan testified he first became familiar with Jackson in 2006. He was participating in bike patrol enforcement training near Mounds State Park. “We received a call from the park that there was a male subject bothering children at…one of the play areas at Mounds State Park….” He testified later on direct examination, “The complaint was that he was, forgive me, but, masturbating in front of young children.”
42. Captain Dungan testified after receiving the complaint, “About five or six of us headed over to the park. While en route, I’d gotten a physical description of the male subject (quite a detailed physical description). When we entered the park, we stopped at the pavilion area, which is just a small area right inside the entrance to the park. I dispatched several officers to go down to the playground area. I dispatched several more to go on farther to the campground area and then dispatched myself and one other officer to go down… [to] a wooded area. It goes down to some river walks and some paths that go down along the White River.” On the “west side of the pavilion, I observed a male subject—it ended up being Mr. Jackson—who fit the description to a T. At the time that I saw him, he proceeded to turn from a generally southwest direction directly west and started to walk away from me toward the new nature center at the Mounds Park. I called to him. He initially didn’t respond. I told him to halt, went up and made contact with him, brought him back to the parking lot area. It just so happens his vehicle was there. I interacted with him there.”
43. Captain Dungan described Jackson as being “extremely belligerent and very confrontational. He repeatedly used loud profanity. He referred to us as ‘f…ing Nazis’ and “f…ing pigs’ and that, if we were by ourselves, he would try to kick our asses. Just very back and forth. It got to the point there was obviously nothing productive going on. So at that point, I told him he was free to leave, and we disengaged and sent him on his way.” Dungan testimony.
44. Captain Dungan testified that in his interactions with Jackson, “he is very disrespectful.” He added, “He feels like he is being harassed. He feels like we’re just out to get him.”
45. Conservation Officer Marvin Spainhour, IV prepared an Incident Report Form for the period beginning on January 3, 2012[4] at approximately 1:11 p.m. The Incident Report Form states in substantive part that Conservation Officer Marvin Spainhour was patrolling Fort Harrison State Park:
…when I noticed a light green van with a kayak strapped to the top. This vehicle matched the description of a van we had been asked to keep an eye out for and to document its whereabouts. After locating the vehicle, I immediately made contact with Lt. Tim Beaver at Operational District 6 Headquarters. He told me that from the direction he had been given that I should just document the time that I saw him at the park and make sure that if he does commit a crime to handle it but otherwise documentation would be the only thing needed.
I watched the vehicle from a distance for approximately five to ten minutes before a white Jeep Grand Cherokee pulled up and a mother with her two young daughters exited the vehicle. The mother proceeded to enter the public restrooms and leave the two daughters outside playing in the remnants of snow that was still there from the previous day. At this time I decided to make my way closer to the vehicle due to the young children that were playing in its vicinity. When I reached the door of the bathrooms I could tell that it was the suspect in the bathroom playing the guitar and singing to the music. As I was leaving the landing area in front of the bathrooms a male exited and stated that he thought it was weird that a man was playing guitar and singing while he was trying to use the urinal. The mother of the children that were around also approached me and stated that she thought it was crazy for a guy to be playing there.
I then contacted Lt. Beaver once again and explained to him what had now arisen with the situation. He asked if I had received any complaints from the public which I stated that I had. He then said that he would like for me to have another officer with me as I approached the man to tell him he cannot play in the bathrooms any longer. I then called Officer Jet Qullen to ask him if he could assist me with removing the possibly volatile subject from the bathrooms. He stated that he would be there shortly and to advise him if the suspect chose to leave on his own accord.
At approximately [2:10 p.m.] Officer Quillen arrived on scene to help assist in the removal. We then entered the bathroom area and the music immediately stopped as soon as the suspect, later identified as Russell A. Jackson, saw that we had uniforms on. I asked how he was doing that day and he replied with “I was playing music and fine until you people showed up”. I tried to explain to Mr. Jackson that we had been contacted by several different complainants that morning about the nervousness they felt as they were trying to use the bathrooms. He stated that I was lying to him and that no one had complained and that we were both just trying to badger him. We replied that we were not badgering him but just needed him to comply with our wishes and not make it a bigger deal than what it already was. At that time Mr. Jackson began to explain his logic behind hating law enforcement and the DNR in general. He stated all of this as he was slowing putting his guitar away in its case. When he finished putting the guitar away he
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immediately put his hands in his pockets and stared at both of us as to seem intimidating. By the way he was standing you could tell that he was on the verge of becoming hostile and I asked him to remove his hands from his pickets while asking him if he had any weapons on him. He said that would depend on what we considered as being a weapon because most cops would say that a piece of toilet paper was a weapon. I then gave Mr. Jackson some examples of weapons and he just stared at me. We then advised Mr. Jackson to turn around and place his hands on the sink area so that we could do an exterior pat down to look for weapons. He complied physically with our demands but verbally abused and cussed at us as we performed the search. He stated that we were the devil and that the whole nation had been corrupted. We then escorted Mr. Jackson out of the bathroom and he proceeded to tell us that he didn’t just hate us but he hated the uniform and everything that it stood for. He said that he was totally against us and wished that we could find better ways to occupy our time. Outside the bathroom we asked for his identification and he said that he would have to get it out of his van for us. Officer Quillin then asked him to just unlock the vehicle and he would get into the van and retrieve the driver’s license. Jackson said that he would be fine with that as long as he didn’t look through anything else. After retrieving the license we ran his name through IDACS/NICIC and they said he was valid and did not have any warrants for his arrest. During this time the property manager of the park showed up on scene and as he pulled into a nearby parking space Jackson said, “Oh… you two can’t handle me by yourself you have to call in the [f…in’] cavalry”. I then advised him that he was not another officer and keep his mouth to himself unless we spoke to him directly. Shortly after, Officer Quillen gave him his identification back and advised him that he was not being removed from the property but was being told to not play his guitar in the bathroom stalls where people were trying to use the facilities. He said that he understood even though he disagreed with us.
Respondent’s Exhibit C.
46. Conservation Officer Jet E. Quillen has been employed by DNR’s Division of Law Enforcement since June 2009. He is currently assigned to Marion County. He is within District 6 which has its headquarters at Brown County State Park, Nashville, Indiana. Conservation Officer Quillen testified that, as a Field Officer, he enforces all state laws but specializes “in enforcing the fish and wildlife laws, boating laws, off-road vehicle laws.” Quillen testimony.
47. Conservation Officer Quillen testified he “first became familiar with Mr. Jackson in late December 2011.” He received emails from the Fisher’s Police Department advising the Division of Law Enforcement that Jackson was “a person of interest” and that Jackson “had been known to frequent the Marion County area.” On January 3, 2012, Conservation Officer Marvin Spainhour “called me and asked me if I could assist because a person fitting the description of Mr. Jackson was at Fort Harrison State Park and was in a bathroom near a playground and was playing guitar and singing…. He wanted to assist me because we had received information of his history [and wanted me] to come up and talk to the subject.” Quillen testimony and Respondent’s Exhibit C.
48. Conservation Officer Quillen testified that on January 3, the weather was “cold and windy” but not extremely so. The bathroom was located by “sled hill” and was an approximately ten-feet-by-20-feet building, subdivided into a men’s room and a women’s room. He and Officer Spainhour approached the bathroom. They sat outside briefly and listened to Jackson play his guitar and sing. They then entered the men’s room which included “a couple urinals on the wall, a couple sinks, and some bathroom stalls.” Quillen testimony and Respondent’s Exhibit C.
49. Conservation Officer Quillen testified when he and Conservation Officer Spainhour entered the men’s room, Jackson immediately “became somewhat agitated like we were harassing him. We asked him to step outside, and, you know, he elevated it to cursing us out. He called us the devil.” Jackson was told he did not have “to leave the park.” But Conservation Officer Quillen and Conservation Officer Spainhour told Jackson he could not “stand in the bathroom and play [his] guitar and sing.” The Conservation Officers then “left the park”, and Conservation Officer Quillen did not see where Jackson went. Quillen testimony.
50. Conservation Officer Quillen testified the Division of Law Enforcement subsequently informed him DNR was going to serve an ejection notice upon Jackson, applicable to all DNR properties, and he would serve the notice. Officer Quillen contacted Doug Wickersham, Property Manager at Fort Harrison State Park, and asked him to inform Officer Quillen if Jackson’s van was observed. Quillen testimony.
51. On January 28, 2012 at approximately 1:27 p.m., the Property Manager called and reported that Jackson’s van was at Fort Harrison State Park. Conservation Officer Quillen advised Conservation Officer Spainhour to meet him at the park entrance. When Officer Quillen arrived at the park entrance, he was met by Conservation Officer Spainhour and Mark Lund, the gate attendant, who reported Jackson was accompanied by children. Officer Spainhour and Officer entered the park and located the van in the parking lot at the Reddick Shelter. Quillen testimony and Respondent’s Exhibit D.
52. Conservation Officer Quillen prepared an Incident Report Form which described the event:
I approached the van and witnessed Mr. Jackson and two small children sitting in the back of the van. I knocked on the side door and Mr. Jackson exited the vehicle while speaking on his cell phone. I asked Mr. Jackson how it was going. He replied, “What’s the problem now?” I advised if he would get off his cell phone we would discuss it. He then replied, “You’re always harassing me for bullshit and I’m tired of it.” Officer Spainhour asked if he was related to the two children. Mr. Jackson replied, “Yes.” We were then advised that the children were Mr. Jackson’s grandchildren and he was on the phone with their mother. I asked if I could speak to the mother. Mr. Jackson then shoved the phone in my direction. I then spoke with Mr. Jackson’s daughter and verified that the children, Otha and Christopher, were authorized to be with Mr. Jackson.
At this point, Mr. Jackson ended his call and I started the process of issuing his ejection notice. I advised Mr. Jackson that this is an ejection notice from all DNR properties in the state of Indiana for the period of one year and has an effective date of 1/9/12. I handed the form to Mr. Jackson. Mr. Jackson became very irritated and starting cursing at myself and Officer Spainhour. Mr. Jackson wanted to know the reason for the notice. I advised him that due to some concerns brought to our attention, our legal counsel for the DNR had decided this was the path we would take. Mr. Jackson then waded [sic.] up and ripped the paper and shoved it in his pocket. I advised Mr. Jackson that located on the bottom of the form was an explanation for an appeal process, if he wishes to go that route. Mr. Jackson asked for our names. We obliged and provided same.
At this point, I advised Mr. Jackson that he would need to leave the property. He again berated us with curse words and stated he wanted to kick our asses. We followed Mr. Jackson to the front gate. At this point he stopped and exited his vehicle. He stated that he wanted to get the gate attendance [sic.] name. I advised him that it would be made available through the appeal process and that he needed to leave. Mr. Jackson then left the property.
Throughout the contact with Mr. Jackson, he made numerous threatening remarks to us and verbalized his dislike of police officers in general.
Respondent’s Exhibit D.
53. Conservation Officer Quillen testified consistently with the Incident Report Form described in Respondent’s Exhibit D. He added that Jackson stated “he wanted to fight us.”
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54. On cross-examination, Conservation Officer Quillen was asked what his superiors said was the reason for the subject eviction. He replied, “When I received contact from my Headquarters to serve that letter, the reason I was given was our legal counsel for the Department of Natural Resources has decided that was the route they were going to take, and that was the order I was given, so I followed my order.”
55. Russell Jackson testified that for eight years he sailed “around the world naturally, in a twenty-foot boat, no engine, navigating by the stars, promoting earth friendliness, environmentalism, and trying to get people to respect Mother Earth and nature and the environment.” He quoted from newspaper articles describing his travels and his interest in environmental protection. Jackson testified he “just wrote a book”, which he is currently promoting, that describes the need to “live in harmony with the earth. It’s a big part of my life.” Jackson testimony.
56. Jackson testified “what started all this mess with the government” was an accident that occurred in Brisbane, Australia. “It almost killed me, almost burned me to death, with their negligence by speeding, breaking the law.” Later, on redirect, he offered into evidence Claimant’s Exhibit 1, photocopies of six photographs showing his burns about three days after the accident. The accident occurred in about 1992. He continued on direct, “I’ve got burns on 80% of my body, on my eyes. I almost died. My testicles were burned. They hurt. I’m in pain every day of my life. I exercise and work out. When I work out and exercise, I itch. I scratched my testicles one time when I was working out and blew out of proportion. Front page of newspapers. Masturbating in front of children. I was the first one there, working out and exercising. People dropped off their kids in the park, and as soon as the kids got there, I left. I was jogging the trails. It was all a harmless incident. They blew it out of proportion. I spent a lot of time in jail. Front page of newspapers [were] saying how I had rope in the back of my truck, tying up kids, and raping them. There’s no rope in the back of my truck. I had hemp jewelry that I made. It’s little hemp jewelry for the rings that I sold. Nautical knots that I used to help get money to buy food and stuff. There’s no rope. People came to my house trying to kill me. It gets way out of proportion.”
57. Jackson testified, “I went to the dance studio so my daughter could take dance lessons cause I got custody of my daughter.” He said he married a Polynesian woman who was unable to obtain a visa to come to the United States. He and his wife had a daughter who was able to immigrate. “My wife is a professional dancer. My daughter wants to be a dancer. It’s what she does best.” Jackson testified the dance studio was in Muncie. He identified himself as “Rusty Jackson” to the studio and was arrested for false identification, despite “Rusty” being a “derivative of Russell”. He testified he was wrongly incarcerated Delaware County for six months for false informing and trespassing.
58. Jackson testified, “The reason I came back to Indiana is to take care of my father. He’s old. He can’t take care of himself. He knows he’s dying…. Because this case is pending in Muncie, I put my father in a temporary, two-week thing in the V hospital in Marion. This case is lingering on and lingering on for months. The V hospital keeps calling me every day and saying that my father’s two weeks had expired, and I need to come get him. I go I can’t because I got this case pending in Muncie. They told me in jail I can’t take in my father, then they called the adult protection services and threatened to have me arrested….” Later on direct, Jackson testified his father died while he was incarcerated. “I kind of hold the government and the courts responsible for my father’s death. He’d still be alive now if I was there to take care of him.”
59. Jackson testified he later “wrote letters to the governor, congressmen, and senators and the whole country and newspapers, nobody did nothing. I went to see Randolph Shepherd, the Chief Justice of the Supreme Court, he did nothing. Nobody did nothing. So, it was like I had a nervous breakdown. I put the prosecutor in a wrestling hold to make a citizen’s arrest. Fourteen cops come charging and started beating me and nearly killed me—beat me for like half an hour—beat me. I go back to the emergency room. Now I got a whole truck load of felonies because of the incident that happened at Mounds Park—all because of Mounds Park. It just keeps on building and building and building. It’s way out of control. Now I’m facing 20 years in prison for a felony for putting my hands on a prosecutor, but I didn’t hurt him. It was just a wrestling hold. Now they’re trying to convict me of strangulation….”
60. Jackson testified he is “homeless and living out of” his van. He goes “to gyms to work out and to shower.” He added that he is a “professional musician”. Jackson said he used the men’s restroom at Fort Harrison State Park because he needed a warm place where he could stand and play, and he is unable to stand in his van. He denied that he compared Conservation Officers to the devil because he does not believe in the devil. “I don’t cuss at officers because I don’t believe in cussing. Profanity is a thing for weakness. I might be disrespectful when they’re abusing their power, but I don’t swear and cuss.” He denied referring to law enforcement officers as Nazis. “They keep on adding stuff to make me look as bad as they can. Maliciously slandering me with things that’s not the truth. They know nothing about me. The truth is I’ve never done anything inappropriate to anybody, any age, any gender, ever in my life, and I never will. I love kids, and I love my grandsons. That doesn’t mean I’m going to do sexual acts on them. I just love playing with my grandsons and kids. They’re fun. They’re energetic. They’re innocent. I love them. I’m not going to do nothing bad to them.” He testified he “can’t be in the sun because of all my burns. I’ve got to try to sit in the shade, and I got to worry about skin cancer and stuff. So, I sit in the shade somewhere, and people think I’m a weirdo because I’ve got big hats on and sometimes I wear long pants….” Jackson testimony.
61. Jackson testified, “The reason I got so mad about this eviction with the State Parks is because I’m promoting nature and environmentalism vigorously. I get some good results, too. My book is in magazines and newspapers in the whole world…. I’m setting a good example. I’m not a hypocrite because I’m protecting the environment. In all the places I’ve been my whole life, all over South America and the Pacific Islands, New Zealand, Australia, Alaska, and all 50 States, I’ve never been to a place in my life that’s as contaminated and toxic and dirty as Indiana. All the creeks and rivers and everything is contaminated. I’m afraid to even take my grandsons to the creek anymore. I just can’t understand that. At the DNR, they’ve got the position and power where they can fight the big companies that are polluting all these creeks and rivers and stuff, and they’re not really doing nothing about it. They’re going after little people.” Jackson testimony.
62. On cross-examination, Jackson was asked about the accident that occurred in Brisbane. DNR’s attorney asked, “You’re not complaining about the U.S. Government here, are you?” Jackson responded, “Not directly, but the Australian Government and the U.S. Government, they collaborate. They’re like big brother and little brother. They have the same laws and rules…. They’re run by U.S. officials. It’s kind of the same.”
63. Jackson testified that following the accident he sued the Australian Government. But he was then beaten and incarcerated, and his boat was confiscated. He was deported under armed guard to the United States and never had the opportunity to pursue his lawsuit. Jackson testimony.
64. Other matters were offered into evidence at hearing. These were speculative, lacking credibility, or hearsay that was impossible to verify. As a consequence, they were not included in this summary.
D. Ultimate Facts
65. Jackson’s behavior has motivated DeVeau’s and the Hamilton County Sports Complex to authorize the Fisher’s Police Department to issue a warning that he is not to enter their premises without evoking the penalties for criminal trespass.
66. Without explanation, Jackson used a circuitous route to access DeVeau’s. He parked near a Target Store, walked across its parking lot, through a small creek and wooded area, and across another street to reach his destination. A reasonable inference is that his selection of a parking site and this route were designed to avoid recognition.
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67. Jackson observed young gymnasts at DeVeau’s through a side window, an activity that motivated DeVeau’s to cover the window.
68. Jackson selected an outlying restroom at sled hill in Fort Harrison State Park to play guitar and sing. A patron of the park who wished to use a urinal, as well as a mother whose children wished to enjoy the nearby park area, were both troubled by his performance.
69. Taken in the light most favorable to Jackson, the activities described in Finding 65 through Finding 68 illustrate behavior that was eccentric and that would be and was disturbing to persons of ordinary sensitivities.
70. Jackson suffered serious injuries in a boating accident that occurred 20 years ago in Australia. His continued suffering from the injuries warrants compassion. But at least from the date of this accident, he has acted upon disdain for “the government”—a term he uses so broadly as to include, without distinction or limitation, persons who were within the Federal Government of Australia in 1992 and persons who are within the State Government of Indiana in 2012. His 1992 injuries do not justify his recent actions.
71. Jackson demonstrates a particular hostility to law enforcement, manifested through verbal and physical abuse. His confrontations with Conservation Officers are not isolated incidents directed to particular individuals or circumstances but instead form a repeated and perhaps escalating pattern of conduct. Conservation Officers are likely to be present on DNR properties where they are responsible for performing law enforcement. Jackson’s own testimony disclosed that he faces felony charges for what he calls a “wrestling hold” he placed on the county prosecutor in seeking to perform a citizen’s arrest.
72. This proceeding does not evaluate the existence or likelihood of criminal activity. Jackson’s eccentricities, lack of sensitivity for others who use public recreational lands, disdain for the government, and hostility to law enforcement are reasons enough to support the subject ejection. A preponderance of the evidence at hearing supports the conclusion the subject ejection was reasonable. This evidence is more than sufficient for affirmation of the subject ejection.
73. The geographic scope of the subject ejection should be limited to the DNR properties referenced in Finding 13.
74. The public freshwater lakes referenced in Finding 14 and the navigable waters referenced in Finding 15 should be excluded from the geographic scope of the subject ejection. These exclusions should be conditioned upon lawful access to, and refraining from extending beyond the boundaries of, any public freshwater lake or navigable water.
75. The subject ejection should terminate on January 9, 2013.
[1] As provided in IC 4-21.5-3-32, an agency is required to index final orders and may rely upon indexed orders as precedent. In 1988, the Commission adopted Caddnar as its index of agency decisions.
[2] During the prehearing conference held on March 13, 2012, the parties suggested the subject ejection would expire one year from its issuance on January 28, 2013. Respondent’s Exhibit D is persuasive, however, and supports a finding the subject ejection was designed to expire on January 9, 2013.
[3] The court reporter has not been requested to prepare a transcript of the hearing. If a witness is shown as quoted in these Findings, the statement is as nearly verbatim as could be determined by the administrative law judge. In some instances a stutter or verbal misdirection may be omitted. If a transcript is subsequently prepared that indicates different wording, the transcript shall be considered the official record and a quotation here as paraphrasing witness testimony.
[4] The Incident Report Form indicates “2011”. Conservation Officer Quillen testified this date is erroneous, and the report should have stated “2012”.