CADDNAR
Sendelweck v. DNR, 16 CADDNAR 4
Administrative Cause Number: 20-045D
Administrative Law Judge: Dawn Wilson
Petitioner Counsel: pro se
Respondent Counsel: Rebecca McClain
Date: June 14, 2021
[See Editor’s note at end of this document regarding change in the decision’s original format.]
FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH FINAL ORDER
FINAL ORDER
The Department’s denial of Sendelweck’s Wild Animal Possession Permits is affirmed.
Procedural History and Jurisdiction
1. On August 11, 2020, Jan Sendelweck (Sendelweck) initiated the instant proceeding by filing correspondence with the Natural Resources Commission (Commission), hereafter referred to as “the Petition”.
2. The Petition sought review of a Department of Natural Resources (Department) denial of Sendelweck’s wild animal possession permit applications for a female and a male raccoon.
3. The correspondence filed by Sendelweck initiated a proceeding governed by IC 4-21.5-3, sometimes referred to as the “Administrative Orders and Procedures Act” (AOPA) and the administrative rules adopted by the Commission at 312 IAC 3-1 to assist with the implementation of AOPA.
4. Administrative Law Judge (ALJ) Dawn Wilson was appointed under IC 14-10-2-2 to conduct this proceeding.
5. On August 31, 2020, Rebecca McClain (McClain) filed her “Notice of Appearance”, on behalf of the Department.
6. Following the issuance of service of notice to Sendelweck and the Department, ALJ Wilson conducted a Prehearing Conference on September 8, 2020, attended by both parties. Additional conferences were conducted by the ALJ on October 22, 2020, January 28, 2021, and March 25, 2021.
7. On April 15, 2021, an administrative hearing was conducted virtually by Webex video conference. Sendelweck appeared, as a self-represented party. The Department appeared by Counsel McClain and its representative, Linnea Petercheff (Petercheff).
8. Following the presentation of evidence, each party was allowed the opportunity to file a closing argument on or before April 30, 2021. Sendelweck filed her closing argument by email correspondence on April 29, 2021. On that same date, the Department, by Counsel, filed its “Post-Hearing Brief” (PHB).
9. Wild Animal Possession Permits are governed by 312 IAC 9-11 and administered by the Department.
10. The Commission is the ultimate authority, as that term is defined at IC 4-21.5-1-15, for the instant proceeding. IC 14-10-2-3 and 312 IAC 3-1-2.
11. The Commission possesses jurisdiction over the subject matter and over the persons of the parties.
Findings of Fact[1]
12. Sendelweck and the Department offered the following stipulated facts in this proceeding:
a. Petitioner obtained possession of two raccoons because they were born in her yard.
b. Petitioner applied for two wild animal possession permits on July 17, 2020.
c. [The Department] denied the permit applications on July 29, 2020 because the raccoons were obtained from the wild.
d. [The Department] also provided information regarding taking orphaned wild animals to a licensed rehabilitator.
e. On August 11, 2020, Petitioner filed an appeal of the permit denials.
13. The stipulated facts offered by the parties were accepted by the ALJ and entered as findings of fact in this proceeding.
14. Sendelweck and the Department offered Exhibits 1 and 2 by stipulation, and the ALJ admitted the exhibits. No other exhibits were offered during the administrative hearing.
15. In July of 2020, when Sendelweck originally acquired the raccoons, she did not anticipate that she would provide them with long-term care. See testimony of Sendelweck and Exhibit 1.
16. Sendelweck called the Department and spoke with a Conservation Officer who did not advise Sendelweck concerning the legality of her raccoon possession. Id.
17. Sendelweck saw on the Department’s website that raccoons were listed as wild animals for which a permit could be obtained. See testimony of Sendelweck.
18. Sendelweck called a Vincennes’ rehabilitator who reported that the rehabilitator was “full”. Sendelweck attempted to contact other rehabilitators by telephone but did not reach them. Id.
19. Each of the applications submitted by Sendelweck, titled “Application for Wild Animal Possession Permit”, State Form 2402(R13/2-17), include the following instruction, “Be sure to read all regulations. (312 IAC 9-11).” Exhibit 1.
20. In July of 2020, Sendelweck and her husband built an enclosure to house the raccoons. Sendelweck received the Department’s denial letter after she and her husband completed the enclosure. See testimony of Sendelweck.
21. Linnea Petercheff (Petercheff) has been employed by the Department as a Licensing and Permits Supervisor since March of 1997. In her position, Petercheff reviews permit applications for wild animal possession permits, fishing and hunting licenses, rehabilitator permits, nuisance wild animal permits and other Department permits. Petercheff reviews hundreds of licensing and permit applications annually. See testimony of Petercheff.
22. Petercheff issued the Department’s denial of Sendelweck’s permit applications because no breeder’s receipt was submitted with the applications to show the raccoons had been legally acquired. Id.
23. Petercheff also denied the applications because she received no information to show the raccoons were obtained during hunting season by Sendelweck, during a period when Sendelweck held a valid trapper’s license. Id.
24. No evidence submitted supports a finding that Sendelweck held a trapper’s license or that she acquired the raccoons from a breeder.
25. The Department’s written denial of Sendelweck’s applications states the following:
…While we understand that you rescued this orphaned raccoon, the regulations in 312 IAC 9-11-2(i) governing the wild animal possession permit do not allow a wild animal that has not been obtained legally to be kept under the permit. The [Department] requires a wild animal rehabilitation permit to take in sick, injured, and orphaned wild animals, and the animals are required to be released back into the wild. Individuals who find orphaned or injured wild animals such as this raccoon, are given twenty-four (24) hours to take the animal to a licensed wildlife rehabilitator. …
Exhibit 2.
26. Sendelweck understands why the law is in place and her stated desire is to abide by the law. However, she is requesting an exception for these raccoons, and approval of her permit applications. See testimony of Sendelweck.
Conclusions of Law
27. The Indiana General Assembly has determined:
(a) All wild animals, except those that are:
(1) legally owned under a license or permit as required by this article; or
(2) otherwise excepted in this article;
are the property of the people of Indiana.
(b) The department shall provide for the protection and proper management of all legally or publicly owned wild animals in Indiana.
IC 14-22-1-1.
28. A permit may be required by administrative rule to possess a wild animal that is protected by statute or rule. IC 14-22-26-3.
29. “Possession: is defined by administrative rule and “means to…knowingly have the power and intention of keeping a live wild animal in captivity where it cannot escape into the wild.” 312 IAC 9-1-12.
30. Sendelweck holds the two raccoons relevant to this proceeding in her possession.
31. In certain circumstances, an individual may possess a raccoon under one (1) of the following:
(1) A game breeder license in compliance with IC 14-22-20 and 312 IAC 9-10-4.
(2) A wild animal possession permit in compliance with 312 IAC 9-11.
(3) A wild animal rehabilitation permit in compliance with 312 IAC 9-10-9.
(4) A scientific purposes license in compliance with 312 IAC 9-10-6.
(5) A nuisance wild animal control permit in compliance with 312 IAC 9-10-11.
(6) A registered or licensed educational or scientific institution with the United States Department of Agriculture in accordance with 9 CFR, Chapter 1, Subchapter A, Parts I through IV.
(7) A breeder or dealer license issued by the United States Department of Agriculture under 9 CFR, Chapter 1, Subchapter A, Parts I through IV.
(8) A hunting or trapping license during the season established in this rule for that species.
312 IAC 9-3-14.5.
32. Sendelweck relies on the Indiana Court of Appeals’ holding in DNR v Whitetail Bluff LLC, et al., 25 N.E.3d 218 (Ind App 2015) to support her position that the Department erred in its issuance of a denial of her wild animal possession permit applications.
33. In Whitetail Bluff, the Indiana Court of Appeals found that IC 14-22-1-1, requiring the Department protect and manage wildlife resources, “does not confer authority on [the Department] to protect and manage wild animals that are legally owned or being held in captivity under a license or permit.”. Id. at 227. [2] The Court determined that the Department’s prohibition against high-fence hunting by Whitetail Bluff LLC, under a game breeder license, as a Cervidae livestock operation, exceeded the Department’s express authority. Id. at 228.[3]
34. Sendelweck does not claim that she held a game breeders license when she acquired possession of the raccoons. 312 IAC 9-3-14.5(1).
35. Sendelweck does not claim that she held a hunting or trapping license when she acquired the raccoons. In addition, Sendelweck acquired possession of the raccoons in July of 2020, which is not during the lawful season that includes November 8 through January 31 of the following year. 312 IAC 9-3-14.5(8) and 312 IAC 9-3-14.
36. Sendelweck does not claim, and no evidence supports, that she held any valid license of a type listed in 312 IAC 9-3-14.5 at the time she originally obtained possession of the raccoons.
37. Pursuant to 312 IAC 9-11-2(b), “A person who wishes to possess a wild animal, described as Class I or Class II in this rule, must apply for a permit under this rule within five (5) days of taking possession of the animal that was lawfully acquired and in accordance with this rule.”
38. A raccoon is a Class II wild animal for which a permit is required. 312 IAC 9-11-7.
39. To retain possession of the raccoons that were born in her yard, Sendelweck was required to apply for and obtain a wild animal possession permit from the Department.
40. Regarding an initial wild animal possession permit application, “[a]n applicant must provide documentation that the wild animal was lawfully acquired. A receipted invoice, bill of lading, or other evidence approved by the director shall accompany the application to establish compliance with this subsection.” 312 IAC 9-11-2(i).
41. Sendelweck did not provide any evidence that she obtained the raccoons from a breeder, such as a receipt, a bill of lading or other evidence to show that that the raccoons were lawfully acquired.
42. Sendelweck provided no factual or legal basis by which the Department’s denial would be reversed.
43. However, Sendelweck requests that the ALJ create an exception for her raccoons.
44. The Court, in Whitetail Bluff, evaluated the Department’s position and reliance on administrative code sections and determined:
The validity of those provisions depends entirely upon whether the subject matter addressed in those provisions falls within the scope of authority granted to the relevant agency by the General Assembly. See Indiana Dep't of State Revenue v. Best Ever Cos., Inc., 495 N.E.2d 785, 787 (Ind.Ct.App.1986) (an administrative board “may not by its rules and regulations add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law”) (quoting Indiana Dep't of State Revenue v. Colpaert Realty Corp., 231 Ind. 463, 479–80, 109 N.E.2d 415, 422–23 (1952)) (emphasis deleted). In this case, we have ruled that they do not.
Whitetail Bluff. at p. 228.
45. Consistent with the analysis of the Court of Appeals in Whitetail Bluff, the Commission has previously determined, “A state administrative agency has only the powers conferred on it by the Indiana General Assembly. Powers not within the agency’s legislative grant of authority may not be assumed by the agency nor implied to exist in its powers.” Markland v. Swistek d/b/a Crack of Dawn Hunt Club, 13 CADDNAR 194, 197 (2013), citing Bell v. State Board of Tax Commissioners, 615 N.E.2d 816, 819 (Ind. Tax Ct. 1995), citing Fort Wayne Education Association, Inc. v. Aldrich, 527 N.E.2d 201, 216 (Ind. App. 1988). See also Hendrickson v United Minerals C., LLC and DNR (15 CADDNAR 95, 99 (2020).
46. Only an exception authorized by the Indiana General Assembly would be allowed for consideration in this proceeding.
47. Sendelweck failed to show any available exception is available to her by statute or rule that would support a reversal of the Department’s denial of her wild animal possession permit applications.
[EDITOR’S NOTE: The original format of the Administrative Law Judge’s Findings of Fact, Conclusions of Law, and Final Order has been modified to correspond with CADDNAR format. The Final Order has been relocated to the beginning of this document.]
[1] A Finding of Fact more appropriately construed as a Conclusion of Law or a Conclusion of Law more appropriate considered a Finding of Fact shall so be considered.
[2] In 2016, IC 14-22-1-1 was amended and the phrase “or being held in captivity” was removed by the Indiana General Assembly. The current language of IC 14-22-1-1 is found at paragraph 27 of this decision.
[3] IC 14-22-20-5-2 defining a “Cervidae livestock operation” was repealed by P.L. 89-2016, Sec. 9 eff. March 22, 2016.