CADDNAR
Lancehead, LLC v. DNR, 16 CADDNAR 6
Administrative Cause Number: 20-062D
Administrative Law Judge: Sandra Jensen
Petitioner Counsel: David Hatchett & Michael Reeder
Respondent Counsel: Rebecca McClain
Date: September 13, 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
92. Lancehead has stated a claim upon which relief may be granted.
93. Lancehead is entitled to administrative review of a determination of status over which the Commission possesses jurisdiction.
94. The Lancehead F1 is a “crossbow” within the meaning of 312 IAC 9-1-5.3.
Procedural Background and Jurisdiction
1. On October 9, 2020, the Petitioner, Lancehead, LLC (Lancehead), by Counsel, David L. Hatchett and Michael J. Reeder, filed its “Petition for Administrative Review” (Petition) with the Natural Resources Commission (Commission) in relation to a “Request for Quasi-Declaratory Judgment” (Request) made to the Department of Natural Resources (Department) pursuant to 312 IAC 3-1-15 on August 13, 2020. Petition, ¶ 1.
2. Lancehead’s Petition asserts that it requested a determination from the Department “confirming that the Lancehead Crossbow is a ‘crossbow’ as defined by 312 IAC 9-1-5.3” and that the Department did not provide a response to its request “within the forty-five (45) day period specified by 312 IAC 3-1-15(b), which lack of response is deemed to be a general denial by 312 IAC 3-1-15(c).” Petition, ¶ 2.
3. Pursuant to Ind. Code § 14-10-2-2, Sandra L. Jensen was appointed to preside as the Administrative Law Judge (ALJ).
4. On October 16, 2020, ALJ Jensen, issued notice to the parties that a Prehearing Conference was scheduled for November 19, 2020.
5. Following the November 19, 2020 Prehearing Conference, at a subsequent Status Conference, conducted on December 16, 2020, Lancehead sought the establishment of a schedule for the submission of written evidence and argument in lieu of an Administrative Hearing, as provided for at Ind. Code § 4-21.5-3-26(d). Lancehead specified that it was not requesting that this matter be determined by summary judgment, which is controlled by Ind. Code § 4-21.5-3-23. The Department agreed to Lancehead’s request. See Report of Status Conference, December 16, 2020.
6. A schedule for the submission of written evidence under Ind. Code § 4-21.5-3-26(d), was established by the agreement of the parties. Id.
7. Despite the parties’ agreed upon schedule for the submission of written evidence in lieu of an Administrative Hearing, on February 23, 2021, the Department filed a motion for summary judgment (Department Initial Submission), pursuant to Ind. Code § 4-21.5-2-23.
8. As is discussed in further detail below, the practical difference between a determination of this cause by summary judgment (Ind. Code § 4-21.5-3-23) or through a submission of written evidence in lieu of conducting an Administrative Hearing (Ind. Code § 4-21.5-3-26(d)) relates to the ability of the ALJ, in considering motions for summary judgment, to render a decision upon less than all the issues presented.
9. In response to the Department’s motion, on February 25, 2021 the ALJ issued a revised schedule for the submission of evidence designed for consistency with both Ind. Code § 4-21.5-3-23, applicable to summary judgment, and with Ind. Code § 4-21.5-3-26(d), which applies to the submission of evidence in writing in lieu of conducting an Administrative Hearing.
10. Following the grant of an agreed upon extension of time, on April 23, 2021, Lancehead filed the following:
a. Lancehead LLC’s Response to the Department’s Motion for Summary Judgment;
b. Lancehead LLC’s Designation of Evidence in Support of its Response to the Department’s Motion for Summary Judgment; and,
c. Lancehead LLC’s Brief and Evidentiary Submission in Support of a Crossbow Declaration Under 312 IAC 9-1-5.3.
(Lancehead Initial Submission).
11. Following the grant of a second agreed upon extension of time, on June 7, 2021, the Department filed “DNR’s Response to Petitioner’s Motion for Summary Judgment and Reply in Support of DNR’s Motion for Summary Judgment” (Department Second Submission).
12. Thereafter, on July 19, 2021, Lancehead filed “Lancehead LLC’s Reply Brief in Support of a Crossbow Declaration Under 312 IAC 9-1-5.3” (Lancehead Second Submission).
13. With respect to the instant proceeding, the Commission is the “ultimate authority”, as that term is defined at Indiana Code § 4-21.5-1-15.
14. The Commission possesses jurisdiction over the subject matter and over the persons of the parties.
15. This proceeding is governed procedurally by the Administrative Orders and Procedures Act, commonly referred to as AOPA. See Ind. Code §§ 4-21.5-3 et seq.
Issues Presented
16. Lancehead asserts that the Lancehead F1 Crossbow (Lancehead F1) meets the definition of “crossbow” provided at 312 IAC 9-1-5.3. Lancehead Initial Submission. Citing 312 IAC 3-1-15, particularly subsection (d), Lancehead contends that it is aggrieved by the Department’s general denial, that resulted from the failure to respond to its Request and, therefore, it is entitled to initiate this proceeding as a “determination of status under IC 4-21.5-3-5(a)(5).” Petition, ¶ 3.
17. The Department maintains that the Commission lacks “subject matter jurisdiction because Lancehead has not been aggrieved or adversely affected.” Department Initial Submission
18. The Department further asserts that Lancehead has failed to “state a claim upon which relief can be granted.” Id.
Findings of Fact[1]
19. The following facts are determined to exist without dispute:
a. Lancehead’s Founder and Chief Executive Officer, Jonathan Polanich (Polanich), sent an email to Col. Steve Hunter, of the Department’s Law Enforcement Division, on March 17, 2020 providing information about the Lancehead F1 and inviting questions from the Department before conservation officers encountered the piece of equipment in the field. Department Initial Submission, Affidavit of Petercheff, ¶ 1; Ex. 1.
b. Polanich’s March 17, 2020 email does not request an interpretation of 312 IAC 9-1-5.3, which defines the term “crossbow”.
c. The Department, by Linnea Petercheff (Petercheff), Licensing and Permit Supervisor for the Department’s Division of Fish and Wildlife, responded to Polanich on April 8, 2020 stating that the Lancehead F1 did not meet the definition of “crossbow” provided at 312 IAC 9-1-5.3. Department Initial Submission, Affidavit of Petercheff, ¶ 2; Ex. 2.
d. Petercheff’s April 8, 2020 email does not specify the reason(s) for the Department conclusion that the Lancehead F1 does not meet the definition of “crossbow” provided at 312 IAC 9-1-5.3. Id.
e. In Petercheff’s April 8, 2020 email, she advised Polanich that 312 IAC 9-1-5.3 would need to be amended for the Lancehead F1 to meet the definition of “crossbow” and be legal for use hunting deer or wild turkey in Indiana. She referred Polanich to the Commission’s nonrule policy, which describes the process by which a person may file a petition seeking an amendment to an administrative rule. Id.
f. On April 8, 2020, in response to Petercheff’s email, Polanich sought an opportunity to provide additional detail about the Lancehead F1 and explained his belief that the equipment does meet the existing definition of “crossbow” found at 312 IAC 9-1-5.3. Id.
g. On April 16, 2020, Polanich was advised that future questions regarding the Lancehead F1 should be addressed to Department’s Legal Counsel, Rebecca McClain (McClain). Lancehead Initial Submission, Affidavit of Michael J. Reeder, Tab 1.
h. Communications between McClain, Polanich, and later Michael J. Reeder (Reeder) continued through June 12, 2020. Id.
i. Throughout the April 16, 2020 to June 12, 2020 email communications, Lancehead sought additional detailed information about the Department’s conclusions that the Lancehead F1 does not fulfill the criteria set forth in the existing definition of “crossbow” as well as an opportunity to discuss the situation so that it might be sufficiently informed to legitimately pursue a petition for rule change, if necessary. Id.
j. Between April 16, 2020 and June 12, 2020, in response to Lancehead’s and Reeder’s requests for clarity and detail, the Department persisted in responding only that it was not able to provide legal advice. Id.
k. At no time throughout the conversations does the Department advise Lancehead of the reason why, in its opinion, the Lancehead F1 does not meet the criteria set forth in the definition of “crossbow”, found at 312 IAC 9-1-5.3. Id.
l. On August 13, 2020, Lancehead, by Counsel, Michael J. Reeder, submitted the Request, pursuant to 312 IAC 3-1-15, seeking quasi-declaratory relief as to whether the Lancehead F1 meets the existing definition of “crossbow”, found at 312 IAC 9-1-5.3. Department Initial Submission, Ex. 4[2].
m. The Department did not respond to Lancehead’s August 13, 2020 Request.
20. Polanich asserts that the Department’s action “has directly impacted and impeded Lancehead’s ability to market and sell” the Lancehead F1 for archery hunting in Indiana for the 2020 and 2021 hunting seasons. Lancehead Initial Submission, Affidavit of Polanich.
21. The Department contends that Lancehead is not “aggrieved” by the general denial of its request for quasi-declaratory relief but has provided no evidence to contradict Polanich’s sworn testimony that because of the Department’s action it has been unable to market and sell the Lancehead F1 as planned.
22. The Department’s general denial of its Request, combined with the Department’s previously stated conclusion that the Lancehead F1 did not meet the definition of “crossbow” and was not a piece of equipment legal for hunting deer or wild turkey in Indiana, it is reasonable to understand that efforts by Lancehead to market the Lancehead F1 for that purpose would have been irresponsible and misleading to its consumer base.
23. Lancehead’s assertion that sales and marketing of the Lancehead F1 to the targeted consumers have been hampered by the Department’s general denial is accepted as truthful and factual.
24. The Department does not offer any evidence contrary to the following and each is accepted as a finding of fact:
a. Lancehead holds a patent for the Lancehead F1. Lancehead Initial Submission, Affidavit of Polanich, ¶ 4, Tab 1.
b. Polanich is the inventor and was “principally involved” in the Lancehead F1’s development. Id. ¶ 4, Tab 1.
c. The Lancehead F1 is a “device for propelling an arrow” described within the patent as “a compact arrow launching device”. Id. ¶5, Tab 1.
d. The Lancehead F1 is equipped with “a working safety that is drawn, held, and released by a mechanical device. Id.
e. The Lancehead F1 has one-hundred seventy (170) pounds pull. Id, Tab 3.
f. The Lancehead F1 has a stock to which “torsion limbs made of extremely durable carbon steel” are mounted on opposing sides. Id. ¶ 7, Tab 2, pg. 3.
g. The Lancehead F1, utilizes a string or cable. Id. ¶ 5, Tabs 1 & 2.
h. The Lancehead F1 has a mechanical safety. Id. ¶ 5, Tab 2, pgs. 5-7.
25. As noted previously in Finding 19, prior to Lancehead’s filing of its Request, the Department provided no evidence to explain its conclusion that the Lancehead F1 does not meet the definition of “crossbow” provided at 312 IAC 9-1-5.3. Until the Department filed the Department’s Second Submission, it continued to reject opportunities provided through Lancehead’s Requests for Interrogatories, to explain why, in the Department’s opinion, the Lancehead F1 did not meet the criteria of a “crossbow”, as defined at 312 IAC 9-1-5.3. Lancehead Initial Submission, Affidavit of Reeder, Tab 2.
26. Instead of explaining the reason why it concluded the Lancehead F1 did not meet the definition of “crossbow”, as defined at 312 IAC 9-1-5.3, the Department objected to Lancehead’s Interrogatories on the basis that Lancehead was seeking “a legal conclusion.” Id.
27. Finally, the Department expressly states that it concluded the Lancehead F1 is not a “crossbow” within the definition of 312 IAC 9-1-5.3 because, in the Department’s opinion, the Lancehead F1 does not have “limbs”. Department Second Submission, pg. 2.
28. In reaching its conclusion, the Department asserts, without elaborating, that the term “limb” should be given its “plain and ordinary meaning”. Department Second Submission, pg. 8.
29. Polanich explains that the Lancehead F1 “uses torsion limbs” that “utilize a flat strip of material to store energy and propel arrows just like other types of limbs commonly used in the archery industry (e.g., flat limbs, recurve limbs, compound limbs), but torsion limbs are mounted in a more compact rounded configuration.” Id.
30. Polanich asserts, and the Department offered no evidence in contradiction, that “the term ‘limbs’ as used in the archery industry refers generally to springs used to propel an arrow. The term ‘limbs’ as used in that archery-specific context is not limited to any one shape of spring. The term ‘limbs’ can refer to, among other spring shapes, flat limbs, recurve limbs, compound limbs or, in the case of the [Lancehead F1], torsion limbs.” Lancehead Initial Submission, Affidavit of Polanich, ¶ 10.
31. Whether limbs are flat, recurved, compound, or in this case torsion, the evidence establishes that the limbs provide the energy by which the arrow is propelled.
Conclusions of Law
Determination of this Proceeding Under Ind. Code § 4-21.5-3-23 or Ind. Code § 4-21.5-3-26(d)
32. Pursuant to Ind. Code § 4-21.5-3-26(d) “any part of the evidence may be received in written form if doing so will expedite the hearing without substantial prejudice to the interests of any party.”
33. The discussion occurring during a Status Conference that occurred on December 16, 2020 is reflected in a “Report of Status Conference”, issued on the same date, as follows:
Mr. Reeder suggested that his client would like to establish a schedule for the submission of written evidence and argument in lieu of an Administrative Hearing. For clarity, it is reflected that the request was not for the opportunity to seek summary judgment under Ind. Code § 4-21.5-3-23 and Indiana Trial Rule 56. Instead, the request was for the submission of evidence and argument, as provided for at Ind. Code § 4-21.5-3-26(d), in lieu of conducting an Administrative Hearing. Ms. McClain did not object to Lancehead’s requested method of evidence and argument submission.
34. The Department asserts that it did not waive the right to seek summary judgment citing to a statement contained within the “Report of Prehearing Conference” issued on November 23, 2020 summarizing events occurring on November 19, 2020.
35. The reflections recorded from the November 19, 2020 Prehearing Conference were modified by the parties’ agreement expressed during the December 16, 2020 Status Conference and it was anticipated that the parties would submit all evidence in written form in lieu of either summary judgment or the conduct of an Administrative Hearing.
36. Despite its failure to object to the suggested submission of written evidence in lieu of an Administrative Hearing in accordance with Ind. Code § 4-21.5-3-26(d), the Department, filed its motion for summary judgment pursuant to Ind. Code § 4-21.5-3-23.
37. In response to the Department’s filing of its motion for summary judgment, the appointed ALJ issued an “Entry with Respect to Respondent’s Motion for Summary Judgment” (Entry), on February 25, 2021, which states in relevant part as follows:
In an effort to enforce the parties’ previous agreements, as well as to honor the spirit of both Ind. Code § 4-21.5-3-26(d), which authorizes the full disposition of a proceeding on the written submission of evidence, and Ind. Code § 4-21.5-3-23, which addresses summary judgment specifically, the following revised orders are entered:
Revised Order Regarding Evidentiary Submission and Disposition of Proceeding
The filing of evidence and argument shall be accomplished on the following revised schedule:
A. The instant proceeding will be determined solely upon the parties’ written evidentiary submissions as authorized by Ind. Code § 4-21.5-3-26(d) and as previously agreed by the parties.
B. The deadlines and processes associated with the parties’ written evidentiary submissions is revised as follows for consistency with Ind. Code § 4-21.5-3-23 and Indiana Rules of Trial Procedure, Trial Rule 56:
1) Lancehead shall be provided until March 22, 2021 to file any motion for summary judgment, and any response to the Department’s motion for summary judgment.
2) The Department shall be provided 30 days after the file date of Lancehead’s motion for summary judgment and response to the Department’s motion for summary judgment to file its response to Lancehead’s motion for summary judgment and reply to Lancehead’s response to the Department’s motion for summary judgment.
3) Lancehead shall be provided 30 days after the file date of the Department’s response to Lancehead’s motion for summary judgment to file its reply to the Department’s response.
C. All written testimony shall be provided under oath or affirmation, evidentiary material shall be authenticated, and in all respects, evidence filed shall comport with the requirements of Ind. Code §§ 4-21.5 et seq and Trial Rule 56.
38. The Department filed no objection to the Entry or the determination stated therein that this proceeding would be determined in accordance with Ind. Code § 4-21.5-3-26(d).
39. It is determined that by its agreement on December 16, 2020 followed by its failure to object to the Entry, the Department did waive it’s right to engage in summary judgment. However, in this instance, whether the matter is determined under Ind. Code § 4-21.5-3-23 (summary judgment) or under Ind. Code § 4-21.5-3-26(d) (submission of written evidence in lieu of an Administrative Hearing) is of no consequence.
40. Except with respect to service of process, governed by Ind. Code § 4-21.5-3-1, and the final disposition of an administrative proceeding, governed by Ind. Code §§ 4-21.5-3-28 and 29, Trial Rule 56 of the Indiana Rules of Trial Procedure controls the consideration of a motion for summary judgment. Ind. Code § 4-21.5-3-23.
41. Whether submitted as written evidence under Ind. Code § 4-21.5-3-26(d) or submitted as designated evidence pursuant to Ind. Code § 4-21.5-3-23, affidavits supporting or opposing the parties’ respective positions is required to “be made on personal knowledge” by a person competent to provide the testimony and shall “set forth facts as would be admissible in evidence…”.
42. With respect to the assertion of affirmative defenses.
In Reiswerg, our Indiana Supreme Court held a responding party is ‘under no obligation to raise their affirmative defenses in response to the motion for partial summary judgment’ if that motion for partial summary judgment ‘did not mention, much less negate [the] affirmative defense.’ Id. at 30. However, if the motion for summary judgment would dispose of all liability, ‘a party is required to assert affirmative defenses in response[.]’ Id. at 31. Indeed, the non-movant ‘must bring forth specific facts ... to show a genuine issue for trial.’ Abbott v. Bates, 670 N.E.2d 916, 923 (Ind. Ct. App. 1996), reh'g denied.
Siner v. Kindred Hosp. Ltd. Partnership, 51 N.E.3d 1184, 1185 (Ind., 2016).
43. The Department’s motion for summary judgment seeks full, not partial, summary judgment. Similarly, Lancehead’s interest in having the proceeding determined by the submission of evidence in accordance with Ind. Code § 4-21.5-3-26(d) seeks the disposition of all the presented issues. Therefore, in this instance, whether considered under Ind. Code § 4-21.5-3-23 or the process prescribed at Ind. Code § 4-21.5-3-26(d), all affirmative defenses must have been asserted.
44. As with the application of Ind. Code § 4-21.5-3-26(d), if the evidence designated on summary judgment (Ind. Code § 4-21.5-3-23) reveals no genuine issue of material fact, and that judgment is appropriate as a matter of law, a determination of the matter on the merits shall be made. Trial Rule 56(C). There is no practical difference in outcome regardless of whether this matter is considered under Ind. Code § 4-21.5-3-23 or Ind. Code § 4-21.5-3-26(d).
45. Under Ind. Code § 4-21.5-3-23, “a party who moves for summary judgment bears the risk that the court will enter summary judgment in favor of the non-moving party…” Quirk v. Delaware County. 91 N.E.3d 1008, 1013 (Ind. App. 2018), citing Murphy v. Curtis, 930 N.E.2d 1228 (Ind. App. 2010) trans. denied. See Trial Rule 56(B). Similarly, by determining the case based upon Ind. Code § 4-21.5-3-26(d) each party bears the risk that the opposing party will be successful. Again, there is no practical difference.
46. Where a difference might occur is with respect to Trial Rule 56(C)’s allowance that,
A summary judgment may be rendered upon less than all the issues or claims, …. A summary judgment upon less than all the issues involved in a claim or with respect to less than all the claims or parties shall be interlocutory unless the court in writing expressly determines that there is no just reason for delay and in writing expressly directs entry of judgment as to less than all the issues, claims or parties. The court shall designate the issues or claims upon which it finds no genuine issue as to any material facts. Summary judgment shall not be granted as of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court.
47. For reasons that become evident below, the concept of rendering summary judgment upon less than all the issues is inapplicable in this instance.
48. It is concluded, that whether the matter is determined on summary judgment (Ind. Code § 4-21.5-3-23) or by the submission of written evidence in lieu of an Administrative Hearing (Ind. Code § 4-21.5-3-26(d)), the procedural differences have no impact on the final determination.
Lancehead’s Status as Aggrieved or Adversely Affected/Commission Jurisdiction
49. The Department asserts that the Commission lacks subject matter jurisdiction over the instant proceeding because Lancehead “cannot show that it was aggrieved or adversely affected by [the Department’s] general denial” as required by 312 IAC 3-1-15 and Ind. Code § 4-21.5-3-7.
50. Lancehead initiated the instant proceeding in accordance with 312 IAC 3-1-15, which specifies that the Department’s response, in this instance a general denial resulting from the Department’s failure to respond, “constitutes a determination of status under IC 4-21.5-3-5(a)(5).”
51. A person may seek administrative review of a determination of status under Ind. Code § 4-21.5-3-7.
52. Pursuant to 312 IAC 3-1-15(d), Lancehead must assert that it is aggrieved by the Department’s general denial of its request for quasi-declaratory relief to be entitled to seek administrative review.
53. Similarly, Ind. Code § 4-21.5-3-7 specifies that Lancehead, as a petitioner for administrative review, must:
(1) States facts demonstrating that:
(A) the petitioner is a person to whom the order is specifically directed;
(B) the petitioner is aggrieved or adversely affected by the order; or
(C) the petitioner is entitled to review under any law.
Ind. Code § 4-21.5-3-7(a)(1).
54. The parties agree in asserting that to be “aggrieved or adversely” by the determination of status, Lancehead “must have suffered or be likely to suffer in the immediate future harm to a legal interest, be it a pecuniary, property, or personal interest.” Huffman v. Office of Environmental Adjudication, 811 N.E.2d 806, 810 (Ind. 2004).
55. Lancehead’s evidence that the Department’s general denial has caused it to be unable to market or sell the Lancehead F1 as a piece of archery equipment in Indiana for the purpose of hunting deer and wild turkey was not contradicted by the Department.
56. The Department’s general denial, which contributed to Lancehead’s inability to market and sell an item of equipment to a target demographic, clearly impacts Lancehead’s “pecuniary, property, or personal interests” and supports the legal conclusion that Lancehead has been aggrieved by the Department’s general denial as required by Ind. Code § 4-21.5-3-7(a)(1)(B) and 312 IAC 3-1-15(d).
57. The Department’s general denial, which constitutes a determination of status was specifically directed to Lancehead. Therefore, Lancehead is also entitled to seek administrative review under Ind. Code § 4-21.5-3-7(a)(1)(A) through a proceeding over which the Commission is the ultimate authority. Ind. Code § 4-21.5-1-15, Ind. Code § 14-10-2-3.
Has Lancehead Stated a Claim Upon Which Relief Can Be Granted
58. The Department further contends that Lancehead has not stated a claim upon which relief may be granted.
59. The Department is in error.
60. Through 312 IAC 3-1-15, “A person may, in writing, request the department to interpret a statute or rule administered by the department as applicable to a specific factual circumstance.”
61. Lancehead, submitted its Request to the Department seeking “a determination by the Indiana Department of Natural Resources that the [Lancehead F1] is a ‘crossbow’ as defined by 312 IAC 9-1-5.3.” Department Initial Submission, Ex. 4. Within Lancehead’s Request it describes in some degree of detail its application of the “crossbow” definition set forth at 312 IAC 9-1-5.3 to the Lancehead F1.
62. Lancehead’s request clearly seeks to have the Department interpret 312 IAC 9-1-5.3 as applicable to a specific factual circumstance, whether the Lancehead F1 meets the stated characteristics of a “crossbow” as defined.
63. By application of 312 IAC 3-1-15, Lancehead is afforded the opportunity to do precisely what the Department objected to…solicit the Department to offer its legal conclusion regarding a law within its jurisdiction.
64. The Department’s failure to respond to Lancehead’s Request resulted in a general denial by application of 312 IAC 1-3-15(c), that the Lancehead F1 does not meet the current definition of “crossbow” as provided at 312 IAC 9-1-5.3.
65. When the Department rejected the opportunity to interpret 312 IAC 9-1-5.3 in accordance with 312 IAC 1-3-15, Lancehead became entitled to have the Commission conduct administrative review to determine the accuracy of the Department’s unexplained conclusion that the Lancehead F1 does not meet the characteristic of a “crossbow” as defined at 312 IAC 9-1-5.3. 312 IAC 3-1-15(d), Ind. Code § 4-21.5-3-5(a)(5), and Ind. Code § 4-21.5-3-7.
66. Lancehead has stated a claim upon which relief may be granted
Does the Lancehead F1 Qualify as a “Crossbow”, as Defined at 312 IAC 9-1-5.3
67. A “crossbow”, is defined at 312 IAC 9-1-5.3 as,
Sec. 5.3. … a device for propelling an arrow by means of limbs mounted on a stock and a string and having a working safety that may be drawn, held, and released by a mechanical device and has the following:
(1) At least one hundred twenty-five (125) pounds pull.
(2) A mechanical safety.
68. At no time did the Department designate evidence in the form of an affidavit or otherwise to support its position that the Lancehead F1 fails to meet the requirements set forth at 312 IAC 9-1-5.3.
69. It is not disputed that the Lancehead F1:
a. Is a device for propelling an arrow;
b. Has a stock;
c. Uses a string or cable;
d. Has a working safety that is drawn, held, and released by a mechanical device;
e. Has a mechanical safety; and
f. Has over one-hundred twenty-five (125) pounds pull.
In these respects, the Lancehead F1 meets the criteria set forth in 312 IAC 9-1-5.3.
70. The sole difference, between the Lancehead F1 and other archery equipment is the use of “torsion limbs” instead of flat, compound, or recurve limbs “commonly used in the archery industry.” Lancehead Initial Submission, Affidavit of Polanich, ¶ 7.
71. The question therefore is what is a “limb” in the context of 312 IAC 9-1-5.3?
72. The term “limb” for purposes of 312 IAC 9-1-5.3 is not defined within applicable statutes or administrative rules.
73. “If a statute is clear and unambiguous, we put aside various canons of statutory construction and simply ‘require that words and phrases be taken in their plain, ordinary, and usual sense’”. KS&E Sports v. Runnels, 72 N.E.3d 892, 898-899 (Ind. 2017) citing Basileh v. Alghusain, 912 N.E.2d 814, 821 (Ind. 2009).
74. What is clear from 312 IAC 9-1-5.3 is that to be a “crossbow” the Lancehead F1 must have limbs mounted to the stock. What is not clear from the administrative rule is what constitutes a limb.
75. The word “limb” is defined in various ways. As relevant to this proceeding the following definitions were identified:
“a projecting part or member : the four limbs of a cross. …”
https://www.dictionary.com/browse/limb, August 20, 2021
“…one of the projecting paired appendages (such as wings)…”
https://www.merriam-webster.com/dictionary/limb, August 16, 2021.
“…An extension or a projecting part, as of a building or mountain range.
An extension or part distinguished from the main body or group:…”
American Heritage® Dictionary of the English Language, Fifth Edition. Copyright © 2016 by Houghton Mifflin Harcourt Publishing Company. Published by Houghton Mifflin Harcourt Publishing Company, https://www.thefreedictionary.com/limb, August 20, 2021.
76. Within the plain, usual, and ordinary definition of the term “limb” the most applicable definitions refer to an appendage or a projecting part.
77. An “appendage” is “an adjunct to something larger or more important : APPURTENANCE…” https://www.merriam-webster.com/dictionary/appendage, August 16, 2021.
78. Within the context of archery, the word “limb” refers to:
“…the upper or lower part of a bow.”
https://www.dictionary.com/browse/limb, August 20, 2021.
“…either of the two halves of a bow from handle to tip…”
https://www.vocabulary.com/dictionary/limb, August 20, 2021.
79. Consistent with Polanich’s uncontroverted testimony in the context of archery, the limbs can be identified as the portion of a bow, or in this instance a crossbow, that generate the energy necessary to propel an arrow.
80. From the evidence it appears clear there are multiple types of “limbs” associated with archery equipment and crossbows, i.e., recurve, flat, compound, and possibly torsion. Each of these types of limbs serve the same general purpose of producing the energy necessary to the propulsion of an arrow.
81. “Under most circumstances, ‘an amendment changing a prior statute indicates a legislative intention that the meaning of the statute has changed.’ United Nat. Ins. Co. v. DePrizio, 705 N.E.2d 455, 460 (Ind.1999). We presume, therefore, ‘that the legislature intended to change the law unless it clearly appears that the amendment was passed in order to express the original intent more clearly.’ Id.” Woodruff v. Indiana Family and Social Services Admin., 964 N.E.2d 784, 795 (Ind. 2012).
82. Lancehead is correct that in 2011, the Commission first defined “crossbow” as follows:
Sec. 5.3. "Crossbow" means a device for propelling an arrow by means of traverse limbs mounted on a stock and a string and having a working safety that may be drawn, held, and released by a mechanical device and has the following:
(1) At least one hundred twenty-five (125) pounds pull.
(2) A mechanical safety.
(Natural Resources Commission; 312 IAC 9-1-5.3; filed Dec 1, 2011, 4:01 p.m.: 20111228-IR-312110101FRA)
Emphasis added. http://iac.iga.in.gov/iac//20111228-IR-312110101FRA.xml.pdf.
83. In 2015, the definition of “crossbow” was amended to remove the word “traverse”, such that the current definition reads as stated in Finding 67. http://iac.iga.in.gov/iac//irdin.pdf?din=20150715-IR-312140453FRA.
84. As an adjective, the word “traverse” means “lying across : TRANSVERSE”. https://www.merriam-webster.com/dictionary/traverse. August 16, 2021.
85. The elimination of the word traverse from the definition of “crossbow” does not create the appearance of an intent to clarify the original meaning of the definition. Instead, removal of the word “traverse” from the definition of “crossbow” eliminated an earlier instituted qualifying-criteria that limited the types of equipment that might be considered a “crossbow” under the definition.
86. The 2015 amendment of the term “crossbow” had the effect of expanding the definition of “crossbow” to include additional types or styles of equipment.
87. It is concluded that by amending the definition of the word “crossbow”, there was an intent to change the meaning.
88. Under the current definition, the Lancehead F1 must have limbs, i.e., “projections” or “appendages”, that within the context of archery would be paired or in “two halves” for the purpose of producing the energy necessary to propel an arrow. However, the limbs need not “lie across” the stock of the weapon.
89. The torsion cams, or torsion limbs, of the Lancehead F1 are projections or appendages, mounted to the sides of the stock in a paired fashion and the evidence supports the conclusion that they serve the same function as compound, recurve and flat bow limbs.
90. Lancehead acknowledges that the torsion limbs or torsion cams appear different that customary crossbow limbs. However, it is not the appearance, but the language of the definition, that must control.
91. The Lancehead F1 does meet the definition of “crossbow” provided at 312 IAC 3-1-5.3.
92. Lancehead has stated a claim upon which relief may be granted.
93. Lancehead is entitled to administrative review of a determination of status over which the Commission possesses jurisdiction.
94. The Lancehead F1 is a “crossbow” within the meaning of 312 IAC 9-1-5.3.
[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, Paragraphs 92 through 94, has been relocated to the “Final Order” section at 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 some instances, the same exhibits have been designated as evidence by both parties. For ease, citation to only one exhibit is made.