Vogues v. DNR (23-001D), 16 CADDNAR 21
Administrative Cause Number: 23-001D
Administrative Law Judge: Elizabeth Gamboa
Petitioner Counsel: pro se
Respondent Counsel: Rebecca McClain
Date: August 29, 2023
[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.]
FINAL ORDER
26. The Commission does not have authority to review the revocation of Petitioner’s hunting license. This matter is dismissed.
1. On January 3, 2023, Allison Voges (hereinafter Petitioner) filed an Appeal Request Form (hereinafter Petition) with the Natural Resources Commission (hereinafter Commission). Petitioner alleged her hunting license should not have been revoked and she requested reinstatement of her license. See Petition.
2. By filing the Petition, Petitioner initiated a proceeding governed by Indiana Code 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. See IC 4-21.5-3-1, et seq.
3. Administrative Law Judge (ALJ) Elizabeth Gamboa was appointed under IC 14-10-2-2 to conduct this proceeding and was assigned this case on January 2, 2023.
4. After notice to the parties, a Telephonic Prehearing Conference (hereinafter PHC) was held as scheduled on January 26, 2023. At the PHC, Petitioner was informed of her rights and was provided opportunity to ask questions, which were answered as appropriate. Counsel for the Department indicated the Department planned to file a dispositive motion. A schedule for filing and responding to any dispositive motions was established requiring dispositive motions to be filed no later than March 31, 2023 and responses thereto to be filed no later than thirty days after the dispositive motion was filed.
5. The Department filed a Motion for Summary Judgment, Brief in Support of Motion for Summary Judgment (hereinafter Motion) and the Affidavit of Lt. Col. Terry Hyndman on March 31, 2023.
6. More than thirty days have passed since the Department filed its Motion and Petitioner has not filed a response.
7. The Commission is the ultimate authority of the Department under IC. § 4-21.5-1-3. See IC § 14-3-3-21.
Summary Judgment Standard
8. A party may move for summary judgment at any time after a proceeding is assigned to an administrative law judge. I.C. § 4-21.5-3-23.
9. Except with respect to service of process, governed by I.C. § 4-21.5-3-1, and the final disposition of an administrative proceeding, governed by I.C. § 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. I.C. § 4-21.5-3-23.
10. The ALJ will consider a summary judgment “as would a court that is considering a motion for summary judgment filed under Trial Rule 56 of the Indiana Rules of Trial Procedure.” I.C. § 4-21.5-3-23. Summary judgment shall be granted “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ind. Trial rule 56(c); Frendeway & Bartuska v. Brase, 15 CADDNAR 121, 122 (2020).
11. The party moving for summary judgment bears the burden of establishing that the party is entitled to summary judgment regardless of whether the party would have the burden of proof in an evidentiary hearing. Mueller-Brown v. Caracci, 13 CADDNAR 156, 157 (2013).
12. The burden of establishing that there are no material factual issues is on the party moving for summary judgment. Morris v. Crain, 969 N.E.2d 119, 123 (Ind. Ct. App. 2012). Once the movant has met this burden, the opposing party must present sufficient evidence to show the existence of a genuine triable issue. Id.
13. “A party opposing the motion shall designate . . . each material issue of fact which that party asserts precludes entry of summary judgment and the evidence relevant thereto.” Ind. Trial Rule 56(C).
14. Summary judgment shall be granted “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Id.
15. Affidavits supporting or opposing a motion for summary judgment “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Trial Rule 56(E).
Undisputed Material Facts
16. On December 13, 2022, Petitioner entered into a Pretrial Diversion Agreement (hereinafter Diversion Agreement) in Dubois Superior Court under cause number 19D01-2106-CM-000589 for charges involving hunting wild animals without a license and unlawful taking of a deer or wild turkey. See Lieutenant Colonel Terry Hyndman Affidavit (Hyndman Affidavit), Exhibit 1.
17. Pursuant to the Diversion Agreement, Petitioner was barred from purchasing a “license to hunt and/or will not have any hunting privileges, with the State of Indiana, for the duration of one (1) year, from the date that this agreement was filed in Court pursuant to IC 14-22-41.” The Diversion Agreement also stated that Petitioner’s “suspension will be entered into a database that may effect [sic] my ability to purchase hunting licenses in other states.” Id.
18. Hyndman received a copy of the Diversion Agreement on December 13, 2022. By letter dated December 16, 2022, Hyndman informed Petitioner that pursuant to the Division Agreement her hunting privileges had been suspended in Indiana as well as in other states participating in the Interstate Wildlife Violator Compact (Wildlife Compact).[1]
19. The letter provides in part: “The question of guilt or innocence regarding the original charge cannot be addressed anywhere except in the court where the charge was heard.” The letter also informed Petitioner that if she wished “to appeal or request administrative review of this license suspension, you must contact the Administrative Law Judge with the Natural Resources Commission within eighteen (18) days of the date of this letter . . ..” Id.
20. The Department argues the Commission lacks jurisdiction to consider this matter because Petitioner’s hunting license was revoked as a result of a criminal proceeding over which the Commission has no jurisdiction. Therefore, the Commission may not review the suspension of Petitioner’s hunting privileges. See DNR’s Memorandum in Support of Motion for Summary Judgment.
Findings of Fact and Conclusions of Law
21. The power of administrative agencies is limited to those powers granted by their enabling statutes. Kranz v. Meyers Subdivision Property Owners Ass’n Inc. 969 N.E.2d 1068, 1074 (Ind. Ct. App., 2012), citing Howell v. Indiana-American Water Co., 668 N.E.2d 1272, 1275 (Ind. Ct. App., 1996), trans. denied. In other words, the Commission has only the jurisdiction, or authority to act, conferred on it by statute. See DNR and Samuels v. Busch, 8 CADDNAR 99 (1998).
22. “A party cannot confer jurisdiction upon an administrative agency by consent or agreement.” Howell, 668 N.E.2d at 1276-1277.
23. The Department, through its Director, is authorized to issue hunting and fishing licenses. I.C. § 14-22-11-3; Strasser v. DNR, 9 CADDNAR 108 (2003). The Department is also authorized to revoke or deny a license pursuant to I.C § 14-22-11-15 under the circumstances provided in I.C. § 14-22-11-15(d).
22. The discretion to revoke hunting privileges has also been granted to “[e]very court having jurisdiction of an offense committed in violation of an Indiana law for the protection of wildlife.” I.C. § 14-22-11-15(e).
23. The Commission has no authority to review decisions by a court acting pursuant to I.C. § 14-22-11-15(e).
24. Petitioners’ hunting privileges were suspended through an action pending in Dubois Circuit Court. The Commission therefore has no authority to review the suspension of Petitioner’s hunting privileges.
25. The Department’s letter to Petitioner which contains instructions for filing for “administrative review of this license suspension” is not sufficient to confer jurisdiction over this matter on the Commission.
26. The Department’s Motion for Summary Judgment is granted and Petitioner’s appeal is dismissed.