[CITE: Pinkstaff, et. al v. DNR, F & W, 4 CADDNAR 55
(1987)]
[VOLUME4, PAGE 55]
Cause #: 86-147D
Caption: Pinkstaff,
et. al v. DNR, F & W
Administrative Law Judge: Clayton
Attorneys: Reising; Schaefer, DAG
Date: September 11, 1987
ORDER
1. The
1987 license of Michael Hagerty be
limited to 20,000 feet of gill net.
2.
That the 1987 license of Edward Hagerty be limited to
20,000 feet of gill net.
3.
That the 1987 license held by Peggy R. Pinkstaff be
limited to 8,700 feet of gill net.
FINDINGS OF FACT
1.
The claimants, Peggy R. Pinkstaff, Michael Hagerty and Edward Hagerty are
each the holder of a commercial fishing license issued by the Department of
Natural Resources.
2.
On June 22, 1986, the Department of Natural Resources published in the
Indianapolis Star notice of a public hearing to be held on July 22, 1986 at
7:00 p.m. at the Howard Johnson Motor Lodge in Michigan City, Indiana
concerning proposed Rule F-3 (Claimant's Exhibit C).
3.
The hearing took place as advertised and the nature and substance of proposed
Rule F-3 was discussed. (Claimant's Exhibit B and testimony of Dan Brazo)
4.
310 IAC 3-1-3.1 (Rule F-3) provides in relevant part: (c) (3) each commercial
fishing license enumerated under section (c)(2) shall
set forth on its face the greatest amount of gear employed and reported in 1984
to the Department. The license shall specify that the licensee or its successor
is limited to the number of gear set forth under this subsection.
5.
The statutory authority for Rule F-3 is IC 14-2-7-12 (d) which states in
relevant part: With respect to commercial fishing license on Lake Michigan, the
director may establish, by rule, under IC 4-22-2, a restriction on the
localities fished and the kind and amount of gear employed. The director may include
in the rule a restriction to limit a person with a commercial fishing license
and that person's successor to the greatest amount of gear employed and
reported in 1984 by that person to the department.
6.
Mr. Dan Brazo, Lake Michigan Biologist, determined
the greatest amount of gear employed in 1984 for each of the claimants.
7.
Peggy R. Pinkstaff is the lawful successor to the
license previously held by her deceased son L.D. Pinkstaff.
8.
The greatest amount of gear employed in 1984 under the license held by Peggy R.
Pinkstaff is determined by reference to the January
through November 1984 reports submitted by L.D. Pinkstaff.
9.
For the license held by Peggy R. Pinkstaff, Mr. Brazo reviewed the October and November reports of L.D. Pinkstaff and determined that 8,700 feet of gill net was
the greater amount of gear employed under that license in 1984 according to the
following table reproduced from Joint Exhibit 2:
Oct.
29, 3,000 feet fished in 3 nights,
Oct.
30, none; Oct. 31, none;
Nov.
1, none;
Nov.
2, none;
Nov.
3, 5,700 feet fished in 6 nights
with a total of 8,700 feet total
gear employed.
10.
The greatest amount of gear employed in 1984 under the license held by Peggy R.
Pinkstaff is 8,700 feet of gill net.
11.
For the license by Michael Hagerty, the greatest
amount of gear employed under that license in 1984 is 20,000 feet of gill net,
a determination not contested by Michael Hagerty.
12.
Edward Hagerty was issued a special license for the
use of six fake nets in 1984 and voluntarily participated with Department of
Natural Resources in a fake net study with the consent, support and
encouragement of Department of Natural Resources.
13.
Edward Hagerty provided Department of Natural
Resources with considerable data regarding the use of fake nests and incurred
considerable expense as a result of his participation in such study.
14.
Edward Hagerty, pursuant to an oral agreement with
Mr. Robert Koch, then Lake Michigan biologist, voluntarily reduced his use of
gill net in 1984 to 18,000 feet in consideration of his special
[VOLUME 4, PAGE 56]
license for six fyke
nets.
15.
Edward Hagerty is entitled to equitable relief in the
form of a determination that the greatest amount of gear employed under in
license in 1984, is 20,000 feet.
16.
Rule F-3 is interpreted by Department of Natural Resources as follows: the
"greatest amount of gear employed as reported in the 1984 by the licensee
to the Department" means the greatest amount of gear employed on any one
day, which gear has been employed in the water for at least one night.
17.
The construction given to Rule F-3 by the Department of Natural Resources is a
reasonable and appropriate exercise of its authority to interpret the statutes
and regulations under which it operates, and such construction is not arbitrary
or capricious. 18. The method used by Department of Natural Resources to
determine the greatest amount of gear employed in 1984 for Rule F-3 purposes is
by reference to the number "feet (of gill net) fished" in conjunction
with the number of "nights out" and such method is a reasonable, fair
and accurate means of making such determination.
CONCLUSION OF LAW
1.
The undersigned Administrative Law Judge has jurisdiction over the parties and
subject matter of this appeal.
2.
The subject matter of Rule F-3 is within the delegation of authority from the
General Assembly to the Department of Natural Resources.
3.
The promulgation of Rule F-3 was pursuant to statutory procedure.
4.
Rule F-3 was properly promulgated and is a valid rule of the Department of
Natural Resources.
5.
Rule F-3 is not impermissibly vague.
6.
Neither IC 14-2-7-12 (d) or 310 IAC 3-1-3.1 (3), (referred to herein as Rule
F-3), offend the Constitution of the United States or the State of Indiana and
the same are within the authority of the Department of Natural Resources to
protect and properly manage the Fish and Wildlife Resources of the state.
7.
Claimants have no property right in the fish of this state they are in their
natural state; the taking of fish or the killing of game is not a right but is
a privilege granted by this state under such conditions as it may seem fit to
impose, Ridenour v. Furness, 504 N.E.
2d 336 (1987), Smith v. State, 58
N.E. 1044 (1900).