The decision of the Department of Natural Resources not to issue a 1991 wildlife rehabilitation permit to Bill Minnick is affirmed.
FINDINGS OF FACT
1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.
2. The DNR is the state agency responsible for management of the state's fish and wildlife resources.
3. IC 4-21.5, IC 14-2, and 310 IAC 3.1 apply to these proceedings.
4. The Natural Resources Commission ("NRC") is the ultimate authority within the meaning of IC 4-21.5 over permitting matters involving the DNR.
5. On or about July 11, 1991, Bill Minnick ("Minnick") filed an application for a 1991 wildlife rehabilitation permit ("rehab permit").
6. This application was denied by the DNR on or about October 7, 1991.
7. Wildlife rehabilitation permits are governed by 310 IAC 3.1-10-9.
8. 310 IAC 3.1-10-9 reads as follows:
Sec. 9(a) A wild animal, which is a mammal or bird protected by law, may be possessed for rehabilitation purposes only in accordance with a permit as issued under this section.
(b) An application for a permit under this section shall be completed on a departmental form and must establish the following:
(1) The applicant has rehabilitation experience and a knowledge of wildlife rehabilitation techniques. The required experience and knowledge may be met by one (1) of the following:
(A) A bachelor of science degree in a wildlife related field.
(B) At least one (1) year's experience with a veterinarian, zoo, university animal clinic, county animal shelter, or licensed rehabilitation clinic.
(C) Possession for at least two (2) years of another permit under this section.
(D) Other knowledge and background, including the completion of rehabilitation workshops and seminars, if found by the division director to qualify the applicant.
(2) The name and address of a veterinarian willing to assist the applicant with the rehabilitation of wild animals. The veterinarian shall sign the application and attest to having experience in the care and rehabilitation of wild mammals and birds.
(3) A listing of the wildlife rehabilitation reference books in possession of the applicant.
(4) The names, addresses, and telephone numbers of any other individuals who will assist the applicant.
(5) The species that will be accepted for rehabilitation.
(6) A description of the rehabilitation facilities, equipment, and supplies. The description shall include all cages, intensive care units, aviaries, falconry equipment, medical diagnostic equipment, medical supplies, food sources, and other items to be utilized in the rehabilitation process. A cage description shall provide its internal dimensions and shall specify the material use for flooring, walls, and perches. The applicant shall list what species will be housed in the various enclosures and the purpose for each enclosure, for example, convalescing, training, quarantine.
(c) An amended application shall be filed with the division if there is a material change to the information provided in the original application. If additional persons will assist the permit holder, the amended application shall include their names, addresses, and telephone numbers.
(d) The permit holder must file an application by January 15 of each year in order to renew the permit. The annual report required under subsection (i) must accompany the renewal application. The signature of a veterinarian is not required for a renewal application.
(e) The issuance of a
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permit under this section does not relieve an individual from any requirement for a federal permit. If the terms of a federal permit and the permit issued under this section differ, the more restrictive terms prevail.
(f) A wild animal possessed pursuant to a permit issued under this section must not be displayed or placed in physical contact with the public, except according to the terms of a permit issued under this subsection. A permit may be issued by the division director if:
(1)the purpose for displaying the animal is primarily educational; and
(2) the animal is not displayed:
(A) as part of or to promote a commercial venture; or
(B) in a manner which might cause a member of the public to confuse display of the animal with a commercial venture because of proximity in time or place between the animal's display and the commercial venture.
(g) A permit holder must maintain facilities for the retention of a wild animal possessed under this section in a sanitary condition and to conform with any other conditions specified by the permit.
(h) A permit holder must maintain current records for each wild animal to include the following:
(1) The species and condition of the animal.
(2) The name, address, and telephone number of the donor or other source of the animal.
(3) The date of receipt by the permit holder.
(4) The treatment provided to the animal while in captivity.
(5) The method and date of disposition of the wild animal.
(i) The permit holder shall provide an annual report to the division by January 15 of each year. The report shall list the species and condition of each animal, the date the animal was received, the name and address of the donor or other source, and the date of disposition of the animal.
(j) As soon as a mammal or bird is capable of fending for itself, the animal shall be released into the wild as directed by a conservation officer. If a mammal or bird is not capable of fending for itself: a conservation officer should be contacted for further instructions as to the disposition of the animal.
(k) A permit holder shall not commercially advertise rehabilitation services or solicit mammals or birds for rehabilitation.
9. The Division of Fish and Wildlife ("DFW") is the branch of the DNR responsible for processing and deciding permit applications under 310 IAC 3.1-10-9.
10. The purpose of permits issued under 310 IAC 3.1-10-9 is to allow possession of an injured wild animal indigenous to Indiana for a limited time in order for the animal to become rehabilitated and be returned to the wild. Without such a permit, possession of most wild animals native to Indiana is a violation of law. See IC 14-2-3-8.
11. The basis for the denial of the application in question was the report filed by the local conservation officers.
12. The report filed by the officers (Exhibit S-I) contains nine reasons why the local conservation officers believe the permit should be denied. Those nine reasons can be summarized as follows:
(a) Minnick has failed to maintain proper paperwork in the past.
(b) Former employees provided statements about improper care of rehab animals.
(c) The facilities are inadequate.
(d) Minnick has misused prior state and federal permits to obtain protected animals and then sold them in violation of the permit.
(e) Minnick has unlawfully transferred federally protected species possessed for rehabilitation purposes to an unlicensed individual.
(f) Minnick sells turtles indigenous to Indiana in violation of law.
(g) Minnick possesses or has possessed snakes which are on the endangered species list in violation of law.
(h) Minnick has displayed a cougar in violation of his state wild animal permit.
(i) Minnick has stated in writing that he has a mental condition which has interfered with proper record keeping in the past.
13. Minnick held rehab permits in the past.
14. Minnick's own testimony indicates that, because of medical reasons in the late 1980s, he was out of his pet shop ("Quality Critters") often, and both the quantity and quality of his record keeping suffered.
15. Thus, the first reason cited by the DNR for refusing the rehab permit has a factual basis.
16. The only testimony dealing with whether or not Minnick has currently recovered to such an extent so as to meet his paperwork obligations (an important part of 310 IAC 3.1-10-9(h), (i), and (j)), was Minnick's own testimony that he is better. No medical testimony or records were introduced.
17. The burden of persuasion is on the applicant to show he will keep the appropriate records.
18. In light of his prior failures, the applicant has not met this burden.
19. With respect to the second reason for denial, the evidence presented by the DNR is highly suspect.
20. During the testimony of Michelle Phillips, the witness rarely answered a substantive question without being coached or prompted by the conservation officer ("CO")
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who investigated the application. Lacking contempt of court powers, the only remedy available to the administrative law judge is to totally disregard the testimony of this witness because it more reflects the desired recollection of the CO than the true recollection of the witness.[FOOTNOTE 1]
21. The one incident involving feeding rabbits to a rattlesnake was confirmed to some degree by other testimony, including Minnick's.
22. The evidence most favorable to the applicant shows that he, at the request of a female employee who wanted to see the snake eat, was going to feed two dead or dying, very young rabbits who had been run over by a lawn mower to a pet rattlesnake. That is not the approved manner of disposing of dead animals originally obtained under a rehab permit, and is clear violation of 310 IAC 3.1-10-9.
23. Otherwise, there is little competent evidence to-support the second reason for denial.
24. The third reason for denial deals with the lack of proper facilities for rehabilitation.
25. The biggest difficulty with this issue is Minnick's application. In it, the applicant states he has experience and wants to rehabilitate all mammals, birds, reptiles, fish, insects, and arachnids. He did indicate he preferred not to work with skunks.
26. The evidence presented at the hearing showed that the immediate area available for use in rehabilitation was less than 400 square feet, with little or no exercise room available.
27. At the hearing, the applicant stated he did not want to care for larger mammals such as deer.
28. Clearly, the application could not be approved as written. Just as clearly, the space available was adequate for small mammals, reptiles, and small birds.
29. Nothing in 310 IAC 3.1-10.9 requires the DNR to approve an "all or nothing" permit.
30. A complete denial of the application for the above reason was improper.
31. The fourth reason for denial was primarily based on an incident involving alligators obtained from Florida.
32. Minnick obtained three baby alligators from Florida for educational purposes. See Exhibit I.
33. About the same time, Minnick sent out a price list of exotic animals listing baby American alligators. See Exhibit J.
34. In Minnick's own testimony, he admitted one of the alligators was sold commercially from his pet store.
35. There is a factual basis for denial of reason number 4.
36. The fifth reason for denial deals with one incident involving a sparrow hawk. The DNR alleges the bird was given to another person in violation of law in an attempt to get the recipient in trouble in order to block the recipient's state and federal permit applications.
37. Sworn testimony as to this reason was minimal and no competent evidence was presented to show that Minnick was attempting to set up another deal.
38. Insufficient evidence exists to support the conclusion of the DNR; thus, reason five cannot be used to deny Minnick a permit.
39. The sixth reason for denial involved the sale of turtles.
40. Minnick was arrested on these charges. The charges were dismissed by the court upon an affirmative finding by the court that the sale of box turtles and painted turtles was not prohibited by law, and his record ordered expunged.
41. No appeal was ever taken from the dismissal nor did the DNR take any other steps to try and change this decision.
42. Whether or not this decision is in error, it applies to the parties in this case. Further, until changed or clarified, it represents the current state of the law in Allen County. Accordingly, the incidents involving box and painted turtles cannot be used to deny Minnick a permit.
43. The seventh reason for denial involves the possession of Massasauga rattlesnakes, an endangered species.
44. The evidence showed that Minnick has bred rattlesnakes and likely acquired some massasaugas before they were considered endangered. However, there is adequate evidence to show that he occasionally acquired wild Massasaugas at the pet shop from persons who captured them in the wild and brought them into the store.
45. Minnick's explanation was that he thought they were acquired just over the Michigan border. This is immaterial. The fact remains that he wrongfully acquired and possessed an endangered species indigenous to Indiana in violation of 310 IAC 3.1-2-7. The burden is on Minnick to show appropriate documentation that the animal was lawfully acquired outside the state.
46. There is a factual basis for denial reason number seven.
47. The eighth reason for denial of the permit involved the allegedly wrongful public display of a cougar during 1988 and 1989. Testimony on this topic at the hearing was scant.
48. The one conclusion that can be drawn is that, even if the display of the cougar was improper, the problem is not a current problem, and was not a problem at or near the time of this permit application.
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49. The final reason for denial involved Minnick's written statement in 1988 that he has a mental condition for which he is being treated.
50. Minnick's testimony was that the condition being treated was diabetes and not a mental disease or problem.
51. The statement in question was introduced into evidence as Exhibit E. It is a hand written statement, and it is impossible to tell from the hand writing whether or not Minnick wrote "medical condition" or "mental condition".
52. At any rate, as stated in paragraphs 16, 17, and 18, it is the duty of the applicant to provide sufficient evidence to show he can comply this time with record keeping requirements and otherwise conform to 310 IAC 3.1-10-9.
53. 310 IAC 3.1-10-9(b) sets forth requirements involving an applicant's knowledge and experience with wildlife. The DNR does not contend Minnick fails to meet any of these requirements.
54. 310 IAC 3.1-10-9(f) deals with prohibiting public display of rehabilitating animals. While the Department's position seems to be that this section is likely to be violated, it appears that this is an automatic condition to any rehab permit and should lead to a revocation or denial of renewal rather than the denial of this application.
55. 310 IAC 10-9(h) sets up extensive record keeping requirements.
56. The applicant has shown a marked inability to keep accurate and necessary records. As discussed in the factual analysis of reasons for denial one and nine, the DNR has a legitimate concern about Minnick's interest and ability to keep the needed records accurately and timely.
57. Likewise, there is a factual basis for concern about compliance with 310 IAC 3.1-10-9(j) dealing with the disposition of animals.
58. Further, the activities surrounding the alligators and some of the snake acquisitions validly lead to the conclusion that the applicant is as interested in circumventing fish and wildlife regulations as he is with good faith compliance with state law.
59. The DNR decision to deny the permit is affirmed.
FOOTNOTE
1. One of the problems with this case involves the clear antagonism between the applicant and the CC. The CO has had the applicant charged with criminal violations and the applicant has a pending law suit against the CO. Minnick, on occasion has contended that the DNR's use of the local CO to investigate his permit application flaws the denial of the permit. Since this hearing pursuant to IC 4-21.5, is a de novo hearing with result based on sworn testimony, this contention is without merit but it certainly would have produced more objective testimony if other officers had been assigned to this permit.