[JUDICIAL REVIEW WAS SOUGHT IN MARION SUPERIOR COURT, 49DO2-9208-MI-000903. ON MARCH 17, 1993, THE MARION COUNTY SUPERIOR COURT ENTERED AN ORDER OF REVERSAL AND REMANDED IT BACK TO THE NATURAL RESOURCES COMMISSION. THE "FINDINGS OF FACT AND CONCLUSIONS OF LAW, ORDER AND JUDGMENT" OF THE COURT ARE ATTACHED. NO APPEAL WAS TAKEN.]
The Flatrock Hunting Preserve, Inc. application for a licensed hunting preserve identified as permit #285 is denied.
FINDINGS OF FACT
1. On September 4, 1991, Michael Walker and other concerned landowners (the "claimants") filed a petition for administrative review of issuance of private shooting preserve license #285 (the "license").
2. The license was issued to Flatrock Hunting Preserve, Inc. (Flatrock) on August 21, 1991.
3. IC 4-21.5, IC 14-2, and 310 IAC 0.6 apply to this proceeding.
4. The Department of Natural Resources (the "Department") is an agency under IC 4-21.51-3. The Natural Resources Commission ("NRC") is the ultimate authority for the department for this type of agency action.
5. For this case the parties agreed that only questions of law were in dispute and requested permission to file briefs.
6. The administrative law judge ("ALJ") agreed and published a briefing schedule.
7. The claimants filed a Motion for Summary Judgment on January 14, 1992.
8. Flatrock filed a Cross Motion for Summary Judgment on February 25, 1992.
9. The claimants answered on March 12, 1992, and then clarified the answer on March 23, 1992.
10. The Department decided not to take a position on the issues.
11. The claimants present two issues which the ALJ will consider:
a. Does the preserve contain an area of at least 100 acres as required by IC 14-2-7-10(a) (Issue 1); and;
b. if so, is the 100 acres a contiguous tract of land (Issue 2)?
12. The claimants presented a third issue in their brief which dealt with an alleged failure by the Department to fully inspect and find feasible the proposed preserve prior to issuance of the permit.
13. If this were to be accepted by the ALJ as a bona fide issue, this case would need to proceed to hearing because obviously material facts would be in dispute.
14. However, the ALJ rejects this as an issue because it was not presented by the claimants at the prehearing conference.
15. In addition, it would not matter how thoroughly the Department examined the feasibility of the preserve because the ALJ will not make his determination in this case by examining what the Department did or did not do.
16. In reversing the NRC in United Refuse, Inc. v. Department of Natural Resources, IWL, 5 Caddnar 46, June 13, 1989, the Marion County Superior Court held that the ALJ may not act as a quasi-appellate judge but, rather, must examine all the facts and then issue findings based exclusively upon the evidence of record (Conclusions of Law 4 through 6).
17. In United Refuse, The ALJ had simply examined whether the NRC denial of a permit was reasonable rather than making an independent decision.
18. Flatrock cites DNR v. Krantz Brothers Construction Corporation, 1991, Ind. App., 581 N.E.2d 935, to support its argument that the ALJ scope of review is limited to reviewing what the Department did.
19. Krantz does not support this argument because the Court of Appeals is clearly alluding to the scope of review to which the trial court is bound.
20. when an administrative determination is appealed under IC 4-21.5-5, the trial court becomes a court of review and "may neither try the case de novo nor substitute its judgment for that of the agency." (See Section 11).
21. The decision of the ALJ ultimately in some form becomes the "agency action" to which IC 4-21.5-5-11 alludes.
22. Krantz does not contradict United Refuse. The ALJ decides administrative cases de novo, the trial court then reviews that decision under the limited appellate standard.
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23. Therefore, in considering Issues 1 and 2, the ALJ will consider the briefs of the parties and the applicable law, and then he will make an independent decision as to whether or not the permit should issue.
24. Both issues for review deal with IC 14-2-7-10(a) (the "statute").
25. The applicable part of the statute is as follows: "A person owning, holding, or controlling by lease for a term of not less than five (5) years, a contiguous tract of land containing an area of not less than one hundred (100) acres. . ., who desires to establish a licensed shooting preserve . . ., shall apply to the division for a license. . . ."
26. It is established by affidavit and undisputed that the preserve area is under lease and control to Flatrock for five years.
27. It is established by affidavit and undisputed that the preserve area contains 104.107 acres.
28. All parties agree that Rush County Road 500 West (the "road") bisects the 104.107 acres by way of a right-of-way/easement.
29. Rush county has no ownership interest in the land used for the road.
30. About 72 acres of the total gross preserve are located west of the road and about 32 acres are east of the road.
31. Safety zones have been established for the preserve which reduces the net hunting area to less than 100 acres.
32. In Issue-1, the claimants ask the ALJ to deny the permit because the net hunting area does not meet the 100 acre minimum requirement of the statute.
33. There is no reference in the statute to net or gross hunting areas, safety zones, etc. The simple requirement is that the licensee control at least 100 acres.
34. It is inconceivable for a hunting preserve not to contain safety zones.
35. If the legislature would refer to "net hunting area" or "area useable for hunting".
36. Since the statute only requires control of at least 100 acres, Issue-1 must be resolved in favor of Flatrock.
37. The claimant mentions in his brief that much of the area east of the road is not useable "when the Amish are working within the field."
38. This declaration is not supported by evidence and was not before raised at any time during the proceeding.
39. At any rate, a part-time condition on the use of this land would not reduce the gross preserve area.
40. In Issue-2, the claimants maintain that the road destroys the contiguousnous of the preserve and effectively divides the area into two preserves, both being less than 100 acres.
41. The argument presented as Issue-2 is well taken.
42. There can be found no case or statutory law that would resolve this situation.
43. Flatrock cites Lake County Trust Co. v. Lane, Ind. App. 478 N.E.2d 684, as definitive in construing the meaning of contiguous.
44. Lake County Trust Co. is not helpful in that regard because it deals with ownership in fee versus an easement. Once the Court of Appeals determined ownership it ruled the owner to be an adjacent and adjoining landowner rather than the holder of the easement.
45. In this case, there is no ownership question. Control and usage of land is the key to this dispute.
46. The decisive question here is: does the Rush County Road 500 West right-of-way destroy the contiguousness of the preserve area?
47. In answering this question, the ALJ must determine what the legislature intended when it required hunting preserves to be a minimum of 100 contiguous acres.
48. The most logical answer to the question is the legislature intended a large unencumbered area so as to make shooting safe for both hunters and neighbors to the area.
49. The parties have advanced several different definitions of the word "contiguous". Each has referred to the definition that suits his purpose.
50. In answering the question of what the legislature intended, Webster's Seventh New Collegiate Dictionary offers the most likely definition "being in actual contact with; adjoining; not or near in time or sequence".
51. If ownership is all that the ALJ need consider, than this preserve area would meet the requirement of the statute.
52. However, as previously mentioned, the legislature obviously intended contiguousness of control and usage rather than ownership.
53. In other words, the safety issue requires more than mere ownership, it requires total control and usage of at least 100 contiguous acres.
54. The road will, at all times, be used by the public and Flatrock cannot control passage.
55. IC 14-2-4-5(l) states "It shall be unlawful for any person to hunt, shoot, shoot at or kill any animal or to shoot at any object form within, into, upon or across any public highway in this state".
56. Clearly, for purposes of control and usage, the prohibition in IC 14-2-4-5(l) destroys the contiguousness of the preserve area and effectively divides it into two separate hunting areas, neither of which contains 100 acres.
57. Neither of these separate areas can
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be a licensed hunting preserve as defined in the statute.
MARION SUPERIOR COURT DECISION
The Court having considered the arguments of counsel and having examined the record of proceedings now enters it's [sic.] Findings of Fact, Conclusions of Law, Order and Judgment as follows:
FINDINGS OF FACT
1. On August 21, 1991, the Department of Natural Resources issued Private Shooting Preserve License #285 to Flatrock.
2. On June 16, 1992, the Administrative Law Judge entered his Report, Findings of Fact And Non-Final Order of the Administrative Law Judge reversing the issuance of the permit and finding that the preserve area did not constitute a contiguous tract of land within the meaning of I.C. 14-2-7-10(a) because of the public's easement in Rush County road 500 West (hereinafter referred to as "CR50OW").
3. On August 3, 1992, the Natural Resources Commission entered it's [sic.] final order adopting the Report of the Administrative Law Judge without modification.
4. Flatrock controls by lease for a period of five (5) years or more, an area containing 104.107 acres (hereinafter referred to as "the preserve"). (Undisputed fact as set out in the State's brief.)
5. The area controlled by Flatrock is a contiguous uninterrupted single tract consisting of 104.107 acres. (Affidavit of Jerry Hutslar, abstracter and Registered Indiana Land Surveyor.)
6. CR50OW crosses the preserve area. (Undisputed fact.)
7. Neither Rush County nor any other political subdivision has any ownership interest in the land over which CR50OW runs, and it constitutes a "right-of-way". (Undisputed fact and affidavit of Jerry Hutslar.)
8. Safety zones of one hundred (100) yards on each side of CR50OW have been established. (Undisputed fact.)
9. No hunting is permitted in the safety zones. (Undisputed fact.)
10. The preserve area is safe. (Undisputed Transcript of sworn testimony of Dean Shadley, Sergeant with Department of Natural Resources, filed in support of Flatrock's Motion For Summary Judgment.)
11. The design of the preserve area is similar to the design of the Department of Natural Resources' hunting areas. (Certified Transcript of sworn Testimony of Dean Shadley.)
12. The feasibility of the Preserve is not an issue in this case.
CONCLUSIONS OF LAW
1. The administrative remedies of Flatrock were exhausted by the filing of a final order of the Natural Resources Commission on August 3, 1992.
2. Flatrock has been prejudiced by the agency action in that the decision of the Natural Resources Commission denies Flatrock the rights and privileges afforded by IC 14-2-7-10.
3. Flatrock has standing to obtain judicial review pursuant to IC 4-21.5-5-3.
4. This Court has jurisdiction of the subject matter of this judicial review of a final decision of the Natural Resources Commission.
5. IC 14-2-7-10(a) is clear and unambiguous on it's [sic.] face. Therefore, it is not subject to interpretation or resort to a determination of legislative intent. (Superior Construction Co. v. Carr, 1990, Ind., 564 N.E.2d 281.)
6. A statute which inhibits the free use of land is in derogation of common law and must be strictly construed in favor of free use. (Merriville Board of Zoning Appeals v. Public Storage, Inc., 1991, Ind. App., 568 N.E.2d 1092; Cooper v. Calandro, 1991, Ind. App., 581 N.E.2d 443.)
7. The owner of property whereon a public highway lies holds the property in fee subject only to the public's easement. (Lake County Trust Co. v. Lane, 1985, Ind. App., 478 N.E.2d 684, reh.den.)
8. IC 14-2-7-10(b) requires the Department of Natural Resources to inspect the proposed preserve "and, if found feasible, shall approve the application and issue a license to the applicant ****."
9. The Objectors argue that the Administrative Law Judge's decision as adopted by the Natural Resources Commission is correct and that the Preserve area is not a contiguous tract of land because it is divided by CR500W. The State argues that the decision is correct for the same reasons propounded by the Objectors and for the further reason that the statute must be read in pari materia and that public safety concerns require that the meaning of the word "contiguous" in IC 14-2-7-10(a) should be construed to mean contiguousness of control, not simply contiguousness of ownership. The State further argues that such meaning should be given when reading this section in pari materia with IC 14-2-4-5(l) which prohibits shooting across roadways.
10. It is undisputed that Flatrock owns or controls by lease for a period of five (5) years or more the property upon which CR500W lies. Therefore, the right of way which is CR500W constitutes the public's easement with a right of passage over the land controlled by Flatrock. (Black's Law Dictionary, Rev. 4th Ed. defining "right-of-way") If the Court were to accept the State's and objector's position that the use of the word "contiguous" in the statute, means complete control undiminished by an easement, very few tracts of land would qualify as a preserve. If the State's and Objectors' position were accepted, no area that had any power line or other utility easement, any easement granted to neighboring lands or any other such restriction on the right to control usage and passage, would qualify for issuance of a preserve license. In addition under Indiana law, the State of Indiana owns the flowing waters of this state. Therefore, if the State's and the Objectors' position were accepted, any area in which there was flowing water would be disqualified since the State exercises control over such waters and the owner would not have "contiguousness of control". In short, the decision of the Administrative Law Judge and the argument regarding "contiguousness of control" is simply not well reasoned nor is it founded in the law.
11. The State further argues that the statutes must be read in pari materia and therefore, safety concerns require that the meaning of "contiguous" as used in IC 14-2-7-10(a) will prohibit the finding of a contiguous tract of land if the land is divided by a roadway. The State argues that IC 14-2-4-5(l) prohibits shooting across a roadway and that such statute is enacted to protect the safety of the public. The State further argues that when read in pari materia with the word "contiguous" as used in IC 14-2-7-10(a) that public safety concerns prohibit a finding that the legislature intended to authorize preserves divided by public roads. First, Courts do not resort to a determination of legislative intent unless there is an ambiguity, and this Court has already found that no such ambiguity exists. However, if the State's position were correct, we would have to look to all provisions of this chapter which relate to safety, not just IC 14-2-4-5(l). The State's argument presumes that persons will shoot across roadways in violation of the law, so in analyzing this argument we must make the same presumption as to other sections involving safety in this chapter including section 2 of this statute relied upon by the State. IC 14-2-4-5(2) prohibits the shooting across waterways. IC 14-2-6-1 prohibits hunting without consent. Clearly one of the concerns of this statute is safety so that persons will be informed and know of other persons hunting on their property. IC 14-2-7-2.5 requires that certain persons must have completed a hunter safety course prior to hunting. If the State's position is accepted that persons will violate the law and shoot across roadways then we must also presume that persons will hunt without consent on neighbors' lands, that persons will unlawfully shoot across waterways and that persons who have not completed hunter safety courses will unlawfully hunt. This analysis demonstrates the unsoundness of the State's argument. The State's arguments are clearly addressed by IC 14-2-7-10(b). Said section of the statute requires the Department of Natural Resources to inspect a proposed preserve and to determine feasibility of the preserve. It is clearly the intent of the legislature that the safety concerns be addressed by this feasibility study. It is undisputed in this case that there are one hundred (100) yard buffer zones in the preserve area adjoining the CR500W on both sides. There is not issue before the Court regarding the feasibility of the preserve. Therefore, it must be accepted that the Department of Natural Resources made the study required by law prior to the issuance of the preserve permit and determined that the preserve was feasible. No timely objection was made regarding the determination of feasibility by the Department of Natural Resources.
12. The decision of the Natural Resources Commission wherein it adopted the Report, Findings of Fact and Non-Final Order of the Administrative Law Judge is contrary to law in that the agency action makes an erroneous determination that the word "contiguous" found in IC 14-2-710(a) means that the tract of land constituting the preserve area may not have a right-of-way running over it or any other restriction on control of the land.
13. The Court having determined that Flatrock Hunting Preserve, Inc. controls by lease for a term of not less than five (5) years, a contiguous tract of land containing an area of 104.107 acres, the language of IC 14-2-7-10(b) is mandatory and requires the issuance of a license to Flatrock.
ORDER AND JUDGMENT: IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the decision of the Natural Resources Commission be and hereby is ordered reversed. This matter is ORDERED remanded to the Natural Resources Commission for proceedings not inconsistent with these findings, conclusions and judgments.