Content-Type: text/html 97-245d.v8.html

CADDNAR


[CITE: Lesch v. DNR and Town of Dune Acres, 8 CADDNAR 28 (1998)]

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Cause #: 97-245D
Caption: Lesch v. DNR and Town of Dune Acres
Administrative Law Judge: Wilcox
Attorneys: Evans, Murphy; Habeeb; Frost
Date: January 16, 1998

ORDER

[NOTE: CLAIMANT TOOK JUDICIAL REVIEW IN PORTER SUPERIOR COURT II (64DO2-9801-CP-130). ORDER FOLLOWING ADMINISTRATIVE FINDINGS OF FACT. COURT OF APPEALS DENIED CLAIMANT'S PETITION TO REVIEW TRIAL COURT'S DENIAL OF STAY OF EXECUTION OF JUDGMENT.]

ADMINISTRATIVE INTERLOCUTORY ORDER

Mr. Lesch's petition for stay of effectiveness of the wild animal control permit issued to Dune Acres is hereby denied as claimant has failed to show a reasonable likelihood of success on the merits.

ADMINISTRATIVE NONFINAL ORDER

The requirements of IC 14-22-28-1 for a wild animal control permit have been met by the Town of Dune Acres and the permit with the exception of artificial lighting use and silencer use is hereby upheld. The permit is hereby effective from January 17, 1998 until March 1, 1998, with the order that artificial lighting and silencers may not be used.

FINDINGS OF FACT

1. IC 4-21.5, IC 14-8 and IC 14-22 apply to these proceedings.

2. The Department of Natural Resources, ("Department"), is the state agency responsible for the protection and management of fish and wildlife resources within the State of Indiana as provided in IC 14-22-1-1.

3. The department is authorized to issue permits to take, kill, or capture wild animals damaging property under IC 14-22-28-1. The department prescribes the manner of taking the wild animal, the expiration date of the permit and the rules the director considers necessary to achieve the taking, killing or capture of the wild animal. See IC 14-22-28-2.

4. On November 21, 1997, the Department of Natural Resources issued a Wild Animal Control Permit to Ben Bolton, President of the Town of Dune Acres and to the Town of Dune Acres ("Town"). Said permit authorized the taking of up to 80 deer and was issued to be effective from January 1, 1998 through March 1, 1998.

5. This proceeding began with Mr. Lesch's December 4, 1997 filing of a petition for review and petition for stay against the Department of Natural Resources, in regard to the permit referenced above.

6. On December 5, 1997, the Town of Dune Acres moved to intervene as a party in this cause and that motion was granted by the administrative law judge.

7. The permit was voluntarily stayed by the Town through January 16, 1998 in order for the opportunity to have a hearing in this matter and consider the resolution of issues. See Report of Status Conference, December 19, 1997.

8. A hearing was held on January 13, 1998 on both the petition for stay and petition for review of the permit issuance. Testimonial and documentary evidence were presented by the parties.

STANDING

9. A threshold question was raised by Respondents, whether Claimant has standing to petition this tribunal in regard to this permit.

10. The Claimant asserts that the permit is subject to cause him irreparable injury. See Claimant's Petition for Stay. Claimant asserts that if the permit is

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issued, he will "suffer direct and irreparable harm" and the "loss of enjoyment of his property." Mr. Lesch further testified at hearing that he is a resident of the Town of Dune Acres and enjoys daily the Dune Acres' wildlife and environment.

11. The Natural Resources Commission has recognized and maintains a broad interpretation of standing in regard to administrative claimants.

See Wells v. DNR, Cass County Board of Commissioners and American Timber and Bridge & Culvert, 7 CADDNAR 186 (1997). The Commission has held that its position is clearly a liberal one in regarding the standing of citizens to participate in environmental administrative adjudications. As a citizen of the Town of Dune Acres, with potential injury in the loss of enjoyment of his property from a deer take, kill or capture under this permit, a finding that Mr. Lesch has standing is supported.

CONSIDERATION OF PETITION FOR STAY

12. The second critical issue before this tribunal is whether a stay of effectiveness of the permit is warranted. IC 4-21.5-3-5(h) establishes that the burden of proof in the preliminary hearing to determine whether an agency order should be stayed is on the party seeking the stay. Therefore, Mr. Lesch bears the burden of going forward and the burden of persuasion, commonly referred to as the burden of proof.

13. The Natural Resources Commission has previously spoken to the appropriateness of a stay. See Interlocutory Order of Warrick County School Corp. et al. v. DNR at 92-389H. The standard for determining the appropriateness of a petition for stay is the equitable standard used in determining whether to grant a preliminary injunction. Id. and State ex rel v. Indiana Alcoholic Beverage Comm. v. Lake Superior Court, Room 4, 259 Ind. 123, 284 N.E.2d 746 (1972). In deciding whether to issue a preliminary injunction in a civil court matter, a judge considers the following factors:

(1) Has the plaintiff shown a reasonable likelihood of success on the merits?
(2) Would the plaintiff suffer irreparable harm if the injunction is denied?
(3) Does the threatened injury to the plaintiff outweigh the harm to the defendants threatened bythe granting of the injunction?
(4) Would the injunction disserve the public interest?

Similarly, in considering the question of whether to issue a stay, the administrative law judge considers the following:

(1) Whether the person seeking the stay has shown a reasonable likelihood of success on the merits?
(2) Would the petitioner suffer irreparable harm if the stay is denied?
(3) Does the threatened injury to the petitioner outweigh the harm to persons threatened by the
granting of the stay?
(4) Would the stay disserve the public interest?" Warrick at supra.

In order to meet its burden and support a stay, the claimant is cloaked with the responsibility of proving (1) through (4) cited above.

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14. Ind. Code 14-22-28-1 provides: "Sec. 1. The director may issue to an owner of property being damaged by a wild animal protected by this article a free permit to take, kill, or capture the wild animal."

Ind. Code 14-22-28-2 provides for the facilitating provisions of the permit, and provides: "Sec. 2. The director shall prescribe the following:

(1) The manner of taking the wild animal.
(2) The expiration of the permit.
(3) The rules the director considers necessary."

15. State agencies are creatures of statute and function within the boundaries of prescribed duties, responsibilities and procedures designated within those statutory schemes. Within those schemes, interpretation as to the legislative intent and meaning of the statutes is often subject to controversy. The issue presented in this matter is whether the director issued the permit for deer control in Dune Acres within those legal boundaries.

16. The claimant bears the burden of proof in showing the permit issuance should be stayed. The evidence in the hearing of this cause and in the record of the proceeding show this burden has not been met.

17. IC 14-22-28-1 requires that the permit be issued to an owner of property, and that said property is being damaged by a wild animal. The statute does not distinguish between types of property owners, nor does the definition section of Ind. Code 14-8 et seq .define "owner" for the purposes of IC 14-22. See 14-8-2-195 where owner is defined for Articles of Title 14 other than Article 22.

18. As the definition of "owner" is not set forth within the statutory scheme, pursuant to the rules of statutory construction, the term "owner", for the purposes of IC 14-22, is subject to its common and ordinary meaning. See Matter of Lawrence, 579 N.E. 2d 32, 38 (Ind. 1991).

19. When the courts are called upon to construe statutes, the first question to be decided is whether the terms are "uncertain and ambiguous." See Burks v. Bolerjack, 427 N.E. 2d 887, 889 (Ind. 1981). If the statute is found to be unambiguous, it is not the prerogative of the court to vary from that meaning. Id. Had the legislature intended the meaning of owner to be defined contrary to its common ordinary meaning and exclude towns from that definition, it would have stated such an intent. Burks at 890.

20. Black's defines owner as it applies to land as "one who owns the fee and who has the right to dispose of the property, but the term also includes one having a possessory right to land..." Black's law Dictionary 574 (Abridged 5th Ed. 1983). The evidence in the record shows that the Town of Dune Acres owns several portions of property within the city as supported by the Affidavit of Ben Bolton attached to the Town's Exhibits In Support of its Memorandum In Opposition to Claimant's Motion for Summary Judgment, Respondent's Exhibits D1 through D6, photographs presented as depictions of town parkland and town right-of- ways and the Town's Exhibit AA-11, Deeds to property owned in Dune Acres.

21. No evidence either in hearing or in the parties' briefs contradicts the Town's ownership of the property referenced in Mr. Bolton's affidavit, Town Exhibit AA-11 or in Exhibits D1 through D6.

22. A finding that the Town of Dune Acres was an owner of property as required by IC 14-22-28-1 is supported by the record.

23. The second requirement of IC 14-22-28-1 is that the property owned be damaged by a wild animal. The testimony of Glen Lange, Chief of Wildlife for the department's Division of Fish & Wildlife, ("division"), established town property damage

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through his observance of that property during several visits to Dune Acres. Additionally, Mr. Lange's supervisee, Rick Ward, Wildlife Biologist to the division, testified that the damage he (Ward) observed on Dune Acres' property was caused by deer. Mr. Ward further testified that he had never been to the Town of Dune Acres without seeing deer browsing damage.

24. Since the property owned by the town is established by the record to be damaged by deer, the elements of Ind. Code 14-22-28-1 are satisfied and claimant fails to meet its burden of showing the first prong of the Warrick standard, his reasonable likelihood of success on the merits.

25. As Claimant fails to show a reasonable likelihood of success on the merits, further analysis of whether claimant will suffer irreparable harm, threatened injury outweighing harm to persons threatened by the granting of the stay, and disservice to the public interest need not be decided. Therefore, the petition for stay of the permit should be denied.

PRESCRIPTION OF PERMIT - ARTIFICIAL LIGHTING AND SILENCERS

26. Once a determination has been made that a wild animal control permit may be issued, the director prescribes the manner of taking, killing or capturing the wild animal, the expiration date and the rules considered necessary to effectuate the permit under I.C. 14-22-28-2.

27. Claimant raises the question of the lawfulness of two of the ten facilitating provisions presented in the permit. See Claimant's Exhibit 6. Specifically, Claimant asserts that the DNR cannot authorize the use of spotlighting or the use of silencers with this wild animal control permit. See Claimant's Brief of Legal Issues. Claimant's argument is well-founded.

28. The legislature enacted the wild animal control permit statute in 1969 which provided language almost identical to the current language. The initial enactment provided: "Property Damage-Game Animals-Permits-Killing Without Permit-Closed Season. (1) The director may issue to any owner of property being damaged by any wild animal protected by the provisions of this act, a free permit to take, kill or capture the wild animal in such manner, for such a time and under such rules and regulations as he may prescribe. The manner of taking the wild animal, the expiration date of the permit and rules and regulations prescribed by the director shall be incorporated or attached to the permit when issued."

29. During the same legislative session, a provision disallowing the use of artificial light in the taking of wild animals, except fur-bearing mammals, was enacted. At Chap. 70, Sec. 4-06, the statute provided: "Artificial Lights. It shall be unlawful for any person to take any wild animals, except fur-bearing mammals, with the aid of illumination of any spotlight, searchlight or other artificial light."

30. In 1977, the General Assembly amended the fish and wildlife statutes at Ind. Code 14-2-4 to provide for the specific treatment of deer and artificial lighting. The current statute is found at IC 14-22-6-7 and it provides: "Sec. 7...(c) a person may not shine a spotlight, searchlight, or other artificial light for the purpose of taking, attempting to take, or assisting another person to take a deer."

31. The legislature is presumed to have intentionally chosen the words of a statute. See Burks at 890. The presumption also follows that the legislature, does not enact inconsistent statutes deliberately. Therefore, construction of those statutes should be construed to be in harmony if reasonably possible. See Sutherland Statutory Construction Sec. 51.02 (4th ed. 1984). "It is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter." Id. citing Allen v. Grand Cent. Aircraft Co., 347 US 535, 98 L Ed. 933, 74 S. Ct. 745 (1954). These rules of statutory construction further require that statutes relating to the same subject matter be construed in pari materia in order to give effect to every

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provision. Id. and Collins v. State, 415 N.E. 2d 46, 56, 275 Ind. 86, (Ind. 1981).

32. If an irreconcilable conflict exists between two in pari materia statutes, specifically conflict between the new provision and the prior statutes, "the new provision will control as it is the later expression of the legislature." Sutherland at supra and Gonser v. Board, 378 N.E. 2d 425 (1978). The rules of construction require that I.C. 14-22-6-7, restricting the use of artificial light for taking, attempting to take, or assisting another to take a deer, must control as a later expression of the legislature's intent. Without a designated exception for artificial lighting in the wild animal control permit statute, no use of artificial lighting may be prescribed in this permit. The lack of exception with I.C. 14-22-6-7 implies the legislative intent to disallow the use of lighting in deer-related activities even with this type of permit.

33. In order to construe both statutes to give effect to both, the director must be allowed to issue wild animal control permits with the prescribed rules he considers necessary, however, without the use of artificial lighting to take, attempt to take or assist another in taking deer. A different construction would lead to misinterpretations of the legislative intent.

34. A similar analysis of statutory construction may be done with respect to the use of silencers. The enactment of the predecessor to IC 14-22-6-11 was in the same year, 1969, as the provisions for wild animal control permits and artificial lighting and the section provides: "Sec. 11. A person may not: (1) use or possess an apparatus designed for use with or on a firearm commonly called a silencer; or (2) use or possess a device used as a silencer; in Indiana while in the act of hunting."

35. This section disallows the use of silencers in Indiana while hunting. Hunt is defined at IC 14-8-2-128 for the purposes of IC 14-22 as the "means to take a wild animal except trapping." Hunting is reasonably interpreted as "the taking of a wild animal excepted by trapping."

36. As takings are included in the definition of hunting, IC 14-22-28-1 wild animal control takings with the use of silencers are prohibited by IC 14-22-6-11.

37. Based on the aforementioned statutory construction, the permit as issued to the Town, may not prescribe the use of spotlighting or the use of silencers. Therefore, the two permit allowances for silencers and spotlighting should be removed.

38. The permit provides for eight additional prescriptions for effectuating the permit other than silencer and spotlighting use. Those remaining eight conditions should be maintained in the permit.

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[NOTE: CADDNAR PAGINATION DOES NOT APPLY TO THE ORDERS SET FORTH BELOW.]

PORTER SUPERIOR COURT II

ISSUES 1. Whether the agency action was arbitrary, capricious, and abuse of discretion or otherwise not in accordance with the law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority or limitation, or short of a statutory right; without observance of procedure required by law; or unsupported by substantial evidence? (IC 4-21.5-5-14).

FACTS: On examination of the record the Court finds the following facts: The Town of Dune Acres is surrounded by the Indiana National Lake Shore Federal Park and is also near the State of Indiana Dunes State Park. Both of these parks have considerable wilderness area which is a haven for wildlife, including deer. The deer population has grown because of the lack of natural predators and the prohibition against hunting within the town and parks. Before the parks caused the deer population to explode, deer were culled by licensed hunters. The Court would also take notice that before licensed hunters and the area populated, deer numbers were reduced by cougars, wolfs and American Indians. Dune Acres has shown that, without natural or some type of environmental control, the exploding deer population is causing property damage to town property and also to property of town residents. Deer are grazing on lawns, trees, shrubs and gardens. Deer over population is causing der starvation. The incorporated entity known as the Town of Dune Acres applied to the DNR for permission to cull the town deer heard by 120 animals. Lesch, a town resident, objected on "moral grounds" the killing of deer. A few other town of Dune Acres residents also objected; however, the permit was issued November 24, 1997. The deer killing permit issued by the DNR allows eighty (80) deer to be culled from the Dune Acres deer heard between January 1, 1998 and March 1, 1998. On December 4, 1997, Lesch filed an administrative appeal of the der killing order. Lesch also requested and was granted a stay of the permit. On January 16, 1998, subsequent to an administrative hearing, the Administrative Law Judge (ALJ) issued a nonfinal order denying Lesch's appeal that the permit be rescinded. This appeal ensued. In the discussion below other facts will be referred to as are necessary.

DISCUSSION

The first matter to be resolved is whether Dune Acres is entitled to judicial review of a nonfinal agency action (IC 4-21.5-5-2(c)). If the Court does not entertain the motion of Dune Acres, it is apparent that the litigation time frame would cause the deer culling permit to expire. In other words the administrative appeal process coupled with the Judicial review timetable is a time period greater than sixty (60) days of the deer killing permit. Without immediate judicial review Dune Acres is without any legal remedy except to allow the administrative appeal process to continue and have the permit expire before the appeal is completed. Consequently, in this Court's view, IC 4-21.5-5-2(c) was adopted for this type of circumstances. The Court, by beginning the judicial review without wating for the parties to exhaust the administrative process, may allow Dune Acres time to exercise the benefits in the approved permit.

Having concluded that Dune Acres is entitled to judicial review under IC 4-21.5-5-2(c), the Court next proceeds to the issues raised in the Lesch motion. Lesch asserts that IC 14-22-28-1 requires that permittees be "owner" and the town cannot be an "owner". The ALJ found that the incorporated Town of Dunes Acres is an owner. This Court agrees. Clearly the Incorporated Town of Dune Acres owns property. Town buildings, parks, roadways and easements deeds are exhibits within the record establishing ownership. Lesch nextly argues that the incorporated Town of Dune Acres is not a "person" as that word is intended by the legislature to be construed. Lesch asserts that a governmental entity is not a "person". In addition to the findings and conclusions of the ALJ, this Court would add that as an incorporated town, Dune Acres enjoys all the rights and privileges of a corporation. Black's Law Dictionary 340 (6th Ed. 1990) explains a corporation as, "An artificial person or legal entity created by or under the authority of the laws of a state. . . The law treats the corporation itself as a person which can sue and be sued." (Emphasis supplied). A recent Indiana case defining the role of a municipal corporation is, Taylor v. State, (Ct.App, 1996) 663 N.E.2d 213, which quoted an earlier case, Department of Treasury v. City of Evansville (1945) 60 N.E.2d 952, and stated: "Municipal corporations exist in a dual capacity, and their functions are twofold. In one they exercise the right springing from sovereignty, and while in performance or the duties pertaining thereto, their acts are political and governmental. Their officers and agents in such a capacity, though elected or appointed by them, are nevertheless public functionaries performing a public service, and as such they are officers, agents, and servants of the state. In the other capacity, the municipalities exercise a private, proprietary or corporate right, arising from their existence as legal persons and not as public agencies. Their officers and agents in the performance of such function act in behalf of the municipalities in the corporate or individual capacity, and not for the state or sovereign power." Id. at 954-955. The law clearly recognizes a corporation, including municipal bodies, as persons. Therefore the conclusion of the ALJ is proper.

Lesch complains of no remedy because of the permit being issued. Lesch's remedy, however, has been the administrative appeal process and the subsequent judicial review asking that the DNR permit be reviewed. Lesch was afforded standing by the ALJ based on the liberal interpretation of standing to administrative claimants before the Natural Resources Commission. This liberal position of the DNR is precipitated so as to allow broad participation in environmental issues. This Court afforded Lesch standing based on IC 4-21.5-5-3. Concluding that he is a person participating in the proceeding before the ALJ and is aggrieved by the ALJ determination. Therefore he was entitled to bring the Petition for Judicial Review. What Lesch apparently seeks is some personal remedy against the permittee, Dune Acres. Lesch ha none. Lesch correctly concludes that the action of the Dunes Acres officials is a discretionary function and Dune Acres officials are immune for a loss that may occur from a discretionary function. See IC 34-4-16.5(6). Further, Lesch fails to recognize that private persons have no legally recognizable right in wildlife in its natural state. Wildlife in its natural state is under the charge and control of the Sovereign State of Indiana and is entrusted to the Department of Natural Resources. See IC 14-2-1-2 also Ridenour v. Furness (Ind.App. 1987) 504 N.E.2d 336. Therefore the sole remedy of Lesch is participation in the administrative process to insure that all necessary and proper information is before the administrative officials before permits are issued and further, to insure that applicants and administrative officials follow established statutory and administrative rules regarding issuance of permits.

Lesch also complains that there was no demonstrable need for the culling of surplus deer. However the record is replete with testimony concerning the overpopulation of deer and that property is suffering deer browsing damage. Consequently, as to this issue, the Court finds there is sufficient evidence within the record to support the conclusion of the ALJ.

This Court finds the conclusion of the ALJ in regards to spotlighting deer at night and the use of silencers on firearms to be correct. Certainly IC 14-22-28-2 authorizes the DNR Department Director to make rules determined to be necessary in the taking of wild animals. However, there is nothing within the statutes allowing the Director to make rules allowing violation of specific legislative enactments. Our legislature has also prohibited the taking of any deer by means of a "spotlight, searchlight, or other artificial light", IC 14-22-6-7(c). Consequently, as to these issues, the conclusion of the ALJ in striking the portions of the permit allowing silencers and spotlight is correct.

On a more personal notes, this Court is sympathetic to those persons opposed to the deer killing. There have been many happy days spent with family enjoying our outdoors. Nothing is more enjoyable than, while walking in the countryside or our parks, to see deer and other wildlife in their natural state. Certainly the creation of the Dunes National Lakeshore Park and the return to wilderness of much of the formerly habitated areas has contributed to public enjoyment as well as increasing wildlife populations. There is no evidence that park planners ever took into consideration the impact the park would have on wildlife and its effect on surrounding communities. Consequently, it has been left to the towns adjacent to the park to work out individual solutions. The DNR in conjunction with the communities and parks need to work together to arrive at a long term unified goal of wildlife management. There needs to be a long range solution to the deer problem, not only for Dune Acres, but also for all the communities abutting the park areas. Working out a long term solution is for the communities, parks and the DNR, not the courts. The Court is also sympathetic to the many property owners of Dune Acres, and others, who suffer property damage from deer browsing and also to the many automobile owners and vehicle passengers who have suffered damages and injuries from deer collisions. However, the decision to allow Dune Acres to go forward with the deer culling must be based on the law in the case under consideration and not on personal feelings or emotions.

In view of the forgoing, the determination of the Court is that the order of the ALJ should be affirmed.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED as follows:

1. That the actions of the Department of Natural Resources Director in the issuance of the deer culling permit to Dune Acres was not an abuse of discretion and was in accordance with the law authorizing such permits. Nor was the actions of the Department of Natural Resources Director in the issuance of the permit arbitrary, capricious or an abuse of discretion.

2. Review of the record of proceedings before the Administrative Law Judge reveals there was compliance with the procedures provided by law and that the issuance of the permit was supported by substantial evidence.

3. The motion of Donald Lesch for a permanent injunction based on a finding that the permit was improperly granted is denied.

4. The temporary injunction heretofore issued is vacated instanter.

5. That this is full and final determination of the issues before this Court and therefore an appeal may be taken therefrom pursuant to the applicable rules of appellate procedure. SO ORDERED this 17th day of February, 1998.

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ORDER: COURT OF APPEALS (March 11, 1998); 64A03-9802-CV-73

The appellant, by counsel, having heretofore filed in this cause his Petition to Review the Trial Court's Denial of Stay of Execution of Judgment and this Court having thereafter, set said petition for oral argument before the Court of Appeals of Indiana on February 20, 1998, at 10:30 a.m.;

The cause came on for oral argument, parties present by counsel and oral arguments heard;

And the Court, having examined the appellant's Petition to Review the Trial Court's Denial of the Stay of Execution of the Judgement, having heard the oral arguments of counsel thereon, and being duly advised, now finds that said petition should be denied.

IT IS THEREFORE ORDERED that the appellant's Petition to Review the Trial Court's Denial of the Stay of Execution of the Judgment is denied.