Ind. Dept. of Natural Resources, and Cameron F. Clark as Dir. of the Ind. Dept. of Natural Resources v. Whitetail Bluff, Llc., Rodney Bruce

Feb 02 2015, 9:48 am
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES
Gregory F. Zoeller BACKWOOD PRESERVE, INC.,
Attorney General of Indiana MIDWEST WOODLOTS, LLC, AND
SHAWN TAYLOR D/B/A T.C.
David L. Steiner OUTDOOR
Frances Barrow
Kyle Hunter W. Douglas Lemon
Deputy Attorneys General Miner & Lemon LLP
Indianapolis, Indiana Warsaw, Indiana
ATTORNEYS FOR APPELLEES
ATTORNEYS FOR AMICI CURIAE WHITETAIL BLUFF LLC AND
INDIANA WILDLIFE FEDERATION RODNEY BRUCE
INDIANA CHAPTER OF THE
WILDLIFE SOCIETY, AND INDIANA
Bryan H. Baab
DEER HUNTERS ASSOCIATION Bose McKinney & Evans LLP
Indianapolis, Indiana
Jon Laramore
Stephanie Boxell William C. Moyer
Sarah Sharp Lorch & Naville, LLC
Faegre Baker Daniels, LLP New Albany, Indiana
Indianapolis, Indiana
ATTORNEYS FOR AMICI CURIAE
NATIONAL FEDERATION OF
INDEPENDENT BUSINESS SMALL
BUSINESS LEGAL CENTER, THE
NORTH AMERICAN DEER
FARMERS ASSOCIATION, INDIANA
DEER AND ELK FARMERS
ASSOCIATION AND THE INDIANA
AGRICULTURAL LAW
FOUNDATION
Stephen J. Peters
William N. Ivers
Harrison & Moberly, LLP
Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 1 of 27
IN THE
COURT OF APPEALS OF INDIANA
Indiana Department of Natural February 2, 2015
Resources, and Cameron F. Clark as Court of Appeals Cause No.
Director of the Indiana Department of 31A04-1310-PL-502
Natural Resources, Appeal from the Harrison
Circuit Court
Appellants, Honorable John Evans, Judge
Cause No. 31C01-0508-PL-
v. 033
Whitetail Bluff, LLC, Rodney Bruce,
Backwoods Preserve, Inc., Midwest
Woodlots, LLC, and Shawn Taylor
d/b/a T.C. Outdoors,
Appellees.
Friedlander, Judge.
[1] The Indiana Department of Natural Resources (IDNR) appeals a grant of
summary judgment in favor of Whitetail Bluff, LLC, Rodney Bruce,
Backwoods Preserve, Inc., Midwest Woodlots, LLC, and Sean Taylor d/b/a
T.C. Outdoors (Whitetail Bluff). The issue ultimately presented in this case is
whether current Indiana statutory law prohibits “high fence” hunting of wild
animals – in this case, deer.
[2] We affirm.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 2 of 27
[3] Rodney Bruce wanted to establish a business in southern Indiana that would
offer hunting, fishing, and lodging. The hunting he proposed to offer was what
is termed “high-fence” hunting. This refers to hunting wild animals on property
that is enclosed by a fence. To this end, in 1997, Bruce purchased 116 acres of
wooded, hilly ground located in Harrison County, Indiana. Before
commencing his project, however, Bruce contacted IDNR to determine
whether high-fence hunting was legal in Indiana. In a February 23, 1999 letter,
Bruce detailed his plans, which he described as a “life long dream.” Appellant’s
Appendix at 29. These plans included the construction of a nine-foot fence
around the entire property, allocating nine acres of the property for breeding
white-tailed deer, and permitting in-season hunting of deer on the property. He
concluded the letter as follows:
MY QUESTION IS, CAN I LEGALLY CHARGE PEOPLE TO
COME TO MY PLACE FOR THIS VACATION/HUNTING
EXPERIENCE. I DO NOT GUARANTEE SUCCESS AT ANY OF
THE ITEMS LISTED ABOVE. I AM CHARGING PEOPLE FOR
THEIR ROOM AND BOARD AND OPPORTUNITY TO DO
ANY OR ALL OF THE ITEMS OFFERED.
GRANTED THAT 90 PERCENT OF MY BUSINESS WILL BE
FROM PEOPLE WANTING AN OPPORTUNITY TO HUNT
AND KILL A WHITETAIL DEER. THEY WILL NOT BE ABLE
TO HUNT OR KILL DEER IN THE NINE ACRE BREEDING
PEN. THEY MAY ONLY HUNT IN THE 107 ACRES WHERE
THE DEER ARE FREE TO ROAM. I INTEND TO PURCHASE
SOME DEER AND TURN THEM LOOSE IN THE 107 ACRES
TO BREED AND MULTIPLY SO THAT PEOPLE CAN HUNT
100 PERCENT FAIR CHASE WILD AND FREE ROAMING
GAME WITHIN THE 107 ACRES.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 3 of 27
PLEASE REVIEW THE ASPECTS OF THIS BUSINESS
CAREFULLY AND GIVE ME SOME FEEDBACK. PLEASE
CALL IF MORE INFORMATION IS NEEDED. I WOULD LIKE
TO PRESENT YOUR REPLY TO THE LOCAL CONSERVATION
OFFICER WHEN HE INSPECTS MY BREEDING PEN. THIS
WILL ENSURE HIM THAT THIS IS NOT A HUNTING
PRESERVE AND I HAVE INVESTIGATED ALL ASPECTS OF
THIS BUSINESS AND FOUND THEM TO BE TOTALLY LEGAL
IN THE STATE OF INDIANA.
Id. at 30. On March 25, 1999, Bruce received the following response from Col.
Larry D Allen of IDNR’s law enforcement division:
Officials from both the Law Enforcement Division and Division of
Fish and Wildlife met and reviewed your letter dated February 23,
1999 (enclosed). At this time we can find nothing illegal or contrary to
our hunting laws regarding your business proposal and plans as
detailed in your letter. Unless there is additional information of which
we are not aware, I believe that you are on legal ground with us to
proceed with your “life-long dream”.
However, please be aware of the fact that state statutes and rules may
change in the future that would disallow the type of business venture
that you have described to us. Whether or not previously established
businesses of this type would be allowed to continue after the possible
law change is unknown at this time.
Id. at 31.
[4] After receiving IDNR’s approval, Bruce expended considerable time and
money in preparing his property to accommodate the business venture –
Whitetail Bluff – outlined in his February 23 letter to IDNR. He erected a fence
around the entire property and complied with a local IDNR conservation
officer’s directive to drive all of the wild deer off of his property before
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 4 of 27
completely enclosing it with a fence and re-populating it with privately owned
deer. Whitetail Bluff thereafter commenced business operations. In September
2002, IDNR informed Bruce that his operation “present[ed] a problem for the
classified forests status of the property”. Id. at 236. The letter explained that
pursuant to Section 7 of the Indiana Classified Forests Act of 1921, “[a] parcel
of land may not be classified as native forest land or as a forest plantation if it is
grazed by a domestic animal.” Id. The letter continued:
[D]eer would not ordinarily be considered domestic animals, however,
for the purpose of the Classified Forest Act the fact that the animals
are confined and concentrated in a relatively small area resulting in
detrimental effects on timber production makes the difference. The
relatively large number of animals per acre results in the destruction of
the litter layer on the forest floor and the exposure of bare soil. The
soil is also compacted increasing water runoff. Tree roots are exposed
and damaged and the understory vegetation, both woody and
herbaceous, is largely eliminated.
Id. Bruce was informed that, as a result, the status of 4.552 acres of his property was
being changed from classified forest and consequently he owed $75.29 in back taxes.
In May 2003, Bruce received a letter from Michael E. Coggeshall, IDNR’s District
Forester, conveying the results of a “reinspection report” of Whitetail Bluff’s
operation and grounds and recommending that Whitetail Bluff continue to maintain
access trails and also recommending the removal of several deer from certain areas
of the property. Id. at 237. In December 2003, IDNR informed Bruce that it was
denying his request to obtain out-of-season permits to control crop depredation within
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 5 of 27
Whitetail Bluff’s fenced area. The request was denied in part because IDNR believed
the crops might have been planted as a lure crop for the deer.
[5] Bruce had obtained a game breeder’s license in 1999 when he purchased the
first animals for Whitetail Bluff. This license required that he report the
number of deer that were bought, sold, killed, and that died on his property.
IDNR entered his property annually to inspect the breeding pen and monitor
the health of the animals located on the property. All captive-deer operations
are subject to regulation by the Indiana State Board of Animal Health (BOAH).
In September 2004, BOAH informed Whitetail Bluff that cervid1 owners were
required to tag their animals in connection with BOAH’s Chronic Wasting
Disease (CWD) Certification Program. When an animal is killed on Whitetail
Bluff property, the head is sent to BOAH for CWD testing. As the foregoing
reflects, from the time Whitetail Bluff commenced operations through 2004,
IDNR was in regular contact with Whitetail Bluff concerning different aspects
of its operation and did not question its legality.
[6] Sometime in or around 2004, Representative William C. Friend of the Indiana
House of Representatives requested an opinion from the Indiana Attorney
General’s Office “on a number of questions relating to Indiana’s regulation of
white-tailed deer …, with particular reference to those deer that are kept in
privately-owned compounds for either breeding or hunting.” Id. at 32. The
Attorney General’s written opinion included the following summarization:
1
“Cervid” refers to any member of the deer family, Cervidae, which is comprised of deer, caribou, elk, and
moose.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 6 of 27
“Indiana’s existing statutes and rules do not directly address many of the
questions surrounding the complicated and controversial issue of hunting
privately owned deer kept on private property.” Id. The opinion also included
the following observation:
Asked to make recommendations to the BOAH, DNR, and the
General Assembly, the CACCC [i.e., Citizen Advisory Counsel on
Captive Cervids] undertook a series of public meetings “to hear what
Hoosiers think about the issues”. Its Final Report dated June 10, 2004,
identifies several areas in which the authority of the BOAH and DNR
either overlap or is poorly defined. CACCC’s Final Report also details
a number of issues on which consensus could not be reached in the
resolution of which may require legislative intervention.”
Id. at 38.
[7] On February 10, 2005, Gov. Mitch Daniels named Kyle Hupfer as the new
director of IDNR. In August 2005, IDNR purported to adopt a temporary
modification of 312 IAC 9-3 (the Emergency Rule) governing exotic mammals.
The modification included deer within the definition of “exotic mammal.” The
modification further provided: “A person may not possess an exotic mammal
that is in a family listed in subsection (b) except as otherwise provided by statute
or by this article.” Id. at 40. The purpose of the modification was explained in
an August 11, 2005 press release from Hupfer and IDNR:
Over the past few months, the DNR has conducted a thorough review
of the fenced Whitetail deer shooting issue. This has been an ongoing
controversy over the past several years. In the course of the 2005
legislative session, the issue of cervidae farming was addressed by the
General Assembly. They passed legislation that specifically
authorized the agricultural pursuit of cervidae farming. That same
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 7 of 27
legislation specifically precluded the hunting of cervidae livestock. [2]
During the same legislative process, the shooting of Whitetail deer
behind high fence [sic] was left to the new DNR administration to
address.
* * * * *
In order to possess a Whitetail deer in Indiana, an individual must
obtain a Game Breeders License from the DNR. The scope of the
Game Breeders License is limited to the propagation of an animal in
captivity or the possession, purchase or sale of an animal solely for the
purpose of propagation.
After taking the time as a new Administration to understand the entire
statutory scheme in this area and after consultations with the Office of
Attorney General, we believe that the existing Game Breeders Statute
is clear, and always has been clear. A Game Breeders License does
not allow the hunting or purposeful killing of animals maintained
under that license.
Exotic mammals are also being hunted behind high fence in Indiana.
… It appears that these exotic hunting operations have felt a loophole
in the law exists that allows this type of hunting. However, it appears
clear that exotic mammals may only be propagated and hunted
pursuant to the Shooting Preserve Statute. That statute requires the
DNR to adopt rules specifying exotic mammals that can be hunted,
and that the operator obtain a license from the DNR before operating
an exotic hunting preserve. The DNR has never identified any exotic
mammals to be hunted pursuant to the Shooting Preserve Statute.
Because of the potential of a legal misinterpretation of the statutory
scheme surrounding the hunting of exotic mammals, I have today
signed an emergency rule that closes all potential loopholes with
2
As will be explained more fully below, Ind. Code Ann. § 14-22-20.5-2 (West, Westlaw current with all 2014
Public Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th General
Assembly) was the legislation to which this must have referred.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 8 of 27
respect to the hunting of exotic mammals. The DNR will immediately
begin permanent rulemaking with the Natural Resources Commission
on this issue.
Id. at 42-43 (footnote supplied). The effect of the Emergency Rule was that only
individuals possessing a Game Breeders License can possess whitetail deer, and
further that a Game Breeders License does not allow hunting of animals maintained
under that license. The ramifications of the Emergency Rule concerning Whitetail
Bluff’s operation was clear: high-fence hunting would no longer be permitted.
[8] At this point, Bruce declined to renew his Game Breeder’s License and
consequently it expired on December 31, 2005. On March 30, 2006, IDNR
sent Bruce a letter advising him that as a result of his failure to renew his
license, the possession of the white-tailed deer on his property had been illegal
since February 15, 2006. He was further advised: “if you fail to submit the
application and fee within that time, legal action may be taken for your illegal
possession of white-tailed deer without a license. Such legal action includes law
enforcement, citation, and referral to the local prosecutor or Attorney General.”
Id. at 44.
[9] On August 24, 2005, Whitetail Bluff filed a verified complaint seeking a
declaratory judgment that the Emergency Rule and any similar replacement
rules are a nullity and have no legal effect. Whitetail Bluff also sought an order
to enjoin the IDNR from attempting to regulate Whitetail Bluff’s operation. On
June 14, 2013, IDNR filed a motion for summary judgment asking the court to
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 9 of 27
rule as a matter of law that high-fence deer hunting operations are contrary to
statute because wild animals such as deer may be possessed only pursuant to
the provisions of I.C. § 14-22-6-1 (West, Westlaw current with all 2014 Public
Laws of the 2014 Second Regular Session and Second Regular Technical
Session of the 118th General Assembly), and that “[n]o statute or rule allows
for possession of wild animals as part of a high fence hunting operation.” Id. at
314. On June 17, 2013, Whitetail Bluff countered with a summary judgment
motion of its own, arguing that IDNR’s attempt to regulate high-fence hunting
amounted to an unconstitutional usurpation of the legislative function of the
Indiana General Assembly. The court conducted a hearing on the competing
motions on September 4, 2013, and several weeks later entered an order
granting Whitetail Bluff’s motion and denying IDNR’s motion. IDNR appeals
those rulings.
[10] IDNR appeals from a grant of summary judgment. Summary judgment is
appropriate where the moving party shows there are no genuine issues of
material fact with respect to a particular issue or claim. Ind. Trial Rule 56(C);
Bleeke v. Lemmon, 6 N.E.3d 907 (Ind. 2014). When reviewing a ruling involving
statutory construction, which is a pure question of law, we employ a de novo
standard of review. Evansville Courier & Press v. Vanderburgh Cnty. Health Dep’t,
17 N.E.3d 922 (Ind. 2014). Pure questions of law such as the one in the present
case are particularly appropriate for summary resolution. Id. Where the
moving party designates material demonstrating there are no genuine issues of
material fact with respect to a particular issue or claim, the burden shifts to the
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 10 of 27
non-moving party to come forward with designated evidence showing the
existence of a genuine issue of material fact. Hughley v. State, 15 N.E.3d 1000(Ind. 2014). The appellant bears the burden of demonstrating that the grant of
summary judgment was erroneous. Id. Finally, we will affirm a grant of
summary judgment on any theory supported by the record. Holiday Hospitality
Franchising, Inc. v. AMCO Ins. Co., 983 N.E.2d 574 (Ind. 2013).
[11] The overarching question in this case is whether Indiana’s statutory scheme
pertaining to the hunting of wild deer allows or, in the alternative, forbids high-
fence hunting. IDNR contends that I.C. § 14-22-20.5-2 “explicitly forbids the
hunting of the privately owned deer of these breeding operations.” Appellant’s
Brief at 16. Thus, according to IDNR, pursuant to its authority over such
operations under I.C. § 14-22-1-1(b) (West, Westlaw current with all 2014
Public Laws of the 2014 Second Regular Session and Second Regular Technical
Session of the 118th General Assembly), the rules it has enacted to that end
must be enforced and Whitetail Bluff’s high-fence hunting operation must
cease. Whitetail Bluff counters first that under I.C. § 14-22-1-1, IDNR does not
have jurisdiction over wild animals that are legally owned or being held in
captivity under a license or permit, such as is the case here. Secondly, Whitetail
Bluff contends that the General Assembly has not prohibited high-fence
hunting, and that IDNR overstepped its authority in promulgating rules to that
effect. Specifically, Whitetail Bluff contends the rules in question, and most
especially the Emergency Rule, violate the separation of powers doctrine
contained in article 3, section 1 of the Indiana Constitution.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 11 of 27
[12] As we have indicated, the pivotal question in this case is whether IDNR is
correct in asserting that the current statutory scheme prohibits high-fence
hunting, and therefore that IDNR is authorized to promulgate rules effectuating
that prohibition. IDNR cites two provisions as the bases for this argument.
The first is I.C. § 14-22-1-1, which provides as follows:
(a) All wild animals, except those that are:
(1) legally owned or being held in captivity under a license or permit as
required by this article; or
(2) otherwise excepted in this article;
are the property of the people of Indiana.
(b) The department shall protect and properly manage the fish and
wildlife resources of Indiana.
[13] IDNR contends this provision confers authority upon IDNR to regulate all
wildlife resources in Indiana, including those described in the exception set out
in subsection (a) as cervidae legally owned or held in captivity under a license
or permit, and most especially including privately owned wild animals such as
the deer on Whitetail Bluff property. In conjunction with this argument, IDNR
contends that subsections (a) and (b) are independent of each other, meaning
that regardless of whether wild animals are included in the exception described
in subsection (a), they are subject to IDNR management under subsection (b).
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 12 of 27
[14] Whitetail Bluff counters that subsections (a) and (b) of I.C. § 14-22-1-1 should
be read in conjunction with one another, meaning that the broad conferral of
authority under subsection (b) is limited to those wild animals not mentioned in
the exception set out in subsection (a). Put another way, Whitetail Bluff
contends that IDNR has authority under subsection (b) to protect and manage
fish and wildlife in Indiana that are the property of the people of Indiana, which
pursuant to subsection (a) does not include those that are legally owned or
being held in captivity under license.
[15] When interpreting the meaning of a statute, we must first determine whether
the General Assembly has spoken clearly and unambiguously on the subject in
question. Basileh v. Alghusain, 912 N.E.2d 814 (Ind. 2009). If a statute is clear
and unambiguous on that matter, no rules of construction are necessary – in
such case, words and phrases will be taken in their plain, ordinary, and usual
sense. Id. On the other hand, when a statute is susceptible to more than one
interpretation, it is deemed to be ambiguous and therefore open to judicial
construction. Id. When construing the meaning of a statute we deem to be
ambiguous, we apply other well-established rules of statutory construction.
Primary among such rules is that the “goal of statutory construction is to
determine, give effect to, and implement the intent of the Legislature” as
expressed in the language utilized in the statute. Id. at 821.
[16] The Seventh Circuit Court of Appeals has considered this very question in the
context of Ind. Code Ann. § 14-2-1-2, the predecessor to I.C. § 14-22-1-1. I.C. §
14-2-1-2 provided, in pertinent part:
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 13 of 27
The department of natural resources shall have the authority and
responsibility to protect and properly manage the fish and wildlife
resources of the state. Any and all wild animals, except those which
are legally owned or being held in captivity under a license or permit
as required by this article or is otherwise excepted in this article, shall
be the property of the people of the state of Indiana and the protection,
reproduction, care, management, survival, and regulation of the wild
animal population shall be entrusted to the division of fish and wildlife
of the Department of natural resources.
This provision was repealed and replaced by I.C. § 14-22-1-1 in 1995 when Title
14 of the Indiana Code governing natural and cultural resources was recodified.
See P.L. 1-1995 § 91. In DeHart v. Town of Austin, Ind., 39 F.3d 718, 723 (7th
Cir. 1994), the appellant, DeHart, owned and operated a business that bought,
bred, raised, and sold exotic and wild animals. After he had operated this
business for several years, the town in which the business was located passed an
ordinance making it unlawful to keep an animal defined as a wild animal
within town limits. DeHart challenged this ordinance as unconstitutional and
sought a declaratory judgment and injunctive relief. The trial court granted the
town’s subsequent motion for summary judgment and DeHart appealed.
[17] On appeal, DeHart argued among other things that the town ordinance was
preempted by state statute, that the ordinance was an impermissible attempt to
regulate interstate commerce in violation of Article 1, section 8 of the United
States Constitution, and that the result constituted a deprivation of his property
interest in his federal and state licenses, in contravention to the Fourteenth
Amendment. In addressing the preemption claim with respect to Indiana law,
the court considered DeHart’s argument that under I.C. § 14-2-1-2, IDNR had
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 14 of 27
the sole authority to regulate wild animals and that the town therefore did not.
In rejecting this argument, the court concluded, “Indiana Code § 14-2-1-2 only
applies to ‘the fish and wildlife resources of the state.’ Animals which are held
in captivity under a license or permit are specifically excluded from this
classification. See Ind.Code § 14-2-1-2.” DeHart v. Town of Austin, Ind., 39 F.3d
at 723. In other words, the court in DeHart agreed with the position advocated
here by Whitetail Bluff, i.e., that I.C. § 14-2-1-2 (now I.C. § 14-22-1-1) should
be construed to mean that IDNR has authority to manage all fish and wildlife
in Indiana except animals that are legally owned or being held in captivity under
license or permit. IDNR responds that DeHart is not controlling here because
the statute that it construed was repealed and replaced. IDNR is correct in that
the statute construed in DeHart was a predecessor to the current version of the
statute. This is not to say, however, that the current version of the statute
represents a significant departure from the former.
[18] It appears to us that the differences between the two versions are primarily
differences in form. I.C. § 14-22-1-1 is set out in outline form, whereas I.C. §
14-2-1-2 is set forth in paragraph form. Substantively, however, they are quite
similar. Both provide that IDNR has the authority “to protect and properly
manage the fish and wildlife resources” of the state. I.C. § 14-2-1-2 provides
that “all wild animals, except those which are legally owned or being held in
captivity under license or permit” are the property of the people of the State of
Indiana. It goes on to provide that IDNR has authority over the animals thus
designated as “property of the people of the State of Indiana.” In the current
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 15 of 27
version, subsection (a) establishes the same categorization and exception, i.e.,
that except for “wild animals … legally owned or being held in captivity under
license or permit”, wild animals located in this state are the property of the
people of Indiana. Subsection (b) goes on to provide that IDNR shall protect
and manage the fish and wildlife resources of Indiana. We are hard-pressed to
understand why the exception described in subsection (a) was created if it was
not to be understood in juxtaposition to the general conferral of authority set
out in subsection (b). See Toomey v. State, 887 N.E.2d 122, 124 (Ind. Ct. App.
2008) (when construing the meaning of a statute, “we attempt to give meaning
and effect to every word” in the statute). Without this connection between
subsections (a) and (b), the exception aspect of subsection (a) seems superfluous
and without meaning.
[19] Of course, as IDNR observes, DeHart is not binding on this court. And, we
acknowledge that the statute it construed, I.C. § 14-2-1-2, was subsequently
modified and recodified in the form in which it appears today in I.C. § 14-22-1-
1. Nevertheless, we conclude that the two versions are, substantively
speaking, quite similar. Moreover, we find ourselves in agreement with the
DeHart court’s interpretation of the relationship between the exception
described therein and the ensuing general conferral of authority. Accordingly,
we hold that I.C. § 14-22-1-1 does not confer authority on IDNR to protect and
manage wild animals that are legally owned or being held in captivity under a
license or permit.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 16 of 27
[20] We now move on to the second question IDNR presents, which is whether the
current statutory scheme prohibits high-fence hunting. IDNR contends that it
does so in I.C. § 4-22-20.5-2, which IDNR asserts “explicitly forbids the hunting
of the privately owned deer of … breeding operations.” Appellant’s Brief at 16.
This provision provides as follows:
As used in this chapter, “cervidae livestock operation” means an
operation that:
(1) has a game breeders license issued by the department of natural
resources under IC 14-22-20;
(2) contains privately owned cervidae; and
(3) involves the breeding, propagating, purchasing, selling, and
marketing of cervidae or cervidae products; but does not involve the
hunting of privately owned cervidae.
I.C. § 14-22-20.5-2. We cannot agree that this provision prohibits the hunting
of deer owned by breeding operations. In fact, this provision does not address
any activity at all, much less prohibit or authorize it. Rather, it is merely a
definitional section. In pertinent part, it defines what a cervidae livestock
operation is, and clarifies that this term does not describe an operation
involving the hunting of privately owned cervidae. In short, I.C. § 14-22-20.5-2
does not prohibit the activity of high-fence hunting. In fact, it says nothing
about it.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 17 of 27
[21] We wish to make several observations at this point. We commend the parties
and amici curiae for the quality of the analysis they have provided in arguing
their respective positions on the question of whether high-fence hunting has
been expressly prohibited by statute in this state. They raise several issues that,
in light of our conclusions, we need not address. For instance, amicus curiae
National Federation of Independent Business Small Business Legal Center, et
al. (SBLC) presents compelling argument on the implications of IDNR’s
reversal of course on the legality of high-fence hunting in Indiana. In a
nutshell, SBLC contends that IDNR should not be allowed to change the
position it took in assuring Whitetail Bluff in 1999 and for several years
thereafter that high-fence hunting is legal in Indiana. SBLC makes a
compelling argument that IDNR’s “change in position would essentially result
in revocation of a previous authorization to engage in a business practice after
the company has already expended substantial resources in reasonable reliance
[on] the authorization.” Brief of Amici Curiae, Nat’l Fed’n of Indep. Bus. Small Bus.
Legal Ctr., et al. at 10. For this reason, SBLC contends, IDNR’s altered
interpretation of the statute is not entitled to the deference that is customarily
extended by this court. See, e.g., Whinery v. Roberson, 819 N.E.2d 465, 477 (Ind.
Ct. App. 2004) (“an agency’s interpretation of a relevant provision that conflicts
with an earlier interpretation is entitled to considerably less deference than a
consistently held agency view”), trans. dismissed. We agree.
[22] Amicus curiae Indiana Wildlife Federation and Indiana Deer Hunters
Association (IWF) joins IDNR in arguing that IDNR’s second interpretation of
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 18 of 27
the controlling statutes is correct and that Indiana statutory law forbids high-
fence hunting. IWF directs our attention to several sections of the Indiana
Code in cobbling together an argument that, more by implication than anything
else, the General Assembly meant to forbid high-fence hunting. We have
already explained why we reject this argument with respect to the two
provisions that most directly address the question, i.e., I.C. § 14-22-1-1 and I.C.
§ 14-22-20.5-2. We also note that IWF cites several provisions in the Indiana
Administrative Code (i.e., 312 IAC 9-3-2(z), 312 IAC 9-3-18.5, and 312 IAC 9-
10-4), but of course, this essentially begs the question because the Indiana
Administrative Code consists of rules and regulations passed by agencies
pursuant to authority conferred upon them by the General Assembly. The
validity of those provisions depends entirely upon whether the subject matter
addressed in those provisions falls within the scope of authority granted to the
relevant agency by the General Assembly. See Indiana Dep’t of State Revenue v.
Best Ever Cos., Inc., 495 N.E.2d 785, 787 (Ind. Ct. App. 1986) (an administrative
board “may not by its rules and regulations add to or detract from the law as
enacted, nor may it by rule extend its powers beyond those conferred upon it by
law”) (quoting Indiana Dep’t of State Revenue v. Colpaert Realty Corp., 231 Ind.
463, 479-80, 109 N.E.2d 415, 422-23 (1952)) (emphasis deleted). In this case,
we have ruled that they do not.
[23] Finally, IWF offers a thoughtful and excellent primer on the specifics and ethics
of high-fence hunting, which it consistently refers to as “canned hunting.”
These policy arguments are best directed to the General Assembly, which has
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 19 of 27
not yet prohibited the practice. Along the same lines, we note the views
expressed by our colleague in dissent that high-fence hunting should be stopped
because it threatens some deer with the spread of infection, and indeed, by
implication, threatens generally the very survival of that species – or any species
that is hunted in this fashion. The dissent also comes down firmly on the side
that views high-fence hunting as unethical. We presume these are factors in our
colleague’s conclusion on the question before us. These views find support
among the opponents of this sort of hunting, but the proponents of high-fence
hunting offer countervailing arguments to these claims that are at least
plausible. Indeed, these are public policy concerns that should be carefully and
thoroughly weighed in reaching a decision regarding the viability of this
practice. We do not believe, however, that it is within our purview to perform
this task.
[24] Our decision is not informed by our views regarding the ethics of high-fence
hunting or the consequences of this practice with respect to the deer population
of Indiana. Rather, it seems that the fundamental point of departure between
our views on the question and those of the dissent is whether the current
Indiana legislation addressing this subject can be fairly understood to prohibit
the practice. Our colleague believes that it can. We, on the other hand, agree
with the opinion issued by the Indiana Attorney General’s office in 2004 at the
behest of Representative Friend that Indiana’s “existing statutes and rules do
not directly address many of the questions surrounding the complicated and
controversial issue of hunting privately owned deer kept on private property.”
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 20 of 27
Appellant’s Appendix at 32. The lack of direction provided in the current
statutory scheme is plainly reflected in the fact that in a matter of only six years,
IDNR issued two diametrically opposed interpretations of the same statutes.
We agree with the 2004 observation of the Indiana Attorney General’s Office: if
high-fence hunting is to be prohibited in Indiana, it will require further
legislative intervention.
[25] In summary, we hold that Article 22 of Title 14 of the Indiana Code does not
prohibit high-fence hunting of deer in Indiana. Therefore, in prohibiting
Whitetail Bluff from operating its high-fence hunting operation, IDNR went
beyond the express powers conferred upon it by the General Assembly in
conjunction with its charge to IDNR to manage Indiana’s wildlife. We further
hold that pursuant to I.C. § 14-22-1-1, IDNR is not authorized to manage the
deer on Whitetail Bluff’s property because those animals are exempted under
I.C. § 14-22-1-1(a) from the general grant of authority conferred upon IDNR
under I.C. § 14-22-1-1(b).
[26] Judgment affirmed.
[27] May, J., concurs and Vaidik, C.J., dissents with opinion.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 21 of 27
IN THE
COURT OF APPEALS OF INDIANA
Indiana Department of Natural February 2, 2015
Resources, and Cameron F. Clark as Court of Appeals Cause No.
Director of the Indiana Depart of Natural 31A04-1310-PL-502
Resources, Appeal from the Harrison Circuit
Court
Appellants, Honorable John Evans, Judge
Cause No. 31C01-0508-PL-033
v.
Whitetail Bluff, LLC, Rodney Bruce,
Backwoods Preserve, Inc., Midwest
Woodlots, LLC, and Shawn Taylor
d/b/a T.C. Outdoors,
Appellees.
[28] Vaidik, Chief Judge, dissenting.
[29] This case involves high-fence hunting of white-tailed deer. This is also known as
canned hunting—the shooting within high-fence enclosures of farm-raised deer that
are bred for unnaturally massive antlers. The dangers of canned hunting include
infection—specifically, chronic wasting disease (CWD)—and unethical hunting
practices, such as the concept of fair chase. See Ryan Sabalow, Trophy Deer Industry
Linked to Disease, Costs Taxpayers Millions, Indianapolis Star, Mar. 27, 2014,
http://indy.st/1mxxhiY (discussing both CWD and shooting—for a $15,000 fee
inside a one-acre pen—a deer so ill that a ranch hand had to poke the deer with a
sharp stick to get it to stand).
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 22 of 27
[30] The majority says IDNR cannot regulate in any way high-fence hunting under
current Indiana statutory law. The majority does not argue that deer are not wild
animals.3 Rather, the majority relies mainly on Indiana Code section 14-22-1-1, the
opening section to the chapter that determines that wild animals are the property of
the people of Indiana (with a few exceptions) and that IDNR’s job is to protect and
manage resources:
(a) All wild animals, except those that are:
(1) legally owned or being held in captivity under a license or permit as
required by this article; or
(2) otherwise excepted in this article; are the property of the people of
Indiana.
(b) The department shall protect and properly manage the fish and wildlife
resources of Indiana.
The majority holds that Section 14-22-1-1 “does not confer authority on IDNR to
protect and manage wild animals that are legally owned or being held in captivity
under a license or permit.” Slip op. at 16. In other words, if a wild animal is
excepted under subsection (a), then IDNR cannot protect and manage it under
3
Even if the majority argued that deer were not wild animals, the law provides otherwise. For purposes of Indiana
Code article 14-22, “wild animal” means “an animal whose species usually lives in the wild or is not domesticated.”
Ind. Code § 14-8-2-318(a), (b) (formatting altered). Because deer usually live in the wild and are not domesticated,
they are wild animals. See also Appellants’ App. p. 307, 483, 486-90, 497 (parties conceding deer are wild animals).
In addition, if deer were not subject to the wildlife and hunting authority of IDNR, then Whitetail Bluff would be
permitted to possess deer only under the statute for cervidae-livestock operations. See Ind. Code § 14-22-20.5-2. If
considered livestock, then Whitetail Bluff’s deer would be subject to humane-slaughter practices. See Ind. Code § 15-
17-5-1. Rodney Bruce had a game-breeder’s license, but it expired on December 31, 2005.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 23 of 27
subsection (b).4 I disagree with the majority’s interpretation of Section 14-22-1-1
based on the plain language of the statute. See State v. Coats, 3 N.E.3d 528, 531 (Ind.
2014) (“Where the statute’s language is unambiguous, we read each word in the
‘plain, ordinary, and usual sense.’”), cert. denied.
[31] Subsection (a) addresses ownership of wild animals. That is, all wild animals are the
property of the people of Indiana, except those animals that are legally owned or
being held in captivity under a license or permit in Article 22. But subsection (b) is
independent of and broader than subsection (a). Subsection (b) addresses the
protection and management of the fish and wildlife5 resources of Indiana. IDNR’s
responsibility to protect and properly manage the fish and wildlife resources is not
conditioned on the owner of those resources. In other words, IDNR can protect and
properly manage resources that are both publicly and privately owned.
[32] Even assuming that Section 14-22-1-1 is ambiguous, which I do not believe it is,
looking at all the statutes in Article 22 leads me to the inevitable conclusion that the
legislature intended to give IDNR regulatory power over all wild animals.6 For
example, Indiana Code section 14-22-2-3 outlines the general duties of the director,
and provides that the director can regulate wild animals on both public and private
property:
4
This is essentially what the trial court found: “The deer purchased by Whitetail Bluff and offspring thereof, are
privately owned and are not the property of the people of the State of Indiana. Therefore the animals are not subject
to regulation by DNR by virtue of the provisions of Indiana Code § 14-22-1-1.” Appellants’ App. p. 509.
5
For purposes of Indiana Code article 14-22, “wildlife” means “all wild birds and wild mammals.” Ind. Code § 14-
8-2-320.
6
In fact, Whitetail Bluff concedes that its hunters comply with other parts of Article 22, such as the time, licensing,
and firearms used in its guided hunts. Appellants’ App. p. 21, 30, 480.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 24 of 27
(1) Provide for the protection, reproduction, care, management, survival,
and regulation of wild[-]animal populations regardless of whether the wild
animals are present on public or private property in Indiana.
(2) Organize and pursue a program of research and management of wild
animals that will serve the best interests of the resources and the people of
Indiana.
(Emphasis added); see also Ind. Code § 14-22-2-5 (“The director or the director’s
representative may . . . enter into or upon private or public property for the following
purposes: (1) Managing and protecting a wild animal found upon or within the
property. (2) Killing or removing a wild animal that is considered a nuisance or
detrimental to overall populations.” (emphasis added)). In addition, Indiana Code
section 14-22-2-6 provides that the director shall adopt rules that
(4) Establish the methods, means, and time of:
(A) taking, chasing, transporting, and selling; or
(B) attempting to take, transport, or sell;
wild animals or exotic mammals, with or without dogs, in Indiana or in a
designated part of Indiana.
[33] Other statutes in this article specifically grant IDNR the authority to regulate privately
owned wild animals. According to the game-breeders statute, IDNR may issue a
license to (1) propagate in captivity and (2) possess, buy, or sell game birds, game
mammals, or furbearing mammals protected by Indiana law. Ind. Code § 14-22-20-
1. The wild-animal-permit law establishes a permit process for non-zoo entities to
possess wild animals. Ind. Code ch. 14-22-26. Finally, the shooting-preserves statute
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 25 of 27
provides that a licensed person may propagate and offer for hunting the following
animals that are captive-reared and released: pheasant, quail, chukar partridges,
mallard ducks, other game-bird species that IDNR determines by rule, and species of
exotic mammals that IDNR determines by rule. Ind. Code § 14-22-31-7.
[34] These varied examples show that the legislative scheme was to grant the State the
authority to protect and manage animals both wild and domesticated, even those it
does not own, and even when the animals are on private property.7 Using this
authority, I believe that IDNR can regulate canned hunting and specifically
Whitetail Bluff’s high-fence hunting operation.8
[35] Finally, I understand that a fairness argument can be made, but Whitetail Bluff has
not made an estoppel argument here. See Brown v. Branch, 758 N.E.2d 48, 51-52
(Ind. 2001) (“Estoppel is a judicial doctrine sounding in equity. Although variously
defined, it is a concept by which one’s own acts or conduct prevents the claiming of a
right to the detriment of another party who was entitled to and did rely on the
conduct.”). That is, Whitetail Bluff does not argue that IDNR is estopped from
regulating it because of a letter IDNR sent Whitetail Bluff in 1999. However, the
7
I disagree with the Seventh Circuit’s decision in DeHart v. Town of Austin, Indiana, 39 F.3d 718 (7th Cir. 1994). It is
well established that we are not bound by the Seventh Circuit’s interpretation of Indiana law. See Evan v. Poe &
Assocs., 873 N.E.2d 92, 103 (Ind. Ct. App. 2007). Moreover, the statute at issue in DeHart was an earlier version of
Section 14-22-1-1, and that statute was organized differently than the statute is organized today. Compare Ind. Code
§ 14-22-1-1 with Ind. Code § 14-2-1-2 (1993). Finally, as explained above, I believe that our current statutory scheme
allows IDNR to regulate high-fence hunting.
8
It would make little sense that the State could not regulate wild animals privately owned when the State can
regulate domesticated animals privately owned. That is, the State requires pet owners to have their dogs and cats
vaccinated against rabies, 345 Ind. Admin. Code 1-5-2; requires swine and cattle that are transported into our state
to be tested for brucellosis, 345 Ind. Admin. Code 3-4-2.5 & 345 Ind. Admin. Code 2-6-2.5; imposes specific duties
on cattle owners when a program to control and eradicate brucellosis has begun in a county, Ind. Code § 15-17-8-9;
requires cattle and goats who test positive for tuberculin to be condemned, Ind. Code § 15-17-7-6; requires cattle to
be quarantined when brucellosis is detected, Ind. Code § 15-17-8-10; and prohibits the feeding of trash to swine, Ind.
Code § 15-17-10-16.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 26 of 27
letter, which came from a single person in IDNR’s law-enforcement division, plainly
cautioned: (1) “At this time we can find nothing illegal or contrary to our hunting laws
regarding your business proposal and plans as detailed in your letter” and (2) “be
aware of the fact that state statutes and rules may change in the future that would disallow
the type of business venture that you have described to us. Whether or not
previously established businesses of this type would be allowed to continue after the
possible law change is unknown at this time.” Slip op. at 4 (emphases added).
Because Whitetail Bluff has been operating for more than a decade on a letter from a
single person in IDNR that cautioned IDNR’s position may change and Whitetail
Bluff does not raise estoppel, I do not think that a fairness argument is persuasive.
[36] Because IDNR may protect and properly manage the fish and wildlife resources of
Indiana—regardless of who owns them—I believe that IDNR has the authority to
regulate high-fence hunting under our current statutory scheme. Therefore, I would
enter summary judgment in favor of IDNR.
Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 27 of 27