Indiana Department of Natural Resources, and Cameron F. Clark as Director of the Indiana Department of Natural Resources, Appellants,
Whitetail Bluff, LLC, Rodney Bruce, Backwoods Preserve, Inc., Midwest Woodlots, LLC, and Shawn Taylor d/b/a T.C. Outdoors, Appellees
Appeal from the Harrison Circuit Court. Honorable John Evans, Judge. Cause No. 31C01-0508-PL-033.
ATTORNEYS FOR APPELLANT: Gregory F. Zoeller, Attorney General of Indiana; David L. Steiner, Frances Barrow, Kyle Hunter, Deputy Attorneys General, Indianapolis, Indiana.
ATTORNEYS FOR AMICI CURIAE INDIANA WILDLIFE FEDERATION INDIANA CHAPTER OF THE WILDLIFE SOCIETY, AND INDIANA DEER HUNTERS ASSOCIATION: Jon Laramore, Stephanie Boxell, Sarah Sharp, Faegre Baker Daniels, LLP, Indianapolis, Indiana.
ATTORNEYS FOR APPELLEES BACKWOOD PRESERVE, INC., MIDWEST WOODLOTS, LLC, AND SHAWN TAYLOR D/B/A T.C. OUTDOOR: W. Douglas Lemon, Miner & Lemon LLP, Warsaw, Indiana.
ATTORNEYS FOR APPELLEES WHITETAIL BLUFF LLC AND RODNEY BRUCE: Bryan H. Baab, Bose McKinney & Evans LLP, Indianapolis, Indiana; William C. Moyer, Lorch & Naville, LLC, New Albany, 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.
Friedlander, Judge. May, J., concurs and Vaidik, C.J., dissents with opinion.
[¶ 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.
[¶ 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.
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 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 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 cervid 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: " 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 ...