                                                                         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
