Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 1 of 27 A TTORNEYS FOR A PPELLANT 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 A TTORNEY FOR A PPELLEES 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, IndianaCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 2 of 27 

### IN THE 

# COURT OF APPEALS OF INDIANA

Indiana Department of Natural Resources, and Cameron F. Clark as Director of the Indiana Department of Natural Resources, A

ppellan t s,

v. 

### Whitetail Bluff, LL C, Rodney Bruce, Backwoods Preserve, Inc., Midwest Woodlots, LLC, and Shawn Taylor d/b/a T.C. Outdoors, A

ppelle e s. February 2, 2015 Court of Appeals Cause No. 31A04-1310-PL-502 Appeal from the Harrison Circuit Court Honorable John Evans, JudgeCause No. 31C01-0508-PL033



### Friedlander, Judge.

[1] The Indiana Department of Natural Resources (IDNR) appeals a grant of summary judgment in favor of Whit etail Bluff, LLC, Rodney Bruce, Backwoods Preserve, Inc., Midwest W oodlots, LLC, and Sean Taylor d/b/a T.C. Outdoors (Whitetail Bluff). The issu e ultimately presented in this case is whether current Indiana statutory law pr ohibits “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 3 of 27 [3] Rodney Bruce wanted to establish a bu siness in southern Indiana that would offer hunting, fishing, and lodging. Th e hunting he proposed to offer was what is termed “high-fence” hunting. This re fers 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 In diana. 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 4 of 27 PLEASE REVIEW THE ASPECTS OF THIS BUSINESS CAREFULLY AND GIVE ME SO ME 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 rece ived the following re sponse from Col. Larry D Allen of IDNR’s law enforcement division:

Officials from both the Law Enforc ement 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. Whe ther or not previously established businesses of this type would be al lowed to continue after the possible law change is unknown at this time.

Id. at 31.

[4] After receiving IDNR’s approval, Bruc e expended consid erable 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 compli ed with a local IDNR conservation officer’s directive to drive all of the wild deer off of his property beforeCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 5 of 27 completely enclosing it with a fence an d re-populating it with privately owned deer. Whitetail Bluff ther eafter commenced business op erations. In September 2002, IDNR informed Bruce that his op eration “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 Cla ssified 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 cons idered domestic animals, however, for the purpose of the Classified Fo rest Act the fact that the animals are confined and concentrated in a re latively small area resulting in detrimental effects on timber produ ction makes the difference. The relatively large number of animals per acre results in the destruction of the litter layer on the forest floor an d the exposure of bare soil. The soil is also compacted increasing water runoff. Tree roots are exposed and damaged and the understor y 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 cons equently he owed $75.29 in back taxes. In May 2003, Bruce received a letter from Michael E. Cogg eshall, IDNR’s District Forester, conveying the results of a “r einspection report” of Whitetail Bluff’s operation and grounds and recommending that Whitetail Bluff continue to maintain access trails and also recommending the remova l of several deer from certain areas of the property. Id . at 237. In December 2003, ID NR informed Bruce that it was denying his request to obtain out-of-season permits to contro l crop depredation withinCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 6 of 27 Whitetail Bluff’s fenced area. The request wa s 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 lice nse in 1999 when he purchased the first animals for Whitetail Bluff. This license required that he report the number of deer that were bo ught, 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 inform ed Whitetail Bluff that cervid 1 owners were required to tag their animals in co nnection with BOAH’s Chronic Wasting Disease (CWD) Certification Program. Wh en an animal is killed on Whitetail Bluff property, the head is sent to BOAH for CWD te sting. As the foregoing reflects, from the time Whitetail Blu ff commenced operations through 2004, IDNR was in regular contact with Whitet ail Bluff concerning different aspects of its operation and did not question its legality.

[6] Sometime in or around 2004, Representa tive William C. Friend of the Indiana House of Representatives requested an opinion from the Indiana Attorney General’s Office “on a number of question s relating to Indiana’s regulation of white-tailed deer ..., with particular re ference to those deer that are kept in privately-owned compounds for ei ther breeding or hunting.” Id . at 32. The Attorney General’s written opinion in cluded the following summarization:

1 “Cervid” refers to any member of the deer family, Ce rvidae, which is comprised of deer, caribou, elk, and
moose.Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 7 of 27 “Indiana’s existing statutes and rule s do not directly address many of the questions surrounding the complicate d 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 consen sus could not be reached in the resolution of which may require le gislative 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 pers on 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 rele ase 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 ye ars. In the course of the 2005 legislative session, the issue of ce rvidae farming was addressed by the General Assembly. They passed legislation that specifically authorized the agricultural pursuit of cervidae farming. That sameCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 8 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 a fter consultations with the Office of Attorney General, we believe that the existing Game Breeders Statute is clear, and always has been clea r. A Game Breeders License does not allow the hunting or purposeful killing of animals maintained under that license.

Exotic mammals are also being hunte d 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 be low, Ind. Code Ann. § 14-22-20.5-2 (West, Westla w 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 9 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 eff ect 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 hu nting would no lo nger be permitted.

[8] At this point, Bruce declined to renew his Game Breeder’s License and consequently it expired on December 31, 2005. On Marc h 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 hi s property had been illegal since February 15, 2006. He was furthe r 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. Suc h legal action includes law enforcement, citation, and referral to th e 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 Emergen cy 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 r egulate Whitetail Bluff’s operation. On June 14, 2013, IDNR filed a motion for summary judgment asking the court toCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 10 of 27 rule as a matter of law that high-fence deer hunting operations are contrary to statute because wild animals such as d eer may be possessed only pursuant to the provisions of I.C. § 14-22-6-1 (Wes t, Westlaw current wi th all 2014 Public Laws of the 2014 Second Regular Se ssion and Second Regular Technical Session of the 118th General Assembly), an d 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 Bl uff countered with a summary judgment motion of its own, arguing that IDNR’s attempt to regulate high-fence hunting amounted to an unconstitutional usurpati on 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 sh ows 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 pu re 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 question s of law such as th e one in the present case are particularly appropri ate for summary resolution. Id. Where the moving party designates material demons trating there are no genuine issues of material fact with respect to a particular issue or claim, the bu rden shifts to theCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 11 of 27 non-moving party to come forward wi th designated evid ence 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 demons trating that the grant of summary judgment was erroneous. Id. Finally, we will affirm a grant of summary judgment on any theo ry 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 allo ws or, in the alternative, forbids highfence 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, pu rsuant 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 Regula r Session and Second Regular Technical Session of the 118th General Assembly), the rules it has enacted to that end must be enforced and Whitetail Blu ff’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 th at 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 Asse mbly has not prohib ited high-fence hunting, and that IDNR overstepped its au thority in promulgating rules to that effect. Specifically, Whitetail Bluff co ntends the rules in question, and most especially the Emergency Rule, violat e the separation of powers doctrine contained in article 3, section 1 of the Indiana Co nstitution.Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 12 of 27 [12] As we have indicated, the pivotal questi on in this case is whether IDNR is correct in asserting that the current statutory scheme prohibits high-fence hunting, and therefore that IDNR is auth orized to promulgate rules effectuating that prohibition. IDNR cites two provis ions 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 ca ptivity 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 an d properly manage the fish and wildlife resources of Indiana.

[13] IDNR contends this provision confer s authority upon IDNR to regulate all wildlife resources in Indian a, including those describe d in the exception set out in subsection (a) as cervidae legally owne d or held in captivity under a license or permit, and most especially includin g 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 13 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 anothe r, 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 au thority under subsection (b) to protect and manage fish and wildlife in Indiana that are the property of th e people of Indiana, which pursuant to subsection (a) does not in clude those that are legally owned or being held in captivity under license.

[15] When interpreting the meaning of a stat ute, 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 statut e is susceptible to more than one interpretation, it is deemed to be am biguous and therefore open to judicial construction. Id. When construing the meaning of a statute we deem to be ambiguous, we apply other well-establis hed rules of statutory construction. Primary among such rules is that the “goal of statutory construction is to determine, give effect to, and implemen t 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 14 of 27 The department of natural resources shall have the authority and responsibility to protect and proper ly manage the fish and wildlife resources of the state. Any and a ll 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, surv ival, 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, owne d 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 injuncti ve 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 ordi nance 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 an d state licenses, in contra vention to the Fourteenth Amendment. In addressing the preemptio n claim with respect to Indiana law, the court considered DeHart’s argument that under I.C. § 14-2-1-2, IDNR hadCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 15 of 27 the sole authority to regulate wild animal s and that the town therefore did not. In rejecting this argument, the court co ncluded, “Indiana C ode § 14-2-1-2 only applies to ‘the fish and wildlife resource s of the state.’ An imals 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 po sition 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 au thority 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 de parture 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, howeve r, 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 wh ich 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 author ity over the animals thus designated as “property of the people of the State of Indiana.” In the currentCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 16 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 resource s 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 stat ute). Without this connection between subsections (a) and (b), the exception aspe ct of subsection (a) seems superfluous and without meaning.

[19] Of course, as IDNR observes, DeHart is not binding on th is court. And, we acknowledge that the statute it construe d, 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 re lationship between the exception described therein and the ensuing general conferral of authority. Accordingly, we hold that I.C. § 14-22-1-1 does not co nfer authority on IDNR to protect and manage wild animals that are legally owne d or being held in captivity under a license or permit.Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 17 of 27 [20] We now move on to the se cond question I DNR presents, which is whether the current statutory scheme prohibits high-f ence 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, “cervi dae 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 th at this provision prohibits the hunting of deer owned by breeding operations. In fact, this provis ion does not address any activity at all, much less prohibit or authorize it. Rather, it is merely a definitional section. In pertinent pa rt, 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-fen ce hunting. In fact, it says nothing about it.Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 18 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 provid ed in arguing their respective positions on the ques tion 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 Bu siness Small Business Legal Center, et al. (SBLC) presents compelling argume nt 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 Whitetai l Bluff in 1999 and for several years thereafter that high-fence hunting is legal in Indiana. SBLC makes a compelling argument that IDNR’s “chan ge in position would essentially result in revocation of a previous authorization to engage in a business practice after the company has already expended substant ial resources in reasonable reliance [on] the authorization.” Brief of Amici Curiae, Nat’l Fe d’n of Indep. Bus. Small Bus. Legal Ctr., et al. at 10. For this reason, SB LC contends, IDNR’s altered interpretation of the statute is not entitl ed 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 interpretati on 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 ofCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 19 of 27 the controlling statutes is correct and that Indiana statutory law forbids highfence hunting. IWF directs our attentio n to several sections of the Indiana Code in cobbling together an argument th at, more by implication than anything else, the General Assembly meant to fo rbid high-fence hunting. We have already explained why we reject this argument with respect to the two provisions that most directly address th e 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 cons ists of rules and regu lations passed by agencies pursuant to authority conferred upon them by the General Assembly. The validity of those provisions depends en tirely 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 regulati ons 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 excelle nt primer on the specifics and ethics of high-fence hunting, which it consiste ntly refers to as “canned hunting.” These policy arguments are best direct ed to the General Assembly, which hasCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 20 of 27 not yet prohibited the prac tice. 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 th e spread of infection, and indeed, by implication, threatens generally the very su rvival of that species – or any species that is hunted in this fashion. The di ssent 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 th e question before us. These views find support among the opponents of this sort of hunt ing, but the proponents of high-fence hunting offer countervailing arguments to these claims th at are at least plausible. Indeed, these ar e public policy concerns th at should be carefully and thoroughly weighed in reaching a deci sion regarding the viability of this practice. We do not believe, however, th at it is within our purview to perform this task.

[24] Our decision is not inform ed by our views regarding the ethics of high-fence hunting or the consequences of this practi ce with respect to the deer population of Indiana. Rather, it seems that th e 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 A ttorney General’s office in 2004 at the behest of Representative Friend that Indiana’s “existing st atutes and rules do not directly address many of the ques tions surrounding the complicated and controversial issue of hunting privately ow ned deer kept on private property.”Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 21 of 27 Appellant’s Appendix at 32. The lack of direct ion 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 in terpretations of the same statutes. We agree with the 2004 obse rvation of the Indiana Atto rney 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 be cause those animals are exempted under I.C. § 14-22-1-1(a) from the general gr ant 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 22 of 27 

### IN THE 

# COURT OF APPEALS OF INDIANA

Indiana Department of Natural Resources, and Cameron F. Clark as Director of the Indiana Depart of Natural Resources, A

ppellan t s,

v. 

### Whitetail Bluff, LL C, Rodney Bruce, Backwoods Preserve, Inc., Midwest Woodlots, LLC, and Shawn Taylor d/b/a T.C. Outdoors, A

ppelle e s. February 2, 2015 Court of Appeals Cause No. 31A04-1310-PL-502 Appeal from the Harrison Circuit Court Honorable John Evans, Judge Cause No. 31C01-0508-PL-033

[28] 

### Vaidik, Chief Judge, dissenting

.

[29] This case involves high-fence hunting of wh ite-tailed deer. This is also known as canned hunting—the shooting within high-fen ce enclosures of farm-raised deer that are bred for unnaturally massive antlers. The dangers of canned hunting include infection—specifically, chronic wastin g disease (CWD)—and unethical hunting practices, such as the co ncept 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 23 of 27 [30] The majority says IDNR cannot regulate in any way high-fence hunting under current Indiana statutory law. The majori ty 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 determin es 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 ca ptivity 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 prop erly 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 l egally 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 anim als, the law provides otherwise. For purposes of Indiana Code article 14-22, “wild animal” means “a n 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 an d hunting authority of IDNR, then Whitetail Bluff would be permitted to possess deer only under the st atute 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 licens e, but it expired on December 31, 2005.Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 24 of 27 subsection (b). 4 I disagree with the majority’s in terpretation of Section 14-22-1-1 based on the plain lang uage 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, an d usual sense.’”), cert. denied

.

[31] Subsection (a) addresses ownership of wild an imals. 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 pe rmit in Article 22. But subsection (b) is independent of and broader than subsecti on (a). Subsection (b) addresses the protection and management of the fish and wildlife 5 resources of Indiana. IDNR’s responsibility to protect and properly man age the fish and wildli fe resources is not conditioned on the owner of those resources. In other words, IDNR can protect and properly manage resources that are bot h 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 in evitable conclusion that the legislature intended to give IDNR r egulatory power over all wild animals. 6 For example, Indiana Code sectio n 14-22-2-3 outlines the general duties of the director, and provides that the direct or can regulate wild animal s on both public and private property:

4 This is essentially what the trial court found: “The de er purchased by Whitetail Blu ff and offspring thereof, are privately owned and are not the property of the people of th e 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.” Ap pellants’ App. p. 509. 5 For purposes of Indiana Code article 14-22, “wildlife” me ans “all wild birds and wild mammals.” Ind. Code § 14- 8-2-320. 6 In fact, Whitetail Bluff concedes that its hunters comply wi th other parts of Article 22, such as the time, licensing, and firearms used in its gu ided hunts. Appellants’ App. p. 21, 30, 480.Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 25 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 interest s 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 th e 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 specifica lly grant IDNR the au thority to regulate privately
owned wild animals. Accord ing to the game-breeders st atute, 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 statuteCourt of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 26 of 27 provides that a licensed person may pr opagate and offer for hunting the following animals that are captive-reared and releas ed: 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 legi slative 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 r egulate canned hunting and specifically Whitetail Bluff’s high-fence hunting operation. 8

[35] Finally, I understand that a fairness argu ment 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 ju dicial doctrine sounding in equity. Although variously defined, it is a concept by which one’s own ac ts or conduct prevents the claiming of a right to the detriment of another party wh o was entitled to and did rely on the conduct.”). That is, Whitetail Bluff doe s 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 Sevent h 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 Seve nth 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 di fferently than the statute is organized today. Compare Ind. Code § 14-22-1-1 with Ind. Code § 14-2-1-2 (1993). Finally, as explained ab ove, 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 regu late wild animals privately owned when the State can regulate domesticated animals privately owned. That is, th e State requires pet owners to have their dogs and cats vaccinated against rabies, 345 Ind. Admin. Code 1-5-2; requires sw ine 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 co unty, 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 dete cted, 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 27 of 27 letter, which came from a single person in IDNR’s law-enforcem ent division, plainly cautioned: (1) “ At this time we can find nothing illegal or contrary to our hunting laws regarding your business propos al 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 ha ve described to us. Whether or not previously established business es of this type would be a llowed to continue after the possible law change is unknown at this time .” Slip op. at 4 (emphases added). Because Whitetail Bluff has been operating fo r 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 ar gument is persuasive.

[36] Because IDNR may protect and properly ma nage the fish and wildlife resources of Indiana—regardless of who owns them—I be lieve that IDNR has the authority to regulate high-fence hunting under our curren t statutory scheme. Therefore, I would enter summary judgment in favor of IDNR.