Court of Appeals of Indiana | Opinion 31A04-1310-PL-502| February 2, 2015 Page 1 of 27

ATTORNEYS FOR APPELLANT

Gregory F. Zoeller 

Attorney General of Indiana 

David L. Steiner 

Frances Barrow 

Kyle Hunter 

Deputy Attorneys General 

Indianapolis, Indiana

ATTORNEYS FOR AMICI CURIAE

INDIANA WILDLIFE FEDERATION

INDIANA CHAPTER OF THE

WILDLIFE SOCIETY, AND INDIANA

DEER HUNTERS ASSOCIATION

Jon Laramore 

Stephanie Boxell 

Sarah Sharp 

Faegre Baker Daniels, LLP 

Indianapolis, Indiana 

ATTORNEY FOR APPELLEES 

BACKWOOD PRESERVE, INC.,

MIDWEST WOODLOTS, LLC, AND 

SHAWN TAYLOR D/B/A T.C.

OUTDOOR

W. Douglas Lemon 

Miner & Lemon LLP 

Warsaw, Indiana 

ATTORNEYS FOR APPELLEES 

WHITETAIL BLUFF LLC AND 

RODNEY BRUCE

Bryan H. Baab 

Bose McKinney & Evans LLP 

Indianapolis, Indiana 

William C. Moyer 

Lorch & Naville, LLC 

New Albany, Indiana 

ATTORNEYS FOR AMICI CURIAE 

NATIONAL FEDERATION OF 

INDEPENDENT BUSINESS SMALL 

BUSINESS LEGAL CENTER, THE 

NORTH AMERICAN DEER 

FARMERS ASSOCIATION, INDIANA

DEER AND ELK FARMERS 

ASSOCIATION AND THE INDIANA 

AGRICULTURAL LAW 

FOUNDATION

Stephen J. Peters 

William N. Ivers 

Harrison & Moberly, LLP 

Indianapolis, Indiana 
Court 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, 

Appellants, 

v. 

Whitetail Bluff, LLC, Rodney Bruce, 

Backwoods Preserve, Inc., Midwest 

Woodlots, LLC, and Shawn Taylor 

d/b/a T.C. Outdoors, 

Appellees. 

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-PL033 

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 3 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 4 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 
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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 
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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. 
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“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 
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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. 
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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 
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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 
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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 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, 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. 
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[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). 
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[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: 
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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 
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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 
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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. 
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[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. 
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[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 
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the controlling statutes is correct and that Indiana statutory law forbids highfence 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 20 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 21 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 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, 

Appellants, 

v. 

Whitetail Bluff, LLC, Rodney Bruce, 

Backwoods Preserve, Inc., Midwest 

Woodlots, LLC, and Shawn Taylor 

d/b/a T.C. Outdoors, 

Appellees. 

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 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 23 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 24 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 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 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 26 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 27 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.