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Saturday, August 13, 2005

Ind. Gov't. - The DNR move to enforce fenced hunting ban, contrasted with the BMV ID "rule"

As reported in a number of state papers Thursday and Friday, Indiana's DNR chief announced Thursday that high-fenced shooting preserves would be banned. Here are some quotes from Niki Kelly's story in the Fort Wayne Journal Gazette:

INDIANAPOLIS – DNR Director Kyle Hupfer put the owners of the state’s hunting preserves on notice Thursday that killing animals – including white-tailed deer – behind tall fences is illegal and will be enforced starting next year.

He will wait until the conclusion of the 2006 legislative session, which usually occurs in mid-March, so that lawmakers have a chance to weigh in on the issue although he does not support them taking action.

“I hope that this represents the end of this debate and that there will be no future legislation proposed to legalize these practices,” Hupfer said.

“In order to preserve the hunting tradition, we must ensure that all hunting in Indiana is done in an ethical manner and in a way that conforms with long-standing fair chase ethics.”

In addition, Hupfer also signed an emergency rule into law Thursday clarifying that it is illegal to hunt exotic mammals, such as elk and zebra.

The announcement brought to an end months of preparation by the DNR on the subject, including five public hearings across the state. More than 600 people attended the forums and the DNR also received more than 1,300 e-mails on canned hunting.

After reading the Court of Appeals opinion Friday in Villegas et al v. Joel Silverman (8/12/05) (about which the Indianapolis Star reported "The court of appeals, in a unanimous decision, said simply holding a news conference and publishing the rules in July 2002 wasn't good enough. The BMV must follow the rule-making process, which allows for public input ..."), I sought out the details of how DNR Director Kyle J. Hupfer's actions have differed from those taken (or not taken) by the BMV head three years ago. The 8/11/05 DNR press release sets out the process Hupfer followed:
Our review was multi-faceted. First, input was sought from the public by conducting public forums and establishing a dedicated email address. Second, my legal staff reviewed all legal authority on point. Third, staff conducted a multi-state review of laws pertaining to high fence shooting. Finally, DNR’s biologists reviewed all articles, information and data they could find on the issue.

This public review included the holding of five public forums. Approximately 600 people attended the forums and at least 200 distinct individuals provided comments. The DNR also received over 1300 emails during the review process. I want to thank everyone who participated in this process. * * *

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 Breeder’s Statute is clear, and always has been clear. A Game Breeder's 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. Confirmed animals that have been hunted in Indiana include elk, wild boar, zebra and red deer. We have heard rumors of additional exotic animals being hunted behind fence in Indiana, but none have been confirmed. 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 respect to the hunting of exotic mammals. The DNR will immediately begin permanent rulemaking with the Natural Resources Commission on this issue.

The DNR will enforce the Game Breeder’s Statute and the prohibition on the hunting of exotic mammals. However, because of the prior inconsistent application and enforcement of the law, the DNR will not commence that enforcement until the end of the 2006 General Assembly. We believe this approach is fair and provides the opportunity for the legislature to exercise its rightful role in lawmaking. Additionally, the DNR does not intend to prosecute or seek to revoke the Game Breeder’s License of high fence operators because of prior violations.

The actions taken today and the future enforcement of the Game Breeder’s License restrictions ensure that the strong Hoosier hunting heritage is protected for generations to come. I hope that this represents the end of this debate and that there will be no future legislation proposed to legalize these practices. In order to preserve the hunting tradition, we must ensure that all hunting in Indiana is done in an ethical manner and in a way that conforms with long-standing fair chase ethics. [emphasis added]

I'm impressed; all the bases appear to have been carefully covered. The Fort Wayne Journal Gazette agrees, in an editorial today titled "Don't buck this ruling." Some quotes:
DNR Director Kyle Hupfer couldn’t have said it any more loudly or clearly Thursday. Unless the law is rewritten, Indiana won’t be home to farms where people can blast away at deer locked in pens. As for the General Assembly, it should do absolutely nothing on this issue during its 2006 session. There shouldn’t be any compromise.

Thursday’s announcement cleared up years of supposed ambiguity. High-fence deer operators who say they don’t understand Hupfer’s ruling are being petulant to the point of absurdity. And judging from Gov. Mitch Daniels’ statement that Hupfer ran an open and “properly deliberative process,” canned-hunt supporters shouldn’t harbor any belief Daniels is going to undermine Hupfer’s decision. * * *

Hupfer’s decision speaks to Indiana’s commitment to uphold the ethical standards of hunting. Now the General Assembly should do nothing that undercuts Hupfer, the “fair chase” ethic and Indiana’s standing among legitimate hunters.

Agency rulemaking is governed by IC 4-22-2. Normally, rulemaking can take 6 months to a year (except for the environmental boards, which have additional rulemaking requirements that add months more to their rule promulgations).

IC 4-22-2-37.1 allows for temporary emergency rulemakings for several agencies, including DNR [see (a)(2)]. As detailed in the press release, Hupner has used that section to immediately promulgate an emergency exotic mammal rule so that it will be in place while the permanent rulemaking is in process.

The BMV does not appear to have been given the legal authority under IC 4-22-2-37.1 to adopt an emergency rule. That means that to correct the deficiencies in its identification requirements that the Court of Appeals cited Friday, the BMV needs to begin a formal rulemaking right away, so that it can have a valid rule in place, possibly by the end of the year. Of course, the BMV might have started this rulemaking process any time within the past three years, particularly as the legality of its ID requirements were under question.

Posted by Marcia Oddi on August 13, 2005 12:26 PM
Posted to Administrative Law | Environment | Indiana Government