Ind. Dept. of Natural Resources, and Cameron F. Clark as Dir. of the Ind. Dept. of Natural Resources v. Whitetail Bluff, Llc., Rodney Bruce

25 N.E.3d 218, 2015 Ind. App. LEXIS 46, 2015 WL 416786
CourtIndiana Court of Appeals
DecidedFebruary 2, 2015
Docket31A04-1310-PL-502
StatusPublished

This text of 25 N.E.3d 218 (Ind. Dept. of Natural Resources, and Cameron F. Clark as Dir. of the Ind. Dept. of Natural Resources v. Whitetail Bluff, Llc., Rodney Bruce) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ind. Dept. of Natural Resources, and Cameron F. Clark as Dir. of the Ind. Dept. of Natural Resources v. Whitetail Bluff, Llc., Rodney Bruce, 25 N.E.3d 218, 2015 Ind. App. LEXIS 46, 2015 WL 416786 (Ind. Ct. App. 2015).

Opinions

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.

[3] Rodney Bruce wanted to establish a business in southern Indiana that would offer hunting, fishing, and lodging. The hunting he proposed to offer was what is termed “high-fence” hunting. This refers to hunting wild animals on property that is enclosed by a fence. To this end, in 1997, Bruce purchased 116 acres of wooded, hilly ground located in Harrison County, Indiana. Before commencing his project, however, Bruce contacted IDNR to determine whether high-fence hunting was legal in Indiana. In a February 23, 1999 letter, Bruce detailed his plans, which he described as a “life long dream.” Appellant’s Appendix at 29. These plans included the construction of a nine-foot fence around the entire property, allocating nine acres of the property for breeding white-tailed deer, and permitting in-season hunting of deer on the property. He concluded the letter as follows:

MY QUESTION IS, CAN I LEGALLY CHARGE PEOPLE TO COME TO MY PLACE FOR THIS VACATION/HUNTING EXPERIENCE. I DO NOT GUARANTEE SUCCESS AT ANY OF THE ITEMS LISTED ABOVE. I AM CHARGING PEOPLE FOR THEIR ROOM AND BOARD AND OPPORTUNITY TO DO ANY OR ALL OF THE ITEMS OFFERED. GRANTED THAT 90 PERCENT OF MY BUSINESS WILL BE FROM PEOPLE WANTING AN OPPORTUNITY TO HUNT AND KILL A WHITETAIL DEER. THEY WILL NOT BE ABLE TO HUNT OR KILL DEER IN THE NINE ACRE BREEDING PEN. THEY MAY ONLY HUNT IN THE 107 ACRES WHERE THE DEER ARE FREE TO ROAM. I INTEND TO PURCHASE SOME DEER AND TURN THEM LOOSE IN THE 107 ACRES TO BREED AND MULTIPLY SO THAT PEOPLE CAN HUNT 100 PERCENT FAIR CHASE WILD AND FREE ROAMING GAME WITHIN THE 107 ACRES.
PLEASE REVIEW THE ASPECTS OF THIS BUSINESS CAREFULLY AND GIVE ME SOME FEEDBACK. PLEASE CALL IF MORE INFORMATION IS NEEDED. I WOULD LIKE TO PRESENT YOUR REPLY TO THE LOCAL CONSERVATION OFFICER WHEN HE INSPECTS MY [221]*221BREEDING PEN. THIS WILL ENSURE HIM THAT THIS IS NOT A HUNTING PRESERVE AND I HAVE INVESTIGATED ALL ASPECTS OF THIS BUSINESS AND FOUND THEM TO BE TOTALLY LEGAL IN THE STATE OF INDIANA.

Id. at 30. On March 25, 1999, Bruce received the following response from Col. Larry D Allen of IDNR’s law enforcement division:

Officials from both the Law Enforcement Division and Division of Fish and Wildlife met and reviewed your letter dated February 23, 1999 (enclosed). At this time we can find nothing illegal or contrary to our hunting laws regarding your business proposal and plans as detailed in your letter. Unless there is additional information of which we are not aware, I believe that you are on legal ground with us to proceed with your “life-long dream”.
However, please be aware of the fact that state statutes and rules may change in the future that would disallow the type of business venture that you have described to us. Whether or not previously established businesses of this type would be allowed to continue after the possible law change is unknown at this time.

Id. at 31.

[4] After receiving IDNR’s approval, Bruce expended considerable time and money in preparing his property to accommodate the business venture — Whitetail Bluff — outlined in his February 23 letter to IDNR. He erected a fence around the entire property and complied with a local IDNR conservation officer’s directive to drive all of the wild deer off of his property before completely enclosing it with a fence and re-populating it with privately owned deer. Whitetail Bluff thereafter commenced business operations. In September 2002, IDNR informed Bruce that his operation “present[ed] a problem for the classified forests status of the property”. Id. at 236. The letter explained that pursuant to Section 7 of the Indiana Classified Forests Act of 1921, “[a] parcel of land may not be classified as native forest land or as a forest plantation if it is grazed by a domestic animal.” Id. The letter continued:

[D]eer would not ordinarily be considered domestic animals, however, for the purpose of the Classified Forest Act the fact that the animals are confined and concentrated in a relatively small area resulting in detrimental effects on timber production makes the difference. The relatively large number of animals per acre results in the destruction of the litter layer on the forest floor and the exposure of bare soil. The soil is also compacted increasing water runoff. • Tree roots are exposed and damaged and the understory vegetation, both woody and herbaceous, is largely eliminated.

Id. Bruce was informed that, as a result, the status of 4.552 acres of his property was being changed from classified forest and consequently he owed $75.29 in back taxes. In May 2003, Bruce received a letter from Michael E. Coggeshall, IDNR’s District Forester, conveying the results of a “reinspection report” of Whitetail Bluff’s operation and grounds and recommending that Whitetail Bluff continue to maintain access trails and also recommending the removal of several deer from certain areas of the property. Id. at 237. In December 2003, IDNR informed Bruce that it was denying his request to obtain out-of-season permits to control crop depredation within Whitetail Bluffs fenced area. The request was denied in part because IDNR believed the crops might have been planted as a lure crop for the deer.

[222]*222[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 cer-vid1 owners were required to tag their animals in connection with BOAH’s Chronic Wasting Disease (CWD) Certification Program. When an animal is killed on Whitetail Bluff property, the head is sent to BOAH for CWD testing. As the foregoing reflects, from the time Whitetail Bluff commenced operations through 2004, IDNR was in regular contact with Whitetail Bluff concerning different aspects of its operation and did not question its legality.

[6] Sometime in or around 2004, Representative William C. Friend of the Indiana House of Representatives requested an opinion from the Indiana Attorney General’s Office “on a number of questions relating to Indiana’s regulation of white-tailed deer ..., with particular reference to those deer that are kept in privately-owned compounds for either breeding or hunting.” Id. at 32. The Attorney General’s written opinion included the following summarization: “Indiana’s existing statutes and rules do not directly address many of the questions surrounding the complicated and controversial issue of hunting privately owned deer kept on private property.” Id. The opinion also included the following observation:

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Bluebook (online)
25 N.E.3d 218, 2015 Ind. App. LEXIS 46, 2015 WL 416786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ind-dept-of-natural-resources-and-cameron-f-clark-as-dir-of-the-ind-indctapp-2015.