Indiana Court of Appeals Rules That High-Fence Deer Hunting Not Prohibited
Indiana Dep’t of Natural Resources v. Whitetail Bluff, LLC, No. 31A04-1310. 2015 Ind. App. LEXIS 46 (Ind. Ct. App. Feb. 2, 2015)
In a 2-1 decision, the Indiana Court of Appeals has ruled that Indiana law does not prohibit high-fence hunting of white-tailed deer, a practice also known as “canned hunting.” Hunters engaged in high-fence hunting shoot the animals on property enclosed by a fence. This practice often involves white-tail deer bred to have large antlers.
This case arose after regulatory actions taken by the Indiana Department of Natural Resources (IDNR) were challenged by a high-fence deer hunting establishment, Whitetail Bluff. Whitetail Bluff began in the late 1990s when its founder contacted IDNR to determine if high-fence hunting was legal in Indiana. The agency responded that there was at the time nothing illegal about the practice.
In reliance upon that assertion, the founder expended considerable time and money to accommodate the new business venture. He fenced the 107-acre hunting area after complying with an IDNR directive to drive all wild deer off his property. In 1999, Whitetail Bluff obtained a game breeder’s license and purchased its first animals. It then opened for business. Whitetail Bluff’s operation was regularly inspected by IDNR.
In 2005, the Indiana Governor appointed a new director of IDNR. Shortly thereafter, IDNR adopted a temporary modification of 312 IAC 9-3 (the Emergency Rule) governing “exotic mammals.” The modification included deer within its definition of “exotic mammal.” The effect of the Emergency Rule was that only individuals possessing a game breeder’s license could possess whitetail deer and that possessing a game breeders license did not allow hunting of animals maintained under that license. In other words, the Emergency Rule banned high-fence deer hunting.
In response, Whitetail Bluff sought a declaratory judgment that the Emergency Rule was an unconstitutional usurpation of the legislative function of the Indiana General Assembly and that, as such, it was a nullity. After analyzing competing motions, the trial court entered summary judgment in favor of Whitetail Bluff, specifically finding that IDNR did not have the authority to issue rules banning a practice that was not otherwise prohibited by Indiana law.
Indiana Court of Appeals Decision
The Indiana Court of Appeals affirmed. The court first analyzed I.C. § 14-22-1-1, which defines certain “wild animals” to be the property of the people of Indiana and authorizes IDNR to protect and manage them. Specifically, the statute provides:
(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.
IDNR contended that this statute conferred regulatory authority upon IDNR over all wildlife resources in Indiana. Conversely, Whitetail Bluff argued that the plain language of the statute granted IDNR authority over only those wild animals not legally owned or held in captivity under a license or permit.
The court agreed with Whitetail Bluff, finding that the statute did not grant IDNR authority to regulate wild animals legally owned or held in captivity under a license or permit. To find otherwise would render the part (a) exception superfluous. In reaching this decision, the court found persuasive the federal case of DeHart v. Town of Austin, Ind., 39 F.3d 718, 723 (7th Cir. 1994), which had analyzed a similar predecessor statute and reached the same conclusion.
The court then analyzed whether Indiana’s current statutory scheme prohibited high-fence hunting and found that it did not. IDNR relied upon I.C. § 4-22-20.5-2 for its assertion that Indiana law “explicitly forbids the hunting of the privately owned deer of…breeding operations.” The statute (referring to “cervidae,” which includes deer) states:
As used in this chapter, “cervidae livestock operation” means an operation that:
- Has a game breeders license issued by the department of natural resources under IC 14-22-20;
- Contains privately owned cervidae; and
- Involves the breeding, propagating, purchasing, selling, and marketing of cervidae or cervidae products, but does not involve the hunting of privately owned cervidae.
The court found that the cited statutory provision was not a prohibition of the hunting of deer owned by breeding operations, but rather a statute defining what a “cervidae livestock operation” was. The court found that I.C. § 4-22-20.5-2 said nothing about high-fence hunting and that it certainly didn’t prohibit it.
In closing, the court noted that its opinion was not informed by its views regarding the ethics of high-fence hunting, but was instead a finding that current Indiana law did not prohibit the activity. The court stated that IDNR went beyond its express powers in prohibiting Whitetail Bluff from operating its high-fence hunting operation.
The dissenting justice referred to the dangers of “canned hunting,” including “infection” and “unethical hunting practices.” She then concluded that I.C. § 14-22-1-1 granted IDNR authority to protect and manage wild animals that were both publicly and privately owned. As such, the dissenting justice urged that IDNR had the right to ban high-fence hunting under current Indiana law.
Although the case may be appealed to the Indiana Supreme Court, the majority’s statutory analysis appears sound. High-fence hunting opponents will likely need to rely on legislative action to prohibit the activity.
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