Appeals court finds high-fence deer hunting not prohibited in Indiana

Jennifer Nelson for www.theindianalawyer.com

Indiana law does not prohibit “high-fence” hunting of deer in Indiana, nor does it allow for the Department of Natural Resources to create regulations relating to the practice, the Indiana Court of Appeals ruled Monday.

The controversial topic made its way before the appeals court after the DNR appealed a ruling out of Harrison Circuit Court in favor of Whitetail Bluff LLC; its owner, Rodney Bruce; and other plaintiffs who sued after the DNR passed an emergency rule in 2005 that, in effect, prohibited high-fence hunting.

Bruce created Whitetail Bluff in 1999 on more than 100 acres in Harrison County to allow people to come and hunt deer he purchased that would roam on his fenced-in property. When he sought to open the operation, the DNR said at that time there were no laws that prohibited his business. The DNR decided in August 2005 to look into fenced deer hunting and reclassified deer under the definition of an “exotic mammal.” Its emergency rule also said that possessing a game-breeders license does not allow for the hunting of animals maintained under that license.

Judges Ezra Friedlander and Melissa May affirmed the lower court inInd. Dept. of Natural Resources, and Cameron F. Clark as Dir. of the Ind. Dept. of Natural Resources v. Whitetail Bluff, LLC, Rodney Bruce, et al., 31A04-1310-PL-502, which included amicus briefs from several groups, including the Indiana Deer Hunters Association and the National Federation of Independent Business Small Business Legal Center.

The current statutory scheme does not prohibit high-fence hunting and the DNR is not authorized under I.C. 14-22-1-1 to promulgate rules effectuating that prohibition, the majority held. That section outlines what wild animals the DNR can regulate.

Chief Judge Nancy Vaidik dissented from her colleagues, citing this statute. She found that, unlike her colleagues, the statute allows for DNR to protect and properly manage resources that are both publicly and privately owned. She also wrote that Article 22 of Title 14 of the Indiana Code was written to give DNR regulatory power over all wild animals, but the majority found that article does not prohibit high-fence hunting of deer in Indiana.

“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,” Friedlander wrote in the majority opinion. “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.’

Friedlander noted that the majority agreed with the 2004 AG’s opinion that if the practice is to be outlawed here, it will require further legislative intervention.