Court rules against DNR in high-fence hunting fight

The Indiana Court of Appeals ruled Monday that state wildlife officers overstepped their authority a decade ago when they tried to ban the controversial practice of high-fence deer hunting.

The three-judge appeals panel ruled 2-1 that the Department of Natural Resources went “beyond the express powers” state lawmakers granted the agency when wildlife officers ordered all the state’s hunting preserves to shut down.

The judges declared that Indiana’s law “does not prohibit high-fence hunting of deer.”

If it goes unchallenged, the ruling would legalize a practice that has been under a cloud since the 2005 DNR order. In prepared statements, DNR spokesman Phil Bloom and Indiana Attorney General Greg Zoeller said they were reviewing the ruling, so it’s unclear whether they’ll appeal to the Indiana Supreme Court.

But the appeals court’s opinion also adds pressure on the state legislature, which is entertaining two bills meant to clarify decades-old ambiguities in the law.

The House Natural Resources Committee is considering legislation that would set rules for four high-fence hunting preserves that challenged the DNR’s order.

The committee’s chairman, State Rep. Sean Eberhart, R-Shelbyville, said Monday that a vote on his bill, House Bill 1453, could come as early as next week.

Eberhart said the committee will need to decide whether to merely grandfather in the existing four hunting preserves, or allow more of them in Indiana.

Another bill, Senate Bill 442 authored by Sen. Pete Miller, R-Avon, would ban high-fence hunting outright. Miller said he drafted the legislation in part due to concerns raised in a four-part investigative series published last spring by the Indianapolis Star. His bill has yet to receive a hearing.

“The Court of Appeals’ majority opinion and dissent present differing views on a complex statutory scheme by three well-respected judges that will hopefully forge a legislative compromise in the coming weeks with clear and useful guidance for all,” said Bryan Babb, an attorney representing two deer preserves who challenged the DNR’s ban.

Shawn Schafer, executive director of the North American Deer Farmers Association, also applauded the ruling. He said it highlights the need for Eberhart’s bill to pass so that preserves can operate under clear guidelines and state oversight.

“We’re just trying to clarify that,” Schafer said. “We’re trying to put rules and regulations in place.”

He said a ban on high-fence hunting preserves would prevent Indiana’s nearly 400 deer farms from having an in-state market to sell the bucks they breed for the hunting market, hindering Indiana’s rural agricultural economy.

The farms and the deer they sell are part of a boutique agricultural industry that breeds deer with antlers sometimes twice as large as the record for animals killed in the wild. Valuable breeding bucks and does can command six-figure prices. Some hunters pay $10,000 or more to shoot a farm-raised trophy buck.

Jeff Wells, president of the Indiana Conservation Officers Organization, said the court got it wrong.

He said the case sets a troubling precedent. He insists that wildlife officers who enforce hunting laws have the authority over all wild animals, even if they’re kept behind a fence.

“It is truly frustrating that such a longstanding and common sense perspective of both the intent and practice relevant to the protection and management of our fish and wildlife resources has been so abruptly set aside,” Wells wrote in a statement. “I am deeply concerned that the recent court of appeals decision will have negative unintended consequences on a wide array of Indiana’s fish and wildlife species.”

Wells was the executive officer of the DNR’s law enforcement division who oversaw a 2005 case that prompted the DNR to try to shut down Indiana’s fenced hunting preserves.

In the case, Wells and other officers presented evidence and testified that wealthy clients were paying tens of thousands of dollars to shoot massive-antlered deer in enclosures so small that officials called them “killing pens.”

The owner of the Peru, Ind. preserve, Russ Bellar, was sentenced to nine months in federal prison. He remains a prominent player in the deer-breeding industry.

The Bellar case prompted the DNR’s attempt to shut down the remaining dozen or so preserves operating in the state at the time, but the preserves sued, challenging the ban.

In 2013, a Harrison County judge ruled that the DNR had no authority over captive-deer hunting because the animals on the preserves were privately owned livestock.

But the status of the animals, which the DNR classifies as wildlife, remained unclear.

Less than a year before the Harrison County ruling, an Owen County judge tossed out another case challenging the DNR’s authority.

Last year, Zoeller challenged the Harrison County ruling, saying it was “absurd and dangerous” to prevent state wildlife officials from enforcing hunting rules on Indiana's fenced deer hunting preserves.

In her dissenting opinion attached to Monday’s ruling, Court of Appeals Chief Judge Nancy Vaidik, said it’s clear that the DNR has regulatory authority over all “wild animals on both public and private property.”

Citing the concerns about disease spreading from captive deer to the wild, Vaidik also referred to the act of shooting deer inside high fences as “canned hunting,” the pejorative term used by opponents of the practice.

But the two majority judges, Ezra Friedlander and Melissa May, said that such arguments were moot.

“Our decision is not informed by the our views regarding the ethics of high-fence hunting or the consequences of this practice with respect to the deer population,” they wrote.

Friedlander and May also wrote that they also agreed with a 2004 advisory opinion issued by the Attorney General’s Office that said: “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.”

Zoeller said Monday that the ruling shows that the laws remain unclear and “reasonable people on both sides of the debate can reach opposite conclusions.”

“The timing of the Court of Appeals split decision on state authority comes at the very moment the Legislature is debating bills on this subject,” Zoeller said. “So we must review carefully” what to do next.

Meanwhile, it’s yet to be seen whether Eberhart’s bill will receive enough support to pass.

While previous legislation has breezed through the Indiana House, it has stalled in the state’s Senate. There, the top Republican, David Long, has likened high-fence hunting to dog fighting.

Last year, legislation similar to Eberhart’s bill failed to advance in the Senate by a single vote.

Call Star reporter Ryan Sabalow at (317) 444-6179. Follow him on Twitter: @RyanSabalow.