AGENDA ITEM #7
BEFORE THE
NATURAL RESOURCES COMMISSION
OF THE
STATE OF INDIANA
IN THE MATTER OF:
ADMINISTRATIVE RULES GOVERNING
FISH AND WILDLIFE, 312 IAC 9

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Administrative Cause
Number: 16-161D
LSA Document #17-436(F)

REPORT ON RULE PROCESSING, PUBLIC HEARING, AND HEARING
OFFICER ANALYSES WITH RECOMMENDATIONS REGARDING FINAL ACTION
1.

RULE PROCESSING

For consideration as to final action, is a rulemaking package proposing the addition of five new
administrative rules and the amendment of several existing administrative rules within 312 IAC
9 governing the management of wildlife.

Rules proposed for amendment include 312 IAC 9-2-2 to allow the use of a motorboat to hunt
squirrels, 312 IAC 9-2-11 governing the taking or chasing of wild animals, except fish, on state
parks and historic sites, and 312 IAC 9-3-12 governing the taking of fox, coyotes, and skunks.
Additional rules amendment proposals involve 312 IAC 9-3-13 and 312 IAC 9-3-14, relating to
the seasons for taking mink, muskrat and long-tailed weasel, as well as raccoon and opossum,
respectively. Other rules that would be amended in this rulemaking are 312 IAC 9-3-14.5
relating to the possession of furbearing mammals, 312 IAC 9-10-12 governing fur buyers’
licenses, and 312 IAC 9-11-2, which is associated with wild animal possession permits.
Administrative rules addressing the trapping of river otters, 312 IAC 9-3-18.2, and 312 IAC 9-318.5, governing exotic mammals, along with 312 IAC 9-10-11 addressing nuisance wild animal
control permits are also proposed for amendment. General requirements associated with
migratory birds and waterfowl are proposed for amendment at 312 IAC 9-4-2, and 312 IAC 9-411 proposes amendments relating to the hunting of wild turkeys. More administrative rules
proposed for amendment address endangered species including 312 IAC 9-3-19 that relates to
endangered species of mammals, 312 IAC 9-4-14 governing endangered species of birds, and
312 IAC 9-9-4 controlling endangered species of invertebrates. Other proposed amendments

 include 312 IAC 9-3-18.1 to allow the taking of bobcats, which, if approved, will necessitate the
amendment of 312 IAC 9-3-18.4 to remove the prohibition on the possession of a bobcat carcass,
hide, or other part, as well as the amendment of 312 IAC 9-2-3 to allow for the sale of bobcats
and their parts.

The rulemaking package also proposes the addition of these administrative rules:
a. 312 IAC 9-2-16 that will control the release of captive-bred mammals, reptiles,
amphibians, and mussels;
b. 312 IAC 9-3-18.7, governing the taking of bats;
c. 312 IAC 9-3-18.8 addressing black bears;
d. 312 IAC 9-10-25 establishing a nuisance deer control permit; and
e. 312 IAC 9-10-26 creating an endangered species propagation permit.

On December 2, 2016, Joseph Hoage, then Chief Legal Counsel for the Department of Natural
Resources’ (Department), submitted to the Office of Management and Budget (OMB) a request
for an exemption to the suspension of rulemaking actions under the provisions of Executive
Order 13-03. In a letter dated June 2, 2017, Micah G. Vincent, Director of OMB, wrote in
response “Based on [the Department’s] submission, the request qualifies for an exception under
paragraph 6(b) and 6(g) of Executive Order 13-03. Therefore, [the Department] may proceed
with the rule proposed in its December 2, 2016 submission.”

The Natural Resources Commission (Commission) gave preliminary adoption to the proposed
amendments on September 19, 2017 after considering input from Linnea Petercheff, of the
Department’s Division of Fish and Wildlife, as is represented in the following excerpt of the
official minutes of the Commission’s meeting:

Consideration of preliminary adoption of biennial wildlife rule amendment
package (312 IAC 9); Administrative Cause No. 16-161D
…the Division of Fish and Wildlife (Division) and law enforcement officers review
the administrative rules related to hunting, fishing, trapping, and other fish and
wildlife associated permits. She stated that the Division initiated a number of rule
ideas and topics for public comment in 2016 to start the biennial rule change
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 process. She stated that over 1,600 comments were received both on-line and by
regular mail during the months of April and May of 2016. As a result, a few ideas
submitted by the Division were dropped. Petercheff stated that 312 IAC 9-2-16
prohibits the release of captive-bred native and exotic species of mammals, reptiles,
amphibians, crustaceans, mussels, and other animals that did not come from the
wild in Indiana except as authorized by permit. She stated that 312 IAC 9-3-14.5
allows the hides and carcasses of legally harvested furbearers taken during the
season to be kept year-round by hunters and trappers without a special authorization
or permit. She stated that the proposed rule amendment to 312 IAC 9-3-14.5 was
primarily due to the price of hides and would allow for greater flexibility for hunters
and trappers to sell the hides when the sale yields the best price. Petercheff stated
that the deer control permit rule is currently governed by a temporary rule and the
Division is requesting that it be made a permanent rule. She stated that 312 IAC 910-25 establishes a separate rule for the deer control permit that would specify the
requirements for obtaining a permit, the time frame in which the deer could be
taken, methods that could be used, and disposition of the deer, including the antlers.
Petercheff stated that 312 IAC 9-10-11, which governs nuisance wild animal
control permits, would require raccoons, opossums, and coyotes captured under a
nuisance wild animal control permit to be euthanized. She stated that an exception
to the permit would be landowners protecting their own land from nuisance
animals. She stated that the proposal would allow the capture and release of an
endangered species. She stated that from a scientific standpoint the habitats are
overpopulated in suburban and rural areas around the state. Petercheff stated that
each area of property has a carrying capacity in which a certain number of animals
can exist and the Department is considering the welfare of the animals in
relationship to people as part of the rule amendment process. 6 Petercheff stated
that 312 IAC 9-3-18.1 authorizes a bobcat hunting and trapping season. There
would be a bag limit of one bobcat per person and a statewide quota. She stated that
the season would be open in a restricted number of counties in Southern Indiana.
She stated that the counties and the quotas would be set in a temporary rule each
year. Petercheff stated that 312 IAC 9-4-11 would add Elkhart, Kosciusko, and
Noble Counties to the fall wild turkey firearms season. Amendment to 312 IAC 93-19 would add three species of bats to the state’s list of endangered species. She
stated that because some of the bats can be found in buildings there are provisions
that would allow for the safe removal, due to health concerns. She stated that 312
IAC 9-4-14 adds the rufa red knot to the state’s list of endangered species of birds
and removes the osprey from the list. She stated that the osprey meets the criteria
for delisting since 50 or more nesting territories have been documented for more
than three years. Ospreys are still protected by state and federal law under the
Migratory Bird Treaty Act. Davis noted that the turkey hunting season is similar to
how the otter hunting season started as to opening limited counties and establishing
quotas. Davis asked whether Elkhart, Kosciusko, and Noble Counties are the first
or the last of the counties to open up for fall wild turkey firearms season. Petercheff
answered that the fall wild turkey firearms season is not open to all counties in the
state. There would potentially be more counties that could be added in the future.
She stated that the three counties identified are areas where the population of wild
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 turkeys are sufficient to support a firearms season. Petercheff noted that Elkhart,
Kosciusko, and Noble Counties are already open for fall archery season and all
counties are open statewide for the spring wild turkey firearms season.
Members of the public were also recognized by the Commission in September 2017 to offer
input about the Department’s rulemaking package. Most of the comments were focused on the
establishment of a season for taking bobcats.

Most of those who spoke in opposition to the opening of a season for taking bobcats noted that
the Department does not represent a significant number of human-bobcat conflicts or
characterize the bobcat as a significant threat to domestic animals or livestock. These
individuals noted the recent removal of the bobcat from the endangered species list in 2005 and
questioned whether the Department had conducted a scientific study of bobcat populations to
ascertain that current populations will sustain even a limited taking season. A large number of
comments reflect a preference for the Commission to consider the non-consumptive user, i.e. the
photographer, animal watcher, and opposed the establishment of a taking season that provides
for the commercialization of wildlife for profit. Public input received during the Commission
meeting indicated that before offering its proposal, the Department had received public input
that, at a ratio of four to one, opposed the establishment of even a limited season for taking
bobcats.

However, others who offered insights observed that bobcats are more frequently being
inadvertently caught in traps, are being sighted and are becoming engaged in conflicts with
hunting dogs. These individuals supported a limited season on bobcats that would be modeled
after the limited taking season for river otters that was established three years prior.

In further discussion occurring during the September Commission meeting, the Department
acknowledged possessing no accurate population data for the bobcat noting that the Division of
Fish and Wildlife does not conduct population counts for most wildlife species. The Department
did confirm that all states surrounding Indiana, with the exception of Ohio, do have limited
hunting seasons for bobcats.

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 The Notice of Intent to adopt the rule amendments and new rules was published in the Indiana
REGISTER at 20170927-IR-312170436NIA on September 27, 2017. The notice identified
Petercheff as the “small business regulatory coordinator” for purposes of IC 4-22-2-28.1.

The Commission caused the information required by IC 4-22-2-22.5 to be included in its online
rulemaking docket on September 19, 2017. The rulemaking docket was updated periodically as
the rulemaking progressed.

As specified by Executive Order 2-89 and Financial Management Circulars 2010-4 and 2015-1,
proposed fiscal analyses of the rule proposal, and the rule standards analysis required by IC 4-222-19.5 were submitted, along with a copy of the proposed rule language and a copy of the posted
Notice of Intent, to OMB and the Legislative Council on September 28, 2017. On January 17,
2018, the Commission received an approval letter from Jason D. Dudick, Director, State Budget
Agency, which, in part, stated,

After reviewing the proposed rule, the recommendation of the State Budget Agency
is that the rule changes be approved.
Furthermore, the statement and analysis (attached hereto) provided by the Indiana
Natural Resources Commission is hereby adopted as the Office of Management and
Budget’s own Fiscal Impact Statement for the purpose of satisfying the
requirements under IC 4-22-2-28(d). Also, it is adopted as the Office of
Management and Budget’s cost benefit analysis under IC 4-3-22-13(a).
On February 2, 2018, the Division of Hearings submitted the proposed rule to the Legislative
Services Agency (LSA), along with the Statement Concerning Rules Affecting Small Business
(also known as the Economic Impact Statement or EIS). The Notice of Public Hearing and the
Justification Statement required by IC 4-22-2-24(d)(3) were submitted to LSA on February 5,
2018. On February 14, 2018, the text of the proposed rule (20180214-IR-312170436PRA); the
notice of public hearing (20180214-IR-312170436PHA); and the EIS (20180214-IR312170436EIA), were posted to the Indiana REGISTER. Following receipt from LSA on February
5, 2018 of an “Authorization to Proceed”, the Division of Hearings caused a Notice of Public
Hearing to be published on February 14, 2018 in the Indianapolis Star, a newspaper of general
circulation in Marion County, Indiana. In addition, the notice of the public hearing and a
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 summary of the proposed rule changes were published on the Commission’s web-based
electronic calendar and links to the documents were provided on the Commission’s rulemaking
docket.

As required by Ind. Code § 4-22-2.1-5, a copy of the rule proposal and Economic Impact
Statement was forwarded to the Small Business Ombudsman for the Indiana Economic
Development Corporation (“IEDC”) on February 5, 2018 for review and comment. In a letter
dated March 6, 2018, Katelyn Colclazier, IEDC’s Small Business Ombudsman, stated:

Based upon this statement and review, the Small Business Ombudsman supports
the proposed rule related to the economic impact to small business as not presenting
an undue burden if the NRC conclusion reflects the actual result after promulgation.
The IEDC’s comments were posted to the Commission’s rulemaking docket on March 6, 2018
and were available for review at the public hearings as required by IC 4-22-2.1-6.

2.

PUBLIC HEARING AND COMMENT

The public was provided from approximately September 19, 2017 until March 23, 2018 to
submit written comments using the Commission’s online comment form, by personal delivery, or
by U.S. Mail addressed to the Commission’s Division of Hearings.

Throughout the public comment period, the Commission’s Division of Hearings was contacted
with reports that the online comment system was not accessible or was not functioning properly.
A comment received through the online comment system on October 26, 2017 indicates that the
link provided in the Notice of Intent posted on September 27, 2017 was not accessible to the
public on that date; however, records maintained by the Division indicate that the system was
fully functional on September 19, 2017. In most instances of complaints regarding system
malfunction, Division staff assisted callers in properly accessing the system to aid in the person’s
ability to make a comment. Division staff also tested the comment system on a number of
occasions, using both state equipment and email accounts as well as privately owned equipment
and email accounts. These tests never revealed an instance in which the online comment form
failed to operate as intended.

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 At the public hearing conducted on March 14, 2018, Melissa Montgomery stated that the online
comment system was not accessible or user-friendly if accessed using a wireless device, such as
a cell phone. Following the public hearing, using a public Wi-Fi connection, the hearing officer
and the Division’s legal analyst accessed the system using cell phones. Division staff have been
unable to replicate any of the complained-of difficulties relating to the submission of written
comments using the Commission’s online system.

Two public hearings were conducted, as scheduled, at which oral and written comments were
received from the public. The first public hearing, held in Mitchell, Indiana on March 14, 2018,
was attended by at least 93 members of the public. The second public hearing, attended by at
least 110 members of the public, was conducted in Anderson, Indiana on March 22, 2018.
Department staff also attended both public hearings.

The public comment period closed on March 23, 2017. The close of the public comment period
was announced during the public hearings and was also posted on the Commission’s rulemaking
docket.

In 2007, the Commission first adopted its Nonrule Policy Document, Information Bulletin #55
(Third Amendment), “Citizen Comments to Hearing Officers (IB #55), “to encourage
consistency, transparency, and efficiency in the development of hearing officer reports” with
respect to the recordation and consideration of input received from the
public. http://www.in.gov/legislative/iac/20170524-IR-312170259NRA.xml.pdf last visited April
19, 2018. IB #55 was most recently amended on May 24, 2017. In accordance with IB #55,
certain comments that were submitted through means or in a manner inconsistent with IB #55
have not been considered by the hearing officer and are not included in the report 1. Qualifying
public comments have been considered by the Hearing Officer in the preparation of this report
and are attached and incorporated as follows for the Commission’s further review and
consideration:

1

These comments have been retained as public records as required by law.

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 a. Exhibit A: Written comments received through the Commission’s online comment
form.
b. Exhibit B: Written comments received by U.S. Mail
c. Exhibit C: Summary of oral comments received at the March 14, 2018 public hearing;
d. Exhibit D: Written comments hand delivered during the March 14, 2018 public
hearing;
e. Exhibit E: Summary of oral comments received at the March 22, 2018 public
hearing; and
f. Exhibit F: Written comments hand delivered during the March 22, 2018 public
hearing.

The Department’s Division of Fish and Wildlife provided its Response to the public comments
on May 4, 2018. The Department’s Response is attached and incorporated as Exhibit G.

3.

ANALYSES AND RECOMMENDATIONS REGARDING FINAL ADOPTION

Hearing Officer Analysis
On February 14, 2018, LSA suggested revision of four rules as follows:
a. With respect to the administrative rule added at 312 IAC 9-2-16 LSA observed that the
word “mollusk” appears in the actual rule language while the word “mussel” appears in
the rule heading and suggested that these references be consistent.
b. LSA suggested that 312 IAC 9-4-2(l)(1)(F), be revised to read “A resident youth
consolidated hunting, trapping, and fishing license…” by adding the words “and fishing”.
c. At 312 IAC 9-10-11(j)(6) LSA suggested the word “working” be stricken and replaced
with the word “business.”
d. LSA noted that formatting and language revision is necessary in 312 IAC 9-10-26(d) to
conform to rule drafting style.
In consultation with the Department, revisions were drafted to fulfill LSA’s suggestions without
altering the meaning or interpretation of this rule. The revision of 312 IAC 9-10-26(d) will cause
it to read as follows:
(d) A permit issued under this section authorizing the release of a specimen
into the wild may only be issued if the applicant establishes the animal bred or
reared in captivity:
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 (1) is, as testing is scientifically possible and appropriate for the species
and age of the animal, free of any communicable disease;
(2) will not become a nuisance;
(3) will not damage a:
(A) native wild animal;
(B) domesticated species of animal; or
(C) species of plant;
(4) is capable of surviving after release and achieving the release goal;
(5) is genetically appropriate; and
(6) is capable of meeting anticipated post release impact and
management guidelines.
These suggested revisions have been incorporated into the rule language proposed for final
adoption.

Comments from the public were received relating to a large number of individual rule
amendments and additions included within this rulemaking package. The largest amount of
public input relates to two proposed rules. The first involves the addition of 312 IAC 9-3-18.1 to
establish a taking season for bobcats, which requires correlating amendments be made to 312
IAC 9-3-18.4, 312 IAC 9-2-3, and 312 IAC 9-10-12. The second relates to the proposed
amendment of 312 IAC 9-10-11 to add subsection (j)(4), which would require the euthanization
of all raccoons, Virginia opossums and coyotes captured by an individual under a nuisance wild
animal control permit. A reduced number of comments were received in opposition to other
Department proposals, particularly the Department’s proposal to allow squirrel to be hunted from
a boat (312 IAC 9-2-2), to authorize Department staff to take or to engage the services of another
person to take certain species of wild animal that are causing or threatening to cause damage or
creating a public safety concern on state parks (312 IAC 9-2-11), and to allow the taking of bats
in limited circumstances (312 IAC 9-3-18.7).

In some instances comments reflected opposition to portions of existing administrative rules that
are not proposed for amendment in this rulemaking. Those comments, for example, seek the
removal of subsections (g) and (h) of 312 IAC 9-3-14.5 despite the fact that subsection (g) is not
the subject of any proposed amendment and the amendment proposed for subsection (h) is only
offered for the purpose of clarification. The revision of any portion of a rule involved in this

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 rulemaking package that is not included within the scope of this rulemaking is not allowed at this
time. IC 4-22-2-29(c).

In other instances, the comments received are not consistent with the actual rule amendment
proposed. For example, one comment states opposition to 312 IAC 9-3-18.2 on the mistaken
belief that “The proposed changes prohibit wildlife rehabilitators, nuisance wildlife control
operators, scientific collector permit holders, etc., from possessing river otters.” (Laura
Nirenberg, Online 10/26/17) The amendment proposed for 312 IAC 9-3-18.2(l) will not prohibit
individuals holding valid permits of these types from possessing a river otter.

Generally, public opinion supported the addition of certain species to the lists of endangered
mammals, birds and invertebrates as set forth in 312 IAC 9-3-19, 312 IAC 9-4-14, and 312 IAC
9-9-4, respectively. In most cases support was also expressed for the addition of protection for
black bears at 312 IAC 9-3-18.8 and through the amendment of 312 IAC 9-3-18.5 and 312 IAC
9-10-11(a).

In drafting this report for consideration by the Commission, the hearing officer has attempted to
concentrate on the evaluation of proposed rule additions and amendments that are the most
noteworthy to the public and for which the most meaningful input has been received.

A number of comments were received in opposition to allowing squirrels to be hunted from or
pursued by a hunter from a motor driven conveyance. The content of many of these comments
indicates that the commenter lacked full understanding of the proposed amendment to 312 IAC
9-2-2 as they refer to the “pursuit” of, the “running down” of, and the “chase” of squirrels with a
vehicle. (Arnold McGill, Online 1/23/18; Ann McKee, Online 2/28/18; Eileen Brown 3/6/18) To
be clear, the proposed amendment would not allow these types of activities. The amendment
would allow a squirrel to be hunted from a motorboat that is “beached”, “resting at anchor”, “tied
to a stationary object”, or is “otherwise without motion” except motion created by wind or water
movement.

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 More relevant comments related to this rule amendment express concern for safety associated
with the firing of a weapon into a wooded area from a body of water because of the popularity of
that type area for hiking and other recreational pursuits and note the difficulty of identifying
property boundaries from the water in order for a hunter to ensure that they are shooting only
into property for which they have received consent to hunt. (Lisa Watson, Mail 3/19/18). Other
comments express concern that the Department has failed to provide justification for allowing
this expansion of the opportunity to hunt squirrels and question the ability of a hunter to
accurately shoot small game, such as a squirrel, from a boat that is being rocked by water
movement or wind. (James Richards, Online 3/14/18; Thomas Meek, Online 3/23/28, Mail
3/23/18).

The Department’s response acknowledges the existence of a potential conflict between
recreational users of property but observed that public properties, such as the Hoosier National
Forest, are open for hiking, hunting and other recreational pursuits at the same time. The
Department also notes that it will continue to be the hunter’s responsibility to know the property
boundary within which they have authorization to hunt. The Department does not explain the
reason for the proposal to allow the hunting of squirrels from a motorboat and does not address
concerns about shooting accuracy from a boat rocked by water and wind, particularly when
shooting at a small target. Except as it relates to the use of a motor driven conveyance as an aid
for a disabled hunter, which is already authorized, diligent search of the public input received by
the Commission has not identified one public comment in favor of this proposal.

The proposal to amend 312 IAC 9-2-11 would allow authorized employees of the Department to
take non-endangered species of non-migratory birds, mute swans, mammals or reptiles on a state
park or state historic site property. The amendments would also allow a state park property
manager to authorize a person holding a valid nuisance wild animal control permit or valid
trapping license to take raccoons, Virginia opossums, striped skunks, beavers or muskrats from
the state park if the animal is causing or threatening to cause damage or creating a public safety
or health concern. The latter situation involves only state parks and not state historic sites.

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 On its face, the rule amendment proposed for 312 IAC 9-2-11 would allow the specified animals
to be taken from state parks or state historic sites by a limited number of specially authorized
Department employees or in the case of state parks by properly licensed persons authorized by
the property manager. This rule would allow for the taking only if the animal is a threat to
health, safety or property.
Comments offered in opposition to this rule amendment proposal observe that trapping in state
parks presents the opportunity for park visitors and their pets to become unintended victims of
traps. (Zach Reid, Online 3/23/18) Other comments note that the rule, as proposed, does not
obligate the property manager to confirm by “substantial evidence” that the animal is a nuisance
and suggests that the Department’s proposed rule will allow for the further commercialization of
wildlife.

The Department already engages in the removal of nuisance animals from its properties through
the adoption of an emergency rule or by the issuance of a special permit. The adoption of this
proposed rule amendment will place the Department in a better position to more timely dispatch
a diseased animal and to, for instance, remove a nuisance animal from a heavily populated
campground where the potential for human-animal conflict is greater. The hearing officer
observes that under 312 IAC 8-2-1, the Department may authorize a use, establish conditions
upon a use, prohibit a use of a DNR property, or close an area to entry by the public by the
posting of signage. In accordance with 312 IAC 8-2-6(a), a member of the public is responsible
to be in control of their pets, and under 312 IAC 8-2-1(b) to ensure compliance with Department
signage. While accidents can occur and the introduction of animal traps or occasions for hunting
within a Department property could increase that potential, the hearing officer recognizes that the
Department presently dispatches diseased animals on, removes nuisance animals from and
successfully manages hunting on state parks and other Department properties on an annual basis.
It is the Department’s responsibility to manage and preserve natural resources, including
wildlife, for the benefit of the public; however, that responsibility must be balanced with the
need to protect visitors to its properties from the harms caused by wildlife that are overpopulated,
are prone to human-animal conflict, and are diseased.

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 With respect to the alteration of the taking, hunting, or trapping seasons set forth in 312 IAC 9-312 for fox, coyote and skunk, 312 IAC 9-3-13 for mink, muskrat and long-tailed weasels, 312
IAC 9-3-14 for Virginia opossums and raccoons, and 312 IAC 9-3-18.2(a) for river otters, the
only substantive change is the removal of exact hours for the beginning and ending date of the
seasons in favor of simply stating the dates. For example, at 312 IAC 9-3-12 the season for fox
will now begin at midnight on October 15th instead of noon on October 15th and end at 11:59
p.m. on February 28th, instead of noon. Comments were received in opposition of these
amendments on the basis that they equate to an “extension” of these taking seasons. In most
cases, these amendments have the effect of opening a season 12 hours earlier and closing the
season 12 hours later, with a large portion of those hours occurring during the overnight hours.
It is not reasonable to characterize these amendments as an intent to extend hunting, trapping or
taking seasons. Instead these amendments are observed to significantly simplify the
administrative rules thereby increasing understandability, decreasing instances of unintended
violations and enhancing the capability of enforcing the season dates.

The establishment of a taking season for bobcats at 312 IAC 9-3-18.1, carries with it the need for
contemporaneous amendments of 312 IAC 9-2-3 to allow for the possession of any portion of a
bobcat; 312 IAC 9-3-18.4 to eliminate a prohibition on the possession of a carcass, hide or any
part of a bobcat; and 312 IAC 9-10-12 to allow a licensed fur buyer to acquire and possess an
untanned hide or carcass of a bobcat. The rule proposal would allow the Department Director to
establish a season for taking bobcats in designated counties. The Department Director would
also be required to specify a statewide quota and allows for the early closure of the season if the
quota is reached. The Department anticipates in the first year that the bobcat quota would be
250-300 and hunting would only be allowed in 30 counties located in the southern one-third of
the State. (Exhibit G)

A limited season was established for river otters in 2015 through amendments to 312 IAC 0-318.2, which were similar to the amendments proposed here that would establish a limited season
for taking bobcats 2. The Commission concluded with respect to river otters that their

2

This type limited season controlled by the director through a temporary rule has been successfully used for other
species as well, including wild turkey, the hunting opportunity for which is continuing to slowly expand.

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 populations varied by location within the State. In some geographical areas there were few or no
sightings while anecdotal data indicated that in other locations river otters were frequently
trapped by accident, were being struck by vehicles in increasing numbers and the Department
was receiving a significant number of complaints about nuisance river otters causing significant
financial losses for individuals with stocked ponds and for operators of fisheries. Natural
Resources Commission, Meeting Minutes, January 20,
2015, https://www.in.gov/nrc/files/nrc_jan_2015_minutes.pdf. Some comments received in 2014
in favor of establishing a limited trapping season for river otters indicated that landowners
experiencing significant nuisance damage were resorting to self-help by “killing river otters
illegally and simply throwing them away.” “Report on Rule Processing, Consideration of
Public Comments, Analysis and Recommendation Regarding Final Adoption,” pg. 5,
Administrative Cause Number 14-054D, LSA Document # 14-341(F). With respect to river
otters the Department’s most recent feasibility study was conducted in 1994. Despite the time
between that feasibility study and rule proposal, the Department was able to identify 66 counties
where river otter populations were sufficient for harvest while recognizing that river otter
populations had not reached sustainable levels in 26 counties where habitat was not optimal for
the species.

The rule amendments that would allow the taking of bobcats were the subject of significant
public input that largely disfavors the establishment of even a limited season.

The individuals who commented in favor of the establishment of a limited season for taking
bobcats are predominantly from hunters and trappers who report seeing bobcats frequently while
in the field and through trail camera photographs. (J.R. Bardon, PH1 Oral) Trappers report that
the incidental trapping of bobcats in trap sets intended for coyote occurs on an occasional basis.
(Clayton Barnett, PH1 Oral) The majority of the hunters and trappers who favor the
establishment of a limited bobcat season and who report sighting and/or incidental trapping of
bobcats appear to be from counties in the southern part of the state, including Warrick,
Washington, Jackson, Dubois, Spencer, Pike, Greene, and Harrison Counties. Other reports of
frequent bobcat sightings come from individuals in areas including Parke and Vermillion
Counties. The locations of these reports are generally consistent with the Department’s response
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 and bobcat mortality reports that record the number of bobcat mortalities by vehicle strikes,
incidental trapping or known deaths by other causes. Indiana Department of Natural Resources,
2015 Wildlife Science Report, pg. 43.

Several of the individuals who commented in favor of establishing a season for trapping bobcats
offered the opinion that the bobcat is responsible for decreased populations of rabbits and turkeys
as well as other small game and ground nesting birds. (Keven Kluemper, Online 3/6/18; Donald
Kolley, PH1 Oral; Dennis Cobb, PH2 Oral) Conversely, the comments in opposition to
establishing a season for taking bobcats observe that bobcats are an APEX predator that aid in
creating greater biological diversity by controlling the population of rodents and other small
animals such as rabbits that frequently become nuisance animals. (Leslie Bishop, Online
3/19/18; Elizabeth Mahoney, Online 3/20/18). The positions taken with respect to the bobcats’
impact upon other wildlife is a matter of perspective as between the various commenters;
however, the sentiments reflect a need to manage the bobcat, and all species of animals, in a
well-reasoned manner for the mutual benefit of each species.

Many of those who expressed opposition to the establishment of a limited bobcat season observe
that despite frequently engaging in outdoor recreational pursuits they have never seen a bobcat in
the wild. These individuals question the veracity of the hunters and trappers with respect to their
reports of bobcat sightings. (Betty Fendel, PH1 Written) It is understandable that some concern
may exist that hunters and trappers may be incentivized to over-report such sightings in order to
support the establishment of the season that they favor. The hearing officer recognizes that
hunters and trappers frequently traverse wild and virtually undisturbed woodlands that are not
commonly visited or even accessible to the general public. A bobcat is an elusive creature and it
is reasonable to believe that hunters and trappers traversing lands virtually untouched by people
would see bobcats more frequently than would a person hiking in state parks or on other public
lands where people are a constant or even occasional feature. The hearing officer acknowledges
that some individuals who report having never seen a bobcat are engaged in more rugged and
remote outdoor recreational activities in areas similar to those experienced by hunters and
trappers; however these occasions are reasonably believed to be the exception. Taking all of the
comments into account, the hearing officer recognizes the potential for the over-reporting of
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 bobcat sightings by those who favor the establishment of a season. However, the sightings of
bobcats reported by hunters and trappers who support the rule proposal are not so numerous as to
warrant suspicion as to their credibility.

Many individuals who expressed opposition to the establishment of a limited bobcat season
generally disfavor trapping viewing it as a cruel and inhumane practice and believe the taking of
any animal from the wild simply for fur or for trophy is unacceptable. (Elizabeth Mahoney, PH2
Written, 3/22/18; Coalition to Protect Indiana’s Bobcat, PH2 Written, 3/22/18; The Humane
Society of the United States, PH2 Written, 3/22/18; Jan Aylsworth, Online, 11/7/17). Other
commenters who express opposition to this rule proposal simply oppose hunting and trapping
entirely. (Jocelyn Collie, Online, 11/7/17) A significant number of individuals opposed to the
proposed amendment to 312 IAC 9-3-18.1 also offered scientifically and biologically supported
arguments against the establishment of a season for taking bobcats.

The public comments provided by individuals identifying themselves as biologists or natural
resources professionals noted that the Department has not undertaken a scientific population
study of bobcats and express concern that the Department has proposed the establishment of
even a limited bobcat season without first conducting a scientific population study or at
minimum updating its mortality data. (Vicki Fischer, PH1 Oral; Leslie Bishop, PH1 Oral;
Allison Klement, Online 3/20/18; Jennifer Christie, Online 3/22/18) Department Wildlife
Science Reports indicate that in each of the years 2010, 2011 and 2012 bobcat mortalities
exceeded 70. In 2013, bobcat mortalities decreased to 61 and remained consistent in 2014 at 63.
Indiana Department of Natural Resources, 2014 Wildlife Science Report, pg. 34; and 2015
Wildlife Science Report, pg. 44. Notable is the fact that in 2013 bobcat deaths occurred in only
30 counties and the 2014 mortalities reportedly occurred in only 25 Indiana counties. Id. The
Department’s 2016 Wildlife Science Report contains no data for the bobcat.

Leslie Bishop, a biologist from Nashville, Indiana recognized that mortality data and trail camera
sightings can be useful in establishing “presence-absence data” but that is “not data that can be
used to predict population size.” . She continued that the Department has some good records but
the data does not take all necessary information into account, noting that the 2015 State Wildlife
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 Plan “flagged” the Department’s bobcat data as being in need of statistical population
reconstruction. Tim Maloney of the Hoosier Environmental Council echoed a sentiment
expressed by Bishop, which acknowledged that the Department’s Division of Fish and Wildlife
has not been provided the necessary resources to conduct a proper scientific population study,
which was recognized as being resource and staff intensive undertaking. Id.; Tim Maloney,
Online 3/23/18).
Many individuals observe that the bobcat was listed as an endangered species in Indiana in 1969
and remained so identified until 2005, when until 2012 the bobcat continued to be identified as a
species of special concern in Indiana. The bobcat has enjoyed protection from all hunting and
trapping since 1969. The Department reported in the 2014 Wildlife Science Report that the
bobcat had been the focus of a seven year study using radio-telemetry to learn about their
movement, habitat, reproduction and food habits. The Department stated;
From a modest beginning more than 40 years ago, bobcats have benefitted from
focused research and monitoring efforts carried out by professional wildlife
biologists. Today, the prospects for Indiana’s most elusive predator have never
looked better, and careful stewardship of bobcats will continue under the Wildlife
Science Unit.
The most significant theme of the comments received with respect to the establishment of a
limited season for trapping bobcats is the belief that the Department has not conducted the
degree of “focused research and monitoring efforts” sufficient to justify establishing even a
limited taking season.

The data available pertaining to the bobcat is notably distinguishable from the data presented to
support the establishment of the limited river otter season in 2015. The Department
acknowledges that it has not received a significant number of complaints regarding bobcats as a
nuisance animal as was the case with the river otter. Furthermore, the most recent information
available from the Department’s bobcat mortality data indicates incidences of bobcat mortality in
only 25 to 30 of Indiana’s counties with the two most recent years’ data reflecting a decline.
This is significantly less convincing that the Department’s confidence in 2015, when the limited
river otter season was established, that sustainable populations of river otter occurred in 66 of
Indiana’s 92 counties.

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 While anecdotal evidence exists to support a belief that larger bobcat populations exist in certain
counties, the question remains whether the available evidence is consistent with the
Department’s history and its own stated expectation of “focused research and monitoring efforts”
and “careful stewardship” for the benefit of not only the bobcat but for all impacted species.

While the amendments offered at 312 IAC 9-3-18.2(d) provides an individual an additional 24
hours to report the take of a river otter, the other amendments in this subsection were designed
for the sole purpose of more clearly stating the occasions in which a person is required to report
the taking of a river otter. Comments opposed to the extension of time to make the report
observe that submitting the report “requires minimal effort” and question the need for extending
the time. (Laura Nirenberg, Online 10/26/17 & Mailed March 14, 2018). In its response, the
Department explains that pursuant to Indiana Code § 14-22-6-4 a trapper is only obligated to
check a trap every 24 hours, which means that an animal may be trapped immediately after a trap
is set but not retrieved until 24 hours later. This proposed rule amendment takes this into
account and affords a trapper a full 24 hour period to report the take.

The public opinion associated with the proposed rules relating to bats focused on what has been
viewed as a contradiction between the addition of three species of bat to the endangered species
list at 312 IAC 9-3-19 while, at the same time, adding 312 IAC 9-3-18.7, which allows a person
to take a bat under specific identified situations without a permit. (Jennifer Selm, Mail, pgs. 87 –
88). Those who have commented in opposition to the taking opportunities provided in 312 IAC
9-3-18.7 seemingly fail to realize that, at the present time, with the exception of bats that have
been identified as endangered species, there is absolutely no limitation or restriction on the
taking of bats. The Department’s proposed amendment of 312 IAC 9-3-19 to identify additional
bats as endangered species and the addition of the rule proposed at 312 IAC 9-3-18.7 to establish
limitations of the number of bats that may be taken and identify the situations in which they may
be taken actually add new protections for bats that do not presently exist. However, in adding
these new protections the Department also recognizes the need to allow the taking of bats in
limited situations in which they pose a risk to people from disease or because of their location
within residences or other structures inhabited or utilized by people on a routine basis.

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 Public input was limited regarding 312 IAC 9-4-11, which will allow turkey hunting on
properties managed by the Department’s Division of Fish and Wildlife, and will add Elkhart,
Kosciusko, and Noble Counties to the list of counties where turkey hunting may occur during the
fall season. While some people believe there to be no need to expand the hunting season for
wild turkey other people believe the limited expansion is an appropriate increase in hunting
opportunities. The Department offers that current turkey hunting occurs with only a 7% success
rate in the fall season with an average take of 700 birds annually. The expected additional
harvest from the three added counties is estimated by the Department to be less than “20-25 birds
in the fall harvest” in any of the counties.

The Department’s proposal to amend 312 IAC 9-10-11(j)(4) to require that all raccoons, Virginia
opossums and coyotes captured by an individual holding a nuisance wild animal control permit
met with significant opposition. The Department offers that these three species have “thriving
populations” throughout the state and frequently do not remain in an area to which they have
been relocated after having been caught. “Proposed Nuisance Wildlife Rule
Change”, https://www.in.gov/dnr/fishwild/9715.htm, last visited on May 4, 2018. The
Department adds that “the vast majority” of these species caught by nuisance animal control
operators are already euthanized and maintains that the euthanization of the small number of
these species that are presently being captured and released is inconsequential in light of their
abundant populations. Id.

Certain members of the public note that while the Department believes these animals are
expendable because of their abundant populations, the Department, in a seemingly contrary
fashion, continues to allow the breeding of these species in captivity by game breeders licensed
under 312 IAC 9-10-4. (Laura Nirenberg, Online 3/15/18) Many comments reflect that because
of their low body temperatures Virginia opossum are hugely resistant to disease and are a
tremendous benefit to the eradication of ticks, which are becoming increasingly dangerous as the
spreaders of disease. Other comments question the need to interfere with a permit holder’s or an
individual’s ability to exercise their freedom of choice with respect to the outcome of these
animals when the Department acknowledges that only a few of the animals are presently being
released.
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 Mike Meservy, the owner of Advance Pest Control in Indianapolis, explained that his nuisance
animal control business is based solely upon “catch-and-release” because the largest portion of
his customer base desires this service. (Mike Meservy, PH1 Oral & PH2 Oral).

Meservy noted

that he would never release a diseased or injured animal, but, like other commenters, expressed
his opinion that the Department should not have the authority to mandate the killing of an
otherwise healthy animal when such an action violates the personal and professional ethics of the
license holder. (Id.; Jill Wise, PH2 Oral; Bob Cower PH1 Oral; Lawrence County Sheriff Mark
Branham, PH1 Oral). Many commenters, who have used the services of a nuisance wild animal
control operator have stated that if the rule is adopted they will reconsider altogether their use of
those services in the future. (Sandy Blackburn, PH1 Oral; Julia Duncan, PH1 Oral; Josh Trine,
Online 12/29/17) Meservy and other license holders indicate that the rule amendment will for
them out of business.

The reluctance of the public to utilize the services of a permitted nuisance wild animal control
operator could have multiple impacts. The most notable includes a negative financial impact to
the permit holder’s business or a permit holder being unable to remain in the business due to
ethical values. Equally important is the possibility that more people will resort to “self-help”
with respect to the removal of nuisance wild animals in order to avoid euthanization of the
animal.

While the Department, in its Economic Impact Statement, recognized that approximately 250
nuisance animal control businesses may have impacts of approximately $1,000 annually
associated with the expense of euthanization and carcass disposal, the Department’s assessment
of fiscal impact upon small businesses does not appear to consider a loss of business or the
possibility that a permit holder would, due to ethical convictions, be forced to close a business.

The notion that this rule amendment may cause a greater number of people without adequate
training or knowledge to attempt removing nuisance wildlife raises a myriad of concerns,
including the possibility that the person may be subjecting themselves to harm from bites,

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 scratches or contact with a diseased animal, all of which can be prevented if a trained and
knowledgeable nuisance wild animal control operator is used for this purpose.

While the comments indicate a belief that the requirement to euthanize a raccoon, Virginia
opossum or coyote would not apply to an individual who resorted to self-help that belief is not
entirely accurate. While a coyote may be taken by a possessor of land at any time, 312 IAC 9-312(d) specifies that a coyote taken outside the prescribed coyote taking season must be
euthanized. In order for a person to take a raccoon or Virginia opossum outside of the season
prescribed at 9-3-14 the person would be obligated to obtain a permit under 312 IAC 9-10-11,
which reasonably could include a Department requirement to euthanize that animal once
captured. However, once again, a person with strongly held convictions against the killing of an
otherwise healthy animal might reasonably avoid these requirements without regard for a proper
and legal release location or the ability to identify whether the animal is diseased.

Conversely, a professional nuisance animal control officer, reliant upon holding a valid permit to
continue business, would have greater incentive to comply with reasonable requirements, which
at present require release of a captured animal only in the county of capture and only upon
property from which the operator has obtained the owner’s permission. Furthermore, under the
existing administrative rule a nuisance animal control operator is required to provide an annual
report of the nuisance animals captured by number, species, capture location, method of
disposition and location of release, if applicable.

Overall, it appears that the Department’s proposed amendment to 312 IAC 9-10-11(d) may yield
results not anticipated by the Department. Furthermore, the rule proposal may have fiscal
consequences to small businesses that were not contemplated.

A few comments were received requesting that damage to forests be considered in computing the
economic impact for purposes of obtaining a deer control permit established by the addition of
312 IAC 9-10-25. (Stan Moore, Online 10/17/17, Marc Roberts, Online 10/26/17) The proposed
rule, as presently written, would consider a tree planted by an individual in calculating the
economic impact of damage, which addresses Moore’s concern, but the rule in its present form
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 would not allow the loss of “naturally seeded” saplings to be included in the calculation as
Roberts proposes. Roberts, stated that forestry consultants and the Indiana Association of Soil
and Water Conservations Districts, concur with his request. The Department offered that the
number of complaints received does not seem to indicate a “widespread concern” regarding
“deer damage to naturally-occurring vegetation.” For this reason, the Department did not believe
inclusion of this type damage in the economic damage determination is necessary at this time.
Other comments offer that the rule proposed at 312 IAC 9-10-25 is overly broad and fails to
require a landowner to take steps to minimize human-deer conflict. (Laura Nirenberg, Online
10/26/17). The rule as proposed, which mirrors a presently valid temporary rule, contains
substantially more restrictive requirements than 312 IAC 9-10-11(a), which allows a property
owner to obtain a similar permit for the control of other species of nuisance wild animals. The
Department provides a detailed response supporting its proposal contained in 312 IAC 9-10-25.
The Department represents in its response that management of deer “is a dynamic process of
repeated surveys of farm operators, deer hunters, and of the general public followed by
adjustment of deer population levels to comply with the evolving desires of the residents.” The
Department further recognizes that in balancing consumptive and non-consumptive recreational
opportunities it is necessary to maintain moderate deer populations throughout Indiana in order
to allow deer to be found in areas with less than optimal habitat. However, in managing deer to
retain moderate populations throughout the State, deer can become over-abundant in areas
offering more ideal habitats. For this reason the deer control permit is a necessary tool in
controlling deer populations in a more customized manner to reduce or prevent damage in a
more localized area.

Hearing Officer Recommendation
With the exception of the amendment to 312 IAC 9-2-2, the amendment of 312 IAC 9-1011(j)(4) and the addition of 312 IAC 9-3-18.1, along with correlating amendments at 312 IAC 92-3(b)(10), 312 IAC 9-3-18.4 and 312 IAC 9-10-12(e), the Hearing Officer recommends that the
proposed new rules and rule amendments be granted final adoption as presented in Exhibit H,
which includes the revisions discussed previously to adjust the language and drafting style as
suggested by LSA.

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 The proposed amendment to 312 IAC 9-2-2, which would allow squirrel hunting from a
motorboat; the proposed amendment to 312 IAC 9-10-11(j)(4), which would require the holder
of a nuisance wild animal control permit to euthanize all captured raccoons, Virginia opossum,
and coyotes; and the addition of 312 IAC 9-3-18.1, which would establish a bobcat season, and
required correlating amendments at 312 IAC 9-2-3(b)(10), 312 IAC 9-3-18.4 and 312 IAC 9-1012(e) relating to the disposition of a bobcat or its parts, have each been the subject of significant
and thought-provoking public comment. The Department’s response with respect to the public
comment on these rule proposals is minimal and does not fully address the concerns expressed
by the public. With respect to these administrative rule proposals, the Hearing Officer
recommends additional enlightened discussion and thorough consideration by the Commission.

Dated: May 7, 2018

________________________________
Sandra L. Jensen
Hearing Officer

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