Indiana Department of Natural Resources v. Newton County

Attorneys for Appellant                            Attorneys for Appellee
Steve Carter                                       Frank J. Deveau
Attorney General of Indiana                        Geoffrey Slaughter
                                             Michael D. Chambers
Frances Barrow                                     Indianapolis, Indiana
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
__

                                   In the
                            Indiana Supreme Court
                      _________________________________

                            No. 37S00-0206-CV-330

Indiana Department of Natural
Resources and Larry D. Macklin, in
His Official Capacity as Director
of the Indiana Department of
Natural Resources,
                                             Appellants (Defendants below),

                                     v.

Newton County, Indiana,
                                             Appellee (Plaintiff below).
                      _________________________________

         Appeal from the Jasper Superior Court, No. 37D01-0004-OV-33
                   The Honorable J. Phillip McGraw, Judge
                      _________________________________

                              On Direct Appeal
                      _________________________________

                              January 29, 2004




Boehm, Justice.

      Newton County adopted two ordinances purporting to impose requirements
on purchases of land in the County by government agencies.  The trial  court
found that the acquisition of land by the Department  of  Natural  Resources
violated the ordinances and set aside  the  transaction.   The  trial  court
also held unconstitutional the Game Bird Habitat Act, which gave the  agency
the authority to purchase  the  land.   We  hold  that  the  ordinances  are
invalid exercises of county authority and that the Game Bird Habitat Act  is
constitutional.


                      Factual and Procedural Background


      In 1988 the Indiana Department of Natural Resources (DNR), through its
division of Fish and Wildlife, leased approximately 122  acres  of  land  in
Newton County from Steven Brandt.  The property has  been  used  as  a  Game
Bird habitat since that time.  In March 1998, Brandt  proposed  selling  the
property to DNR.  After the purchase offer,  but  before  the  contract  was
signed, the Newton County commissioners adopted two ordinances.  The  first,
the “Farm Preservation Ordinance” (FPO) purported to require any  government
agency desiring to purchase more than  twenty  acres  in  Newton  County  to
complete the procedures specified in the  ordinances  before  acquiring  the
land.  The ordinances required the agency to prepare a statement  of  intent
to purchase the land.  The statement was  to  include  a  statement  of  the
effects the acquisition would have on Newton County’s economy,  environment,
and tax base, a demonstration of the need for the property  and  some  other
items.  The statement was to be submitted to the Board of  Commissioners  of
Newton County who would then initiate a twelve-month process  that  included
public hearings on the proposed acquisition.  The  second  ordinance,  “Land
Acquisition Notice Act” (LANA) also applied to acquisitions  by  “government
agencies” and required thirty days notice of  any  proposed  acquisition  of
more than ten acres.  Both FPO and LANA imposed a fine for violation.


      After these ordinances became effective, DNR closed  its  purchase  of
Brandt’s land.  DNR did not give the required notice or  file  the  required
statements.  The County sued, contending the sale was void as  in  violation
of both ordinances.  The trial court  agreed  that  the  sale  violated  the
ordinances and set aside the land sale.  The trial  court  also  ruled  that
DNR had no authority  to  purchase  Brandt’s  land  because  the  Game  Bird
Habitat Act, Ind. Code § 14-22-8-7(c)  (1998),  is  unconstitutional.   That
statute authorizes the DNR to acquire land from “willing sellers” for  “game
bird habitats.”  The trial court found the statute unconstitutionally  vague
and also a violation of separation of powers.  Because the trial court  held
a state statute unconstitutional, this appeal was  taken  directly  to  this
court pursuant to Appellate Rule 4(A)(1)(b).


                       I.  Validity of the Ordinances


      The State contends the ordinances  are  invalid  exercises  of  county
authority and therefore provide no basis to  invalidate  DNR’s  purchase  of
Brandt’s land.  Newton County responds that the Home Rule Act, Ind.  Code  §
36-1-3-1 (1998) et. seq., provides the authority to create and  enforce  the
two ordinances.  The Home Rule Act  “abrogated  the  traditional  rule  that
local governments  possessed  only  those  powers  expressly  authorized  by
statute, because it expressly broadened a governmental unit’s  authority  to
include not only all powers granted it by  statute,”  but  also  “all  other
powers necessary or desirable in the conduct of  its  affairs”  even  though
not expressly granted by the statute. I.C. § 36-1-3-4(b); City  of  Gary  v.
Indiana Bell Tel. Co., Inc., 732 N.E.2d 149, 153 (Ind. 2000); City of  Crown
Point v.  Lake  County,  510  N.E.2d  684,  685-86  (1987).   Despite  these
generous delegations of authority to “units” of  local  government,  section
8(a)(3) of the Home Rule  Act  expressly  prohibits  a  unit  from  imposing
duties on other “political subdivisions.”   Nor  may  it  impose  duties  on
activities regulated by a state agency.  I.C. § 36-1-3-8(a)(7).


      The ordinances by their terms apply  to  “government  agencies”  which
presumably include the United States and units  of  local  government.   The
Home Rule Act expressly prohibits the imposition of duties  on  other  units
of local government,  and  the  County  concedes  that  the  ordinances  are
invalid as applied to federal agencies by reason of the Supremacy Clause  of
the Constitution of the United States.   Despite  the  immunity  enjoyed  by
government agencies both below and above  the  State  in  the  hierarchy  of
governmental units, the County maintains that the  ordinances  may  regulate
the state itself.  The County correctly points out that neither DNR, an  arm
of state government nor the State itself is a  “subdivision.”   It  is  also
true that nothing in the Home Rule Act in express terms prohibits  a  county
from regulating the State.  But the short answer to these points is  that  a
county  cannot  prevent  a  state  agency  from  carrying  out   statutorily
authorized actions.


      The ordinances purport to  allow  a  county  ordinance  to  trump  the
State’s statutory land acquisition authority.   “An  impermissible  conflict
with state law will be found if the Ordinance seeks to prohibit  that  which
a statute expressly permits.” Hobble ex rel Hobble  v.  Basham,  575  N.E.2d
693, 697 (Ind. Ct. App. 1991).  Cf., Hopkins v. Tipton County Health  Dep’t,
769 N.E.2d 604, 608 (Ind. Ct. App. 2002).   The  Home  Rule  Act  explicitly
denies this power to a county.  Hobble  noted  that  local  governments  may
“impose additional, reasonable  regulations,  and  [to]  supplement  burdens
imposed  by  non-penal  state  law,  provided  the  additional  burdens  are
logically consistent with the statutory  purpose.”  Hobble,  575  N.E.2d  at
697.  The County ordinances do not “supplement”  any  “burdens”  imposed  by
the state.  Rather, the state law is frustrated  by  the  county  ordinance.
Moreover, the state law does not “impose  burdens”  on  anyone.   It  simply
authorizes the DNR to  act  and  does  not  require  permission  from  local
authorities.  In short, The Game Bird Habitat Act expressly grants  DNR  the
authority to acquire land to achieve its purposes, and the  ordinances  seek
to regulate the State in that activity.  That is  not  within  the  County’s
power.


             II.  Constitutionality of the Game Bird Habitat Act


      DNR’s authority to purchase Brandt’s  property  in  Newton  County  is
derived from the Game Bird Habitat Act.  The County contends  that  the  Act
is unconstitutional, and therefore the purchase was unauthorized  and  void.
The trial court agreed and set aside the sale on  that  ground,  independent
of its holding that  the  ordinances  were  valid.   If  the  County’s  sole
interest in the constitutionality of the Game  Bird  Habitat  Act  were  its
claim that DNR is not authorized to acquire land, the County’s  standing  to
raise the issue would, as the State argues, be at best highly  questionable.
 But the County has  a  legitimate  interest  in  upholding  the  challenged
validity of its ordinances just as it  does  in  seeking  interpretation  of
statutes that affect its governance. Bd. of Comm’rs of the County of  Howard
v. Kokomo City Plan Comm’n., 263 Ind. 282, 296, 330 N.E.2d 92,  101  (1975).
The most obvious flaw in the ordinances is their conflict with the Act.   If
the  Act  is   invalid   that   conflict   evaporates.    Accordingly,   the
constitutionality of the Act  is  also  relevant  to  the  validity  of  the
ordinances.   The  County  therefore  properly  raises  the  issue  of   the
constitutionality of the Game Bird Habitat Act.


      In order to constitute a valid delegation  of  authority  to  a  state
agency, legislation must provide sufficient standards to  guide  the  agency
in its exercise of that authority.  Barco Beverage Corp. v.  Ind.  Alcoholic
Beverage Comm’n, 595 N.E.2d 250, 253-54 (Ind. 1992)  (“The  only  limitation
on the delegation of authority to administrative bodies is  that  reasonable
standards must  be  established  to  guide  the  administrative  body.   The
standards, however, only need to  be  [as]  specific  as  the  circumstances
permit, considering  the  purpose  to  be  accomplished  by  the  statute.”)
(citations omitted); cf., Ind. Dep’t of Envtl. Mgmt. v. Chem.  Waste  Mgmt.,
Inc.,  643  N.E.2d  331,  340  (Ind.  1994)   (standards   that   guide   an
administrative agency may be described in “very broad and  general  terms.”)
(citations omitted).  Newton County argues that the  Act  fails  this  test.
First, the County  contends  the  terms  “willing  seller”  and  “game  bird
habitat” lack sufficient definition.  Second, the  County  points  out  that
the terms have not been refined  by  any  regulations.   Third,  the  County
points out that the legislature failed to provide  any  specific  procedures
for acquiring game bird habitats.


      We do not  agree  that  the  legislature  must  supply  more  specific
definitions for the terms “willing seller” and “game bird habitat” to  guide
the agency.  To be sure, statutory terms must be  understandable,  but  they
need not be rigorously precise.  Mutual Film  Corp.  v.  Indus.  Comm’n.  of
Ohio, 236 U.S. 230, 245-46 (1915); Barco Beverage Corp., 595 N.E.2d at  254.
 Newton County  sets  out  a  parade  of  horribles  that  it  contends  may
constitute examples of a “willing seller” under the statute.  These for  the
most part are examples of how the State might  seek  to  employ  tactics  to
coerce an otherwise reluctant  landowner  to  sell  to  the  State.   Newton
County points to no evidence whatsoever that DNR has  wasted  public  funds,
purchased land for wrongful uses, or coerced residents  into  selling  their
land.  More importantly, there is no such evidence as to  the  Brandt  sale.
To be sure, there may be  litigable  issues  on  the  fringes  of  the  term
“willing seller”, but there is no doubt that Brandt is one.   He  approached
DNR and proposed the sale.


      The term “game bird” is defined by statute to  mean  pheasant,  quail,
grouse, wild  turkey,  and  Hungarian  partridge.   Ind.  Code  §  14-22-8-2
(1998).  A particular bird is a “game bird” or it is not, and  a  “potential
habitat” is a place where a game bird can live.  We see no  need  to  define
the terms with any greater  specificity.   The  birds  are  identified  with
precision.  “Habitat” as we take it, means these  creatures  may  reasonably
be expected to occupy the site in the  course  of  their  natural  activity.
“Game Bird Habitat” may present some issues if, as the  County  posits,  DNR
attempts to use this statute to buy an  asphalt  parking  lot.   Courts  can
deal with these if they occur. The terms are sufficiently specific  to  have
content.  This regulatory framework may be less  than  wholly  precise,  but
perfection has never been required of administrative  bodies.   Chem.  Waste
Mgmt., Inc., 643 N.E.2d at 340.


      We also find unpersuasive Newton  County’s  argument  that  the  terms
“willing  seller”  and  “game  bird  habitat”   need   definition   by   DNR
regulations.  Newton County cites the following passage in Indiana Dep’t  of
Envtl. Mgmt.: “Such terms get precision from the  knowledge  and  experience
of men whose duty it is to administer the Statutes, and then  such  Statutes
become reasonably certain guides in carrying out the will and intent of  the
Legislature.” 643 N.E.2d at 340.  We do not take  this  to  require  DNR  to
promulgate rules or guidelines to  interpret  statutory  terms.   Rather  it
merely acknowledges that  regulations  may  fulfill  that  purpose.   If  no
ambiguity exists within the  statute  itself  an  agency  may  determine  if
“facts or circumstances exist upon which the law makes or  intends  to  make
its own action depend” so long as the agency does not make the  law  itself.
State ex rel. Standard Oil v. Review Bd. of Employment Sec. Div.,  230  Ind.
1, 8, 101 N.E.2d 60, 63 (1951).  In  this  case,  the  statute  confers  the
authority to determine whether or  not  a  particular  plot  of  land  is  a
suitable habitat for the named species.  Finally, there is no evidence  that
DNR  interpreted  these  terms  improperly  with  respect  to   the   Brandt
acquisition.  The statute is not so unclear as to be void on its  face,  and
there is no claim that its application here is  outside  the  boundaries  of
“game bird habitat” or “willing seller.”


                                 Conclusion


      The judgment of the trial court is reversed.  This case is remanded
with instructions to dismiss the County’s complaint.


      SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.