Post by Tim Rose on May 14, 2008 6:30:56 GMT -5
I've been reviewing cases and the steps for appeals when the dnr rules or tickets a person....
Found this interesting, even though it was from the 90's
Name: DNR v. Duncan's Fur Hide & Root Co., Inc, Stephen Duncan
Administrative Law Judge: Rider
Attorneys: Earle; Barnhart (VI 59)
Date: February 27, 1992
Order: The complaint for revocation of a ginseng dealer's license filed against
Duncan's Fur Hide and Root Co., Inc. and its agent, Mr. Stephen Duncan, dated
August 9, 1991, regarding license 00106, is dismissed.
Findings of Fact: On August 9, 1991, the Department filed a complaint for revocation of a Ginseng Dealer's License (the "complaint") against Duncan's Fur Hide & Root Co., Inc. (the "claimant"). 2. License No. 00106 (the "license") was issued to the claimant on August 17, 1990, and renewed for 1991 pending the outcome of this litigation. 3. Stephen Duncan controls the claimant and is its agent, and therefore, is also a claimant here. 4. The complaint requests license revocation based on: a. A conviction of Stephen Duncan for illegal possession of ginseng in 1988, and b. An alleged illegal purchase of wild ginseng on July 23, 1991. 5. The conviction cannot now be used to revoke the license because the department had knowledge of it when this license was issued and did not see it as a disqualifying factor at that time. 6. The question as to whether Mr. Duncan purchased wild ginseng and whether the alleged purchase was illegal must be carefully studied. 7. IC 4-21.5, IC 14-4-8, and 310 IAC 0.6-1 apply to this proceeding. 8. The department of natural resources is an agency as defined in IC 4-21.5-1-3. The Natural Resources Commission (the "Commission") is the ultimate authority for the Department in this proceeding. 9. Ginseng is generally classified as wild or cultivated and is regulated by IC 14-4-8( the "statute"). 10 Wild ginseng grows in its native habitat either in its natural state or by transplanting ginseng plants from other areas. 11. Cultivated ginseng is grown by tilling the soil and planting according to standard ginseng cultivation practices. 12. Wild ginseng is much more valuable than cultivated ginseng. 13. Wild ginseng is monitored by the department to avoid endangerment of the species. 14. "Wet" ginseng has not yet went through a drying process as has "dry" ginseng. 15. "Wet" ginseng brings less cash per pound than "dry" because "wet" is heavier. 16. Whether the ginseng here is "wet" or "dry", is immaterial except to compare prices paid with value of the various types. 17. The Department attempted to sell Mr. Duncan what was termed in the complaint as wild ginseng (the "sale"). 18. This attempted sale was made by Indiana Conservation Officers (ICO) in an undercover operation in July 1991. 19. A transcript of the attempted sale was presented at hearing. 20. In the transcript, Mr. Duncan repeatedly states that he can only buy ginseng that is cultivated. 21. The ICO never tells Mr. Duncan that the ginseng is wild. 22. The ICO testified that he did not know the difference between wild and cultivated ginseng. 23. The price Mr. Duncan paid for the ginseng at the sale ($39 per pound) was consistent with what cultivated ginseng would be worth. 24. Evidence shows that Mr. Duncan probably purchased cultivated ginseng at the sale. 25. The complaint charges Mr. Duncan with purchasing wild ginseng. 26. The Department would now ask for license revocation even if the ginseng is cultivated because it claims that purchasing cultivated ginseng in July is also illegal under the statute. 27. Assuming that the administrative law judge could modify the complaint in this matter, the evidence still would not support license revocation. 28. The statute is vague as to whether it seeks to regulate only wild ginseng or all ginseng. 29. In Section 5(a) of the statute, a harvest season is specified for wild ginseng only. 30. Section 5(b) of the [Page (VI 60) begins] statute uses the generic term "ginseng" and states that "Ginseng harvested in Indiana may not be possessed by a ginseng harvester except from August 15 of one (1) year through March 31 of the following year...." 31. It is difficult to imagine how ginseng could be harvested and not possessed yet 5(a) allows cultivated ginseng to be harvested anytime, but 5(b) appears to make its possession illegal between April 1 and August 14. 32. It would be a fair assumption for a citizen to make that the legislatures' inclusion of "wild" in 5(a) shows the intention that only wild ginseng be regulated in all of Section 33. In fact, in a July 28, 1988 memorandum to all ICO's Lt. Colonel Phillip N. Ohmit stated that the intent of the statute was "only to regulate the harvest and sale of wild ginseng." 34. Lt. Colonel Ohmit, in his memorandum, pointed out that the statute is "extremely vague" and ordered his officers to treat cultivated ginseng like any other legal crop. 35. Evidence shows that the District Commander for the district in which Mr. Duncan lives passed on to Mr. Duncan the contents of the Ohmit memorandum. 36. The Department maintains that even if the legislature meant to regulate only wild ginseng in regard to harvest and possession it may have intended to regulate sale of all types. 37. Even if the legislature so intended, which is doubtful, it would be impossible to gleam that intent from a reading of the statute. 38. It is unlikely the legislature would allow cultivation and possession but not buying and selling. 39. It is more likely, as the Ohmit memorandum concludes, that the legislative intent was
to regulate wild ginseng only. 40. Therefore, there is no basis to sustain the complaint against either respondent.
Found this interesting, even though it was from the 90's
Name: DNR v. Duncan's Fur Hide & Root Co., Inc, Stephen Duncan
Administrative Law Judge: Rider
Attorneys: Earle; Barnhart (VI 59)
Date: February 27, 1992
Order: The complaint for revocation of a ginseng dealer's license filed against
Duncan's Fur Hide and Root Co., Inc. and its agent, Mr. Stephen Duncan, dated
August 9, 1991, regarding license 00106, is dismissed.
Findings of Fact: On August 9, 1991, the Department filed a complaint for revocation of a Ginseng Dealer's License (the "complaint") against Duncan's Fur Hide & Root Co., Inc. (the "claimant"). 2. License No. 00106 (the "license") was issued to the claimant on August 17, 1990, and renewed for 1991 pending the outcome of this litigation. 3. Stephen Duncan controls the claimant and is its agent, and therefore, is also a claimant here. 4. The complaint requests license revocation based on: a. A conviction of Stephen Duncan for illegal possession of ginseng in 1988, and b. An alleged illegal purchase of wild ginseng on July 23, 1991. 5. The conviction cannot now be used to revoke the license because the department had knowledge of it when this license was issued and did not see it as a disqualifying factor at that time. 6. The question as to whether Mr. Duncan purchased wild ginseng and whether the alleged purchase was illegal must be carefully studied. 7. IC 4-21.5, IC 14-4-8, and 310 IAC 0.6-1 apply to this proceeding. 8. The department of natural resources is an agency as defined in IC 4-21.5-1-3. The Natural Resources Commission (the "Commission") is the ultimate authority for the Department in this proceeding. 9. Ginseng is generally classified as wild or cultivated and is regulated by IC 14-4-8( the "statute"). 10 Wild ginseng grows in its native habitat either in its natural state or by transplanting ginseng plants from other areas. 11. Cultivated ginseng is grown by tilling the soil and planting according to standard ginseng cultivation practices. 12. Wild ginseng is much more valuable than cultivated ginseng. 13. Wild ginseng is monitored by the department to avoid endangerment of the species. 14. "Wet" ginseng has not yet went through a drying process as has "dry" ginseng. 15. "Wet" ginseng brings less cash per pound than "dry" because "wet" is heavier. 16. Whether the ginseng here is "wet" or "dry", is immaterial except to compare prices paid with value of the various types. 17. The Department attempted to sell Mr. Duncan what was termed in the complaint as wild ginseng (the "sale"). 18. This attempted sale was made by Indiana Conservation Officers (ICO) in an undercover operation in July 1991. 19. A transcript of the attempted sale was presented at hearing. 20. In the transcript, Mr. Duncan repeatedly states that he can only buy ginseng that is cultivated. 21. The ICO never tells Mr. Duncan that the ginseng is wild. 22. The ICO testified that he did not know the difference between wild and cultivated ginseng. 23. The price Mr. Duncan paid for the ginseng at the sale ($39 per pound) was consistent with what cultivated ginseng would be worth. 24. Evidence shows that Mr. Duncan probably purchased cultivated ginseng at the sale. 25. The complaint charges Mr. Duncan with purchasing wild ginseng. 26. The Department would now ask for license revocation even if the ginseng is cultivated because it claims that purchasing cultivated ginseng in July is also illegal under the statute. 27. Assuming that the administrative law judge could modify the complaint in this matter, the evidence still would not support license revocation. 28. The statute is vague as to whether it seeks to regulate only wild ginseng or all ginseng. 29. In Section 5(a) of the statute, a harvest season is specified for wild ginseng only. 30. Section 5(b) of the [Page (VI 60) begins] statute uses the generic term "ginseng" and states that "Ginseng harvested in Indiana may not be possessed by a ginseng harvester except from August 15 of one (1) year through March 31 of the following year...." 31. It is difficult to imagine how ginseng could be harvested and not possessed yet 5(a) allows cultivated ginseng to be harvested anytime, but 5(b) appears to make its possession illegal between April 1 and August 14. 32. It would be a fair assumption for a citizen to make that the legislatures' inclusion of "wild" in 5(a) shows the intention that only wild ginseng be regulated in all of Section 33. In fact, in a July 28, 1988 memorandum to all ICO's Lt. Colonel Phillip N. Ohmit stated that the intent of the statute was "only to regulate the harvest and sale of wild ginseng." 34. Lt. Colonel Ohmit, in his memorandum, pointed out that the statute is "extremely vague" and ordered his officers to treat cultivated ginseng like any other legal crop. 35. Evidence shows that the District Commander for the district in which Mr. Duncan lives passed on to Mr. Duncan the contents of the Ohmit memorandum. 36. The Department maintains that even if the legislature meant to regulate only wild ginseng in regard to harvest and possession it may have intended to regulate sale of all types. 37. Even if the legislature so intended, which is doubtful, it would be impossible to gleam that intent from a reading of the statute. 38. It is unlikely the legislature would allow cultivation and possession but not buying and selling. 39. It is more likely, as the Ohmit memorandum concludes, that the legislative intent was
to regulate wild ginseng only. 40. Therefore, there is no basis to sustain the complaint against either respondent.
