By Niki Kelly
The Journal Gazette, Fort Wayne, IN
Posted on Sun, Aug. 27, 2006
INDIANAPOLIS – Kyle Hupfer, director of the Indiana Department of Natural Resources, made the pronouncement last August: no more hunting of white-tailed deer and other animals behind high fences.
The Department of Natural Resources passed emergency and permanent rules, and the governor and attorney general signed off.
The legislature tangled with the issue but failed to intervene.
And yet a year after Hupfer delivered those stern words on hunting ethics and fair chase, he is nearing a settlement with a handful of shooting preserve owners that allows the controversial activity to continue for at least a decade.
“It’s a no-win situation,” he said. “I think we are working on something that, while no one’s going to jump for joy, it finishes the issue for all time in the state and we move on.”
Hupfer insists he still adamantly opposes high-fenced preserves – also called canned hunting.
“We need to remove high-fenced hunting from the state of Indiana. I would say the only difference is we need to do it as quickly as we possibly can without overly putting risk on the DNR,” Hupfer said.
He also points out that the state has now officially “frozen the field” or stopped new preserves from starting up. The only question that remains is what to do with the existing businesses.
“Whatever settlement we’re going to reach, the Fair Chase Alliance would have jumped at before I was DNR director,” Hupfer said of a group of sportsmen and conservationists against canned hunting.
“We’ve taken this argument a long distance, and I don’t think that this is the time to get greedy,” he said. “I think this is the time to be reasonable, be fair.”
Times gone by
The issue began to fester in the late 1990s when a few facilities began springing up under the guise of a game breeder’s license. The owners charged thousands of dollars for hunters to come in and shoot prized deer bred specifically for large antlers.
There are about 350 deer or elk farms throughout Indiana, many of which have the game breeder’s license. But only a handful offer hunting.
Many outdoors groups opposed the operations from the beginning, saying no Indiana law specifically authorized the activity. But preserve owners argued nothing explicitly prohibited it either.
And some of the breeders received conflicting advice from former DNR administrations.
The biggest and best-known preserve was Bellar’s Place in Miami County. That is until owner Russell Bellar was convicted of federal wildlife violations. He pleaded guilty in 2005 after testimony at his trial included the fact that deer were sometimes drugged and placed in smaller pens to be shot by celebrities and other affluent hunters.
Bellar then became a rallying cry for the Fair Chase Alliance to get rid of canned hunting in Indiana.
Hupfer, a lawyer and longtime hunter, came in as director in January 2005. He spent months having hearings on the subject, doing research and talking to everyone involved.
That led to the August news conference where he said nothing in Indiana law allows shooting preserves to exist.
“This is just something that is extremely unethical,” he said then. “In order to preserve the hunting tradition, we must ensure that all hunting in Indiana is done in an ethical manner and in a way that conforms with long-standing fair chase ethics.”
At the time, Hupfer said he would give legislators one session to intervene before he began enforcement, noting there had been confusion on their legality in the past.
The fighting begins
Soon after Hupfer’s announcement, one owner – Rodney Bruce, who runs Whitetail Bluff in Corydon – filed suit in Harrison County and won the first legal round, receiving a preliminary injunction barring the DNR from taking any action to stop deer hunts at his southern Indiana preserve.
Hupfer called the injunction hearing “enlightening,” including some documentation that former DNR officials sent to Bruce telling him he was allowed to offer private fee-hunting.
Former DNR director John Goss – who now heads the Indiana Wildlife Federation – disputes the letter, saying it has been blown out of proportion and was never an authorization of canned hunting.
In early 2006, lawmakers tried to tack amendments on numerous bills making the DNR compensate the owners for lost revenue, but the session ended March 14 with no changes to state law either legalizing canned hunting or supporting the owners.
But conversations with legislators appear to have swayed Hupfer, as they brought up issues of property rights and the taking of a person’s business.
Another possibility is that the owners could win the suit altogether and force the state to pay an expensive settlement.
“I don’t have some luxuries that a person who isn’t in this position has. I have a responsibility to look out for the best interest of the resources, and not put this agency at undue risk,” he said.
He argued that even if there is a 5 percent chance at a potential liability for the state, “that risk is not outweighed by the risk of allowing these folks to do what they’ve been doing for a few more years.”
But that’s not how some Hoosier sportsmen see it.
Doug Allman, an advocate with the Indiana Deer Hunters Association, has been fighting the issue for years and is disappointed with the idea of a settlement.
“To me this is about principle. It’s either right or wrong,” he said. “If our legislators want to put the pressure on, then they need to (legalize) it and have their fingerprints on it and be held accountable by the voters.
“It’s bogus for us to say it’s wrong and unethical, but then look the other way for 10 years.”
He is one side of a growing split among hunters and conservationists – some want an all-out ban with immediate enforcement, and others are willing to let the preserves die quietly a few years from now.
Gene Hopkins, legislative chairman and past president of the Indiana Bowhunters Association, favors a five- to seven-year extension.
“The reason for allowing them to continue is to recoup their investment,” he said.
Hupfer identified a handful of owners the agency is negotiating with: Bruce Brandbenburg, who runs Shale Hollow Whitetail in Underwood; Bruce in Corydon; Richard Davis, who runs White Oak Elk Ranch in Sellersburg; Lee Fritz, who runs Backwoods Whitetails in Bremen; Ken McIntosh, who runs Midwest Woodlots in Pierceton; and Richard Reed, who runs R&R Elk Ranch in St. Joe.
Several other deer farms are marked as hunting preserves on a spreadsheet from the Indiana State Board of Animal Health, but Hupfer said the others have either stopped hunting or gone out of business altogether.
His original target was to have the settlement done before hunting season – with the preserves usually starting elk hunting by Sept. 1 and deer by Oct. 1. He expects the five other owners to intervene in the Harrison County court case and ask for the same injunction Bruce received.
The DNR will not fight such a move, he said, as a result of the ongoing good-faith negotiations.
A proposed settlement from June that has been passed around the hunting community contains some of the key points of a possible agreement but also shows where the DNR and owners diverge on key issues.
Hupfer said initial talks centered on a five- to 20-year phase-out for those hunting operations in existence before Jan. 1, 2006, but he thinks the number has settled at 10 years. He said any agreement would require the owners to admit the activity is illegal and to cease at the end of the established window.
He also said he would like to include a requirement that they are allowed to use only Indiana-raised deer, which would further restrict importing deer.
The preserves would likely also be allowed to hunt wild boar, elk and a few other species in addition to white-tailed deer. But Hupfer said he would not allow hunting of exotic animals, such as zebras and giraffes.
Other issues in the mix include hunting dates, allowable weapons and bag limits.
And one section of the proposal even limits the ability of those involved in the settlement to directly or indirectly lobby the legislature on the issue.
Hupfer said the agreement could be jeopardized because the Humane Society of the United States has filed to intervene in the case and is trying to compel the DNR to enforce the law instead of settle. A court hearing is scheduled for Sept. 8.
Allman said he blames Gov. Mitch Daniels, not Hupfer, for backing down, saying his office has pushed a settlement even though lawmakers could not get enough votes to pass such an option.
A form letter sent by the governor’s office when he receives correspondence on the subject said Hupfer is “looking to eliminate the practice in Indiana for future generations, even if the result involves some kind of settlement,” and that Daniels supports this approach.
The letter also notes that previous administrations did not take steps to eliminate the facilities and discontinue expansion.
Campaign finance reports show few donations from the preserve owners to Daniels.
In fact, not counting contributions from Bellar of $4,500, the others have given only $600.
John Okeson, senior legislative counsel in the governor’s office, has been working on the issue since it arose in the General Assembly.
He said that Hupfer and Daniels believe as a matter of sportsmanship this activity should not be tolerated. But he conceded the issue is fraught with emotion and financial investment, and Indiana’s proposed settlement would fall somewhere in between what other states have done on the issue.
“Because of the facts of the situation there are some issues that are not clearly resolvable one way or the other,” Okeson said. “This is something everybody can live with and something no one really likes in its entirety.”
Goss is baffled by the whole thing, saying “it’s very frustrating that one property owner going to court could derail” all the progress.
Both McIntosh and Reed – who have hunting operations in northeast Indiana – appear at ease with the situation and say they are ready to hunt this fall.
In fact, McIntosh’s season is already booked up. He leases several thousand acres for free-range hunting of wild deer and then has 160 acres under high fence where hunters pay top dollar to kill trophy deer.
“Our hunters enjoy seeing the deer make scrapes, rubs, fight and chase the does,” according to his Web site. “The things you just never get to see unless you are in a managed herd.”
McIntosh was hesitant to talk because he doesn’t want to jeopardize the settlement, but he did say that those hunters visiting his operation bring significant tourism money in the state.
“I love what I do, and people are having a lot of fun.”