Ridenour v. Furness, 06A01-8610-CV-267

• Citation: 504 N.E.2d 336
• Decision Date: 26 February 1987
• Docket Number: No. 06A01-8610-CV-267,06A01-8610-CV-267
• Court: Court of Appeals of Indiana
• Parties: James M. RIDENOUR, as Director of the Indiana Department of Natural Resources, Defendant-Appellant, and Michigan City Charter Boat Association, Intervenor-Appellant, v. Clay FURNESS, Chris Furness, Jeff Furness, Mike Brazinski, Harold Bucy, Chris Camalick, Clem Cho, Bill Dickerson, John Hart, Lance Kaeding, Tom Mayoch, and Howard Westerman, Plaintiffs-Appellees, Phil Smidt & Son, Inc., Plaintiff-Intervenor.

Page 336

504 N.E.2d 336

James M. RIDENOUR, as Director of the Indiana Department of Natural Resources, Defendant-Appellant and Michigan City Charter Boat Association, Intervenor-Appellant, v. Clay FURNESS, Chris Furness, Jeff Furness, Mike Brazinski Harold Bucy, Chris Camalick, Clem Cho, Bill Dickerson, John Hart, Lance Kaeding, Tom Mayoch, and Howard Westerman Plaintiffs-Appellees Phil Smidt & Son, Inc., Plaintiff-Intervenor.

No. 06A01-8610-CV-267.

Court of Appeals of Indiana, First District.

Feb. 26, 1987.

Rehearing Denied March 25, 1987.

Linley E. Pearson, Atty. Gen., Michael Schaefer, Deputy Atty. Gen., Robert D. MacGill, David O. Tittle, Bingham Summers Welsh & Spilman, Indianapolis, for appellants.

Timothy F. Kelly, Randall J. Nye, Beckman, Kelly & Smith, Hammond, W. Theodore Robinette, Bulen & Castor, Indianapolis, for plaintiffs-appellees.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

James M. Ridenour and the Michigan City Charter Boat Association interlocutorily appeal the trial court's imposition of a preliminary injunction. We reverse.

FACTS

Several years of concern for the protection and enhancement of Lake Michigan's ecology culminated on August 22, 1986, with the promulgation by the Indiana Department of Natural Resources (DNR) of an emergency order temporarily banning the use of gill fishing nets for a forty-seven day period from September 15 through October 31, 1986. A gill net permits fish to swim into it and become entangled or have their gills compressed so as to prevent passage of oxygen-bearing water through the gills which causes suffocation. A gill net catches any variety of fish according to the size of the net's mesh. The only fish which get through a gill net are those small enough to swim through the mesh or big enough to fight their way out of the net. In the fall, young chinook salmon particularly are vulnerable to entrapment in gill nets which are used to catch perch.

The DNR's emergency order in 1986 was the result of many years of study. In 1978, Robert Koch, a DNR fisheries biologist, initiated a study on the effect of gill net fishing on the salmon in the Indiana waters of Lake Michigan. Koch's study, completed in 1982, concluded that immature chinook salmon dominated the catch of stocked salmon in gill nets. In 1983, the DNR completely prohibited commercial fishing of salmon. 310 Ind.Admin.Code 3-1-3(a).

In 1985, Dan Brazo, another DNR fisheries biologist, initiated a monitoring study of commercial fishing to ascertain the effect of gill netting on the salmon population during the months of August through November 1985. For this study, DNR representatives observed sixty-one (61) gill net lifts on thirty-seven (37) commercial fishing expeditions on Lake Michigan. ¹ The DNR representatives actually observed 1,170 salmon killed in the gill net fishing. In addition, the DNR supplemented this monitoring in September of 1985, with their own research nets which yielded results closely approximating the commercial fishing monitoring. Mr. Brazo concluded in his 1986 report that 76,000 salmon would be destroyed in gill netting operations during the 47-day period of the DNR's proposed ban. Mr. Brazo's report also concluded that nearly all salmon caught in the gill nets perished; most salmon which survived and were released by the fishermen were consumed by sea gulls.

Mr. James, Chief of Fisheries of the DNR's Division of Fish and Wildlife, identified four (4) separate problems to be addressed by the DNR's proposed ban. First, gill netting created an "intolerable waste of a public resource", chinook salmon. Second, the continued loss of salmon substantially could reduce sport fishing in the Indiana waters of Lake Michigan. Third, gill net fishing threatened to totally nullify the extensive salmon stocking efforts of the DNR which came from public funds. Fourth, gill net depletion of salmon would harm economically those individuals, businesses and communities which rely upon sport fishing.

As stated above, the DNR issued an emergency order on August 22, 1986, banning the use of gill net fishing from September 15 through October 31, 1986. On August 22, 1986, twelve (12) commercial fishermen filed suit in the Marion County Circuit Court seeking to enjoin the Director of the DNR, James M. Ridenour, from enforcing the emergency order. On August 28, 1986, the Michigan City Charter Boat Association intervened in the action as a defendant. Also on that date, the plaintiffs moved for a temporary restraining order. On September 3, 1986, Phil Smidt and Son, Inc., intervened as a plaintiff. On September 8, 1986, the circuit court held a hearing on the motion for a temporary restraining order.

The twelve fishermen alleged that the DNR's order was unconstitutional in that it was arbitrary and capricious, promulgated without due process, and deprived them of equal protection of the law. They also asserted that they had no adequate remedy at law. Two fishermen testified that the order would decrease their gross income by 11% to 12%. Two others testified of an anticipated loss of 19% to 21%. Two others testified of losses ranging from $14,000 to $20,000.

Phil Smidt and Son, Inc. is a restaurant in Hammond, Indiana. The restaurant has annual sales of three million dollars and a payroll of $600,000 for eighty-five (85) to ninety (90) employees. About 49% of Smidt's business is derived from lake perch, with 75% of their perch coming from Indiana suppliers. At trial, the owner of the restaurant, Mike Probst, testified that the emergency ban on gill net fishing would have such a "devastating" effect on the restaurant that it might have to be closed permanently.

After the hearing, the Marion County Circuit Court issued its Findings of Fact and Order on September 12, 1986. The court enjoined the DNR's enforcement of the gill net ban. The charter boat association moved for a change of venue. On September 24, 1986, the parties agreed to venue the cause to the Boone County Circuit Court.

On October 8, 1986, the Boone County Circuit Court ordered that the plaintiffs post a bond in the amount of $50,000 but denied Director Ridenour's motions to dissolve the preliminary injunction and, in the alternative, to grant a stay pending appeal. Thereafter, Director Ridenour brought this interlocutory appeal. ²

ISSUES

1. Did the plaintiffs make an adequate showing of irreparable harm and an inadequate remedy at law to support the trial court's preliminary injunction?

2. Did the plaintiffs show a reasonable likelihood of success on the merits to support the preliminary injunction?

3. Is this appeal moot or does it fall under the public interest exception?

DISCUSSION AND DECISION

A trial court's grant or denial of a preliminary injunction lies within the sound discretion of the trial court. College Life Insurance Co. of America v. Austin (1984), Ind.App., 466 N.E.2d 738, 741 [hereinafter referred to as College Life ]; Wells v. Auberry (1982), Ind.App., 429 N.E.2d 679, 682. We will not interfere with the exercise of that discretion unless it is shown that the trial court's action was arbitrary or constituted a clear abuse of discretion. College Life, at 741; Wells, at 682. In reviewing the trial court's action, we will not weigh conflicting evidence, but will consider only that evidence supporting the trial court's findings, conclusions and order. College Life, at 744; Wells, at 682. Despite the discretionary nature of injunctive relief, preliminary injunctions " 'should be used sparingly and such relief should not be granted except in rare instances in which the law and facts are clearly in the moving parties' favor.' " Wells, at 682, quoting, Indiana State Employees Association, Inc. v. Negley (S.D.Ind.1973), 357 F.Supp. 38, 40.

When determining whether the trial court abused its discretion, we review the trial court's findings of fact. "Whether such findings of fact are adequate depends upon whether they are sufficient to disclose a valid basis under the issues for the legal result reached in the judgment and whether they are supported by evidence of probative value. Such findings may not be set aside unless they are clearly erroneous." College Life, at 742.

In College Life, Judge Robertson summarized the four elements to be examined for a preliminary injunction: (1) whether the plaintiff's legal remedies are inadequate thus causing irreparable harm pending the substantive action's resolution if the injunction does not issue; (2) whether the plaintiff has demonstrated a reasonable likelihood of success on the merits at trial by establishing a prima facie case; (3) whether the threatened injury to the plaintiff outweighs the threatened harm the issuance of the injunction may inflict on the defendant; and (4) whether the public interest would be disserved by granting the preliminary injunction. College Life, at 741-42; see also Rees v. Panhandle Eastern Pipe Line Co. (1978), 176 Ind.App. 597, 377 N.E.2d 640.

Issue One

When a plaintiff seeks a preliminary injunction, he must show an irreparable injury to a legally recognized right. In Lambert v. State, Dept. of Highways (1984), Ind.App., 468 N.E.2d 1384, 1390, trans. denied, this court held that the plaintiff's harm must be "recognized under the law." The plaintiff "must show clearly in his complaint a right, title, or interest in the subject matter of the action which warrants his seeking relief against defendant's acts." 16 I.L.E. Injunctions Sec. 117 (1959). Property rights, constitutional rights, or contract rights are examples of the requisite rights. Lambert, at 1390; see also Weinberger v. Romero-Barcelo (1982), 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91, 98.

In the present case, neither the commercial fishermen nor the restaurant have a recognizable harm. In Indiana Code section 14-2-1-2, our legislature stated, "Any and all wild animals ... shall be the property of the people of the state of Indiana and the protection,...