CWE Continues its Legal Efforts to Protect Public Access to Public Lands and the Decision-Making Process

What is happening?

Are you planning to visit an Indiana State Park on November 12, 13, 26, and 27, 2018? Think again. The Indiana Department of Natural Resources (“IDNR”) has once again improperly authorized various state parks to be closed to the public for rifle-deer-hunting. Therefore, this issue is time-sensitive and will exclude anyone from visiting Indiana’s state parks on these days unless they happen to be a pre-registered licensed deer hunter who was chosen in a “random-drawing”.

What's wrong with this?

The IDNR’s stewardship role is to preserve and protect public properties such as state parks for Indiana citizens and future generations. These are the areas that we the public utilize and enjoy the most.

IDNR claims park closures are necessary because of a wildlife “emergency”. According to IDNR’s Emergency Rule published July 4, 2018, deer are causing measurable ecological harm. However, IDNR’s dubious “emergency” claims are belied by the fact that the agency opted to ignore said “emergency” for five months until deer hunting season began.

It is the agency's responsibility to prove an ecological necessity exists on 17 state park properties and then address these situations themselves. Even if the need for some form of wildlife “management” had been proven, IDNR cannot legally delegate this work to others. More specifically, IDNR cannot delegate this “management” duty to privately licensed, rifle-deer-hunters. Doing so explicitly violates the agency’s stewardship mandate and existing law.

Rifle-deer-hunting on state parks has been repeatedly enabled by IDNR's misuse and abuse of the temporary rule (or “Emergency Rule”) process. IDNR’s improper use of this process is a serious and ongoing problem. It denies the public’s right to due process as it circumvents the mandated rulemaking requirements of public notice and the public's right to participate in and comment on such proposed rules.

The two critical statutes IDNR relies on to enable rifle access to state parks and historic sites are nowhere to be found in the Department's Emergency Rule authorization. More importantly, neither statute grants legal authority to IDNR to deviate from the public's participation as required in the rulemaking process.

Is this something new?

No. The agency has been and continues to act improperly without any meaningful oversight. For the third[i] consecutive year, the agency has acted without legal authority by using the Emergency Rule process to allow rifle-deer-hunting on public lands.

The Emergency Rule process has been abused for mere political convenience and not because of any actual ecological condition at the parks. The end result is that public park patrons are excluded from their own public lands AND from the policy making process that resulted in the closure of parks to the public in the first place.

IDNR restricted public access to state parks during the 2017 firearms season when a CWE member was denied access to enter Potato Creek State Park to take photographs, because the park was being used for rifle-deer-hunting. The only photos the CWE member could take that day were of the “Park Closed” barriers placed at the park entrance.

So what’s the result?

The public has no access to these cherished public lands when preferred access is given to privately licensed rifle-deer-hunters.

In November 2017, CWE filed a complaint in court challenging the legitimacy of the agency’s action, specifically, IDNR's improper use of the Emergency Rule process. CWE argued IDNR flagrantly disregarded the law and lacks the legal authority to enable rifle-deer-hunting on public lands via the Emergency Rule process.

How did we get here?

In 2016, the Indiana General Assembly adopted a law limiting rifle-deer-hunting to privately owned property during the firearms season. Because rifle use was expressly limited to private property, no rulemaking was required for IDNR to implement the law. Yet, based on all information[ii] available to-date, rifle-deer-hunting was permitted on public lands in 2016.

In 2017, the Indiana legislature again amended the rifle-deer-hunting statute, but the limitation of rifle hunting to private lands only remained in effect. The General Assembly’s failure to expand rifle-deer-hunting during the amendment process is a clear indication of legislative intent to limit use to private lands during the firearm season.

In spite of the clear and expressed limitations, in 2017, IDNR used the Emergency Rule process to improperly expand rifle-deer-hunting to public lands and into other hunting seasons. In so doing, the IDNR deliberately and intentionally defied the law.

In 2018, the legislature yet again acted to amend the law presumably to spare IDNR any further embarrassment or inconvenience. Cloaked as “retroactive” and “emergency” legislation, the rifle-deer-hunting statute was pushed through with remarkable efficiency to avoid any meaningful scrutiny of the substantive changes that served to expand rifle use to public lands during any season[iii] “established by the department”. Importantly, this legislative amendment also tasks the IDNR to “adopt rules under IC 4-22-2 to authorize the use of rifles on public property”.

Where we stand.

To-date, IDNR has failed to follow its own rule-making procedures to implement the rifle-deer-hunting statute and is yet again relying improperly on the Emergency Rule process to provide preferred access to state park lands to privately licensed deer hunters. Meanwhile the public, those who fund these treasured properties, has again been frozen out of the parks and the decision-making process entirely.

CWE will continue its efforts to end IDNR’s persistent abuse of the Emergency Rule process – deliberate agency acts that serve to nullify both the law and IDNR’s directive for public land stewardship.

[i] IDNR has improperly used the Emergency Rule process to grant privately licensed hunters and trappers access to Indiana State Parks, historic sites, and reservoir properties for more than ten years. This blog post, however, is focused specifically on the malfeasance surrounding the rifle-deer-hunting statute.

[ii] IDNR has yet to provide any discovery in this litigation or answer CWE’s initial or first amended complaint. One would reasonably believe if CWE’s allegations were untrue and the agency possessed the evidence to defend this case on the merits, IDNR would quickly and willingly offer the evidence to dispose of this case.

[iii] Deer hunting seasons span 4 ½ - 5 months annually.

AN “EMERGENCY” RULE FOR POLITICAL CONVENIENCE

On November 3rd, 2017, Indiana Department of Natural Resources (“IDNR”) issued an Emergency Rule (“ER”) to abolish current state law that serves to prohibit rifle use on public property (state and federal land). This agency action follows widely published media reports about a “mistake” in recently adopted legislation (H.B. 1415) authored by Rep. Sean Eberhard, R-Shelbyville that limits rifle use to private lands.

Source: Express photo by Pradeep Yadav

The ER has not yet been published in the Indiana Register, but according to IDNR’s Daily Digest Bulletin, states:

“Rifle cartridges that were allowed in previous years on public land for deer hunting are allowed on public land again this year during the deer firearms season, the reduction zone season (in zones where local ordinances allow the use of a firearm), special hunts on other public lands such as State Parks and National Wildlife Refuges, and special antlerless season.” (emphasis added)

However, as the Indiana Law Blog reported, the 2017 legislation was not actually to blame for the rifle use restriction. This amendment did not alter the language that limited the use of rifles to private property. Rather, the limitation (I.C. § 14-22-2-8(b)(1), “The use of a rifle is permitted only on privately owned land”) was added in 2016. Regardless,  

“Deer hunting with rifles was permitted on public property during the 2016 deer season despite the statutory prohibition simply because no one noticed the 2016 change.”

Eager to remedy the mishap in time for deer hunting season, IDNR has turned to the temporary “emergency” rule process as a “quick fix.” The ER evidently enables the agency to thumb its nose at the legislature, or more importantly, the will of the people. This temporary rule making process apparently allows IDNR to subvert the General Assembly with a simple stroke of the pen.

One must reasonably question the validity of this legal maneuver and how a purely political issue could possibly qualify as an emergency situation.

But you won...why are you appealing?

In 2011, an Indiana Dept. of Natural Resources’ (IDNR) employee’s body-crushing (conibear) fur trap killed Melodie Liddle’s beloved dog, Copper at Versailles State Park. The deadly device, situated 15’ feet from a paved roadway, was just one of dozens of traps scattered throughout Versailles and potentially hundreds of traps hidden within Indiana State Parks by commercial fur trappers. IDNR deliberately concealed all commercial fur trapping activity from the public.

IDNR personnel repeatedly dodged Melodie’s attempts to discuss the agency’s trapping policy in the aftermath of Copper’s tragic death. When a call from the agency finally did arrive, it did not come from state park personnel or law enforcement, but rather IDNR’s Director of Communications who tape recorded the conversation without Melodie’s knowledge. The Communications Director offered no assurance that steps would be implemented to prevent future trapping deaths. In fact, three weeks after Melodie buried her dog, IDNR issued yet another “Emergency Rule” to enable more commercial fur trapping on Park properties.

Deadly devices have no legitimate purpose on public park land

Conibear traps are inherently dangerous and are used with the sole intent to kill. They do so violently and indiscriminately.

Shattered by her loss and frustrated by IDNR’s indifference, Melodie sought legal remedy for the agency’s reckless disregard of public safety.  

Melodie’s Tort Claim Prevails against IDNR

In June 2017, Marion County Superior Court decided Melodie’s hard fought case in her favor, finding IDNR negligent for failing to warn state park patrons that their employee was maintaining deadly wildlife traps. While a victory acknowledging IDNR’s negligence is a critical step towards justice for Copper and Melodie Liddle, the consequences of this ruling are meager and fail to prohibit future commercial fur trapping activities on state park properties or promote transparency within an agency that customarily operates in the dark.

To address the insufficiency of the trial court’s remedy, the Center for Wildlife Ethics (CWE) filed an appeal with the Indiana Appellate Court on Melodie’s behalf.

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IDNR’s Indecency

Melodie’s devastating loss, was further compounded by the agency’s duplicity and relentless victim blaming.

Immediately following Copper’s death, IDNR worked to disguise commercial fur trapping as a public service needed for managing “nuisance” wildlife in the parks. The agency, unable to provide any evidence of a “nuisance” animal problem in Indiana State Parks, even went so far as to tout an alleged “nuisance wildlife program”. IDNR’s Director of Communications admitted, when confronted by CWE, there was no such program.

IDNR worked to deflect the blame for Copper’s death onto Melodie. Baseless accusations were raised in the media about whether her dogs were properly leashed, despite the evidence that proved they were. IDNR also raised issues regarding the trap’s location, suggesting that it was planted securely in an inaccessible location and off-limits to the public, which is untrue.

IDNR later argued in court that Melodie was contributorily negligent for Copper’s death. According to IDNR, park patrons who pay to visit state parks cannot venture down a 15-foot trail (created by the trapper himself) to a shallow creek so dogs can get a quick drink of water.

The trial court rightfully rejected this ridiculous notion. The court also agreed with Melodie that no reasonable person could have anticipated the reckless disregard of public safety demonstrated by IDNR. Nor would anyone reasonably expect to encounter an illegal, deadly device on state park land hidden by the Park’s so-called security officer.

The Legal Remedy is inadequate

Melodie suffered real, tangible damage. The law (and society) recognizes her tragedy as a tort, yet the courts offer very little in the form of any real remedy.

Tort law is meant to make an injured party whole, yet the ruling in this case contradicts this reasonable and essential objective. According to an earlier trial court ruling, Melodie is entitled to nothing more than “fair market value” or essentially, a replacement dog.

In Melodie’s case, “fair market” valuation is fundamentally flawed. There is no “market value” for a senior, mixed-breed dog who was rescued from a neglectful situation and beloved by Melodie for nearly 10 years. Copper was not a commercial animal with any inherent market value. She was never within the stream of commerce, nor could she ever be.

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Copper and Melodie treasured a bond built on loyalty, and emotional and physical comfort. Copper’s value stems from this mutual affection and devotion. A “replacement” is inadequate when the loss suffered is another living being whose value is derived solely from a sentimental bond and shared life experiences.

“Fair market value” analysis is complicated by internal contradictions. External transactions (food, housing, veterinary care, etc.) are a natural consequence of the human-animal bond and are routinely acknowledged by the law, yet the intrinsic value of special, cherished relationships is often deemed nominal at best.

Equally notable, there’s nothing “fair” about a damage award that fails to acknowledge the horror Melodie experienced while wrestling frantically to free her dog from IDNR’s deadly wildlife trap.

Melodie is uniquely situated to legally challenge IDNR

Legal standing (the right to sue) is often an unsurmountable hurdle for individuals seeking a legal remedy to harmful and/or illegal agency actions. Lacking an injury-in-fact, conscientious citizens are typically unable to avail themselves of judicial intervention. The average citizen is muted.

Clearly, Melodie has suffered an injury – one proximately caused by IDNR’s shocking negligence. Her loss, or the “nexus” to the agency’s actions, uniquely qualifies Melodie to challenge IDNR’s statutory authority to permit commercial fur trappers to maintain deadly traps on Indiana State Park properties, and personally profit while doing so.

Given the strict standing requirements imposed by courts, Melodie may be the only person who could legally challenge IDNR on its reckless conduct and policies.

An appeal is critical to achieving meaningful change

While the trial court’s recent decision rightfully held that IDNR’s actions were negligent, this ruling simply creates an illusion of justice. A 2016 court order foreclosed Melodie’s opportunity to hold IDNR accountable in any meaningful sense.

The court never ruled on the legitimacy of IDNR’s commercial fur trapping activities. Although IDNR stopped using the “Emergency Rule” after 2013,  there is no evidence that commercial fur trapping and the sale of pelts is not on-going. More importantly, nothing in the trial court’s Order prevents IDNR from allowing this to happen again.  

Granted, a sentimental damage award and a legal prohibition to IDNR’s reckless behavior can never make Melodie “whole” given the horror she and Copper endured. But, a strong message can be sent that this level of negligence is indefensible and will not be tolerated. Thus the purpose of Melodie’s appeal.