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?

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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.

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.

APPEAL DENIED: IDNR CONTENDS NO DUTY TO PARK PATRONS AFTER HIDING LETHAL TRAPS IN PUBLIC PARK

          Last week, the Court of Appeals of Indiana denied the interlocutory appeal for Melodie Liddle (Liddle v. Clark, et al.) – the unfortunate park patron who struggled frantically to save her leashed dog Copper from a deadly trap at Versailles State Park in Indiana, and ultimately witnessed her beloved companion die in her arms. As has been the case with other motions filed by Ms. Liddle, her interlocutory appeal was summarily denied without explanation or justification.

          The facts in this case are undisputed and highlight the Indiana Department of Natural Resources’ (IDNR) indifference and reckless disregard for public safety. IDNR created a hazardous condition at Versailles by hiding lethal wildlife traps just feet away from the roadway and other areas frequented by the public and their pets. The agency then deliberately failed to warn park patrons of either the traps’ presence or location. Serious harm was not only foreseeable, but inevitable.

          Neither law nor fact support the State’s claims that the employees who created this hazard are immune from liability simply because they are on IDNR’s payroll or that IDNR has no duty to protect park patrons from foreseeable harm inflicted by dangerous lethal traps they themselves concealed throughout the park.

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          In the five years since Copper’s violent death, IDNR has made no settlement attempt and offered no apology. Those who enabled this perilous condition have shown no signs of remorse or decency toward Ms. Liddle or her family. Rather, the State has worked to make this case as convoluted, expensive and protracted as possible.

          Ms. Liddle’s attorneys at the Center for Wildlife Ethics (CWE), have worked to vindicate her rights and vow to continue to battle this obstruction of justice. According to CWE attorney and Director Laura Nirenberg, “If we take the government’s flimsy defense to its troubling conclusion, IDNR could have hidden traps anywhere throughout the park where people were allowed (bathrooms, swimming pool, camp grounds, etc.) and any resulting injuries, regardless of the severity, would leave the victims without any legal recourse. People could literally lose their hand, or worse yet, a child, and the government would have no liability.”

          Adding insult to injury, the Indiana taxpayers – the same foreseeable victims of this secret killing program – are bearing the financial cost of this extensive litigation for both IDNR and the trapper.

          CWE, a 501(c)(3) charitable organization, is committed to providing legal advocacy for Ms. Liddle until justice prevails. We desperately need your help.  All contributions, no matter the amount, are tax-deductible and could help achieve justice for Copper and prevent future tragedies like the one Ms. Liddle has suffered through. Your support is greatly appreciated. 

Liddle v. Clark: Indiana State Park Trapping Tragedy--a Prologue

            My entire family loved being in the park, including our canine family members. Whenever the weather allowed, I brought my dogs, Copper and Pirty, to Versailles State Park: a serene environment, especially in the winter when the park is less crowded.      

Copper , by Melodie Liddle

Copper, by Melodie Liddle

            December 16, 2011 was an unseasonably nice day in Southeast Indiana and that day the “kids” and I took a rather long walk in Versailles. The dogs began to pant so I followed them down a visible path just off the roadway, until we reached the water where they started drinking and sniffing around. After a couple minutes, I turned around with both leashed dogs to head back up to the road when Copper started shrieking. By the time I had turned around completely, she was pulling herself out of a wooden box built into the embankment at the water’s edge. Copper flailed around in the creek, twisting in an effort to break free of something.

            Rushing to Copper’s aid, I noticed something metal clamped onto her shoulders and neck area. Panicked by the realization that this was a wildlife trap, I frantically searched for a lever or anything that could release the trap. All attempts to free her were futile. After several minutes, Copper lifelessly collapsed.

            I continued to struggle with the trap hoping that Copper’s lack of movement would allow me to finally remove it. Despite my desperate screams for help, no one could hear me, and help never arrived. I tried phoning for assistance but there was no cell phone coverage on the path. I ran up to the road but was still unable to get a signal. Realizing the dogs and I were alone, I returned to Copper and again struggled with the trap, but to no avail.

            Confused and shaken, I grabbed Pirty’s leash and walked about one-quarter mile back to my car. A wave of unimaginable sorrow washed over me. Not only had my dog so needlessly died, but it had happened right in my arms. After about fifteen minutes of sobbing, it dawned on me to call a neighbor who had previous trapping experience to see if he could help me free Copper from the trap. Thankfully, my phone worked and Gene answered my call, but it took several minutes before I was calm enough to explain to him what had happened.

            About fifteen minutes later, Gene met me at my car and then followed me back to the creek. Gene immediately went over to Copper, removed her collar and the leash, and started to work to get the trap off. After a couple minutes, while Gene continued to work on the trap, I left to find the park officials and notify them that someone hid a trap in their park and it killed my dog.

            Once at the Gate House, I was led back outside to talk to park personnel. After hearing what happened, the property manager, visibly surprised (yet annoyed) by the news, pointed to his assistant, muttered a few words, and the two got into a truck and slowly began following me back to Copper and the trap site.

            When we arrived, the manager observed that Gene had moved Copper’s body to the back of his truck.

            “Was the dog on a leash?” the manager asked me.

            “Yes, she was on a leash,” I answered, “But why does that matter?”

            He ignored my question completely. “Where’s the trap?” he uttered.

            I proceeded to take him down the short path between the road and the creek and pointed to the trap near the cubby where Gene had left it. The manager gathered the trap and handed it to his assistant who had remained silent the entire time. He then stepped into the creek and picked up the leash. It dangled above the water as he snapped, “This is why the dog got caught in the trap,” and, rather than hand the leash to me, he dropped it back into the creek.

            Shocked and in disbelief of Copper’s indefensible death and the park personnel’s blatant indifference to the situation, I returned to the truck where Copper laid lifeless and cried – all the while, repeatedly asking why a lethal trap would be hidden in a public park. Initially, the manager ignored my questions, but then finally responded that they “have to keep the raccoon population down” at the campgrounds.

            This got my attention and obviously, Gene’s as well: “So, wait a minute, you’re responsible for the trap?!” Gene heatedly inquired.

            The more the park manager said, the more surreal the discussion became. He confirmed, with an unsettling nonchalance that state officials deliberately sanctioned the scattering of hidden traps throughout the park and intentionally opted not to warn visitors. This reckless disregard for public safety was justified out of some ridiculous concern that people might steal the traps. The park manager remained callous and insensitive; never offering a kind word, gesture, apology, or a reasonable explanation for the tragedy that had just been inflicted on my family.

            There was nothing left to do. Reeling from the shock of it all, Gene and I both left the park. Once Gene and Copper arrived at my house, I again examined Copper for any signs of life. Looking back, this impulse could have been triggered by my training as a respiratory therapist, or perhaps it served to provide a much-needed moment of pause and a final good-bye. It also enabled me to gather myself for the dreaded phone calls to unsuspecting loved ones for whom the grief would start afresh. After which came the gloomy task of burying my beloved family pet.      

            The agency responsible for the trapping program in Indiana’s state parks, Department of Natural Resources, recklessly disregarded public safety, refusing to take steps that might prevent this foreseeable—if not inevitable—tragedy. In the years since Copper’s death, I have been involved in a legal action against the agency, seeking some degree of accountability. Over the next few months, the Center for Wildlife Ethics will publish a multi-part series highlighting the key events in the litigation and public policy impact of each event. The series will explain how, through the blatant manipulation of the law and the public’s trust, the State of Indiana hopes to immunize itself from all liability.

            Every word of this series is dedicated to Copper.

                                                                                                -Melodie Liddle