CWE continues to fight for the public's participation in natural resource policies

We trust our elected officials and their appointees to honor the duties of their offices by serving the public interest to the best of their ability. Government officials and the institutions they manage rightfully lose our respect when they breach this public trust and defy the common good.

Click the photo above to view the report.

Click the photo above to view the report.

Since its creation, the Indiana Department of Natural Resources (IDNR) has operated under a patchwork quilt of arcane, increasingly clandestine practices and policies. These policies have become normalized and are used to justify conduct that has strayed further and further from the agency’s primary mission and core legislative mandate.

IDNR exists, fundamentally, for one reason: To serve as the trustee for Indiana’s wildlife and public lands while acting as the steward of public assets for an uncertain future.

In 2018, CWE sued IDNR because the agency was undermining its primary stewardship mission, among other things.

CWE discovered the agency had used a series of temporary rules for more than a decade to exclude the public from participating in the agency’s policy-making decisions that promote IDNR’s controversial agenda surrounding public lands and wildlife use. The agency’s misuse of the temporary rules went on for so long it became ingrained in the agency’s culture.

CWE’s litigation shines a bright light on IDNR’s process and policy in the interest of public involvement. The IDNR has the authority to restrict public access to the state parks for legitimate purposes and in the interest of safety. This is not, and has never been, in dispute. But the agency’s power of restriction does not extend to the public’s access and full participation to the decision-making process.

The Indiana Attorney General’s recent press release mischaracterizes CWE’s claims and seeks to convince the public that IDNR’s failure to include the public in the agency’s decision-making processes is perfectly fine.

Only a deeply cynical view of justice could motivate someone to claim victory when an unpublished opinion from the Indiana Court of Appeals “upheld the… years of rule-making by the DNR” without any public input.

Public participation is a fundamental democratic principle that must be honored by Indiana’s Chief legal officer and other appointed public officials. The Appellate Court’s ruling cannot stand.

CWE’s Petition for Rehearing can be found here.

CWE Files Reply Brief in Liddle Appeal

IN Supreme Court.jpg

On September 23, 2018, the Center for Wildlife Ethics filed a Reply in Support of the Petition Seeking Transfer of Liddle v. Clark, et al., to the Indiana Supreme Court. The Reply brief, limited to 1,000 words by the IN Appellate Trial Rules, focuses on the companion animal damages issue, specifically, the Indiana Appellate Court’s unprincipled distinction of animate/living versus inanimate property.

Liddle’s Reply can be found here.

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.

Copper Color Scan 2.jpg

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.

quora

quora

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.

eaglecountryonline.com

eaglecountryonline.com

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.

CWE SCORES MAJOR VICTORY: Court Rules IDNR Negligent for Failing to Warn State Park Patrons of Deadly Wildlife Traps

You’ve been following Center for Wildlife Ethics’s updates on important litigation in Indiana, Liddle v. Clark, et al., a case involving outrageous recklessness by the Indiana Department of Natural Resources (“IDNR”) in public parks.

This week, we are thrilled to share our biggest announcement yet.

After years of tireless work on behalf of plaintiff Melodie Liddle, CWE obtained a big win for companion animals, their guardians, and wildlife in Indiana. The Marion Superior Court #2 ruled that the State of Indiana was negligent for failing to warn park patrons that their employee was maintaining hidden, deadly animal traps throughout state park property.

The circumstances of this case are quite disturbing. This litigation started after Ms. Liddle’s beloved dog, Copper was killed in a steel trap about 15 feet from a paved roadway at Versailles State Park (“Park”). The deadly trap was hidden inside a wooden box built into an embankment near Laughery Creek’s edge.

Following Copper’s gruesome death, Ms. Liddle discovered that dozens of these deadly devices had been hidden throughout the Park by an IDNR employee. The employee was trapping raccoons at Versailles and selling the animal pelts for 8 years with IDNR’s knowledge, but without legal authorization.

Versailles State Park, Indiana

Versailles State Park, Indiana

Ms. Liddle persisted when the IDNR repeatedly leveled absurd defenses, asserting, for example, that she somehow was to blame for Copper’s death. Fortunately, the Court rejected the state’s claim that Ms. Liddle was contributorily negligent by walking a few feet down a path to allow her dogs a drink of water.

CWE’s efforts to obtain justice for Copper and Ms. Liddle are ongoing. We are already hard at work on an appeal of the Court’s earlier rulings in this case. But we wanted to pause briefly to share what is truly a meaningful victory for everyone: animals and the unsuspecting public who were (or could be) put at  grave risk by IDNR’s illegitimate practices.

Thank you for making it possible with your unwavering support. We will continue to provide updates on our progress on this important litigation and further detail the issues addressed in Ms. Liddle’s appeal.

CWE Appeals to protect public safety and ensure transparency in New York deer Kills

As the nation embarks upon a period of turbulent political, historical and legal transition, some experts warn that Freedom of Information and government transparency may be largely eviscerated under the Trump regime. A pending lawsuit in New York could have critical implications for government transparency and its role in safeguarding the public.

Youtube

Youtube

LaVeck v. Lansing

City-Data.com

City-Data.com

In October, the Center for Wildlife Ethics (CWE), in collaboration with the advocacy group CayugaDeer.org, argued an appeal in the Third Department Appellate Division (LaVeck v. Village Board of Trustees of the Village of Lansing) asserting the public’s right to know when and where government-authorized, life-threatening activities are being carried out in neighborhood backyards.

Like many communities in New York, the Village of Lansing (a suburb of Ithaca, NY) has claimed an overpopulation of white-tail deer and opted to kill large numbers of these animals. Working with interested staff members and hunting enthusiasts at Cornell University, the Village has secured the permission of some Lansing property owners to allow hand-picked bow hunters to kill deer on their property.

Lansing’s “Deer Management Program” has worried some residents and members of nearby communities who fear that their families or animals may be injured or killed by amateur hunters. This concern is further compounded by the Village’s failure to provide any cautionary warning about the time or place weapons are being discharged.

Alleged safety and privacy concerns with no factual basis

Under the Freedom of Information Law (FOIL), records are presumed to be public and subject to mandatory disclosure except in a handful of narrow and well-defined exemptions. In January 2015, documentary filmmaker James LaVeck, submitted a FOIL request for records dealing with Lansing’s deer management activities.

Nearly a month later, the Village informed LaVeck that several hundred pages of responsive records were available, but had been redacted (i.e., partially “blacked-out”) to protect against an alleged “unwarranted invasion of personal privacy” and that if disclosed, would supposedly “endanger the life or safety of persons.”

LaVeck submitted a Village-level appeal, but Lansing’s Mayor offered no further explanation for the denial or clarification as to whose safety and privacy the Village was trying to protect. Left with no remedy at the Village level, LaVeck opted to litigate Lansing’s decision to cloak its deer killing program in secrecy.

In litigation, it became evident that the Village had no factual basis for withholding the records and no actual safety risk existed. Rather, to support the invasion of privacy and endangerment exemptions, Lansing produced an affidavit from the Village Clerk, claiming she was generally “informed” of some controversy over deer management policies and alleged threats made years ago in a different village.

To clarify, there was absolutely no basis for Lansing to redact responsive records. FOIL’s express language places the burden of proof squarely on the governmental body issuing the denial. Ultimately, the Village, in a desperate attempt to justify nondisclosure of public records simply borrowed an alleged controversy from years earlier in a nearby municipality consisting of vague and unsubstantiated allegations of threats.

Village of Lansing

Village of Lansing

Perhaps even more troubling was the Village’s position that mere controversy or disagreement surrounding a governmental activity legally shields those records from public scrutiny.

Open government discarded for political convenience

Freedom of Information exists precisely to ensure that the people can observe and evaluate what their public servants are up to, whether it is mundane, sensational or anything in between. To conceal its deer killing records, the Village put forth a defense that was tantamount to arguing that its activities were “too controversial” to disclose where, when, and how they would take place.

The consequences of this cynical stance on open government, if applied broadly, are staggering.           

Defying all commonsense and flouting abundant legal precedent that is clearly contrary to Lansing’s policy of opaqueness, the Village prevailed in the lower court. This not only set the stage for a fascinating appeal, but also transformed the case from one of primarily local concern to a matter with critical statewide consequences.

What about the safety of unknowing bystanders?

Leaving aside, momentarily, the Village’s flimsy and unsupported arguments, the lower court utterly ignored the possibility of endangerment resulting from the Village’s failure to disclose the records. Due to the administration’s secrecy, Village residents, visitors and their families could regularly find themselves in close proximity to individuals discharging weapons with no warning.

Rutgers NJAES

Rutgers NJAES

In arguing this matter at the Appellate Division in Albany, CWE wildlife attorney Trevor DeSane stressed to the panel of judges that this case “could represent a landmark in establishing the public’s right to know the details of when and where municipal deer shooting is taking place in neighborhood backyards.” DeSane further argued “the very critical public interest in disclosure that exists in Lansing will exist in any community statewide that is the site of a similar program.”

The simple and compelling reasons that full disclosure of nearby shooting is good public policy are numerous and easily understood. Like other inherently dangerous activities, discharging weapons is unquestionably safer when individuals in the vicinity are aware of when and where it is taking place so they can take all possible precautions to protect their families and pets.

Some residents might choose to stay out of their backyards or keep their children inside when amateur hunters are traipsing around on adjacent property shooting at deer. Others might think twice about jogging on a specific road when shooting is scheduled. Still others might close their curtains to avoid the trauma of their child witnessing a mortally wounded and suffering animal fleeing a shooter.

Failure to disclose details of shooting activities can result in tragedy

While Lansing stubbornly guards against disclosure of public information, LaVeck’s attorney argues that Village officials are flirting with an inexcusable tragedy: “In the real world, where bowhunters are discharging deadly weapons in close proximity to people, homes, schools, and roadways, this obsession with secrecy could literally kill or maim someone.”

LaVeck’s appeal has broad safety implications for all New Yorkers as well as obvious legal interest for advocates of open government. As DeSane stressed, “The court’s decision should uphold FOIL and acknowledge the very real public safety concerns that result from declaring entire areas of government activity off limits to the public. The only alternative would be a decision that legitimizes Lansing’s dangerous position and gives local governments a blank check to shroud their activities in secrecy, with no consideration of the consequences, whenever those activities are contentious or unpopular.”