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

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.

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.

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.

conbear 220.jpg

          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. 

When a fake "emergency" becomes a real-life hazard

            Between 2004 and 2013, the Indiana Department of Natural Resources (IDNR) distorted the regulatory process for the purpose of converting public lands into private treasure troves for fur-trappers. Through the use of a temporary procedure—a so-called “emergency” rule—well-connected trappers were authorized to conceal dangerous lethal devices throughout state parks without so much as a cautionary warning to members of the public who visit these serene, cherished lands.

            As the name implies, an Emergency Rule (ER) is a regulatory action used in unusually hazardous situations that warrant immediate attention. According to Indiana law, the need for regulatory action is substantiated by a thorough investigation. When a long-term need is established, the ER process runs concurrently with the agency’s promulgation of a permanent rule.

            An agency relies on this parallel ER process when immediate action is necessary to put the pending permanent rule into operation during the interim. The ER is designed to be used infrequently and to serve as a temporary gap measure where public notice and comment is not discarded, only temporarily delayed due to the extraordinary circumstances.

            At least, that is how it is supposed to work.

            In 2004, IDNR, capitalizing on the disinterest of media and watchdog groups, enacted an ER to permit the trapping of beaver in Pokagon and Shakamak State Parks. By 2005, the ER targeted raccoons in 23 state parks. Additional species and properties, including state reservoir properties, were added in subsequent years.

            Lacking any semblance of meaningful agency oversight, the annual reissuance of this temporary regulatory scheme deliberately thwarted all public notice and input requirements. To date, IDNR as never promulgated a permanent rule to address this alleged “emergency.” No evidence was provided by the agency either through discovery in litigation that is currently pending or public access to records requests that would suggest IDNR (or anyone else) ever conducted a thorough investigation to support the need for an ER in any state park or reservoir property.

            IDNR’s deliberate abuse of the ER process begs the question: how can the mere presence of native wildlife on vast undeveloped swaths of wooded parkland be construed as an unusual hazard? And, if the alleged nuisance wildlife problems were severe enough to constitute an emergency, these concerns would be well-documented, right?

            According to IDNR’s communication director, the raccoon “emergency” was supported by a 1988 raccoon roundworm study, the 1987 Indiana Prairie Farmer Report, the 1993 AVMA Panel on Euthanasia Report, and other irrelevant documents that contained the word “raccoon”. While this conglomeration of random, outdated materials could conceivably be of interest from an historical wildlife zoonotic disease perspective, it is of no value for demonstrating the existence of an immediate hazard on any Indiana public lands between 2004 and 2013.

            When pressed, the agency claimed that a handful of camper complaints about nuisance raccoons generated during the summer months at various state parks triggered the need for the ERs. How these random complaints, spread over the course of several years, could conceivably be used to justify the need for trapping and killing raccoons in other parks hundreds of miles away is anyone’s guess.

            Notably, the ERs enacted to address this alleged emergency limited all trapping activities to the regulated trapping season and mandated that any trappers targeting nuisance situations outside of the legal trapping season must “possess a nuisance wild animal control permit”.

            If the ERs were truly meant to address nuisance wildlife complaints, there would be no need for trappers to obtain another permit. And, if camper complaints legitimately rose to the level of an emergency, why would trappers be required to wait until winter – 6+ months later – to target the offending animal(s)? 

            Contrary to IDNR’s oft-repeated rhetoric, this regulatory scheme was deliberately designed to financially benefit fur trappers. The ERs’ explicit limitations ensured that animals would only be killed during the winter months when animal pelts are plush and marketable. The ERs explicit language actually served to discourage trappers from responding to camper complaints or legitimate nuisance situations during the peak camping season.

            Blaming “nuisance” wildlife was an advertent public relations’ tactic that allowed the agency to present the killing of wildlife on public lands as a necessary evil. Painting these animals as a human health threat served to disguise the fact that the annual trapping and killing of wildlife was being conducted for recreation and profit.

            An internal IDNR memorandum clearly supports this position. The memo cautioned property managers about setting trapping conditions in each park and stressed the importance of confidentiality: “this matter should not “become a public media issue…for obvious reasons.” IDNR, so committed to secrecy, refused to inform the public about these hidden lethal devices and then excused this blatant recklessness by claiming that publicizing the program may result in traps being stolen.

            IDNR fabricated an emergency situation to financially reward its friends in the fur trapping industry. The overwhelming irony in this situation is that by doing so, the agency, as public land custodians, deliberately created an unusual hazard that foreseeably jeopardized the same constituency it is entrusted and obligated to protect. And then it exhibited this reckless disregard for both public safety and sound public policy for more than 9 years.

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