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.” 

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. 

Exploring the Overlap Between Hunting Season and Increased Deer-Vehicle Collisions

Every fall, motorists are cautioned to remain alert while on roadways because of the significant rise in deer-vehicle collisions (DVC). According to the Insurance Information Institute, there is a dramatic increase in the movement of deer “during deer season” resulting in over 1.5 million DVCs annually and “more than $1 billion in auto damage.”  

State Farm Insurance confirms this phenomenon, noting that in 2015, “one out of 169 drivers will have a claim from hitting a deer, elk or moose”, and these odds “more than double” during the heavily hunted months of October, November and December.

by jcrader

by jcrader

The media and the hunting contingent routinely attribute this spike in roadway hazards to emboldened, testosterone-crazed bucks in hot pursuit of females. However, the majority of road-killed deer during breeding season are not antlered (i.e., are not mature males), dispelling the myth that horny deer are oblivious to roadway hazards. In fact, evidence suggests that to the contrary, it is terrified deer fleeing hunters who are the victims of increased DVCs in the fall.

One would reasonably expect that if erratic breeding season behavior was the true cause of increased DVCs in the fall, supporting studies and data would be abundant, especially given the frequency of these events, the cost in human and animal lives, property damage, etc., as well as the popularity of the claim itself. Although media claims and propaganda blaming deer for these tragic happenings are rampant, any critical studies to support the notion that rutting deer cause accidents in the fall are utterly lacking.

In fact, the one recent study uncovered by the Center for Wildlife Ethics addressing the tremendous uptick in autumn deer-vehicle collisions suggests a human-created cause. “Relationship of Autumn Hunting Season to the Frequency of Deer-Vehicle Collisions in Michigan,[1] a 2006 study, suggests (and logic dictates), hunting is quite likely a contributing factor in the increased number of DVCs – most of which occur during the early morning and early evening hours – preferred hunting periods.

The study recommended further work examining the relationship between hunting season, rutting behavior and DVC frequency; yet ten years after its publication, it does not appear that any further work has been commissioned.

Why is that? Is it possible that the issue of DVCs is being avoided deliberately because of the negative ramifications such research may have on the hunting industry?

Remember, hunters typically use the tragic consequences of deer-vehicle collisions to bolster public support of recreational killing. They claim to provide a public service through white-tailed deer reductions – theoretically, reducing the number of DVCs.

The hunting contingent’s claims of public service are misleading. Deer populations are deliberately manipulated to record-setting levels for the sole purpose of providing an abundance of live targets for hunters to shoot. Larger populations lead to more competition for food, territories and mates, and ultimately, more roadway hazards.

by NIghthawk Publications

by NIghthawk Publications

It is illogical to believe that hunters and their violent hobby are not a contributing factor to DVCs. The disruptive presence and predatory activities of hunters in deer habitat cause these nervous animals of prey to panic and bolt blindly across roadways while fleeing hunters, their vehicles, and of course, their lethal projectiles.

Any disruption in the deer’s environment and normal patterns of behavior is further compounded by hunters who hide in trees and douse themselves in estrous deer or dominant buck urine – substances that are sure to stimulate buck activity.

If the hunting community truly believed its own unsubstantiated assertions alleging that the sexual arousal of bucks in rut was to blame for these hazardous accidents, then the application of either of these substances make hunters culpable to some degree. Similarly, wildlife managers who deliberately manipulate deer populations to artificially high numbers for the benefit of local hunters should be held equally responsible.

 

[1] The Journal of Wildlife Management, 704(4): 1161-1164 (2006).

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.