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.

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.

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LaVeck v. Lansing

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

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

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.”