Dog dies as it stumbles across unmarked trap during walk with owner
By Lori Lovely
PQ: "What if that was a child? The implications are ghastly." — Lawrence M. Reuben, attorney
The Center for Wildlife Ethics, a non-profit organization dedicated to wildlife conservation through justice and education, is financially supporting a lawsuit against the Director of the Indiana Department of Natural Resources, the Indiana Natural Resource Commission, the Versailles State Park Manager, and the man who placed, owned and is responsible for the trap that killed a park visitor's dog.
In December 2011, Melodie Liddle walked her two leashed dogs down a public path to Laughery Creek at Versailles State Park to get a drink. Copper, a 10-year-old mixed breed, was ensnared by a trap concealed on the bank approximately one foot from the water's edge.
She reported hearing "horrific screaming" from her dog, telling the Madison Courier and Cincinnati TV station WLWT that "as she's flailing and pulling and trying to free herself, and as I'm trying to open the trap, because she's wet and in the water, it slipped down upon her neck and immediately crushed her trachea ... so she died right there in the water. I just couldn't save her."
Putting their foot in it
The trap that ensnared and killed Copper was one of 25 used as part of the park's Nuisance Wildlife Management Program to catch raccoons, in response to complaints from campers. Since 2005, 300 raccoons have been captured in the park. State law authorizes raccoon trapping from Nov. 8 through Jan. 31.
According to spokesman Phil Bloom, the DNR grants a permit to one licensed trapper per park. Each trapper is expected to follow national guidelines set by the Fish & Wildlife Federation about trap placement. They are typically set in overgrown difficult-to-access areas where there's evidence of animal activity.
The seven-inch-wide Conibear 220 is a very powerful trap.
"It's meant to kill," said Lawrence M. Reuben, the attorney representing Liddle. "It's not meant for small animals." Concealed in a cubby (wooden frame) box, it has a four-way trigger that fires when an animal pushed the trigger from any direction.
"The frightening part," Reuben said, "is what if that was a child? The implications are ghastly."
The implications of the lawsuit are exposure of improprieties in the DNR's processes. DNR circumvented its own rules requiring signage for traps. The Emergency Rules require "reasonable and conscientious effort to properly notify visitors," adding that "notice shall include posting at places of entry."
However, Reuben noted, "There was no signage generally in the park or near the trap to alert anyone of the inherent danger. When we asked why it wasn't posted, the reason we were given is that they thought people would react badly and be scared away from the park. It's disturbing."
Point of law
The Emergency Rules also require that the person authorized by the DNR to trap in a state park must have written authorization from the property manager of that facility. CWE obtained records through a public records request that revealed that the person who set the trap that killed Copper lacked written authorization as required by the emergency rule.
Reuben is attempting to determine if the person who set the trap is a DNR employee. "We've been provided with minimal information to prove he is, but we can't find him in state employment or personnel records." Nor can he locate any record of payments or a contract.
While it doesn't change the merits of the case, Reuben explained that the man's status constitutes a legal issue because the State Attorney General has appeared on behalf of all the defendants. "By statute, the AG is obligated to represent state employees in the scope of their duties, but is prohibited from representing people who aren't [state employees]."
If the man who set the traps is a state employee, Reuben said the DNR "would be in even more trouble." Either way, he intends to see the DNR enforce the letter of the promulgated rule.
Indiana code provides the director of the DNR with authority to adopt emergency rules that expire no later than one year after filing.
CWE found six separate occasions since November 12, 2007 when the DNR promulgated the same emergency rules to "temporarily" amend the code regarding the taking of wild animals in state parks.
The lawsuit challenges the DNR director's repeated use of the Indiana emergency rule process to override existing law that prohibits trapping in Indiana state parks, stating that the department "failed to adhere to rulemaking procedures and improperly extended the Emergency Rules."
"The rule is clear about the number of times it can be extended due to emergency circumstances É and what constitutes an emergency," Reuben said.
Indiana law requires administrative agencies such as the DNR to notify the public of a proposed rule and offer the public an opportunity to comment. Reuben contends that the legislature doesn't want agencies to extend the rule indefinitely and claims that by violating the spirit of the extension rule, the DNR avoided the promulgation process.
CWE's executive director, Laura Nirenberg, said this regulatory maneuver "enables DNR to circumvent public input surrounding the use of these cruel, lethal devices, thus silencing the public's preference for safe, humane alternatives that do not sacrifice public safety, endanger park visitors' pets, or cruelly kill wildlife."
The suit seeks unspecified damages for the loss of Liddle's pet. The plaintiffs also hope to compel the DNR to enforce its own rules so another tragic accident does not happen.