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FROM
CWE Center for Wildlife Ethics
June 8, 2019
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.
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