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Appeals court hears suit from owner of dog killed by DNR trap

June 11, 2018

While walking her dogs through Versailles State Park one unseasonably warm afternoon in December 2011, Melodie Liddle heard her 9-year-old beagle, Copper, yelping after becoming caught in a hidden raccoon trap.

Though Liddle worked frantically to free her dog, she was unsuccessful, and Copper died while still caught in the trap. She later learned that park security officer Harry Bloom had been verbally authorized to set the trap as part of a Department of Natural Resources effort to reduce the raccoon population.

Specifically, from 2007 to 2013, DNR issued a series of emergency rules allowing for the commercial trapping of small mammals, including raccoons. Liddle sued DNR representatives in their individual and official capacities, seeking, among other relief, declaratory judgment that the emergency rules could not be used to issue trapping permits, and damages related to Copper’s death, including punitive damages and damages negligent infliction of emotional distress.

The Marion Superior Court, however, found that Liddle’s challenge to the emergency rules issued in 2007 through 2011 were time-barred, leaving only her challenges to the 2012 and 2013 rules. Because her injury, Copper’s death, occurred in 2011, the court concluded Liddle’s challenge to the 2012 and 2013 rules were moot and awarded her $477 in damages aligning with Copper’s fair market value.

Liddle’s counsel challenged the mootness ruling Friday when the case of Melodie Liddle v. Cameron Clark, et al., 49A04-1707-MI-01662, went before the Indiana Court of Appeals. Anne Benaroya, an attorney with the Center for Wildlife Ethics, told the court that rather than dismissing Liddle’s claim as moot, it should be allowed to proceed under the public standing doctrine. That doctrine is implicated because DNR was acting within its stewardship capacity by undertaking activities to manage public state parks.

Further, when managing wildlife, Benaroya said Indiana code does not authorize DNR to permit wildlife trapping in state parks via emergency rules. Instead, Benaroya said the Natural Resources Commission “presumably” should promulgate trapping rules and/or regulations when necessary. 

Senior Judge and former Indiana Chief Justice Randall Shepard pushed Benaroya on that point, noting that the word “presumably” does not necessarily lend itself to a strong statutory argument. But Benaroya pointed to the portion of Indiana statute dealing with DNR emergency rules, Indiana Code section 14-10-2-5, and said because that section does not contemplate the “taking” of an animal, by default that issue must go before the Natural Resources Commission.

But deputy attorney general Andrea Rahman, arguing for DNR, told the judges that the mootness argument was straightforward: Liddle’s claim arose from a 2011 injury, but her claim against the 2011 emergency rule was time-barred. Thus, Liddle does not have standing to pursue declaratory judgment because the only emergency rules in question, which were issued in 2012 and 2013, did not affect her.

Chief Judge Nancy Vaidik wrestled with that argument, asking Rahman why Liddle couldn’t be found to have standing under Cittadine v. Indiana Department of Transportation. In response, Rahman repeated her point that the rules in question were no longer applicable and no longer existed.

The parties also discussed damages, with Benaroya arguing that Copper’s sentimental value to Liddle should have been considered along with fair market value. Rahman, however, said that argument was a roundabout way of receiving emotional distress damages.

Instead, the deputy attorney general pointed to Campins v. Capels, 461 N.E.2d 712 (Ind. Ct. App. 1984), which defined an “heirloom” as “items of almost purely sentimental value” that can be handed down through generations. Sentimental value can be afforded to heirlooms under Campins, Rahman said, but a dog is different because its purpose is to provide companionship, not to evoke sentimental nostalgia.

Benaroya, however, urged the court to remand the case so that Liddle could testify about her experiences with Copper, then allow a jury to decide the worth of the dog’s sentiment. Vaidik opined that such a ruling could lead to a slipper slope when pets are implicated in divorce or veterinarian malpractice cases, but Benaroya said a limiting jury instruction could alleviate that issue.

The full oral argument can be viewed here.

 

 

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