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Challenge to DNR over wolf seasons raises serious issues of policymaking

Photo by MacNeil Lyons/National Park Service
“Delisting” of gray wolves from federal protection has been postponed by court challenges at least three times in the last 10 years.

The legal challenge filed yesterday raises important issues about how the Minnesota Department of Natural Resources has prepared for the first sport hunting and trapping seasons on wolves in state history. But the most interesting questions lie outside the case itself:

  • How could the DNR team not see this one coming?

  • And what, exactly, were they thinking when they tried to cast the new wolf rules as “emergency” measures, supposedly exempt from the normal requirements of public participation?

After all, “delisting” of gray wolves from federal protection has been postponed by court challenges at least three times in the last 10 years. The most recent of these, in 2010, grew out of the U.S. Fish and Wildlife Service’s failure to follow the law on public notice and comment – the same basis on which DNR’s new wolf seasons are now in court.

For the moment, DNR is not answering these or any other questions about the action filed yesterday by the Center for Biological Diversity (CBD) – a savvy national advocacy organization, and a player in the three successful challenges mentioned above – along with the Minnesota-based Howling for Wolves. Its no-comment comment is available in this press release.

It’s possible that DNR has some facts or arguments at its disposal that will enable it to pull its bacon out of this fire, but they are frankly hard to imagine. I am not a lawyer, but I’ve followed environmental litigation a lot, and studied environmental law a little, and this case is not particularly complicated.

Nor is it trivial. The DNR lapses that have gotten it into trouble are not failures to dot an “i” here and cross a “t” there. They seem to reflect strategic decisions to try getting around requirements that are a central, ingrained, business-as-usual part of administrative rulemaking in America.

Based on that, and on CBD’s deep experience litigating species protection generally and wolf protection in particular, I’ll put the chances of DNR holding a wolf hunt this year at roughly zero.

The facts of the matter

CBD’s motion to enjoin the wolf hunt can be read online here, and the key facts behind it can be summarized this way:

Minnesota law requires that rulemaking agencies follow a formal process for public comment on pending actions. The process is familiar to most everyone.

The agency publishes a notice of the rules it plans to make, and a proposed version of the rules themselves, in the State Register. Then it accepts public comment for a specified period.

The invitation for comment is open-ended: People and organizations can offer thoughts on pretty much any relevant aspect they please. Of course, much of the comment comes from special-interest parties: companies, advocacy groups, trade and professional associations, and so on. Often these are not so much statements of opinion as scientific, legal or economic arguments laid out at some length.

The law also allows exceptions to the public-comment requirements in emergencies where the need for speedy action outweighs the value of public participation. After wolves were finally delisted by the federal government in January 2012 – a move that had been anticipated since at least 1998 – the DNR chose to take the emergency route in hopes of getting hunting and trapping seasons in place for this fall.

In late May, the agency outlined its plans for wolf hunting and trapping seasons in a press release, and opened an online public survey than ran for 30 days, asking for anonymous answers to just 10 questions on the order of:

  • Do you support hunting and trapping for wolves in Minnesota? Yes / No

  • Which license will you apply for? Early season / Late season hunting / Late season trapping / I don’t plan on applying

  • The start date of the late season is: Too early / Too late / About right

  • Do you have any additional comments?

The survey concluded on June 20. It drew 7,351 responses (nobody knows how many individuals that represents), and these ran nearly 4 to 1 against wolf hunting and trapping (which didn’t matter because DNR had made plain the survey wasn’t a referendum).

On July 12, DNR put out a press release describing the final rules, and the rules themselves were published in the State Register on Aug. 20.

Public relations, not public participation

Let’s be clear: This was not a public-comment process. It was a public-relations exercise.

And what, exactly, was the emergency?

DNR was under considerable pressure from lawmakers, livestock interests, hunting groups and others to get going with the hunt.

But it’s not obvious, at least to me, that a full comment process would have necessarily postponed the hunts till next year. Or that, even if they were postponed, anyone besides 6,000 license-seekers would have been terribly sad.

One aspect that I think confuses some people is a notion that these seasons will make a big and immediate difference to farmers who have been losing cattle and sheep to wolves. They will not.

Since the January delisting, farmers throughout most of the state have been legally entitled to shoot wolves to protect livestock, rather than having to call in government agents to do it for them. Any additional benefit from sporting seasons on wolves won’t show up for some time.

But this is just one uncertainty among many about the future of wolves in Minnesota. The DNR’s wolf management plan, adopted in 2001, called for a five-year moratorium between delisting and the start of sport hunting and trapping to test, among other things, how many wolves would be killed by farmers newly authorized to do so.

The agency still doesn’t know the answer to that question, but at the urging of the Legislature – which DNR managers did not resist – the moratorium has been scrapped.

I asked Collette Adkins Giese, the CBD lawyer who prepared this case, if she really felt a formal public comment process would bring any new and important information to the DNR’s ateention. She said maybe so  – for example, evidence of rising wolf mortality from mange and canine parvovirus should be taken into consideration.

Also, she said, the impact of continued illegal wolf-killing deserves more research, as do various nonlethal means of protecting livestock from wolf predation. Most of all, she said, public acceptance of wolves has grown dramatically since the management plan was adopted, and perhaps DNR’s policies should be informed by that shift as well as the continuing pressure from pro-hunting quarters.

To these I would add my own view that many Minnesotans may not have been aware until recently that trapping plays such a large role in DNR’s 2012 seasons, and many who can accept shooting wolves feel differently about leg-hold traps and snares.

A pain in the butt, but…

I will say, in DNR’s behalf, that a public comment process can be a pain in the butt.

Not long ago, for a short while, it was part of my job to be a pain in the butt of the U.S. Forest Service over management issues on the Superior National Forest and the Boundary Waters Canoe Area. This I did by helping to prepare long and legalistic documents during comment periods.

I never imagined that we were going to inform the Forest Service of something it didn’t know. Rather, we were creating a record that would make it difficult for the Forest Service to ignore the law or the facts or the science on points we felt were important.

Fundamentally, this  is the purpose of public notice and comment – holding an agency  accountable for the quality of its policy-making before new rules take effect, rather than suing over the consequences afterward (although, OK, sometimes we did both).

And this is a preferable outcome not only for the advocates but for the taxpaying public, the public resources being managed and, not least, the agency itself. By accepting some constraints in the policy-making phase, it gains more certainty and autonomy in the implementation phase.

In at least some offices over at DNR, I’ll bet that’s looking like a better trade today than it did last May.

Comments (16)

  1. Submitted by Pat Berg on 09/19/2012 - 11:54 am.

    Because we can

    “Because we can” remains a lousy reason for instituting public policy. I’m glad they’re likely to get called up short on this one.

  2. Submitted by Paul Udstrand on 09/19/2012 - 12:03 pm.

    Nice article, and we definately need more consideration

    This notion of hunting as a “management” mechanism is misnomer when it comes to wolves. A wolf pack bares little resemblance to a “herd” like you find with deer. Packs are highly socialized hierarchical, multi-generational societies. You can shoot bucks all day and not damage a herd, but if you kill and alpha male or female in a wolf pack the effect is very disruptive and may even lead to increased wolf problems. If you kill the expert hunters for instance, it’s more likely the less expert and inexperienced hunters left behind will turn towards easy prey like livestock or family dogs and cats for food. You can also alter wolf territories in unexpected and unpredictable ways if kill certain pack members. And finally, any trap that can take a wolf can take a dog, so trapping presents a danger to domestic animals that happen to be out in the woods for various reasons.

    • Submitted by Dennis Litfin on 09/19/2012 - 01:21 pm.

      DNR flunks common sense guideline

      Yes Paul….trapping is so wrong and does not fit in with any wolf hunt proposal. It goes over and above the norms of hunting and falls under the category of elimination rather than that of sport. My dogs spend lots of time in the woods….I’m concerned about the non-traditional methods of wolf hunting which could very well affect mine and other people’s dogs.

  3. Submitted by Jim Young on 09/19/2012 - 01:36 pm.

    “… lead to increased wolf problems.”

    I’ve heard this theory before in a slightly different context – from a sheep rancher referring to coyotes. My question is – is this really true? Is there research that backs this up?

    • Submitted by Rachel Kahler on 09/20/2012 - 10:03 am.

      Good question

      While I know that it has been shown for other social animals, such as elephants, I don’t know what has been done to study the effect on wolves (and I don’t honestly have enough time to look). In elephants, it’s truly devastating, causing chaos and bad behavior from young elephants that grow up without guidance, but elephants aren’t wolves.

    • Submitted by Paul Udstrand on 09/20/2012 - 01:29 pm.

      I think the disruptive effect has been documented

      I remember reading this by a wolf researcher who had observed the disruptive effects on packs in Wyoming and Montana where they’ve had a lot more experience with this. I don’t have a citation for you however.

  4. Submitted by Lance Groth on 09/19/2012 - 01:58 pm.

    Why Does DNR Use Only Lethal Methods?

    I have a serious concern as to why DNR always goes to lethal methods of wildlife “management” as their first choice. Lethal methods should be the last resort, not the first.

    Has DNR done anything to assist farmers and ranchers with trying nonlethal methods? I understand that, in this particular case, the legislature directed them to implement a hunting and trapping season, so they didn’t have much of a choice (although they could have lobbied for more time to consider the issues). But, historically, it seems that whenever I read about DNR involvement with wildlife conflicts with humans, the only solution considered is to kill the animals. Is it just that a bullet or a snare is cheaper than a more humane solution? Is DNR staffed with gunslingers who can’t wait to blast away? I can’t believe it’s because they are unaware that, in many cases, alternatives do exist.

    With regard to wolves, there are several breeds of shepherd dogs that were specifically bred to protect herds against wolves: Pyrenean mountain dogs, Maremma sheepdogs, Anatolian shepherd dogs, Spanish mastiffs, and more. These dogs have the size & strength to take down wolves, are extremely loyal & protective of their flocks – they will willingly fight to the death to protect their humans and their flocks. Has the DNR, even once, tried using any of these dogs in a pilot project with farmers in wolf country? Without even checking, I would feel confident betting money that the answer is “no”. They’d rather cater to those who want to get their jollies out of killing wolves.

    I hope that the legal challenge succeeds in blocking the season, and while that’s going on, DNR needs to be challenged on their “wildlife management” strategies.

  5. Submitted by Michelle Valadez on 09/19/2012 - 04:10 pm.

    This is a DNR issue!

    The belief that the legislature forced this decision upon the DNR is incorrect. What the legislature passed was a “permissive” law that allows the DNR to go forward with a hunt if they so choose. The hunt/trap is purely up to the discretion of the DNR and despite the results of the survey showing the majority are against the hunt/trap the DNR is moving forward with their plans. At this point the govenor has the authority to pull the plug on the whole thing but instead has chosen to pander to special interests.

    • Submitted by Lance Groth on 09/19/2012 - 08:20 pm.

      Thanks for the clarification. I guess I’d better go read the law rather than rely on what others say it says. If they have the discretion that you say, then it’s time to hold the feet of both the DNR and the Governor to the fire. Prudent wildlife “management” (hate that word with respect to wildlife, which mostly needs us to stay out of the way rather than try to manage it) practice should not default to torture & kill.

  6. Submitted by mary hanley on 09/19/2012 - 05:49 pm.

    The very real brutality of traps

    So happy that there is a lawsuit that might stop the barbarism toward the wolves. People who are worried about traps and snares have good reason to be concerned. One of my dogs was caught in an illegally set trap once on our property in northern Minnesota and it was a horrible, terrifying experience for her and us as we struggled to free her. Luckily we were able to save her leg and her life with quick action, but not without severe pain and suffering and agonizing days of recovery. I have read story after story of this happening to others where traps are in use. Many people in areas where this is happening feel they can’t even hike with their dogs anymore due to fear of them being trapped. I don’t want this for our Minnesota wilderness. I am hoping we can continue to enjoy our public lands without worry that our pets will be maimed and killed. Let the wolves live and after the promised 5 year moratorium lets see how nature has managed to regulate itself without human meddling!

  7. Submitted by jody rooney on 09/19/2012 - 06:43 pm.

    Having once interviewed for DNR Commissioner

    I can tell you the DNR has been contemplating it’s navel so long it is about 30 years behind the times in use either any management skills or public involvement skills that have been common practice in Federal Agencies and other State Agencies like DOT and BSWCR since the National Environmental Policy Act was passed in 1970.

    They also don’t seem to follow the procedures laid down in the states environmental documentation guidelines. It no surprise that they don’t follow the state rule making rules. I’ve even had them tell me that the rules prohibit something (horses in wildlife refuges on public roads because of federal laws) when no prohibition exists in federal statute. It has always seemed that it is an agency that runs on personal preferences of the staff not as an agent of the government.

    It just completed a “plan for Brown’s Creek trail” which had no environmental documentation or no EA done, and that’s next to one of the last designated trout streams in the Twin Cities.

    So the public through the legislature had created MCCMR and LSOH to spend money doing what the DNR has demonstrated over and over again it can’t do which is think outside of their four walls.

    I am sorry to say this isn’t the only example of poor performance by the DNR it’s just the latest poor performance.

    I would say that someone needs to hold them accountable for doing environmental review on their projects and follow the statutes and rules.

  8. Submitted by Joe Musich on 09/19/2012 - 08:50 pm.

    the quote

    here it is kids. the quote nobody wants to touch..

    I asked Collette Adkins Giese, the CBD lawyer who prepared this case, if she really felt a formal public comment process would bring any new and important information to the DNR’s ateention. She said maybe so – for example, evidence of rising wolf mortality from mange and canine parvovirus should be taken into consideration.

    This virius will ravage the wolf in MN. As I understand it it is on the raise due climate shifting,Ie. shorter winters. If the state DNR deals with the protocvirius issue it will open the door to having to deal with all sorts of mancreated environmental change. As it should but is afraid to.

  9. Submitted by Jim Boyd on 09/20/2012 - 10:00 pm.

    Excellent column

    As always, Ron does a terrific job explaining a complex issue in simple terms. Would that this difficulty meant that wolf hunts would never happen. Alas, it is simply an obstacle to be cleared out of the way. It may mean no hunt this fall, but 2013 will likely be a different story.

    From a personal perspective, the trapping aspect is particularly problematic for us. We live among wolves, and we hike a lot, with a dog. The prospect of finding our dog in a snare made of strong wire or cable is truly frightening.

    The only good, hopeful thing about all this is that wolves quite quickly will understand they are being hunted and will stay away from humans and things humans build. I’m guessing few actually will be killed, at least by bullets.

    The whole thing is sad and unnecessary.

  10. Submitted by David Frenkel on 09/25/2012 - 04:00 pm.


    It is unfortunate the whole wild animal ecosystem of wild animals is not being managed as a whole instead of individual animals. It would be interesting to see a study on how the rising wolf population has effected the deer population which is in abundance. More deer will cause more problems for humans including more loss of corn and other crops. There was a story on the local news last night about one sheep rancher who was using dogs to keep the wolves away so there alternative methods to protecting farm animals.
    As mentioned a wolf hunting season is purely for sport, not sure traps are sport, since so few will be taken to have an impact on farm animals.
    If a snare can get a dog it can certainly get humans. Traps should be outlawed for safety reasons.

    • Submitted by Pat Berg on 09/26/2012 - 10:36 am.

      Livestock guardian dogs require training, feeding, health care, and replacement as they grow old and eventually die.

      Whereas you can just throw your gun into your gun cabinet and pull it out when there’s a wolf that needs killin’.

      And of course, cheaper is ALWAYS better . . . . . . . .

  11. Submitted by William Pappas on 09/29/2012 - 07:06 am.

    Trapping is an obscene way in which to kill wolves and is dishonorable. If trapping must occur it should be done humanely and only in cases where livestock is threatened. As usual, the DNR has not given consideration to the impact of taking wolves from packs will have on their ability to funciton as a social group. Wolves make the ecological balance of our Minnesota forests better. The DNR needs to reconsider its entire approach to forestry management to reflect a bias toward a sustainable forest rather than one that produces, aspen, deer, quail and forest products. Helping to sheppard more old age forests with the flora and fauna that they contain will increase the quality of everyone’s experience in Minnesota’s northern forests while supporting more native Minnesota species that are becoming isolated and reproductively challenged. The irrational hatered of wolves is bizarre but is prevalent among many Minnesotans. That irrationality is driving the DNR policy on hunting and trapping wolves and is an insult to Minnesotans and their natural heritage.

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