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Court ruling in wolf lawsuit gives DNR rulemaking a limited license at best

A limited ruling kicks all of the important issues down the road for other courts to weigh.

It’s far from certain that DNR is out of the woods on the basis of Wednesday's three-page ruling.
Photo by the National Park Service

It would be a mistake to read yesterday’s Court of Appeals ruling on wolf hunting and trapping as more than a fleeting victory for the Minnesota Department of Natural Resources (DNR). Or even, necessarily, as a significant setback to the groups challenging the agency over its haste to make wolves into a legal game species.

For the moment, the department has the go-ahead to start the seasons on Nov. 3. But the Center for Biological Diversity and its co-plaintiff, Howling for Wolves, have a little time to take their case for an injunction to the Minnesota Supreme Court, if they choose; I’m told that decision will be made within a few days.

And even if hunting and trapping proceed this fall, it’s far from certain that DNR is out of the woods on the basis of this three-page ruling (two, if you don’t count the signature page).

Finds that the real fight is with the Legislature

Basically, it finds that CBD’s real fight is with the Minnesota Legislature and, therefore, that its lawsuit against the DNR is misdirected.

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In my reading, the ruling simply cannot be read to mean the court “rejected the arguments made by two conservation groups that the Minnesota Department of Natural Resources did not provide the proper opportunity for public comment on its hunt,” as Minnesota Public Radio reported.

In fact, I don’t think the court even found that “the two groups failed to show that proceeding with the hunt would cause irreparable harm,” as the Star Tribune put it. Instead, it held that “petitioners fail to identify any claimed irreparable harm attributable to the DNR rules, rather than the Legislature’s decision to authorize wolf hunting and trapping and to determine when the firearms season will open” (emphasis added).

On these and all other key points in the lawsuit, the Court of Appeals has simply kicked the can down the road.

And so, once again, the future of Minnesotans’ relationship with our newly recovered population of gray wolves has become murkier still.

A question of public participation

At the heart of this case is a question of whether DNR followed the law on seeking and considering public opinion in its design of these hunting and trapping seasons.

Under the normal (and formal) procedure, the agency would draft its rules for these seasons in considerable detail, publish them in the State Register, then open a period for citizens and various special-interest groups to make their views known.

As I wrote in a previous post, there are good reasons for doing the public’s business in this way, not the least of which is that the rule-making agency gains considerable cover – legally and politically – for the rules it adopts as a result.

But for these wolf seasons, DNR opted instead to outline its plans in a news release and to seek public input through a brief online survey consisting of nine multiple-choice questions and a fill-in-the-blank space for “additional comments.”

Pro- and anti- groups encouraged their sympathizers to game the survey, which was anonymous and had no means of distinguishing how many times any individual might have responded. The survey results ran more than 4 to 1 against any wolf hunting and trapping, which didn’t matter anyway because DNR had made plain the seasons were going forward no matter what.

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As justification for this departure, DNR said it was acting in an emergency situation – the emergency being a legislative directive to start the first of two wolf seasons on Nov. 3, the beginning of firearms deer season. Here’s how the relevant portion of the law reads:

Subd. 2. Open seasons. Wolves may be taken with legal firearms, with bow and  arrow, and by trapping. The open season to take wolves with firearms begins each year on  the same day as the opening of the firearms deer hunting season. The commissioner may by rule prescribe the open seasons for wolves according to this subdivision.

Choice or mandate?

The CBD lawsuit’s view is that the “may” language here and in later passages about DNR’s authority to issue licenses, set possession limits, etc., left the agency lots of leeway to postpone the initial seasons for a year if it felt it lacked sufficient time to get it right. The Court of Appeals sees the language as a mandate.

And DNR seems to have read it as a license to do pretty much as it pleased, including a reach for “emergency” rulemaking procedures to establish seasons that that had been on the horizon since at least 1998. That’s when DNR first started planning for management of wolves as a game species after removal of federal protections. The plan was completed in 2001, and after years of on-again-off-again status, wolves finally came off the protected list last January.

An interesting point raised by CBD – and yet another argument that yesterday’s ruling leaves to another court to settle – is that DNR actually spent about as much time on its “emergency” input process as would have been required by the normal process of public participation.

So, who does have DNR’s ear?

Much speculation surrounds the discussions between DNR officials and key legislators as the legislation was taking shape this spring (and, for that matter, in previous years). Commenters on my previous posts have encouraged me to blame the lawmakers and lighten up on the wildlife managers.

Last month, before CBD filed its lawsuit and they went into no-comment mode, DNR managers did in fact tell me that they were acting under legislative directives in setting up these seasons. They also made clear that they neither resisted nor disagreed with those directives, especially on elimination of a five-year moratorium on sport seasons that had long been a cornerstone of DNR’s wolf-management plan.

It’s possible to see a sharp strategic move in having the Legislature and the agency share authorship of a regulatory scheme that was virtually certain to be tested in court. Lots of opportunities to share credit or shift blame.

But as this case goes forward, we’re likely to learn a lot more about who was directing whom, who was providing cover for which decisions,  which interest groups might have had the DNR’s ear as the rules took shape. One interesting little snippet is already available in CBD’s court papers.

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Message to managers

It’s an email sent by Dennis Simon, chief of the Wildlife Management Section, to several fellow DNR managers last April 23. In a few short sentences it seems to show that DNR (a) felt it had leeway to start the seasons this year or later, (b) recognized there was public opposition to starting too soon, but (c) was feeling pressure from hunters and farmers to get on with killing wolves.

Dated last April 23, and with emphasis added, the memo says:

All things being equal I would prefer that we delay the season until we can establish a license, complete the population survey, and draft a population model even if we have to estimate harvest effort and success initially. I believe that this deliberate and conservative approach would be more palatable to those who are uncomfortable with a wolf season in the first place and DNR will have broader support when we do have a season.

However, after giving it considerable thought over the weekend, I have come to the conclusion that we owe it to our primary clients, hunters and trappers, and to livestock producers as secondary clients, to do what we can to establish a legitimate harvest opportunity now that the wolf is under our management authority.

We have been clear that a season will be conservative to start and data collected will inform our future management options and our model. We can always work deliberately toward establishing the wolf as a unique harvest species through future legislation. I am supporting a limited season, both hunting and trapping, this fall under current authority. This will require a reallocation of wildlife resources to do it correctly and I am prepared to do that.

* * *

Feeling just a bit sheepish about having “put the chances of DNR holding a wolf hunt this year at roughly zero” in that earlier post, I will stay out of the oddsmaking business today. However, I think the likelihood of DNR’s process surviving full court review without significant changes, or embarrassment —  or both — could conceivably be rather less than 100 percent.