Whether you’re for or against the killing of wolves for sport, you might think the public has a right to be heard on a matter so enduringly contentious and emotional.
The Minnesota Department of Natural Resources (DNR) thinks otherwise and so, apparently, does the Minnesota Court of Appeals.
News reports on Tuesday’s perfunctory dismissal of a challenge to the new trapping and hunting seasons have cited the court’s conclusion that the plaintiffs lacked “standing” to raise objections, but didn’t explain the legal reasoning behind it.
And I was frankly scratching my head, because questions of standing usually seem to turn on such factors as having a demonstrable stake in the issues (no injury, no standing) or whether a lawsuit was filed in the correct jurisdiction, etc.
So I read the ruling, and found that its conclusions on “standing” have nothing to do with the character of the plaintiffs, Howling for Wolves and the Center for Biological Diversity. Nor are they based on a finding that the plaintiffs suffered no injury in the sport killing of 410 wolves last year. Nor do they have anything to do with the issues raised in this challenge.
Rather, standing was denied because of the particular way these seasons were created —partly by DNR, partly by the Minnesota Legislature. Furthermore, the court’s logic would seem to mean that nobody can have standing to challenge these policies in court, for any reason whatsoever.
Let me say that again: By the reasoning in this opinion, Minnesota’s trapping- and hunting-based approach to controlling its population of gray wolves, following decades of heavy public investment in their protection and recovery of this species from the brink of extinction, simply can’t be challenged in court by citizens or groups who feel those policies are flawed.
The road to Tuesday’s ruling
A brief recap of the route to this apparent dead end might be in order now.
Since the 1990s it has been clear to DNR and everyone else that gray wolves in Minnesota would eventually be “delisted” from federal protections under the Endangered Species Act.
By 2001, after a long stakeholder process, DNR had prepared a management plan for wolves once they moved from federal to state authority, and that plan included regulated hunting as a key measure for population control.
Wolf advocates were OK with that so long as DNR observed a five-year moratorium between delisting and the start of sport hunting. The purpose of the moratorium was to gather good evidence on how many wolves would be killed by farmers newly empowered to trap or shoot wolves they suspected of killing livestock.
Various rounds of litigation delayed delisting until January 2012. And in 2011 the Legislature, preparing for that event, scrapped the moratorium. It also decreed that “the open season to take wolves with firearms begins each year on the same day as the opening of the firearms deer season,” but left other details up to the DNR.
In the spring of 2012, a few months after delisting was final, the DNR opted for a streamlined, “emergency” procedure for creating and administering the new seasons it had been anticipating for the previous 20 years or so.
It laid out its proposed rules in a press release, followed by a 30-day online survey of public sentiment on such questions as, “Do you support hunting and trapping for wolves in Minnesota? Yes/No.”
Advocates for and against wolf seasons urged their members to flood the survey with multiple responses, which in the end ran 4 to 1 against the wolf seasons. DNR then published its rules in the State Register, making them official.
As the hunting seasons approached, public outcry intensified — especially as more Minnesotans realized that DNR’s seasons relied far more heavily on trapping than on hunting to remove 400 wolves per year from the landscape.
Howling for Wolves and CBD filed suit to stop the hunt, but were denied a temporary injunction by the Court of Appeals on the ground that their claims didn’t meet the test of irreparable harm. (Under Minnesota law, the appeals court — not a trial court — is where these challenges begin.)
The plaintiffs were told they could come back this year with a challenge to DNR’s policies on their merits. It was that challenge the court rejected Tuesday.
A mockery of public participation
Now, it is fair to note that CBD and Howling for Wolves might well have sued over any sport seasons that DNR came up with.
It is also fair — and more important — to say that DNR’s online survey was a mockery of genuine public participation, on a matter that was bound to be controversial, and on which public outcry does seem to have intensified over the past year, in part because of details the Legislature left to DNR policymaking.
But whether the DNR followed the law in making those policies, and whether the policies themselves are sound, has yet to be addressed by a Minnesota court. Instead, we have a ruling on these points (my emphasis added):
- CBD and Howling for Wolves can’t challenge the DNR’s expedited, “emergency” approach to rulemaking because “standing focuses on the effect of the rule, not alleged flaws in the rulemaking process. Only one whose rights are impaired by a challenged rule has standing to ask this court to invalidate it.”
- But, oops, they can’t bring a challenge based on effects, either — effects like the number of wolves taken, or the use of traps, or the concurrence with deer season, etc. — because the seasons themselves are creations of the Minnesota Legislature:
In support of their challenge to the wolf rules, petitioners submitted declarations from eight of their members who live in, have traveled to, or have specific plans to travel to the areas of Minnesota where wild wolves live. All eight declarations state absolute opposition to hunting wolves. They express concern that wolves they have seen or heard will be killed and assert that wolf hunting and trapping will reduce the number of wolves in Minnesota.
But the declarations do not identify how the wolf rules themselves impair the members’ interests in wolves by effectuating and regulating the open wolf season that the legislature mandated.
In other words, a bunch of wolves would have been killed under any set of rules the DNR adopted. Therefore, all of its actions are immune to public challenge, because the fundamental responsibility for wolf-killing rests with the Legislature — whose actions are also immune to public challenge.
So sit down and shut up.
Template for litigation-proof policies
If you happen to be a reader who could care less about wolves, but has stayed with me to this point anyway, consider that this ruling could as easily have been about loons or lynx or logging or copper-nickel mining — or, really, any other policy arena in which the Legislature and administrative agencies share authority over public resources.
Consider, too, the extensive speculation that lawmakers weren’t directing DNR managers so much as collaborating with them in creation of these apparently litigation-proof policies.
Whether that speculation is on or off the mark, I can’t say.
But I will observe that the result could become a handy template for other agencies to follow in getting the public’s work done without the messy distractions of actual public involvement. For that reason alone, we should all hope that CBD and Howling for Wolves appeal this ruling and have it overturned.