Lynn Rogers lost big in Tuesday’s decision on his bear-handling permit, which ought to be the last word in this sad and long-running saga. But of course it won’t be.
The Ely scientist-turned-showman has already promised to take his grievances before the Minnesota Court of Appeals, assuming (safely, I think it’s fair to say) that the Department of Natural Resources, buoyed by the new findings, proceeds once again to deny him the permit. If necessary he’ll no doubt go higher still — not because he has a case, but because he apparently has no shame.
It has been easy to suspect as much over the years. Especially in the last few years, as Rogers has ramped up his accusations that the DNR is persecuting him for his out-of-mainstream “research” activities, perhaps out of professional jealousy.
But, folks, it’s even worse than you may have thought. What’s freshest and most interesting about the 69-page memorandum issued this week by Tammy Pust, the state’s chief administrative law judge, is the depth and detail of her fact-finding about those activities, as developed in a two-week, trial-like proceeding earlier this year.
The DNR’s performance takes some knocks as well, and we may as well start with Pust’s finding that the department overstepped in using Rogers’ failure to publish the fruits of his research in actual scientific journals as a justification for refusing to renew his permit. No small detail here; the department has cited Rogers’ nonpublishing as a the chief reason for that refusal.
The publication requirement was imposed, some would say belatedly, in 2012. By then Rogers had already enjoyed more than a dozen years of special privileges to radio-collar, hand-feed, pal around with, and introduce to paying tourists a selection of wild black bears at his Wildlife Research Institute near Ely. (He has separate permits of the game-park type for captive bears at the more purely tourist-focused North American Bear Center; those were not at issue in this case).
Unfortunately, DNR added the conditions via cover letter rather than in the permit form itself, which Pust considered to render them invalid. Whoops.
No serious research found
From a public-policy standpoint, though, the main question is whether Rogers could have met the conditions even if they’d been communicated properly. Pust would seem to think not; she cites DNR’s review of materials submitted by Rogers and its conclusion that they “did not constitute peer-reviewed publications; rely on data collected during the term of the permits; or address the research questions posed” by Rogers in seeking the permit.
Overall, the preponderance of the evidence at hearing established that while Dr. Rogers has given presentations at scientific conferences and other public events, and been featured in several renowned documentaries, website postings and other media …. he had not published in peer-reviewed scientific publications any significant research findings arising from his 15 years of permitted activities.
Moreover, research materials produced by Rogers in the course of the hearing
revealed that while Dr. Rogers, [associate Sue] Mansfield and their research assistants had collected some amounts of observational data over the years, very little of it had been synthesized, analyzed or applied to answer any of the study’s identified research questions. Some of the raw, qualitative and observational data is capable of yielding synthesis and analysis, most readily the 2009-2013 GPS data [on collared bears’ movements].
Pust also dings the DNR a bit for failing to meet its own standards on tracking incidents of human/bear conflict, even in the area around Eagles’ Nest Township where Rogers has been living and working for decades (and where some residents also feed bears that come to their properties). But on the overarching public safety question, she sides solidly with the agency:
Approximately 50 bears, each human-habituated and food conditioned to varying degrees, roam wild in the Eagles Nest Township area. The evidence established that some of these bears, both collared and uncollared, have exhibited unnatural behaviors around humans: failing to startle when confronted with loud and unexpected noises; learning to climb human-constructed stairs in purposeful efforts to locate food; closely approaching young children; remaining on human-occupied property in spite of hazing activities that would typically cause a bear to retreat; standing up and pawing at cabin and car windows; and nipping and slapping at people unable to provide them with expected food.
For purposes of the public safety analysis, it is not critical whether Dr. Rogers is the only or merely the primary cause of these circumstances; it is critical that the risk is real and therefore must be managed. … Every expert witness who testified on the topic, other than Dr. Rogers, advised that the most conservative approach to wildlife management involves the discouragement of activities that lead to habituation of bears.
Tips on lip-feeding
Of course, Rogers disagrees with all that and vociferously so. Many of us have seen the goofy pictures of him using a bear as a backrest as he scribbles on a pad, or feeding them from his own lips. Still, I was unprepared for this excerpt from his written tips on bear-feeding for paying customers who attend his Bear Field Study Course (some 650 have done so over the years):
Keep the food coming at a rapid pace, handful after handful. Avoid dolling [sic] out one peanut at a time or making the bear anxious about what you are doing because you’re not performing the familiar rapid-feeding routine.
Some bears may bite to tell you to keep the food coming. This hurts a bit and can cause bruises. This is not an attack.
Don’t offer the bear food from your lips unless you know the bear is accustomed to doing that.
Pust’s memorandum also cites Rogers’ unprofessional conduct with bears, some of it affectionate and some of it anything but:
In one video a bear is made to appear to “dance” by being offered and then denied food rewards. In a second video, Dr. Rogers is seen engaged in a writing activity while lounging beside a bear eating human-provided food, and when the bear runs out of food and lunges at Dr. Rogers in an apparent quest for more Dr. Rogers punches it in the face. The third incident cited by the Agency relates to a photograph of Dr. Rogers mouth-feeding a bear. The hearing produced no evidence of a research-related purpose for any of these activities, and none is apparent.
A question of possession
The main question of law raised by Rogers in his challenge to DNR is whether his continuous close association with bears, fitting and removing collars, walking and resting with them in the woods, as well as the more clownish conduct, constitutes “possession” of a type that requires official permission in the first place. Naturally he thinks not.
Pust, however, found that it clearly did amount to possession in the legal as well as common sense, and here my hat is off to her for a passage that dives beneath the accumulation of fact and gets to the stomach-turning core, at least for me, of Rogers’ sheer intrusiveness, perhaps unmatched by researchers since Jane Goodall was playing with chimpanzees (for which she later asked forgiveness):
When a person confines an animal, the animal is no longer free to roam at will through its habitat but instead is forced to stay where the person intends. When a person marks an animal, the animal is no longer anonymous but instead is specifically identified for the person’s future purpose. When a person domesticates or trains an animal, the animal is no longer free to behave as it did naturally but is instead caused to behave differently, as the person intends.
… By putting a collar on a bear and using that collar to track its location, Dr. Rogers exercises an intentional power to alter the bear’s natural freedom in at least one critical respect: the bear is no longer free to avoid humans. It loses its natural ability to be left alone. Dr. Rogers is able to show up in the forest at any point in time to observe or attempt to join the bear in its activities.
It is true that the bear does not have to allow Dr. Rogers to participate; it can run off and try to hide. What it can no longer do is exercise control over the presence of humans in its midst. Dr. Rogers has control of whether, and to what extent, humans intrude upon the bear’s natural world on a regular basis….he has constructive possession of these wild animals such that a permit is required.
Of course such permits should be granted when they hold promise of important scientific knowledge. No doubt Rogers could have refashioned his work to qualify, had he chosen to do so. Instead he has chosen a position of entitlement and a strategy of demonizing DNR.
It’s a safe bet that, with Pust’s findings in hand, the agency will reject his permit application again, probably in early September, and even safer that that Rogers will head back to court. Meanwhile, it must be remembered that his other special privileges under separate license from DNR continue unimpeded, as do the various businesses associated with them:
Dr. Rogers can continue to study bears in Minnesota. He can continue to feed bears and run Bear Field Study Courses at WRI to educate the public about these magnificent creatures. The already habituated bears may continue, for some period of time, to allow Dr. Rogers to walk with them, rest with them, talk to them, observe them, and record data about them. The bears that currently feed at WRI will likely continue to do so as will their cubs and yearlings, perhaps through their adulthood. Dr. Rogers can continue to record bear weights at WRI aided by feeding, as this activity requires no handling of the bears. If Dr. Rogers happens upon a bear in the woods, he is free to approach it and follow it as the bear allows. He can continue to offer the existing videotapes of den cam footage to schools and others for educational purposes. …
Which, given all we’ve learned about Lynn Rogers in the course of this case, might also be kind of a shame.