Madison — Dane County Circuit Court Judge Peter C. Anderson may have temporarily set aside the hound-hunting portion of Wisconsin’s new wolf season, but he did not intend for that action to suspend wolf trapping or other types of wolf hunting once the Oct. 15 wolf season opener rolls around.
Anderson said the DNR may go ahead and issue wolf kill tags for the new season as long as hunters don’t use dogs.
That, despite the fact that Assistant Attorney General Cynthia Hirsch tried to convince Anderson otherwise during an Aug. 31 hearing in which Anderson issued his ruling.
Twice as Anderson closed out his decision, Hirsch – instead of accepting the partial victory quietly – interjected and said Anderson’s ruling would prevent the DNR from issuing any wolf tags at all because state law declares that any wolf season include hound hunting.
Each time – the second time more forcefully than the first – Anderson told Hirsch that he was not preventing the DNR from issuing wolf tags to hunters and trappers. He was simply temporarily preventing the use of dogs for hunting or training purposes.
Hirsch said she had listened carefully to Anderson’s comments and told the judge that his decision put the state in an “impossible position” because the law requires the DNR to issue licenses for dog hunting.
“There’s no option in the law to not … “ Hirsch said.
“This court has that authority,” Anderson said, adding that he wasn’t preventing the DNR from issuing licenses for trapping and other types of hunting.
Hirsh circled around again to restate her point, adding, “I didn’t mean to insult the court.”
“You didn’t insult me … right now, no dogs. You may hunt wolves, no dogs. If you don’t like my ruling, you may appeal it,” he said.
He also pointed out that the hound season couldn’t start under the current season framework until the day after the nine-day gun deer season ends, Nov. 26 this year.
Later, outside the courtroom, several hearing observers noted that while Hirsch perhaps had a reason to argue a technicality, they doubted the Legislature – which is not back in session until January – would object to getting two-thirds of the new wolf season while the court works out the hound portion of the framework.
Anderson even gave the state an avenue to settle the case before the hound season would begin Nov. 26. He said that if the DNR could present him with more dog-hunting restrictions aimed at reducing the chance of wolf/dog conflicts, he would defer to the agency.
That would be difficult for the DNR to do, however, because Act 21 now places more hurdles in the administrative rule process that the DNR would use to make any changes to the dog/wolf hunting framework.
Anderson went to great lengths to set up the thought behind his granting the plaintiffs a temporary injunction. He had stacks of law books carried into the courtroom, and he read chapters and verses from each one, almost as if he wanted to make sure the basis of his ruling was clearly understood should either party appeal any part of the case.
Instead of simply reading his decision, he examined the state’s challenge to the plaintiffs’ standing, the probability of either side winning their arguments in the case, and the possible resolutions, including the temporary injunction on hound hunting.
During the initial hearing Aug. 29, Anderson questioned Hirsch and DNR lawyer Tim Andryk several times as to why the state didn’t offer any evidence in an attempt to refute the plaintiffs’ claims of dog/wolf “blood baths” and the potential personal safety risk claimed by volunteer wolf trackers if dogs were trailing wolves in the woods while they’re running track surveys. He went back to that point during the Aug. 31 hearing.
He reviewed the DNR’s contention from the Aug. 29 hearing that the agency doesn’t have the authority to draft rules – in this case rules to further address hound hunting of wolves – beyond what the Legislature gave to the DNR in the form of the new wolf season law.
“I was surprised to see them argue that the agency has no authority on this. The record didn’t tell me why they didn’t feel they had this authority … I think they got that wrong; they misinterpreted their authority,” Anderson said.
“This is the first time in decades that we are opening a hunting season for wolves,” he said. “We’re the first state to allow the use of dogs on wolves. We have rules for hunting rabbits with dogs.
This is a rush of the process. They wanted it fast. The DNR missed something essential. The DNR does have the authority to look at this. Instead, they conclude, in error, that it has no authority. I don’t want to beat them up on this, but I thought when I (first read the record) that they had authority.”
He then went page by page through the record to point out where the AG’s office and DNR offered conflicting arguments on the DNR’s authority. He started on page 39 and went through page 51.
“You address humane killing of captured wolves, but nothing addresses humane hunting. On page 46 you have decided not at this time to place a game warden on every wolf hunt. On page 47 you say you have authority, but not a duty.
“I’m not beating up on them, they can take that tack. What I thought I read was that the DNR had authority and I was prepared to review (that). Instead I’m told they have no authority. I believe that’s a legal error,” he said.
Anderson said there’s a better-than-even chance that the plaintiffs have standing on all counts. He also said there’s a better-than-even chance that he would not grant the state’s motion to dismiss the case. That hearing – on the state’s motion to dismiss – was to have taken place on Friday, Sept. 14 after press time for this issue.
Anderson circled back to the issue of training versus hunting. He noted that there is a six-dog limit for hunting season, but no limit for training hounds to trail wolves.
“No limit? Not even 50?” he asked. “You’re just outright wrong. Even if we gave you deference on authority, it’s wrong.”
The key point in the plaintiffs’ argument is that state law allows dogs to trail, track, or pursue wolves, but it’s not legal for dogs to engage wolves, or kill them. Anderson said the DNR was granted broad discretion to develop rules for those purposes, but did not do so.
The DNR held a wolf kill tag drawing by random draw (no preference the first year) last week and will issue 1,160 licenses for the 2012-13 season. Successful applicants will be notified by letter. Wolf tags are $100 for residents and $500 for nonresidents.
A total of 20,272 people applied for a tag. There were 19,788 resident applicants and 486 nonresident applicants from 38 states, with the largest numbers from Illinois (179) and Minnesota (102). This will be Wisconsin’s first wolf season in more than 60 years. It is set to begin Oct. 15.
Unsuccessful applicants will receive a preference point.
The Natural Resources Board approved a quota of up to 201 wolves that could be harvested during the first season, 85 of which are reserved for Indian tribes within the ceded territory of northern Wisconsin.
Starting with the 2013-14 season, one-half of the permits will be issued randomly among all permit applications and the second half will be issued through a cumulative preference point drawing.