By Joe Kelly | Courthouse News
MADISON, Wis. (CN) — A Wisconsin judge on Friday effectively cancelled the state’s upcoming gray wolf hunting and trapping season because the agency in charge of planning it did not do so according to state law and the state Constitution, blocking the hunt two weeks before it was set to begin.
Wildlife advocates sued the Wisconsin Department of Natural Resources and others in August in an attempt to stop the fall wolf hunt set to begin on Nov. 6, in part because the DNR did not follow the law or sound science in planning it. The groups asked the court to prevent any hunting licenses from being issued, stop the fall hunt entirely and enjoin the Wisconsin law enacted in 2012 allowing for the hunt in the first place.
Dane County Circuit Court Judge Jacob Frost stopped short of declaring the wolf hunt law unconstitutional, but he found that the DNR did not apply the law constitutionally because it laid out plans for the hunt without undergoing the oversight of statutory rulemaking procedures and without a permanent wolf hunt rule or an overall wolf management plan being in place, meaning “[DNR’s] decisions are built on a faulty basis.”
The judge granted the petitioners’ their temporary injunction and required the DNR to set the kill quota for the wolf hunt at zero for all six hunting zones and issue zero licenses or tags until the agency complies with the law, meaning there is still technically an open wolf season but no animals can be legally harvested until those conditions are met.
Frost stressed the need to preserve the status quo, saying “the status quo as I see it is applying the law…so my injunction aims to do that by righting the course. DNR is currently not following the law and not following the Constitution.”
A big part of the problem for Frost was that when the Wisconsin wolf hunt law was enacted nine years ago, it required the DNR to make a permanent rule for holding a wolf season to replace an emergency rule put in place the year the law was enacted. The agency never did that, instead proposing a permanent rule in 2014 before withdrawing it two years later and never getting back to the issue since.
Frost called it “absurd” to say it’s okay to plan a wolf hunt for this fall based on a nine-year-old emergency rule that was never replaced with a permanent one.
“You can’t just start the process, drop the ball and say you followed this expectation,” Frost said.
Frost also found the DNR’s actions violated the non-delegation doctrine of the Wisconsin Constitution in that it betrays that doctrine’s separation-of-powers guarantee because its plans for the kill quota, licensing, zoning and other matters were not subject to any oversight, in part via rulemaking procedures dictated by state law.
The judge relied heavily on a Wisconsin Supreme Court decision from May of 2020, in which the high court struck down the state Department of Health Services secretary’s Covid-19 lockdown order because she did not submit the order to rulemaking procedures and get lawmakers’ approval. Frost reasoned that the same rationale for oversight of bureaucratic decisions that applied to Covid-19 applies to the wolf hunt.
“Even in light of something as serious as [the coronavirus pandemic], the supreme court said rulemaking still has to happen, oversight still has to happen…why wouldn’t that same level of oversight be required for this wolf hunt?” he said.
Frost argued that while those opposed to the hunt would be harmed by the DNR acting without such oversight, those in favor of the hunt could also be harmed by its broad, unchecked authority by setting the kill quota at zero or closing hunting zones at the exact same time they are opened.
The irreparable harms the judge considered included the infringement of constitutional rights and the loss of life of animals based on an outdated wolf management plan that was last updated in 2007. He said his temporary injunction can end when a wolf management plan is put in place or when the DNR’s plans for the hunt undergo the scrutiny of lawmakers.
Frost denied a motion for a stay of his injunction pending appeal from DNR’s counsel and Assistant Attorney General Hannah Jurss, who characterized Frost’s injunction as “unquestionably a dramatic decision.”
Neither the DNR nor state hunters will suffer irreparable harm from the injunction, said Frost, who did not think there was a good chance of success in overturning his order on appeal and offered that there still could be a hunt this year, as the season technically runs from November through February and “the ball is in DNR’s court as to how fast some of these things move.”
A real harm that could result from carrying out a wolf season under the current plans would be in the form of the loss of animal life through an illegal hunt, Frost said.
“Once the wolves are dead…that’s an irreparable harm,” he said. “We can’t just go to Walmart and get new wolves.”
Wolf hunting in Wisconsin has been in the spotlight since a hurried hunt in February during the animal’s breeding season exceeded its kill quota in less than three days and garnered bad press nationally. A DNR policy board made waves in August when it set the fall kill quota at 300 for an unprecedented second hunt in a calendar year.
But the DNR — whose leadership has been in a simmering political fight with leading members of the board — scaled that back earlier this month with a quotaof 130 and a plan to issue 370 licenses for state hunters to harvest a total of 74 wolves, since state Chippewa tribes’ treaty rights entitle them to their own portion of the wolves.
Six of those Chippewa tribes sued in a Madison federal court in September to stop the fall wolf hunt. The tribes, who view the wolf as a brother held in high esteem, traditionally sit on their portion of the quota and do not kill any.
A DNR spokesperson did not immediately respond to a request for comment on Frost’s ruling Friday evening.
