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Center for Biological Diversity v. Minnesota Department of Natural Resources

Court of Appeals of Minnesota

May 28, 2013

Center for Biological Diversity, Howling for Wolves, Petitioners,
v.
Minnesota Department of Natural Resources, et al., Respondents.

UNPUBLISHED OPINION

Minnesota Department of Natural Resources

Collette L. Adkins Giese, Center for Biological Diversity, Circle Pines, Minnesota (for petitioners)

Lori Swanson, Attorney General, David P. Iverson, Nathan J. Hartshorn, Assistant Attorneys General, St. Paul, Minnesota (for respondents)

Ryan Burt, Halleland Habicht PA, Minneapolis, Minnesota; and Anna M. Seidman (pro hac vice), Safari Club International, Washington, D.C. (for amicus curiae Safari Club International)

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Kirk, Judge.

BJORKMAN, Judge

Petitioners seek a declaratory judgment invalidating the expedited emergency rules enacted by respondent Minnesota Department of Natural Resources (DNR) for the 2012-13 wolf-hunting and -trapping seasons. Petitioners argue that the DNR adopted the rules in violation of statutory rulemaking procedures. Because petitioners lack standing to challenge the rules, we dismiss the petition.

FACTS

Effective January 27, 2012, the United States Fish and Wildlife Service removed Minnesota's wolves from the federal threatened and endangered species list, thereby removing them from the protection of the Endangered Species Act of 1973 (ESA), 16 U.S.C. §§ 1531-44 (2006). Revising the Listing of the Gray Wolf (Canis lupus) in the Western Great Lakes, 76 Fed. Reg. 81, 666, 81, 666 (Dec. 28, 2011). The delisting left management of the Minnesota wolf population to the state.

In anticipation of this change, the legislature eliminated a preexisting requirement that there be no open season for taking wolves until five years after delisting.[1] 2011 Minn. Laws 1st Spec. Sess. ch. 2, art. 5, § 51, at 804. The legislature provided instead that "[t]here shall be no open season for wolves until after the wolf is delisted under the [ESA]. After that time, [the DNR] may prescribe open seasons and restrictions for taking wolves but must provide opportunity for public comment." Minn. Stat. § 97B.645, subd. 9 (2012). After wolves were delisted, the legislature enacted Minn. Stat. § 97B.647 (2012), which governs the taking of wolves. 2012 Minn. Laws ch. 277, art. 1, § 65, at 1158. This legislation establishes that "[t]he open season to take wolves with firearms begins each year on the same day as the opening of the firearms deer hunting season." Minn. Stat. § 97B.647, subd. 2. The legislature further provided that the DNR commissioner "may by rule prescribe the open seasons for wolves according to this subdivision." Id.

Following the enactment of section 97B.647, the DNR began an expedited emergency rulemaking process to establish rules for the 2012-13 wolf-hunting and -trapping seasons. On May 21, 2012, the DNR issued a press release declaring that there would be a wolf-hunting and -trapping season in the coming fall and winter and that the DNR was "seeking public comment on details of the proposed season." The DNR explained that it would "only take comments through an online survey through June 20."

On August 20, the DNR published the 2012-13 rules for wolf hunting and trapping (the wolf rules), providing that up to 400 wolves could be taken during open hunting and trapping seasons between November 3, 2012, and January 31, 2013. 37 Minn. Reg. 279, 279-82 (Aug. 20, 2012). The DNR also published a notice stating that it adopted the wolf rules through the expedited emergency rulemaking process because "quota numbers, bag limits and season structure are developed on an annual basis so that the harvest and populations can be managed sustainably." Id. at 279.

Petitioners Center for Biological Diversity and Howling for Wolves commenced this declaratory-judgment action on September 19, 2012. Petitioners simultaneously filed a motion for a preliminary injunction, which this court denied based on petitioners' failure "to identify any claimed irreparable harm attributable to the DNR rules." The supreme court denied petitioners' request for further review or an emergency injunction. We ...


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