How I Learned My Lesson: My DNR Story

In August of 2007 the DNR searched my property without a warrant, while I was gone, and subsequently fined me for feeding bears out of season.

I believe they were tipped off by a trespasser who obviously, and pompously, believed he knew my intent better than I did. Of course, MN "data privacy" laws protect the identity of my accuser notwithstanding the Constitution. But that is another topic.

I had food of a type attractive to bears, as well as deer, 273 (the DNR's measurement) feet from my bear hunting station which was absolutely clean. The bear baiting season had not begun.

The DNR regulation governing the feeding of bears, reported in the winner's notification handbook for years, does not clearly distinguish between feeding stations and hunting stations. It states that a bait station, defined as a place where one intends to hunt, must be 300 feet from where bears have otherwise been fed. This has often suggested to bear hunters, like me, that one can feed the bears at bear feeding stations, as long as they are 300 feet from where one intends to hunt. The failure in the report of the regulation to clearly distinguish between feeding stations and hunting stations, and then prohibit both, is a real source of confusion.

Here's the verbatim statement of the regulations in the winner's handbook:

(A) A bear "bait station" is any location where bait is placed for the **purpose of hunting**.
(B) A person may not establish, service, maintain or place a sign for any **bait station** prior to August 17, 2007. A person may not establish a **bait station** within 100 yards of any site where **bait** has been placed before August 17, 2007.

If we make a simple logical substution of the semantically equivalent phrase, i.e. the definition provided in (A) for the phrase “bait station”, regulation (B) then reads:

“(B) A person may not establish, service, maintain or place a sign for any bear hunting station prior to August 17, 2007. A person may not establish a bear hunting station within 100 yards of any site where bait [simpliciter] has been placed before August 17, 2007.”

I was once a professor of logic. I wish I had had this wonderful example for the freshman. (A) and (B) taken together, provide no deductive implication that feeding bears is prohibited where it does not constitute a hunting station. If anything, it implies just the opposite by mentioning the placement of bait versus the establishment of a “bait station” (hunting station).

And of course, there is a de facto distinction between hunting stations and feeding stations which serves as the obvious background of this interpretation of the regs.

I believe there is at least one conservation organization in northern Minnesota that feeds bears all the time. More generally, I believe people feed bears quite often in Minnesota without fear that the DNR has an interest in fining them for establishing hunting stations out of season. The DNR would be eliminating these naturalist organizations and citing a lot of people if it prohibited feeding stations prior to bear hunting season and after bear hunting season. Obviously these feeding stations are not considered “bait stations” (hunting stations), establishing the fact that the DNR, de facto, DOES make this distinction. In that case, why are a bear hunter’s feeding stations vulnerable to being ticketed as “bait stations” (hunting stations) where it seems clear there was no intent to hunt over the feeding station?

Although I was actually ticketed for a violation that the language of the regulation, as it is reported in the handbook, does not clearly imply (the prohibition of feeding bears out of season altogether), the 300 foot rule was so clear, that I was happy to pay the fine at the time. I felt it was my responsibility to make sure that my feeding station was at least 300 feet from my hunting station. I respected that clarity even if the violation was therefore based on a technicality of 27 feet.

But subsequently, I realized that even the CO's decision about what constituted feeding bears was completely discretionary. I had dumped left over bear bait from the last year's hunt at the location in question which I had otherwise believed was 100 yards from my hunting station.

The intent was to attract any wildlife -- bear, deer, pine martens, ravens and squirrels for that matter, for viewing from my back windows. This feed was primarily granola, and the deer ate it as avidly as the bears. The CO decided it was bear feed because it had a few candy hearts in it. But what if it hadn't? She could have still decided it was bear feed because, of course, the bears will eat almost anything! It was up to her discretion. I could have insisted that it was deer feed (I knew it would primarily attract the does on my property and that the bears rarely showed up within such clear site of the cabin) and she could still decide either way. The facts of the case, including intent, made the charge of non-compliance discretionary on the CO's part, not compelled by clarity in the regulation or the the defacto enforcement practices of the agency which allow wildlife feeding in general. When I ruminated upon all of this, I realized we have a problem with DNR regulations. I realized why, in spite of the failure to keep my feeding station another 27 feet distant from where I intended to hunt (and often fed the deer as well as the bears) the whole experience seemed disturbingly arbitrary.

If you take a look at the article in this blog about the "Rule of Law Test" you'll see how I realized that in the end, the conclusion that I was not in compliance, was really completely discretionary on the part of the CO because of the vagueness and obscurity of the regulations and because of the de facto legality of wildlife "feeding stations". Curiously, the DNR admits to this discretionary approach. An assistant Commissioner explained to me over the phone that a charge of non-compliance is really up to the CO on a "case by case basis". The agency takes this discretion for granted. When I brought up the rule of law, my comments seemed to be zooming over his head.

Apparently this year's regulations (2007) about deer baiting are another demonstration, according to recent news stories, of the the agency's mediocrity with respect to drafting something clear and simple. The 2007 deer baiting regulations have inspired a lot of phone calls to the DNR by confused deer hunters. Par for the course.

I am thankful for these events because it drew my attention to how completely unspecified, unclear, unnecessary, and even irrational some DNR regulations can be. In analyzing the bear baiting regulation, I began to realize that the most important fault in the regulation was that it failed to distinguish, probably by design, between private and public property. An analysis of the implications of this regulation, insofar as it does NOT distinguish between private and public property, teaches us that it is a direct attack on property rights. Any regulation that conveniently fails to distinguish between private and public property results in a strategic reduction of private property to public property. That is, from a regulatory perspective, no differences are allowed. This is called "socialism".

In general the lack of specification in any regulatory regime maximizes the discretionary power of the agency and minimizes the rule of law. As the DNR and I went back and forth about what would guarantee my future compliance on my private property as such, increasingly absurd conclusions on the part of the DNR began to accumulate. Without the distinctions that would specify the regulation and turn it into good law, it degenerated into arbitrary nonsense that had to be invented by the CO off the top of her head. What else could she do? Once again, the whole paradigm is in direct conflict with the rule of law. See the other articles in this blog for more analysis.

One example of a patent absurdity, imposed arbitrarily by the CO, based on this failure of a distinction between public and private property, is that in my back yard, on my private property, I am not even allowed a small plastic device that drips bear lure at my bait station, on the grounds that it is not biodegradable. Remember, this is my private property we are talking about where I otherwise have the right to have all kinds of non-biodegradable equipment just yards away from the food! I have an equipment box, a non-biodegradable blind, a non-biodegradable platform for the blind, and so on.

Another example is the arbitrary decision that my bait storage barrels had to be 300 feet from my bait station. So on the one hand, I have the right to store bait in non-biodegradable containers on my own property, but I can't have them close to my hunting station. Remember, this is not a littering issue. This is my private property. What's the point?

Although in the whole corpus of MN state law, there is no prohibition on my storing unthreatening things, like bait, in non-biodegradable containers, this obvious use of private property was nevertheless in danger when the CO opined that the containers must not be in contact with the bait -- the very thing I was storing. In other words, the DNR was so intellectually disengaged, that if I had taken its instructions literally, even this common use of my private property would have been prohibited by the instructions I was being given.

By failing to clearly distinguish between private and public property, bait storage, and feeding stations, and feeding stations and hunting stations, the lack of specifity and clarity in the regulation puts the CO in position where absolutely absurd conclusions can be imposed on a "case by case" basis. The rule of men, as opposed to the rule of law, will always become this dangerous -- and silly.

I actually had to point out to the regulators that storing otherwise legal substances in non-biodegradable containers is a common use of private land, and that if the CO meant that this sort of thing was prohibited a lot of people were about to get fined -- especially all the bear guides with their storage barrels deployed on private land. Or someone storing bait behind their garage in Edina.

I got nowhere by pointing out to the DNR that my hunting equipment, on my private property, including a blind, lights on a pathway, an equipment box, and so on, were not biodegradable, and rested very close to the bait station. Why would it make any difference, on private land, if we added non-biodegradable bait containers to that list of equipment? And if it was not right in the first place to have such containers around, why would it help to simply stipulate that they must be any given distance, on my private property, from where I was hunting on my private property?

Obviously, the point of the regulation, insofar as it is reasonable and necessary, is to prevent the littering of public land. By failing to make a distinction between public and private property, a series of ad hoc regulations was being created on the spot, by the local CO, which could NOT avoid becoming absurd. There was really no practical, rational point to them at all.

It's up to you and I, as the people of Minnesota, to change this. The lesson is simple and clear. By failing to specify its regulations, and in particular, by failing to respect the distinction between private and public property, the modern regulatory state maximizes it's discretionary power and minimizes the rule of law. This involves blatantly absurd, arbitrary, and irrational outcomes inherent in the rule of men. Alternatively, the specification of the regulations, starting with key distinctions that protect existing rights and enforce coherence with the rest of the law, will not threaten the success of our natural resources management. It will simply guarantee the rule of law.

See the article in this blog on the "Rule of Law Test" to see how we, the people, can begin to manage the whole bureaucracy back to sanity.