Judge backs DNR in fight with noted Ely bear researcher
The state’s chief administrative law judge has ruled in favor of the Minnesota Department of Natural Resources in the agency’s long-running dispute with Ely bear researcher Lynn Rogers.
In a 69-page opinion filed Tuesday, Judge Tammy Pust found that the DNR does have the right to require that Rogers obtain a state permit to put collars on the wild black bears that he studies.
Moreover, Pust ruled that the DNR has the right to take that permit away, as the agency did one year ago.
“The preponderance of the evidence established’’ during a lengthy hearing over the winter showed “DNR had cause not to renew’’ Roger’s permit to collar, handle and study bears.
The decision is a victory for DNR wildlife officials, who have contended for more than 15 years that Rogers’ efforts are conditioning wild bears to become accustomed to human contact, and to be fed by humans, thus making them more likely to become nuisance or even dangerous bears.
“Dr. Rogers can continue to study bears in Minnesota. He can continue to feed bears and run Bear Field Study Courses at (the Wildlife Research Institute) 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,” Pust concluded.
What Rogers cannot do “without applying for and being granted a DNR permit, is collar or intentionally and repeatedly handle bears, or visit the dens of bears, all of which are statutorily prohibited in Minnesota without a permit,” Pust stated.
Under state rules the DNR now must appoint an agency official to decide whether Pust’s decision was proper. The DNR on Tuesday said that official will be longtime DNR manager Kent Lokkesmoe, who has no past involvement in the Rogers case. Lokkesmoe has spent much of his career at the DNR working on water issues.
Lokkesmoe first will wait for both sides to file any written exceptions to the judge’s ruling. He then must wait at least 10 days, but no longer than 90 days, before issuing a decision. Rogers can appeal that final decision to the Minnesota Court of Appeals.
DNR spokesman Chris Niskanen said agency officials are withholding any comment on the case.
“We’re going to let the judge’s decision rest on its own merits,’’ he said.
Rogers, who contends he shouldn’t’ need a permit because he never takes physical control of the wildlife, and because his work helps educate the public, said he already is talking with his attorney about an appeal. He said the evidence clearly shows that there is no public safety issue involved with his work, noting that no one has ever been harmed.
“I’m disappointed. I thought she (Pust) would totally back us up based on the evidence,’’ Rogers said after the decision was released Tuesday. “She says a lot of good things about our research in the decision. She appreciates what we do. … But she agreed with the DNR that we need a permit for the radio collars and the den cams. The DNR isn’t going to give us a permit. And without the collars and the den cams, we can’t do our research.”
The DNR last June moved to revoke Rogers’ permit to handle and put GPS or radio transmitter collars on bears that he often follows, feeds and befriends — or habituates — to his presence. Rogers also takes tourists on bear walks in the woods, where the transmitters allow him to locate bears.
After the DNR action last year, Rogers appealed directly to Gov. Mark Dayton, and then to a state district court, to challenge the DNR’s action. The district court ruled that Rogers’ permit should be extended until the matter could be decided through the administrative law judge process. Rogers was given temporary, partial ability to continue studying bears, and a two-week hearing was held in February and March, with expert witnesses called on both sides before Pust.
Residents who live near the research area also testified, some for and some against Rogers’ efforts that are focused in Eagles Nest Township between Ely and Tower.
Rogers for years has endorsed his method of befriending and feeding bears to be able to place collars on them without using tranquilizers, as is the normal practice for studying the animals. Rogers contends that his methods allow him to closely follow bear behavior in a manner few, if any other, researchers have been able to do. Moreover, Rogers said his work has been well-received by the public, with education about generally nonviolent bear behavior helping people accept bears in the long run.
The DNR said Rogers’ work placed both the bears and local residents in harm’s way, leading to several complaints and the potential for bear-human interaction that could lead to a person being injured.
Pust agreed, writing in the decision: “The preponderance of evidence at hearing established that these incidents, though not primary motivators for the Agency’s denial decision, supported the DNR’s legitimate basis for denial: the risk to public safety.”
The decision goes on to say that “this evidence supports the Agency’s determination that Dr. Rogers’ study bears engage in behaviors around humans that is atypical in nature. It indicates that, at least in these examples, specific bears have been habituated to human contact near to the point of taming. As such, the evidence bolsters the DNR’s determination that at least some of Dr. Rogers’ study bears present a potentially higher risk to the public’s safety in that they have been trained to expect food rewards upon demand or in return for exhibiting human-initiated tricks.”
Pust also agreed with DNR allegations that Rogers’ behavior during some of his bear walks with tourists, as seen on videos shown during the hearing, appeared unprofessional.
Video of Rogers and others “punching and the dancing (with bears) and the photographs of Dr. Rogers and others kissing bears, stroking bears, posing with bears and mouth-feeding wild bears, indicate that these animals have not been accorded the level of respect for their nature that the law is designed to ensure. While people will always be curious about and will continue to observe, study and learn from and about bears, the law is in place to ensure that we do so in a manner that does not ignore their innate dignity or subordinate it to our human desire for power or control.”
In recent years, Rogers and his Wildlife Research Institute have become famous of sorts thanks to the Internet and social media. His placing of a live video camera in a bear den, which included the apparent first-ever Internet-transmitted birth of bears cubs, made Rogers and the bear a global sensation with tens of thousands of Facebook friends worldwide.
Rogers can keep collars on bears that already have them under the temporary permit. If Lokkesmoe agrees with the judge, the DNR is likely to move quickly to again withdraw his permit, which would make it illegal for Rogers to collar any bears.
Rogers could ask the Court of Appeals for an injunction preventing the DNR from acting until an appeal is decided.
In a partial victory for Rogers, Pust ruled in a separate decision that the results of Rogers’ research efforts that were part of the record in the hearing process can remain confidential and will not be made public, as requested by the DNR.