A Wisconsin court of appeals ruled this week that baiting and feeding deer is allowable even in chronic wasting disease zones so long as the intention is not to hunt, and, what's more, the burden of proving intent falls on the state.
In the specific case, the District III court of appeals ruled in favor of property owner John Walker, whom the DNR had cited for placing pumpkins and corn on his property.
Appeals Court judge Thomas Hruz upheld a circuit court ruling dismissing the citation because the code forbids baiting and feeding only when it is for a hunting purpose, and the state had produced no evidence that Walker intended to hunt over the food.
The state had argued that the mere placing of bait was illegal.
After the decision, state Rep. Adam Jarchow (R-Balsam Lake) said he hoped the state Department of Natural Resources would not appeal the decision.
"I already received numerous inquiries about feeding deer from constituents," Jarchow said. "I call on the DNR to clarify for the public that consistent with today's ruling people may place feed for deer. I also call on DNR to not waste precious taxpayer money appealing this ruling to the Wisconsin Supreme Court."
In the case, according to court documents, a conservation warden was conducting aerial observations in Washburn County on the day before gun-deer hunting season in 2015, and, when he flew over Walker's property, he observed a deer enter a clearing on Walker's plat and approach what he observed to be three pumpkins.
The warden said he later saw a truck parked where the deer and pumpkins had been seen.
"Continuing to observe Walker's plat from the air, (the warden) testified that the truck had relocated to near a hunting tower stand," the court decision states. "He observed two large piles of what appeared to be shell corn near the vehicle and the tower stand, along with two dogs and a person carrying a sack. (The warden) also observed another tower stand on the plat with two more piles of corn near it."
Another warden was directed to follow up, and he saw three separate "bait" locations on the plat, as well as corn where the first warden had earlier spotted the pumpkins and the truck.
Walker told the warden he had placed the corn under the tower stand to feed his dogs. He was ultimately cited and fined for violating the CWD deer baiting-and-feeding ban in Washburn County.
However, circuit court judge Eugene Harrington dismissed the citation, citing the clear language of the law.
"Statute requires no person may place, use, or hunt over bait or feed material for the purpose of hunting wild animals or training dogs," Harrington wrote in the circuit court decision. "You have to show that the purpose was to hunt and that there was an active hunting going to take place. The mere fact that there's corn piles and pumpkins perhaps in the woods the day before deer season, that doesn't necessarily indicate somebody's going to hunt over those. There was no review of the deer stands. There was no evidence that the deer stands were ready for hunting. ... [T]here was no admission from Walker directly to the warden that he intended to hunt over that. I think the state has failed to carry its burden, and the case is dismissed."
Appeals court deliberation
In his decision, Hruz said the appeal involved a rather specific subject: Does the administrative code require the state to show that a person intended to hunt over the bait or feed material he or she places?
The state argues it does not, Hruz observed, claiming that "the plain language of the baiting regulations provides that a person not place bait where baiting and feeding are prohibited."
To get to that point, Hruz summarized, the state argues that the prepositional phrase "for the purpose of hunting wild animals" in the code only modifies "feed material" and not also the conjoined term "bait."
In other words, "no person may place, use, or hunt over bait or feed material for the purpose of hunting wild animals or training dogs" doesn't mean that you can't place, use, or hunt over bait or feed material if the bait or feed material is to be used for hunting. Rather, it means you cannot place, use, or hunt over bait, period, and, further, you can't place, use, or hunt over feed material for the purpose of hunting.
Under that interpretation, bait cannot be placed at any time in a CWD zone, while feed material cannot placed if it is used for hunting.
To support that interpretation, Hruz states, the state points out that in the definition of 'bait' in the code, "feed that is used for hunting purposes" is included as a subset category.
"In the context of this definition, the state claims (the code) creates two distinct violations regarding the action of 'placing': 'to place bait' and 'to place feed that one is using as bait for hunting,'" Hruz wrote.
But the state's argument's doesn't wash, Hruz concluded.
"This interpretation is untenable, and we instead conclude that (the code) requires the state to prove not only that bait or feed material was placed or used, but also that the person's purpose for doing so was to hunt wild animals or train dogs," Hruz wrote. "Grammatically, it is improper to read 'for the purpose of hunting animals' to modify only 'feed material' and not 'bait.'"
Reading the code as a whole makes the court's interpretation clear, Hruz wrote.
"This includes the fact that the phrase beginning with 'for the purposes of' itself has two disjunctive objects - 'hunting wild animals' or 'training dogs' - the latter of which is ignored by the state's construction and seems clearly to implicate actions involving both 'bait' or 'feed,'" the judge wrote.
But more problematic for the state, Hruz wrote, is the very definition of "bait" in the code upon which the state relies.
"According to the DNR's definition, that term means 'any material placed or used to attract wild animals,'" Hruz wrote. "This language demonstrates that any placement must involve an intent to attract wild animals, as opposed to different placements or uses of the materials."
The flaws of the state's construction are also apparent when reading the code as a whole, Hruz continued, including its other references to placing, using, or hunting over bait or feed. None of those references can be read as making the distinction between placing "bait" and placing "feed" that the state proffers, Hruz stated.
"Indeed, the term 'bait' itself seems to beg the question of the purpose for which any particular material is used, as many types of 'materials' may attract wild animals, particularly the hungry ones," Hruz wrote. "Consideration of scenarios beyond the facts of this case seems to amplify this point. For example, large containers of picked fruit placed on a patio and then forgotten could likely attract wild animals. Is the placement of festive jack-o'-lanterns a violation of the regulation if it is done without any intent to attract wild animals? It would seem not."
What is more, Hruz continued, the state never explains why the DNR in the code would make the distinction it advocates between the placement of 'bait' versus 'feed' when it comes to the import of someone's intent in placing either type of item.
To be sure, feed that was placed to attract wild animals for a reason other than hunting would still make that bait in the definition, and thus render the distinction of feed placed for the purpose of hunting superfluous because all feed placed to attract wild animals, for hunting purposes or otherwise, would be illegal.
In other words, feeding deer in and of itself is legal, according to the DNR's court logic, but it would also be illegal because it would be bait. The rule is nonsensical unless "for the purpose of hunting wild animals" also applies to "baiting."
"All in all, the state's interpretation of the regulation is not only untenable but could lead to absurd results, which is to be avoided," Hruz wrote.
The state seems to further argue that Walker's mere act of placing 'bait' is illegal because it occurred in a county designated as a CWD-affected area, Hruz stated, but that argument fails, too, and for the same reason as its interpretation of the code.
"The exceptions and prohibitions regarding CWD counties outlined above are also subject to the requirement that bait and feed material be 'placed' in a manner as understood in (the code)," he wrote. "Therefore, Walker's placement of bait becomes a violation of (the code) only if it was done 'for the purpose of hunting deer,' even in a county designated a CWD-affected area. The state's interpretation is thus at odds with (the statute), which requires the DNR to promulgate rules to 'prohibit feeding deer for hunting or viewing purposes' in counties with CWD, not merely to prohibit placing any item that may be considered 'feed' or 'bait' more generally."
Having determined that the state must show that the purpose of placing bait or feed material was for hunting or training dogs, Hruz said the only issue left was whether such evidence was presented. And the answer to that, he said, was no.
"The circuit court found that the state failed in its burden to prove Walker had a purpose to hunt when he placed the bait on his land," he wrote. "On appeal, the state does not argue that the circuit court's factual finding regarding Walker's intent was clearly erroneous. Rather, it relies solely on its contention that such intent is irrelevant as a matter of law. We have rejected the state's argument in this regard. Accordingly, we affirm the order's dismissal of the citation."
For its part, the DNR said it will continue to enforce the code and that the ruling was a narrow one applying only to Walker's situation. To be sure, the decision is unpublished, meaning it will have no value for precedent.
But that doesn't mean other courts won't similarly find as flawed the state's attempt to draw a distinction between placing bait and placing feed for the purpose of hunting.
Posted: Saturday, April 15, 2017
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What about all the others convicted and fined for this violation. Obviously this guy is rich or well connected. There is no way Stepp will appeal this case and Walker will. make sure of it
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