DNR Does Not Need to Consider Constitution's Hunting Fishing Heritage Amendment
'No statute that requires it to'
St Paul, Ramsey County
February 17, 2015
Today, the Court of Appeals rejected the Save Mille Lacs Sportsfishing challenge to the DNR's emergency rule. The appellants sought to invalidate a fishing rule because the DNR had not, based on the record, considered Minnesota's Hunting and Fishing Preservation Constitutional Amendment adopted in 1998. The Court of Appeals held the DNR's fishing rule valid.
The Court of Appeals stated that the DNR does not need to consider the constitutional amendment when adopting hunting and fishing rules because there is no statute that requires it to. The syllabus of the court decision states, "The absence of a citation or analysis of a relevant constitutional or common law principle by an administrative agency in the rule making process is not grounds for declaring a rule invalid..." Specifically, the opinion states at pages 7 and 8:
Petitioners correctly assert that the DNR did not state on the record that it considered the Preservation Provision or the public-trust doctrine before it adopted the emergency rule. We acknowledge that some reference to statutory or other legal authority is required in rulemaking. The Minnesota Administrative Procedure Act, Minn. Stat. Sect.s 14.00.69 (2014), requires that Minnesota agencies provide a "citation to the most specific statutory authority for the proposed rule" when the agency gives notice of rulemaking proceedings... The statutes that govern the DNR's authority to enact emergency hunting and fishing rules do not impose any additional requirements that are relevant to petitioners' claim... The DNR's citation to statutory authority demonstrates that it considered the objectives of the Preservation Provision in its analysis, even if that Provision was not specifically referenced.
Attorney Erick G. Kaardal responds, "So Minnesota's Hunting and Fishing Preservation Constitutional Amendment is worthless without a state statute directing the DNR to apply it. Otherwise, the DNR ignores it as it did in this case with the Mille Lacs Lake walleye regulations. My clients are now ready to go to the state legislature to enact a statute that will require the DNR to follow the law when adopting any rule--specifically Minnesota's Hunting and Fishing Preservation Constitutional Amendment. We also look forward to reviewing the DNR's forthcoming emergency rules adopted for Mille Lacs Lake walleyes this year."
CONTACT:
Erick G. Kaardal 612-465-0927 kaardal@mklaw.com Mohrman, Kaardal, & Erickson, P.A.
Bill Eno320-279-0693 twin_pines_resort@yahoo.com Twin Pines Resort
Douglas Meyenburg 763-843-1039 dougmeyenburg@hotmail.com Proper Economic Resource Management (PERM)
