In Wi, What Is The Statute Regarding Feeding Of Wild Animals?

A recent unpublished Court of Appeals example involved a dismissal of a citation for feeding and baiting deer on grounds that it is illegal only when washed for hunting. "The Wisconsin DNR takes the position that it is illegal in all chronic wasting affliction-afflicted areas," writes John Priebe.

The Wisconsin Department of Natural Resources (DNR) takes the position that placing bait to hunt deer or feed for recreational viewing of deer is illegal in all counties affected past chronic wasting illness (CWD) in Wisconsin.

Of the state's 72 counties, 43 are CWD-affected. In addition, in CWD-affected counties, the feeding of any wild animate being for nonhunting purposes is illegal, except as allowed for birds and small-scale mammals. And, birds and pocket-size mammals may merely exist fed if the feed is placed in "feeding devices or structures at a sufficient acme to prevent access by deer," and "inside 50 yards of a dwelling devoted to human occupancy." Wisconsin Dept. of Natural Resources Bulletin, WM-456-2016.

State of Wisconsin 5. Walker

Nevertheless, in Country of Wisconsin v. Walker, 2016AP1434 (unpublished conclusion, April 11, 2017), the District 3 Court of Appeals disagreed, ruling that the State'due south interpretation of the applicative regulation was both "untenable" and "could atomic number 82 to absurd results." Instead, the Court of Appeals ruled that under the language of the regulation, feeding and baiting animals is but illegal when washed for the purposes of hunting, and that the State has the burden to prove that the person cited intended to hunt over the bait or feed.

John H. Priebe, U.W. 1980, is a solo practitioner with Priebe Law, LLC, in Rhinelander. He has specialized in real estate, probate, wills, and trusts for 37 years.

Despite the determination of the Court of Appeals in State of Wisconsin v. Walker, the DNR maintains its position, stating that all deer baiting and feeding remains prohibited in chronic wasting disease-affected counties in Wisconsin, that the Court of Appeals conclusion does not modify the baiting and feeding laws, and that the DNR will continue to issue citations for violations when necessary. Deer baiting and feeding remain illegal in CWD-afflicted counties in Wisconsin. Paul A. Smith, Milwaukee Journal Scout, Apr fourteen, 2017.

The Facts of the Example

In Country of Wisconsin v. Walker, the DNR issued a citation to John Walker, a Washburn County resident, for a violation of WIS. ADMIN. CODE § NR 10.07(2)(a)1. (July 2015). This regulation states that "no person may place, use or hunt over bait or feed textile for the purpose of hunting wild animals or preparation dogs" except every bit otherwise authorized in the regulation or by permit. Washburn County is a CWD-affected area.

The facts of the case show that on the twenty-four hour period before the offset of deer hunting flavour in Nov 2015, during aeriform surveillance, a DNR conservation warden observed deer inbound a clearing on Mr. Walker'southward holding, approaching what appeared to be three pumpkins. The warden also observed ii big piles of what appeared to exist trounce corn about one hunting tower stand, and some other tower stand with two more piles of corn near information technology, and an additional large number of pumpkins, all on Mr. Walker's property. Some other DNR warden made personal contact on the basis with Mr. Walker, who admitted the pumpkins were on his property, and stated that he had placed the corn under the tower stands to feed his dogs. Mr. Walker and the warden discussed hunting, but there is no prove that Mr. Walker either admitted or denied any intent to chase over the bait or feed. The DNR also did non offer any prove most any other possible purposes for the placement of the pumpkins or corn on Mr. Walker'south lands.

Mr. Walker challenged the citation. The Washburn Canton Excursion Court dismissed the citation, on the grounds that the regulation requires that the DNR show that the purpose of placing the feed or allurement "was to chase and that in that location was an active hunting going to accept place." According to the Washburn Court, "the State failed to acquit its brunt."

The Appeal

The State appealed, arguing that WIS. ADMIN. CODE § NR ten.07(2)(a)1. does not require the State to prove that a person intended to chase over the allurement or feed the person places, because "the plain language of the baiting regulations provides that a person not identify allurement where baiting and feeding are prohibited." The State'south position at both the trial courtroom and the Court of Appeals was the aforementioned -- all deer baiting and feeding is prohibited in entire counties that accept been established as CWD-afflicted areas.

The Court of Appeals District III disagreed with the State, and affirmed the Washburn Courtroom's conclusion, ruling that the Country's interpretation of the regulation was "non only untenable but could lead to absurd results, which is to be avoided." According to the Court of Appeals, Wis. Stat. § 29.336(2)(a) requires the DNR to promulgate rules to "prohibit feeding deer for hunting or viewing purposes" in counties with CWD, not merely to prohibit placing whatsoever item that may be considered feed or bait more generally in such counties. Therefore, placement of bait or feed becomes a violation of WIS. ADMIN. CODE § NR 10.07(two)(a)1. just if it was done for the purpose of hunting deer, even in a CWD-affected surface area, and that the State has the burden to show such purpose or intent.

No Binding Precedent

State of Wisconsin 5. Walker is an unpublished decision of the Court of Appeals, decided by one judge pursuant to Wis. Stat. section 752.31(ii). Therefore, under Wis. Stat. section 809.23(iii)(a) and (b), it may not be cited in any court of this State as precedent or authority, but may be cited for its persuasive value. In other words, State of Wisconsin five. Walker does not set any sort of binding precedent in Wisconsin, and unlike a published determination of the Court of Appeals, does non set up along the police force of the Country of Wisconsin which must be followed by circuit courts and in other Court of Appeals cases.

Responses

In a comment on the decision, State Representative Adam Jarchow (R-Balsam Lake) called upon the DNR to clarify for the public that consistent with State of Wisconsin five. Walker people may place feed for deer. He likewise chosen upon the DNR to not waste precious taxpayer money highly-seasoned the ruling of State of Wisconsin v. Walker to the Wisconsin Supreme Court. Court: People tin can feed deer if purpose isn't to chase. Richard Moore, Northwoods River News, Apr 15, 2017.

And, in related legislation, Senate Bill 68, which would let baiting and feeding of deer in CWD-affected counties if the affliction has not been found in a specified number of years, was approved April xiii, 2017, by the Senate Commission on Sporting Heritage, Mining and Forestry. A companion bill, AB61, was canonical by an Assembly committee concluding month. The bills would need to be passed by the total Assembly and Senate and signed by the governor to become constabulary. Deer baiting and feeding remain illegal in CWD-afflicted counties in Wisconsin. Paul A. Smith, Milwaukee Periodical Scout, April 14, 2017.

State of Wisconsin 5. Walker, and the DNR's response to it, show that the question of whether it is legal to feed wild fauna in the State of Wisconsin remains an open one, leaving Wisconsin citizens uncertain as to their rights and responsibilities in this area.

This article was originally published on the State Bar of Wisconsin's Real Belongings, Probate and Trust Police Weblog. Visit the Country Bar sections or the Real Property, Probate and Trust Law Section web pages to acquire more about the benefits of section membership.

Source: https://www.wisbar.org/NewsPublications/InsideTrack/Pages/article.aspx?Volume=9&Issue=10&ArticleID=25592

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