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 by chronic wasting disease (CWD) in Wisconsin.
Of the state’s 72 counties, 43 are CWD-affected. In addition, in CWD-affected counties, the feeding of any wild animal for nonhunting purposes is illegal, except as allowed for birds and small mammals. And, birds and small mammals may only be fed if the feed is placed in “feeding devices or structures at a sufficient height to prevent access by deer,” and “within 50 yards of a dwelling devoted to human occupancy.” Wisconsin Dept. of Natural Resources Bulletin, WM-456-2016.
State of Wisconsin v. Walker
However, in State of Wisconsin v. Walker, 2016AP1434 (unpublished decision, April 11, 2017), the District III Court of Appeals disagreed, ruling that the State’s interpretation of the applicable regulation was both “untenable” and “could lead to absurd results.” Instead, the Court of Appeals ruled that under the language of the regulation, feeding and baiting animals is only illegal when done 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 decision 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 decision does not change 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-affected counties in Wisconsin. Paul A. Smith, Milwaukee Journal Sentinel, April 14, 2017.
The Facts of the Case
In State 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 material for the purpose of hunting wild animals or training dogs” except as otherwise authorized in the regulation or by permit. Washburn County is a CWD-affected area.
The facts of the case show that on the day before the start of deer hunting season in November 2015, during aerial surveillance, a DNR conservation warden observed deer entering a clearing on Mr. Walker’s property, approaching what appeared to be three pumpkins. The warden also observed two large piles of what appeared to be shell corn near one hunting tower stand, and another tower stand with two more piles of corn near it, and an additional large number of pumpkins, all on Mr. Walker’s property. Another DNR warden made personal contact on the ground 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 evidence that Mr. Walker either admitted or denied any intent to hunt over the bait or feed. The DNR also did not offer any evidence about any other possible purposes for the placement of the pumpkins or corn on Mr. Walker’s lands.
Mr. Walker challenged the citation. The Washburn County Circuit Court dismissed the citation, on the grounds that the regulation requires that the DNR show that the purpose of placing the feed or bait “was to hunt and that there was an active hunting going to take place.” According to the Washburn Court, “the State failed to carry its burden.”
The State appealed, arguing that WIS. ADMIN. CODE § NR 10.07(2)(a)1. does not require the State to show that a person intended to hunt over the bait or feed the person places, because “the plain language of the baiting regulations provides that a person not place bait where baiting and feeding are prohibited.” The State’s position at both the trial court and the Court of Appeals was the same -- all deer baiting and feeding is prohibited in entire counties that have been established as CWD-affected areas.
The Court of Appeals District III disagreed with the State, and affirmed the Washburn Court’s decision, ruling that the State’s interpretation of the regulation was “not 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 any 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(2)(a)1. only if it was done for the purpose of hunting deer, even in a CWD-affected area, and that the State has the burden to show such purpose or intent.
No Binding Precedent
State of Wisconsin v. Walker is an unpublished decision of the Court of Appeals, decided by one judge pursuant to Wis. Stat. section 752.31(2). Therefore, under Wis. Stat. section 809.23(3)(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 v. Walker does not set any sort of binding precedent in Wisconsin, and unlike a published decision of the Court of Appeals, does not set forth the law of the State of Wisconsin which must be followed by circuit courts and in other Court of Appeals cases.
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 v. Walker people may place feed for deer. He also called upon the DNR to not waste precious taxpayer money appealing the ruling of State of Wisconsin v. Walker to the Wisconsin Supreme Court. Court: People can feed deer if purpose isn’t to hunt. Richard Moore, Northwoods River News, April 15, 2017.
And, in related legislation, Senate Bill 68, which would allow baiting and feeding of deer in CWD-affected counties if the disease has not been found in a specified number of years, was approved April 13, 2017, by the Senate Committee on Sporting Heritage, Mining and Forestry. A companion bill, AB61, was approved by an Assembly committee last month. The bills would need to be passed by the full Assembly and Senate and signed by the governor to become law. Deer baiting and feeding remain illegal in CWD-affected counties in Wisconsin. Paul A. Smith, Milwaukee Journal Sentinel, April 14, 2017.
State of Wisconsin v. Walker, and the DNR’s response to it, show that the question of whether it is legal to feed wildlife 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 Property, Probate and Trust Law Blog. Visit the State Bar sections or the Real Property, Probate and Trust Law Section web pages to learn more about the benefits of section membership.