Bear Hunters Ass'n v. Natural Res. Com'n
| Citation | 746 N.W.2d 320,277 Mich. App. 512 |
| Decision Date | 20 November 2007 |
| Docket Number | Docket No. 274429.,Docket No. 270745. |
| Parties | MICHIGAN BEAR HUNTERS ASSOCIATION, INC., Plaintiff-Appellee, and Michigan State United Coon Hunters Association, Michigan Hunting Dog Federation, and Upper Peninsula Bear Houndsmen Association, Intervening Plaintiffs-Appellees v. MICHIGAN NATURAL RESOURCES COMMISSION and Department of Natural Resources, Defendants-Appellants. Michigan Bear Hunters Association, Plaintiff-Appellee, and Michigan State United Coon Hunters Association, Michigan Hunting Dog Federation, and Upper Peninsula Bear Houndsmen Association, Intervening Plaintiffs-Appellees, v. Michigan Natural Resources Commission and Department of Natural Resources, Defendants-Appellants. |
| Court | Court of Appeal of Michigan (US) |
Dilley Haney, P.C. (by Frederick D. Dilley) (Robert J. Riley, of counsel), Grand Rapids, for Michigan Bear Hunters Association, Inc.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, and Sara R. Gosman and Elaine Dierwa Fischoff, Assistant Attorneys General, for the Natural Resources Commission and the Department of Natural Resources.
Before: OWENS, P.J., and BANDSTRA and DAVIS, JJ.
Plaintiff Michigan Bear Hunters Association, Inc. (MBHA), and intervening plaintiffs Michigan State United Coon Hunters Association, Michigan Hunting Dog Federation, and Upper Peninsula Bear Houndsmen Association filed an action to enjoin a bobcat-trapping season in the Northern Lower Peninsula (NLP) implemented by defendants Michigan Department of Natural Resources (DNR) and Michigan Natural Resources Commission (NRC). After a bench trial, Ingham Circuit Judge Beverley Nettles-Nickerson reversed defendants' decision implementing a bobcat-trapping season in the NLP and permanently enjoined the bobcat-trapping season. Defendants brought separate appeals from the trial court's judgment and order and from the order awarding costs and fees to the plaintiffs. This Court consolidated the appeals. We reverse the judgment and order, vacate certain findings of fact by the trial court, remand for further proceedings, and vacate the order awarding costs and fees.
The bobcat is a North American member of the cat family, weighing between 15 and 30 pounds and measuring between 40 and 50 inches in length and 20 inches in height at the shoulder. Bobcats are a generalist species, meaning that they live in a wide variety of habitats and have a range of food sources. Bobcats are not endangered either in the United States or in Michigan.
In Michigan, bobcats live throughout the Upper Peninsula (UP) and in the Lower Peninsula, except for the thumb region and portions of the southeastern part of the state. They are more common in the northern part of the Lower Peninsula than in the southern part, because the NLP has a more-suitable habitat. According to Thomas Gehring, a wildlife biologist at Central Michigan University, the NLP is a high-quality habitat for bobcats because it has extensive lowland conifers, cedar swamps, and forests with an abundance of prey, especially snowshoe hare, a preferred food source for bobcats. Further, Gehring explained, the NLP receives less snow than bobcat habitats further north, and the forested areas in which these bobcats live provide protection from some extremes in temperature.
Bobcats throughout the United States are part of the same species and can interbreed. Although bobcats in the NLP exhibit the same amount of genetic variation throughout their range, genetic differences have been discovered between bobcats of the UP and the NLP. Because the UP and the NLP are separated by the Great Lakes, there is little interaction between these populations. However, debate exists regarding the vulnerability of the NLP bobcat population and the extent to which bobcats enter the NLP from the south. Michael Tewes, a wildlife biology professor from Texas A & M University-Kingsville, claimed that bobcats in the NLP are on the fringe of their range. He opined that the NLP bobcat population is vulnerable because it is a small, isolated population and does not receive demographic or genetic input from other bobcat populations.
Gehring agreed that bobcats in the NLP are at the edge of their habitat range, but he hesitated to characterize the NLP bobcat population as fragile, explaining that NLP bobcats live in a high-quality habitat. Gehring also noted that bobcats from populations located in Illinois, Indiana, and Ohio could move into the NLP, establishing ranges in the NLP and interbreeding with NLP bobcats.
Although he did not agree that the NLP is at the fringe of the bobcat range, Dwayne Etter, a wildlife research specialist with the DNR, concurred that the bobcat habitat in the NLP is not fragile. He explained:
Typically discussions of whether species exist on the fringe means that you're at a very, very maximum extent of the range of the species. Usually there's some type of limiting factor. For the bobcat there it's probably snowfall depth would limit that species to exist farther north. We are not at the far north extent of the bobcat range and we also have no indication that bobcat are not doing well in this part of the country. Typical indication of a species that was at the northern extent of a range would be something that wasn't doing well reproducing or had low survivorship or something like that, but we don't see that with bobcat in Michigan.
Etter also agreed with Gehring's assessment that genetic and demographic exchange occurred between NLP bobcats and bobcats from populations further south.
To facilitate the management of bobcat hunting and trapping throughout the state, the DNR divided the state into five bobcat-management units. In Zones A and B, which comprise the UP, bobcat hunting is permitted between December 1 and March 1, and bobcat trapping is permitted between October 25 and March 1. The Lower Peninsula is divided into three management units: (1) Unit C, which is comprised of Emmet, Charlevoix, Antrim, Otsego, Cheboygan, Presque Isle, Montmorency, Alpena, Oscoda, and Alcona counties; (2) Unit D, which is comprised of Kalkaska, Crawford, Wexford, Missaukee, Roscommon, Ogemaw, Iosco, Osceola, Clare, and Gladwin counties and part of Arenac County; and (3) Unit E, which is comprised of the rest of the Lower Peninsula. Bobcat hunting is permitted in Unit C between January 1 and March 1 and in Unit D between January 1 and February 1.
When the state initially permitted bobcat hunting and trapping, no limit was placed on the number of bobcats that could be harvested. However, as concerns of overharvesting developed, the DNR began implementing bag limits on hunters and trappers. At the time the order at issue in this case was implemented, and through the present day, the DNR has limited each person to a total harvest of two bobcats each season (whether taken by hunting or by trapping). However, each hunter or trapper is only allowed to harvest one bobcat from bobcat-management units C and D combined.1 In addition, any licensed fur harvester intending to harvest a bobcat must first obtain a bobcat kill tag from the DNR. When the fur harvester captures and kills a bobcat, he or she must immediately attach the kill tag to the carcass. The fur harvested then must register the bobcat with the DNR.
Throughout the latter half of the 20th century, the DNR did not permit bobcat trapping in the NLP. In June 2004, the NRC issued an order establishing a limited bobcat-trapping season in the NLP. According to the order, trapping would be permitted in bobcat-management units C and D between December 10 and December 20. In September 2004, the NRC amended this order to limit bobcat trapping in units C and D to private lands and to require trappers to only use a live-restraint trap known as a foothold trap.
As Etter explained at trial, the DNR used a process called adaptive management to monitor the effect of this order on the NLP bobcat population and adjust hunting and trapping regulations in the state as necessary to counteract decreases in population. If the trend indices and other data monitored by the DNR indicated that the bobcat population is decreasing, Etter explained, the DNR could issue an order shortening a hunting or trapping season, closing certain areas to hunting or trapping, or closing an entire hunting or trapping season.2
Etter also noted that the DNR uses a variety of data to monitor the bobcat population in the state, including population indices, harvest registration information, ongoing research studies, and radiotelemetry studies. He acknowledged that the DNR had not calculated a population estimate of bobcats, either in the NLP or statewide, because bobcats are secretive animals and difficult to count. Instead, he explained, the DNR uses trend indices to monitor changes in the bobcat population.3 Regardless, Etter estimated that there were as many as 3,300 bobcats in the NLP and noted that bobcats could suffer a harvest rate of up to 20 percent and still maintain their population. Conversely, Tewes estimated that the size of the NLP population was 1,794 bobcats and opined that because of the population's fragility, NLP bobcats could only maintain their population if they suffered a harvest rate of no more than 15 percent.
After the 2004 NLP bobcat-trapping season ended, the DNR sent a survey to the 2,180 individuals who obtained a bobcat-harvest permit before the end of the 2004 trapping season. After compiling the survey data and making appropriate statistical adjustments, it made the following findings:
In 2004, 2,180 furtakers obtained a bobcat harvest permit before December 21 allowing them to trap bobcats in the NLP. About 15% of these people attempted to trap bobcats in the NLP (326 trappers). Trappers spent...
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