Wis. Federated Humane Societies, Inc. v. Stepp

• Decision Date: 10 July 2014
• Docket Number: No. 2013AP902.,2013AP902.
• Citation: 855 N.W.2d 491 (Table),356 Wis.2d 326
• Parties: WISCONSIN FEDERATED HUMANE SOCIETIES, INC., Dane County Humane Society, Wisconsin Humane Society, Fox Valley Humane Association, Northwood Alliance, Inc., National Wolfwatcher Coalition, Jayne Belsky, Michael Belsky and Donna Onstott, Plaintiffs–Appellants–Cross–Respondents, v. Cathy STEPP, Secretary, Wisconsin Department of Natural Resources, Wisconsin Department of Natural Resources and Wisconsin Natural Resources Board, Defendants–Respondents–Cross–Appellants, United Sportsmen of Wisconsin, Wisconsin Bear Hunters Association, Safari Club International and U.S. Sportsmen's Alliance Foundation, Intervenors–Respondents–Cross–Appellants, ASPCA, Other Party.
• Court: Wisconsin Court of Appeals

356 Wis.2d 326

855 N.W.2d 491 (Table)

WISCONSIN FEDERATED HUMANE SOCIETIES, INC., Dane County Humane Society, Wisconsin Humane Society, Fox Valley Humane Association, Northwood Alliance, Inc., National Wolfwatcher Coalition, Jayne Belsky, Michael Belsky and Donna Onstott, Plaintiffs–Appellants–Cross–Respondents

v.Cathy STEPP, Secretary, Wisconsin Department of Natural Resources, Wisconsin Department of Natural Resources and Wisconsin Natural Resources Board, Defendants–Respondents–Cross–Appellants

United Sportsmen of Wisconsin, Wisconsin Bear Hunters Association, Safari Club International and U.S. Sportsmen's Alliance Foundation, Intervenors–Respondents–Cross–Appellants

ASPCA, Other Party.

No. 2013AP902.

Court of Appeals of Wisconsin.

July 10, 2014.

Opinion

¶ 1 LUNDSTEN, J.

Six animal welfare organizations and three individuals, whom we refer to collectively as “the Societies” for ease of reference, appeal the circuit court's order denying declaratory and injunctive relief that the Societies sought relating to emergency rules that were promulgated by the Wisconsin Department of Natural Resources. More specifically, the Societies sought a declaration invalidating DNR rules to the extent that the rules authorize the training and use of dogs to hunt wolves, and an injunction prohibiting DNR from authorizing the training or use of dogs to track or trail wolves until further “reasonable restrictions” are promulgated.

¶ 2 The circuit court denied the Societies' requested relief as it relates to the use of dogs to hunt wolves. In the appeal before us, the Societies make multiple arguments challenging this denial. We identify and reject these arguments below.

¶ 3 Cross-appeals were brought by DNR and four hunting organizations that call themselves the “Hunting Coalition” (hereafter, “the Coalition”).¹ DNR and the Coalition challenge the circuit court's declaration that Wis. Admin. Code § NR 17.04 is “invalid ... to the extent it authorizes the training of dogs on free-roaming, wild wolves.” Among other arguments, DNR and the Coalition contend that the Societies lack standing to challenge the rule. We assume without deciding that the Societies have standing, but conclude, consistent with one of DNR's arguments, that the circuit court's ruling on § NR 17.04 has no legal effect and, therefore, reversal is not warranted.

¶ 4 Because, in the appeal, we reject the Societies' arguments, and because we conclude that the decision challenged in the cross-appeals has no legal effect, we affirm the circuit court.

Background

¶ 5 After a 2011 change in the gray wolf's status as an endangered species under federal law, our legislature passed 2011 Wis. Act 169, now codified at Wis. Stat. § 29.185, to license wolf hunting in Wisconsin.² Act 169 included nonstatutory provisions directing DNR to promulgate “any rules that are necessary to implement” § 29.185. See 2011 Wis. Act 169, §§ 6, 21; Wis. Stat. § 29.185(2) and (3). The act took effect on April 17, 2012. See 2011 Wis. Act 169; Wis. Stat. § 991.11.

¶ 6 Wisconsin Stat. § 29.185(6) provides, in pertinent part:

A wolf harvesting license authorizes the hunting of wolves by using any of the following:

....

2. Dogs to track or trail wolves, subject to par. (c).

....

(c) Use of dogs. 1. A person may hunt wolves using dogs beginning with the first Monday that follows the last day of the regular season that is open to hunting deer with firearms and ending on the last day of February of the following year.

2. No more than 6 dogs in a single pack may be used to trail or track a wolf, regardless of the number of hunters assisting the holder of the wolf harvesting license.

3. While a person is using a dog to hunt wolf, the person shall keep on his or her person any tag required for the dog unders. 95.21(2)(f), 174.053(2), or 174.07(1)(e).

¶ 7 Act 169, in a nonstatutory provision, directed DNR to promulgate emergency rules. See 2011 Wis. Act 169, § 21. Accordingly, DNR promulgated emergency rules that took effect in August 2012. The emergency rules contained two restrictions on the use of dogs to hunt wolves: a prohibition on the use of dogs to hunt at night, and a requirement that the dogs be tattooed or wear an identification collar.

¶ 8 The emergency rules imposed no restrictions on training dogs to hunt wolves.³ A preexisting administrative rule, Wis. Admin. Code § NR 17.04, provides that “any person may train dogs on free-roaming wild animals without a dog training license,” subject to certain limitations not at issue here.

¶ 9 The Societies sought circuit court review of DNR's rulemaking under Wis. Stat. § 227.40.⁴ More specifically, the Societies sought declaratory and injunctive relief including:

Judgment declaring that [DNR's] wolf hunting regulations, ... to the extent they authorize the training and use of dogs to hunt wolves, violate state law for failure to include reasonable restrictions consistent with 2011 Act 169, which limits the use of dogs to track and trail wolves, and Wis. Stat. § 951.02, which prohibits mistreatment of animals;

... [A] permanent injunction prohibiting DNR from issuing licenses or administering wolf hunting regulations that authorize the training or use of dogs to track or trail wolves until reasonable restrictions are promulgated to prevent or mitigate the risk of deadly physical encounters between dogs and wolves, and to ensure that the use of dogs is limited to tracking and trailing that allow no direct confrontations between dogs and wolves....

The Coalition intervened.

¶ 10 The circuit court denied the Societies the relief they sought in a final order entered January 16, 2013. The circuit court did, however, declare that Wis. Admin. Code § NR 17.04(1) is “invalid ... to the extent it authorizes the training of dogs on free-roaming, wild wolves.”⁵

¶ 11 We reference additional facts as needed in the discussion below.

Discussion

¶ 12 We begin our discussion with two observations.

¶ 13 First, this challenge to emergency rules would not be before us had the legislature not exempted wolf hunting rulemaking from the normal emergency rulemaking procedures. Normal procedures effectively force agencies to use emergency rules for a limited time and to promptly promulgate permanent rules by setting a limit on the time during which emergency rules remain in effect. Emergency rules normally remain in effect for only 150 days. Wis. Stat. § 227.24(1)(c). Here, however, nonstatutory provisions in Act 169 provide that the emergency rules will “remain in effect until the date on which the permanent rules take effect.” 2011 Wis. Act 169, § 21(1)(b).

¶ 14 These and other Act 169 provisions exempt the challenged emergency rules here from each of the following requirements that normally apply, as well:

• The “preservation of the public peace, health, safety or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the [permanent rule] procedures.” Section 227.24(1)(a).

• An extension of the effective period of emergency rules may not exceed 60 days, and “the total period for all extensions may not exceed 120 days.” Section 227.24(2)(a).

• Any extension requires evidence of a “threat to the public peace, health, safety or welfare that can be avoided only by extension” of the rule or part of a rule. Section 227.24(2)(b)1.

• Any extension requires evidence “that it is impossible for the agency to promulgate a permanent rule prior to the expiration date of the emergency rule.” Section 227.24(2)(b)2.

See 2011 Wis. Act 169, § 21(1)(b). As a result, permanent rules have not been promulgated, and we are now asked to review emergency rules that have been in effect far longer than the standard 150–day period.⁶

¶ 15 Second, even though Act 169 permits DNR to delay promulgating permanent and more comprehensive administrative rules, it is not apparent why, now some two years later, DNR has not replaced the emergency rules with permanent rules. As far as we can tell, there has been ample time to do so. Further, as far as the record and the parties' arguments disclose, all agree that DNR has the authority and the intention to adopt permanent rules that will include further restrictions on the training and use of dogs to hunt wolves. In particular, DNR represents in its briefing before this court that “permanent rules to regulate both using dogs to track and trail wolves during wolf hunts and training dogs to track and trial wolves in off-season are scheduled for public hearings and targeted for adoption in 2014.” The other parties do not dispute this DNR representation, and none of the parties have updated us on any progress in this regard. So far as we can tell, nothing about this court proceeding prevents DNR from moving ahead with permanent rules.

¶ 16 The fact remains, however, that Act 169 places no permanent rulemaking time limit on DNR, and DNR has not yet promulgated permanent rules. Accordingly, we turn to the parties' arguments in the appeal and cross-appeals relating to the “emergency” rules.

The Societies' Appeal

¶ 17 The Societies make two main arguments in their appeal. First, the Societies argue that DNR's rulemaking is invalid because it conflicts with both the enabling act, 2011 Wis. Act 169, and animal mistreatment statutes in Wis. Stat. ch. 951. Second, the Societies argue that DNR's emergency rulemaking was arbitrary and capricious because DNR failed to provide an explanation for its decision. We address and reject these arguments in sections 1 and 2 below.⁷

¶ 18 In addition to these arguments, the Societies may mean to argue that DNR's emergency rulemaking is invalid because, under Liberty Homes, Inc. v. DILHR, 136 Wis.2d 368, 401 N.W.2d 805 (1987), the record facts do not reasonably support DNR's failure to adopt additional dog use restrictions. We say that the Societies “may” mean to make this argument because the Societies do not do so in a straightforward way. Rather, as explained below, the Societies argue that Liberty Homes contains...