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Legal Learning: A man who walks with bears

From James H. Manahan, J.D. 

A trial that recently took place in St. Paul provided a fascinating look at Dr. Lynn Rogers of Ely, the “man who walks with bears”.

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Lynn Rogers, age 75, has been studying black bears for almost 50 years. He began as a doctoral student at the University of Minnesota. Since then he has radio-tracked over 100 bears in northeastern Minnesota, learning about their socialization, idiosyncrasies, ecological relationships and death. His work has been compared to that of chimpanzee researcher Jane Goodall. He conducts his studies through an organization known as Wildlife Research Institute, and in 2007 he opened the North American Bear Center in Ely. There have been 13 documentaries about his work made by BBC since 2008, which have been viewed by over 100 million people on Animal Planet, National Geographic, PBS, and the Discovery Channel. More than 500 schools have viewed his den videos.

Since 1999 the Minnesota Department of Natural Resources has given annual permits to Rogers, allowing him to place radio collars on a certain number of bears and to place video cameras at the entrances of bear dens. He places the radio collars without trapping the bears or using tranquilizers. He does this by establishing a trusting relationship with a bear, distracting the bear, and then slipping a collar around its neck.

However, last June the DNR notified Rogers that his research permit was cancelled. They gave three reasons: he has not published scholarly articles about his research; his habituation of bears by hand feeding them creates a public safety issue; and he has behaved unprofessionally with the research bears, they say.

At the trial last month, the DNR called witnesses who stated that Rogers’ practice of hand-feeding wild bears is “a terrible idea” that it is “very dangerous” and increases the risk of bear attacks on the general public. However, Rogers’ attorney, David Marshall, called witnesses to establish that black bears are usually not aggressive; they may bluff charge, huff, paw the ground, and pop their jaws, but attacks on humans are very rare.

Under Minnesota law, Marshall says, Rogers needs a permit to radio collar bears only if he has “possession” of the bears he collars. He concedes that traditional methods of collaring wild animals – using drugs or restraints – would constitute exercising possession and control over the animal and thus require a permit. But since Rogers does not use tranquilizers, pens or traps, he should be able to continue collaring bears and filming them even without a permit, says the attorney. The fact that he feeds the bears, names them, and develops relationships with them as though they were pets, does not mean that he “possesses” them.

Even if a permit were required, the attorney argues that the DNR had no valid reason or “cause” to deny or revoke Rogers’ permit. They relied, he says, on incidents that occurred prior to the most recent issuance of a permit, but which they knew about. For example, Rogers used to permit visitors to hand feed the bears, but in 2012 the DNR told him that only he and his assistants could do so, and he has complied with that restriction.

As for scholarly articles, Rogers says he submitted two articles for publication in 2012; one of these was published in the Journal of Veterinary Diagnostic Investigations and the other was accepted for publication in the journal Ethology. He provided a list of numerous peer-reviewed papers he has published and many talks he has given in the last 15 years. Expert witnesses described Rogers’ work as “top-flight research”.

The judge who presided at the trial last month, Tammy L. Pust, is the Chief Administrative Law Judge at the Minnesota Office of Administrative Hearings. She will read the legal briefs submitted by the attorneys and issue her decision, probably by the end of April. We will then find out whether Rogers can or cannot continue radio-collaring and videotaping wild black bears in northern Minnesota.

James H. Manahan is a Harvard Law School graduate and was named one of Minnesota’s Top Ten Attorneys. He now handles family law, wills, and probate in and around Lake County, and does mediation everywhere. The opinions expressed in this column are those of its author.