REGIONAL— The Minnesota Court of Appeals has affirmed a decision by an administrative law judge who found that Ely bear researcher Lynn Rogers does need a research permit in order to radio-collar wild black bears. In a decision released Monday, a three-judge panel found that by radio-collaring bears, Rogers was exercising “constructive possession” over the animals, which requires a permit.

Attorneys for Rogers had argued that since his non-coercive methods don’t require capturing or containing bears, that Rogers never established possession of the study animals, but the court of appeals concurred with the administrative law judge in finding otherwise.

The ruling is just the latest twist in a longstanding dispute between the Department of Natural Resources and the Ely-based scientist. Rogers said he’s considering an appeal to the state’s Supreme Court.

While the decision was a setback for Rogers, he found consolation in the court’s determination that he did not need a permit to use a den camera. “I am thrilled that the judges recognized the value of our research and that we can resume our use of den cams,” said Rogers. “Time spent in the den is the least-studied half of a bear’s life.” The judges appeared to agree, stating that Rogers’ den cams “have been highly praised in the scientific and educational communities for their contributions to the shared knowledge of bears in dens.”

Indeed, several years ago, one of Rogers’ den cams broadcast the first bear birth ever recorded on camera live over the Internet, creating an international sensation and a flood of new donations to Rogers’ Wildlife Research Institute. The DNR subsequently barred Rogers from broadcasting den camera feeds live.

The DNR has argued that Rogers’ methods, which involve habituating bears to human presence in order to observe them at close range in the wild, represent a public safety hazard. Rogers contends that his methods have given him a far greater insight into bear behavior than traditional research efforts, but DNR officials say he has failed to publish the results of his work.

The DNR is also challenging Roger’s contention that he can resume the use of den cams this winter. DNR legal counsel Sherry Enzler, in a July 14 letter to Rogers’ attorney David Marshall, claimed that Rogers was mischaracterizing the court’s ruling and cited state law that prohibits disturbing an animal in its den between Nov. 1 and April 1. Enzler also cited a state rule that prohibits taking or disturbing bears in a den.

“Any attempt to enter or in any way interfere with a bear den while a bear is in the den, or between Nov. 1 and April, without a state permit, will be treated as a violation of state law,” wrote Enzler.

Rogers said he is considering re-applying for a research permit based on the latest court ruling. “The attorneys believe the evidence and arguments were strongly in our favor,” said Rogers. “It would help if the DNR would recognize that there’s value in the den cams. If they would decide to work with us it would be good for the bears, for science, for education, and for the region,” he said.

But DNR spokesperson Chris Niskanen said it’s unlikely the agency would issue a new permit to Rogers as long as he continues to use methods that have the effect of habituating bears to humans. “That really gets us back to the issue that we’ve objected to all along, his practice of hand-feeding bears, which we still think is a very bad idea,” said Niskanen. “The ALJ supported that notion and we heard from people up there that bears view people as a source of food. As long as that’s continuing to go on, I think the agency would be very skeptical of reviewing a research permit in which that is practiced.”