OAH Docket No. 6-2000-12747-1

 

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE DEPARTMENT OF NATURAL RESOURCES

 

 

In the Matter of the Proposed Permanent                          REPORT OF THE

Rules Governing Yellow Perch                                            ADMINISTRATIVE LAW JUDGE

Minnesota Rule 6262.0200

 

 

 

 

            The above-entitled matter came on for hearing before Administrative Law Judge Allan W. Klein at 9:00 a.m. on November 27, 2000, at the Veterans Service Building, St. Paul, Minnesota.  The hearing reconvened on November 27, 2000 at 7:00 p.m. at the Minnesota Interagency Fire Center, Grand Rapids, Minnesota, and again on November 28, 2000 at 6:00 p.m. at the Department of Natural Resources Regional Office, Brainerd, Minnesota.

 

            This report is part of a rulemaking proceeding held pursuant to Minn. Stat. §§ 14.13 to 14.20 (1996), to hear public comment, to determine whether the Department of Natural Resources (DNR) has fulfilled all relevant substantive and procedural requirements of law applicable to the adoption of rules, whether the proposed rules are needed and reasonable, and whether or not the DNR proposed modifications to the rules after initial publication that are substantial changes and therefore are impermissible.

 

            Joan Eichhorst, Assistant Attorney General, 445 Minnesota Street, 900 NCL Tower, St. Paul, Minnesota 55101, appeared on behalf of the DNR at the November 27, 2000 9:00 a.m. hearing.  The DNR hearing panel consisted of Steve Hirsch, Fisheries Operations Manager, Paul Radomski, Fisheries Research Biologist, Henry Drewes, Regional Fisheries Manager, Chris Kavanaugh, Area Fisheries Supervisor, Linda Erickson-Eastwood, Fisheries Program Manager, and Ron Payer, Director of the Division of Fisheries.

 

            Approximately ninety-four (94) members of the public attended the hearings.  There were two (2) in St. Paul, eighty-seven (87) in Grand Rapids, and five (5) in Brainerd.  Of these, sixty-two (62) persons signed the hearing register.  The hearings continued until all interested persons, groups, or associations had an opportunity to be heard concerning the proposed amendments to this rule.

 

             The record remained open for the submission of written comments for seventeen (17) calendar days following the final hearing to December 15, 2000.  During the comment period, the Administrative Law Judge received twelve (12) comments from interested persons and the DNR.  Pursuant to Minn. Stat. § 14.15, subd. 1, five working days were allowed for the filing of responsive comments.  During the responsive comment period, the Administrative Law Judge received one (1) written comment from an interested person.  The record closed for all purposes on December 22, 2000.

 

NOTICE

 

            The DNR must wait at least five working days before taking any final action on the rule; during that period, this Report must be made available to all interested persons upon request.

 

            The DNR may then adopt a final rule or modify or withdraw its proposed rule.  If the DNR makes a change in the rule other than those recommended in this Report, it must submit the rule with the complete hearing record to the Chief Administrative Law Judge for a review of the changes prior to final adoption.  Upon adoption of a final rule, the DNR must submit it to the Revisor of Statutes for a review of the form of the rule.  The DNR must also give notice to all persons who requested to be informed when the rule is adopted and filed with the Secretary of State.

 

            Based upon all the testimony, exhibits, and written comments, the Administrative Law Judge makes the following:

 

FINDINGS OF FACT

 

Procedural Requirements

 

1.                  On September, 19, 2000, the DNR requested the scheduling of a hearing.

 

2.                  On September, 19, 2000, the DNR requested approval of its notice plan[1] and filed the following documents with the Chief Administrative Law Judge:

 

a.                  A copy of the proposed rule in the status of being approved by the Revisor of Statutes.[2]

b.                  A Statement of Need and Reasonableness (SONAR).[3]

c.                  The DNR’s dual notice of intent to adopt the rules with a public hearing.[4]

 

3.                  On September 29, 2000, Administrative Law Judge Allan W. Klein approved the additional dual notice plan.[5]

 

4.                  On October 5, 2000, the DNR mailed the notice of hearing to all parties who had registered their names with the DNR for the purpose of receiving such notice.  Copies of the notice were also mailed on that date to the following persons, groups, and businesses that the DNR projected would be interested:

 

a.                  Minnesota Lakes Association;

b.                  Minnesota Sportfishing Congress;

c.                  Fisheries Funding Citizen Oversight Committee;

d.                  Minnesota Tourism;

e.                  the chamber of commerce in several cities;

f.                    businesses;

g.                  individuals, and local sports groups around Lake Winnibigoshish, Lake Mille Lacs, and Cass Lake;

h.                  southeast Asian and Hispanic organizations; and

i.                    several state legislators.

 

The DNR also sent out a news release about the proposed rule, and it posted its notice on the DNR website at www.dnr.state.mn.us.[6]  Such notification efforts are required under Minn. Stat. § 97A.045, subd. 9.

 

5.                  On October 16, 2000, the notice of hearing and a copy of the proposed rule were published at 25 State Register 831.[7]

 

6.                  On the first day of the hearing, November 27, 2000, the DNR placed the following documents into the record (listed by exhibit number):

 

1.      A copy of the request for comments published in the State Register on April 12, 1999.[8]

2.      A copy of the proposed permanent rule, dated September 18, 2000, including the Revisor of Statute’s approval.[9]

3.      The Statement of Need and Reasonableness (SONAR) dated September 19, 2000.[10]

4.      A copy of the transmittal letter and Certificate, dated October 2, 2000, showing that the DNR sent a copy of the SONAR to the Legislative Reference Library.[11]

5.      A copy of the September 29, 2000 Dual Notice of Intent and Hearing as mailed.[12]

6.      A copy of the Dual Notice of Intent and Hearing published in the State Register on October 16, 2000.[13]

7.      A copy of the September 29, 2000 letter from Judge Allan W. Klein approving the notice plan for dual notice, and a copy of the DNR’s request for prior approval of notice plan dated September 19, 2000.[14]

8.      A copy of the October 5, 2000 Certificate of mailing the dual notice with the notice plan, and a copy of the October 5, 2000 Certificate of the department mailing list.[15]

9.      A copy of the October 5, 2000 Certificate of mailing the dual notice and SONAR to legislators as required by Minnesota Statute section 14.116.[16]

10.A copy of the October 10, 2000 news release announcing the proposed rule, and a paper copy of rule information as provided on the DNR web page.[17]

11.Copies of the written comments and requests for hearing.[18]

12.A copy of the November 16, 2000 Certificate of mailing the notice of hearing to those requesting the hearing, and a copy of the November 16, 2000 notice of hearing.[19]

13.A copy of the opening statement made at the hearing by Steve Hirsch, Division of Fisheries.[20]

14.A copy of the SONAR’s updated page 10, that extends the graph data to the year 2000 as distributed at the hearing.[21]

15.An 8-page copy of Yellow Perch Data in six lakes dated November 3, 2000 as distributed at the hearing.[22]

 

Standards of Review

 

7.                  In a rulemaking proceeding, an administrative law judge must determine whether the agency has established the need for and reasonableness of the proposed rule by an affirmative presentation of facts.[23]  An agency need not always support a rule with adjudicative or trial-type facts.  It may rely on what are called “legislative facts” which are general facts concerning questions of law, policy, and discretion.  The agency may also rely on interpretations of statutes and on stated policy preferences.[24]  Here, the DNR prepared a SONAR setting out a number of facts, drawing conclusions from relationships and trends established by the facts, and using policy preferences to support the proposed permanent rule.  The DNR also supplemented information in the SONAR with information presented both at the hearing and in written comments and responses placed in the record after the hearing.

 

8.                  Inquiry into whether a rule is reasonable focuses on whether the rulemaking record establishes that there is a rational basis, as opposed to being arbitrary.  Minnesota law equates an unreasonable rule with an arbitrary rule.[25]  Agency action is arbitrary or unreasonable when it takes place without considering surrounding facts and circumstances or disregards them.[26]  On the other hand, a rule is generally considered reasonable if it is rationally related to the end that the governing statute seeks to achieve.[27]

 

9.                  The Minnesota Supreme Court has defined an agency’s burden in adopting rules as having to “explain on what evidence it is relying and how the evidence connects rationally with the agency’s choice of action to be taken.”[28]  An agency is entitled to make choices between different approaches as long as its choice is rational.  Generally, it is not proper for an administrative law judge to determine which policy alternative might present the “best” approach, since making such a judgment invades the policy-making discretion of the agency.  Rather, the question for an administrative law judge is whether the agency’s choice is one that a rational person could have made based upon the evidence in the record.[29]

 

10.             In addition to ascertaining whether proposed rules are necessary and reasonable, an administrative law judge must make other decisions – namely, whether the agency complied with the rule adoption procedure; whether the rule grants undue discretion to the agency; whether the agency has statutory authority to adopt the rule; whether the rule is unconstitutional or illegal; whether the rule constitutes an undue delegation of authority to another; and whether the proposed language is not a rule.[30]

 

11.             When an agency makes changes to proposed rules after it publishes them in the State Register, an administrative law judge must determine if the new language is substantially different from what the agency originally proposed.[31]  The legislature has established standards for determining if the new language is substantially different.[32]

 

Nature of the Proposed Rule

 

12.             This rulemaking proceeding involves amending Minnesota Rule 6262.0200, subpart 1, item O.  It reduces the statewide yellow perch limits to 20 daily and 50 in possession for inland waters beginning December 1, 2000 until December 1, 2001 and further amends the rule to reduce the limit to 20 daily and 30 in possession starting December 1, 2001.

 

Statutory Authority

 

13.             The DNR cites Minn. Stat. § 97A.045, subd. 2 for its authority to reduce fishing limits.  This section states that the commission may take action “to prevent unnecessary depletion or extinction, or to promote the propagation and reproduction of the animal.”  This authority is necessary to fulfill the DNR’s statutory duty under Minn. Stat. § 97A.045, subd. 1 to “preserve, protect, and propagate desirable species of wild animals” and to “make special provisions for the management of fish and wild life to ensure recreational opportunity for anglers and hunters.” 

 

14.             The DNR’s authority to promulgate rules is contained in Minn. Stat. section 97C.401, subdivisions 1 and 2.  This section states that “the commissioner shall, by rule, prescribe the limits on the number of each species of fish that may be taken in one day and the number that may be possessed.”

 

15.             The Administrative Law Judge finds that the DNR has adequate statutory authority to adopt the proposed rule amendments.

 

Background

 

16.             The current daily and possession limit of 100 for yellow perch in Minnesota was established in 1979.  Since that time, the popularity of yellow perch fishing has increased year round in Minnesota.[33]

 

17.             By 1997, the DNR’s data on yellow perch harvest showed that the number of fish harvested was high[34] and that the number of perch over 9 inches was declining.[35]  Data spanning from the mid-1950’s to 2000 shows on average that the number of perch over 9 inches has steadily declined during the years data was gathered.[36]

 

18.             During 1998 and 1999, the DNR sought and received public comment on perch limit changes through meetings with resort owners, interested persons, legislators, through a fishing roundtable meeting, and through news releases and the DNR web site.  Generally, interested parties supported lowering perch limits from 100.[37]

 

19.             On April 12, 1999, the DNR published a request for comments on a number of fishing rules, including the possession limits for yellow perch.[38]

 

20.             When the legislature indicated its intention to address the perch limits during the 2000 legislative session, the DNR pulled proposed perch limits from the rule package.  The legislature set the limits at 20 daily and 50 in possession (hereinafter the 20-50 limit) from December 1, 2000 until December 1, 2001.[39]

 

21.             This one year 20-50 limit was established in part to give affected businesses time to adjust.[40]

 

22.             After the 2000 legislative session, the DNR proceeded with a proposed rule to reduce yellow perch limits to 20 daily and 30 in possession (hereinafter the 20-30 limit), effective when the 2000 legislation expires on December 1, 2001.  The DNR bases this 20-30 limit on biological and scientific data they gathered.  This data is summarized in the SONAR.[41]  The DNR’s proposed limit is based on a targeted 44% reduction of the current 67+% exploitation rate harvest in order to achieve a safe exploitation rate of 38% for perch over 9 inches long.[42]

 

Analysis of SONAR Contents

 

23.             Minn. Stat. § 14.131 requires an agency adopting rules to include in its SONAR:

(1)               a description of the classes of persons who probably will be affected by the proposed rule, including classes that will bear the costs of the proposed rule and classes that will benefit from the proposed rule;

(2)               the probable costs to the agency and to any other agency of the implementation and enforcement of the proposed rule and any anticipated effect on state revenues;

(3)               a determination of whether there are less costly methods or less intrusive methods for achieving the purpose of the proposed rule;

(4)               a description of any alternative methods for achieving the purpose of the proposed rule that were seriously considered by the agency and the reasons why they were rejected in favor of the proposed rule;

(5)               the probable costs of complying with the proposed rule; and

(6)               an assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for and reasonableness of each difference.

 

The DNR provided a response for each of the six factors in the Regulatory Analysis section of the SONAR, as summarized below.[43]

 

24.       Under factor one, the DNR explains the 20-30 limit is likely to impact angler-related business since it will affect anglers.  Revenue losses may occur among these business owners, especially resorts open for winter fishing.  However, the DNR suggests these same anglers and angler-related businesses will benefit in the long term from maintenance of a quality yellow perch fishery.[44]

 

25.       In response to factor two, the DNR projects the proposed limit will not result in costs to the DNR or other agencies because monitoring perch populations is an existing program.  Non-resident fishing license revenues may be reduced, but the number of anglers not returning based on the lower 20-30 yellow perch limit is unpredictable.[45]

 

26.             In addressing the third factor, the DNR explains the 20-30 limit is more restrictive than a limit of 100 so it is more intrusive, as is each of the other options which the DNR considered.  However, the 20-30 limit encourages over-night stays by non-local anglers, and it has a reasonably good chance (82% probability) of reducing the harvest enough to sustain a quality yellow perch fishery (44% harvest reduction).  The DNR selected the 20-30 limit because it balances biological, economic, and social concerns.  Several other types of limits were considered and rejected due to economic disadvantages, excessively intrusive methods, or failure of purpose as follows:

 

a.                  A 20 daily and 20 in possession limit was rejected as too economically restrictive for resorts and small business dependant on yellow perch anglers, even though it is biologically the best limit to improve and protect the yellow perch fishery (100% probability for reduction);[46]

b.                  A 25 daily and possession limit stands to provide a similar chance (84% probability) of necessary reduction in harvest that the 20-30 limit does, but it was rejected because it does not encourage over-night stays therefore it is economically disadvantageous;[47]

c.                  A 25 daily and 50 possession limit was supportive for businesses dependent on angler business, but it was rejected because it had a low probability (35%) of adequately reducing the fish harvest and therefore is not likely to provide long term benefits to fishing related businesses;[48]

d.                  Continuing to incrementally lower the perch limit each year over a period of several years was rejected for two reasons.  First, the lakes where over-harvest is already occurring would be at greater risk of not achieving necessary reductions to sustain a quality yellow perch fishery.  Second, it is confusing for anglers and others to operate with regulations that change from year to year;[49]

e.                  Seasonal restrictions were rejected as too intrusive because closed season periods, necessary to reduce the perch harvest, would have a greater negative economic impact than lower limits without a closed season;[50]

f.                    Size limits could be set to achieve the necessary harvest reduction but this control may seem more intrusive than number limits for several reasons.  First, perch growth rates and size vary from lake to lake so it would be difficult to identify a single size limit that would be effective statewide.  Second, as a pan fish, perch have a narrow range of size limit options unlike larger game fish so a size limit is less practical than a possession limit.  Third, a size limit would require the angler to measure each fish caught, which seems more intrusive than simply counting fish.[51]

 

            27.       In response to factor four, the DNR described two alternative methods besides the proposed rule to achieve harvest reductions.  The DNR could set quotas for the yellow perch harvest per season.  Once the quota is met, all fishing for yellow perch would stop.  The second method, limited entry, would limit the number of anglers licensed each season to fish for yellow perch.  Both methods were rejected because they are unnecessarily intrusive to those who want to fish for perch and they would increase the level of monitoring necessary to implement and control the quota or limited entry plans.[52]

 

            28.       To address factor five, the DNR projected no increased costs to the public complying with the 20-30 limit of the proposed rule.  They foresee no new regulatory, permit, or license fees nor any other charges to the public.

 

29.             The sixth factor is moot because there is no parallel federal regulation.[53]

 

30.       Additionally, the DNR states the proposed rule has no affect on farming operations.[54]

 

Analysis of the Proposed Rule

 

31.             In a rulemaking proceeding, the SONAR should set forth the agency’s position and its reasoning as to why the proposed rule adoption, amendment, or repeal is both needed and reasonable.  The six factors an agency must include in its SONAR are designed to incite discussion about the effects and ramifications of the rule change.  The expected effect of instituting a 20-30 perch limit is the essence of the disagreement between the DNR and the public concerning the reasonableness of the proposed rule.  The following proposed rule analysis examines the expected effect of the rule by considering in turn the DNR’s basis for demonstrating the proposed rule is needed and reasonable (paragraphs 32-37) and the public’s response toward need and their contention the rule is not reasonable as proposed (paragraphs 38-43).  The entire record is then weighed to determine whether the Department has shown a rational basis  for the proposed rule.

 

32.       The DNR finds that a limit lower than both the current limit of 100 and the one year limit of 20-50 will be necessary to reduce any further over-harvest of yellow perch beginning December 2001.  The DNR projects the effect of a reduced harvest will increase the number of sought after 9-inch yellow perch in future years.  The DNR expects this increase in the numbers of larger fish will sustain a quality perch fishery to attract anglers for years to come.  The DNR defends the need for a lower limit as necessary to reduce the harvest based on factual data they compiled and analyzed.

 

33.       Initially, the DNR determined perch are presently over-harvested based on documented survey results collected over many years.[55]  They identified their creel surveys, based on principles of statistical sampling, [56] and their gill net surveys, conducted with the permanent sampling station approach, as methods accepted for scientific study in fisheries assessments. [57]  Survey results consistently show an average decline in the percentage of large perch found in five Minnesota lakes know for quality perch fisheries since surveying began between 1954 and 1984 on these lakes. [58]  Creel surveys also indicate over-harvest in data that estimates angling pressure, catch rates, and total number of fish taken over a period of years.[59]  Surveys of a sixth lake, Lake Winnibigoshish, show the decline in numbers of 9-inch or longer yellow perch since 1977, increases of the growth and survival of small fish in recent years (called “recruitment response”), and a decreased condition or plumpness of perch over 8 inches long.[60]  The data supporting these observations was produced by multi-year gill net sample surveys,[61] trawl surveys,[62] and a condition survey from 1997.[63]

 

34.       Consequently, the DNR determined that a harvest reduction goal was needed as a logical conclusion following from the analysis of trends and relationships found in scientifically collected data.  The DNR explains the effect of reducing the harvest of larger perch now to increase the number of large fish in the future on the premise that large perch exist in abundance when their growth rate is high due to cannibalism which keeps the density of small perch low.[64]  Therefore, to change a lake’s perch population from a low abundance of large perch to a high abundance of large perch, there must be a substantial change in the level of competition for food by small perch.[65]  To achieve the reduction, the perch fishery needs more restrictive angling regulations now to cause fewer large perch to be removed from the lakes.  Ultimately, restricted angling should result in the desired increase of the large perch population.

 

35.       The DNR suggests the proposed 20-30 limit is reasonable because it balances biological concerns with socio/economic concerns[66] and still has a relatively high chance of reducing the harvest rate,[67] which in turn conserves and protects the fish resource.[68]  They justify the proposed rule’s reasonableness on the basis of two arguments: (1) three modeling tests of the 20-30 limit; and (2) balancing biological and socio/economic concerns.

 

36.       First, the DNR used three different models to test the proposed 20-30 limit and all three independently support the 44% harvest reduction goal.  The LIMITS model projected a 20-30 perch limit to achieve 44% reduction using the Lake Winnibigoshish survey information.[69]  The SIMBAG model used winter creel survey information.  The results are reported as probabilities that a possession limit of 20 perch would achieve a 44% reduction in harvest and a 50 perch possession limit would have no chance of achieving a 44% reduction.[70]  So 30 in possession has a better chance than 50, but a worse chance than 20, for achieving a 44% reduction.  The third model, MCYEP, takes into account reduced fishing pressure resulting from lower limits.  Even accounting for reduced pressure, a possession limit of 20-30 perch has the best chance of achieving the 44% reduction goal compared to higher limits.[71]

 

37.       Second, various combination daily/possession limits would meet the 44% reduction goal or better, but these combinations disregarded socio/economic issues.  The DNR rejected those that did not encourage extended and overnight visits by non-local anglers.[72]  Even those more restrictive daily/possession limits that are more certain to meet the 44% reduction goal were rejected because of the likely negative economic effect on angler-related business.[73]  Other types of restrictions besides a statewide daily/possession limit were rejected as too intrusive on anglers.  Seasonal restrictions would prevent a portion of perch anglers from fishing opportunities.[74]  Size limits require anglers to measure every perch caught individually.[75]  Limited entry would restrict some anglers from the entire fishing season.[76]  Economic and social concerns are balanced with the biological requirements for harvest reduction success as well.  The DNR’s goal was to strike a balance for a sustainable fishery with the highest harvest level possible without encouraging a decline in the quality of the fishery.[77]

 

38.       The public generally agrees with the need to lower the 100 perch limit.[78]  However, people commenting on the proposed 20-30 limit rule question the need for a limit that low only one year after the 20-50 limit is in place.  The public provided these comments:

 

a.                  “…re-evaluate the need for additional restrictions, unless actually necessary as indicated by sufficient research.”[79]

b.                  “… the vast majority of those testifying, acknowledged the need for restrictions in the harvest and support the 20 daily, 50 possession limit….I urge you to consider allowing a meaningful study period before further regulation is implemented.”[80]

c.                  “I would however be in favor of a 20/50 limit to protect the resource.  It would make sense to study the impact of a 20/50 limit before lower limits are put in place.”[81]

d.                  “We ask that you do not allow the DNR to reduce the perch limit further for at least 5 years so that the reduction that has already been made [20-50] can be evaluated and determined if the[ir] goal has been met.”[82]

 

39.       Generally, the public believes the 20-30 limit is not needed because the initial limit reduction to 20-50 has not yet been proven to be inadequate to meet the DNR’s goal of a 44% reduction in harvest.  The public argues 20-50 may well be adequate since a decrease in fishing pressure will occur with the 20-50 limit (based on reduced bookings at resorts).[83]  They further suggest that DNR study the effect of the 20-50 limit on the fish population for a period of years[84] before deciding if another decreased limit is needed.

 

40.       The public overwhelmingly stated, although a reduction from 100 is needed, the 20-30 limit is not reasonable.  Public comment challenged the DNR’s proposed rule in two ways: (1) inaccurate data supports the rule; and (2) economic considerations reject the rule.

 

41.             A number of comments were made that the DNR’s data is not necessarily accurate and may be flawed.  It was stated that the people living and working on the lakes 24 hours a day have a better feel for the actual harvests than the DNR’s data gathered only during their work day.[85]  Among comments offered were those questioning the DNR’s data based on personal observations of fish size and numbers,[86] personal observations of when and how creel surveys were conducted,[87] concerns about the impact of illegal catches on creel survey results,[88] and personal observations of the validity of gill net placements.[89]

 

42.       The Lake Winnie Association developed information that suggests a 44% harvest reduction could be achieved with the 20-50 limit.  The Association based their calculations on a one-year creel survey of resort anglers during a short season.  Assumptions were made about 30% reduced bookings, 10-hour fishing days, and the portion of every catch that would be eaten.[90] 

 

            43.       The public also finds the proposed rule unreasonable because they expect a direct negative economic impact from it.  Resort owners report that customers are already acting in direct response to the 20-50 limit; actual bookings are down as a result.[91]  They project more significant losses with the 20-30 limit.[92]  Resort business and consequently other supporting tourist and angler business will drop.[93]  Extending this argument, some of the public theorized that if fewer anglers will catch less fish, then the perch will become over-populated and harm the lakes.[94]

 

44.       Public comments raised theories challenging the validity of the DNR’s proposed rule.  But the series of facts, assumptions, interpretations, and conclusions establishing the public’s theories are not supported by data necessary to show that the DNR’s proposed rule is arbitrary.  Specifically, the public’s data is unpersuasive in these areas: (1) it does not show that a 44% reduction can be reached by extending the 20-50 limit; (2) it does not justify a longer period for the 20-50 limit; (3) it does not objectively challenge the accuracy of the DNR data; and (4) it does not consider a rule balancing socio/economic concerns with significantly supported biological concerns.

 

            Based on foregoing findings of fact, the Administrative Law Judge makes the following:

 

CONCLUSIONS

 

1.                  The DNR gave proper notice in this matter.

 

2.                  The DNR has fulfilled the procedural requirements of Minn. Stat. § 14.14 and all other procedural requirements of law or rule.

 

3.                  The DNR has demonstrated its statutory authority to amend the existing rule, and has fulfilled all other substantive requirements of law or rule within the meaning of Minn. Stat. §§14.05, subd. 1; 14.15, subd. 3; and 14.50 (i) and (ii).

 

4.                  The DNR has demonstrated the need for and reasonableness of the proposed rule amendment by an affirmative showing of facts in the record within the meaning of Minn. Stat. §§14.15, subd. 4; and 14.50 (iii).

 

5.                  Any Findings that may properly be termed Conclusions, and any Conclusions that might properly be termed Findings, are hereby adopted as such.

 

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

 

RECOMMENDATION

 

            IT IS HEREBY RECOMMENDED that the proposed rule amendment be adopted as written.

 

Dated this ______ day of January, 2001.

 

 

                                                                        _____________________________________

                                                                        ALLAN W. KLEIN

                                                                        Administrative Law Judge

 

Reported: Taped, no transcript prepared.

 

MEMORANDUM

 

The DNR and the objectors basically differ over how to balance two competing risks:  (1) the risk to the fishery, and (2) the risk to the economic well-being of the resort owners and related businesses.

 

The business owners, especially the Lake Winnie Association, submitted substantial documentation and comments about the economic impact they expect this proposed rule to have on their businesses.[95]  The gist of their argument was that the rule was not reasonable because the impact on their businesses will be too immediate and too severe. 

 

The Department, on the other hand, submitted substantial documentation of the fishery decline that is likely to continue unless the proposed limits are adopted.  The gist of their argument was that sticking with the existing limits is not enough to prevent the decline, and even the proposed limits have some risk of being not tough enough.

 

The state legislature directs the DNR to manage the fish resource to ensure recreational opportunity.  Biological concerns must be addressed in the proposed rule.  With this proposed rule, the DNR has acted to sustain a quality perch fishery in the long term.  Evidence shows that without the proposed rule in place, both the fishery and angler-related business would be at great risk of ultimate failure.  With the proposed rule, the DNR has attempted to reduce the risk to the fishery and balance it with local economics by allowing the highest level of harvest reasonably possible.  This  encourages long term survival of both the fishery and businesses.  

 

The DNR has demonstrated that it considered both the risks to the fishery and the risks to the businesses.  It has balanced those risks and arrived at the proposed limits.  In doing so, the DNR has demonstrated that its balance is a rational one, not an arbitrary one.  They have met the burden placed upon them by the law.  Under the law, they may adopt their proposal.

 

 

                                                                                                A.W.K.