Judge chides DNR over evidence in Ely bear researcher's case

  • Article by: TONY KENNEDY , Star Tribune
  • Updated: May 1, 2014 - 11:09 PM

Chief Administrative Law Judge Tammy Pust says the agency withheld documents from Lynn Rogers as he seeks to win back his research credentials.

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Researcher Lynn Rogers’ controversial methods include approaching collared black bears in his study without use of tranquilizers. This bear, Brave Heart, weighed 400 pounds and allowed Rogers to change the batteries in its GPS collar.

Photo: File photo by BRIAN PETERSON • brianp@startribune.com,

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A state judge has sanctioned the Department of Natural Resources (DNR) for withholding records from Minnesota bear researcher Lynn Rogers, who maintains that the documents bolster his fight to regain research authority that the agency stripped from him.

The decision by Chief Administrative Law Judge Tammy Pust is unfolding more than a month after a two-week hearing on Rogers’ case. In testimony for the case, DNR bear expert Dave Garshelis slammed Rogers’ work with black bears near Ely, Minn., as unscientific. Rogers claims that the documents, which have now been released, discredit Garshelis and reveal bias at the agency.

“We believe the documents withheld by the DNR support our position,” David Marshall, an attorney for Rogers, said Thursday.

At issue is a state research permit that the DNR declined to reissue to Rogers, whose hand-feeding of bears and bear-cam videos have earned him a wide following. He has been accused, however, of endangering the public around Ely by making the wild predators comfortable with people and teaching them to see humans as a source of food.

According to documents filed Thursday, Rogers’ case now includes an angry e-mail written last month by Garshelis in which he chides a colleague for sharing information with Rogers that could “end up in court.” The e-mail is one of 28 pages of documents that the judge ordered the DNR to turn over to Rogers under disclosure rules the agency violated. Under the sanction, the DNR must pay Rogers’ legal fees on the issue, which have accumulated to $758.

The March 24 e-mail from Garshelis was addressed to six colleagues who had worked on a panel considering whether “diversionary feeding” helps to reduce human-bear conflict. The group was writing a paper from the panel, and one of them had sent a confidential draft to Rogers.

“You have taken a work product that is not yours and shared it with another person [Rogers],” Garshelis wrote. “I find this action completely unforgivable. … My vote is to throw you off the paper.”

Pust wrote in a memorandum that Garshelis believed it was “scientifically unethical” for Rogers to obtain a copy of the draft paper because he wasn’t a participating author. But the judge said there is no universally recognized scholar’s privilege that would allow the DNR to keep the e-mails from Rogers in violation of court disclosure rules. The judge also compelled the DNR to turn over two pages of the draft paper to Rogers.

Lawyers for Rogers said Thursday in a court filing that the new information demonstrates bias against Rogers and undercuts the credibility of DNR criticisms of him.

Bear dung

In refusing to renew Rogers’ research permit last year, the DNR claimed in part that Rogers was not engaging in sufficient peer-reviewed research. The Garshelis e-mail, Rogers’ lawyers say, clearly states that Garshelis and his six colleagues agreed among themselves “not to include” Rogers on their paper, even though he participated in the panel.

“The late-produced evidence … demonstrates that Dr. Garshelis has interfered with Dr. Rogers’ ability to publish a peer-reviewed paper on a topic of his research and failed to disclose this fact throughout the contested case proceeding,” the document said.

In an interview, Garshelis said Thursday that the latest court action “is a side circus.” Rogers didn’t belong in the group that was writing the paper because he had criticized the other panel members and part of the paper was a critique of Rogers, Garshelis said.

“This story is completely preposterous,” he said.

Chris Niskanen, a DNR spokesman, said the agency experienced its own delay in obtaining material from Rogers before the trial. He said the trial was three days away when Rogers finally complied.

“We’ve been through the same thing on our side,” Niskanen said.

Part of what Rogers handed over to the DNR as part of his research was a box of bear dung, Niskanen added.

Pust will consider the latest developments and issue a ruling soon. The DNR may or may not follow her decision, and Rogers could appeal, depending on the outcome.

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