STATE OF MINNESOTA IN COURT OF APPEALS A14
- 1741 In the Matter of Minnesota Department of Natural Resources Special Permit No. 16868 (December 21, 2012) issued to Lynn Rogers Filed July 13, 2015 Affirmed Rodenberg , Judge Minnesota Department of Natural Resources OAH File No. 84

- 2001

- 30915 David R. Marshall, Leah C. J anus, Jessica L. Edwards, Fredrikson & Byron, P.A., Minneapolis, Minnesota (for relator) Lori Swanson, Attorney General, Jill Schlick Nguyen, Oliver J. Larson, Assistant Attorneys General, St. Paul, Minnesota (for respondent) Considered and decided by S tauber , Presiding Judge; Bjorkman , Judge; and Rodenberg , Judge

. S Y L L A B U S
A ttaching a radio collar to an habituated North American b lack bear , with the resulting capacities to remotely track and locate the bear in the wild and to locate the den of the bear , amounts to constructive possession of the wild animal within the meaning of Minn. Stat. §§ 97A.015, sub d. 36 and 97A.401 , subd. 3(a) (2014). O P I N I O N RODENBERG , Judge Relator challenges the decision of the Minnesota Department of Natural Resources (DNR) declining to renew his permit to take and possess bears, arguing that his conduct2

amounts t o neither taking nor possessing wild animals within the meaning of Minn. Stat. §§ 97A.015, subd. 36 and 97A.401 , subd. 3(a)

. We affirm. FACTS Relator Dr. Lynn Rogers is a wildlife biologist who operates the Wildlife Research Institute (WRI) in Eagles Nest Township , located near Ely and within t he Superior National Forest. Relator is a n expert on the North American b lack b ear (hereinafter, “bea r ” connotes the North American b lack b ear). Upon learning that the residents of Eagles Nest Township had been feeding bears for years and “experienced very few nuisance bear problems,” relator purchased land in Eagles Nest Township to study bears there.
T he DNR discovered in 1999 that relator had placed a collar on at least one bear in August of 1998

. It notified relator that a permit was required to radio

- collar wild animals, explaining that such collaring of wildlife is a form of possession , for which a
DNR permit is required. Relator applied for a permit in April 1999 and that permit was granted. Relator maintained various versions of that permit until June 2013. In June 2013, the DNR decided not to renew relator ’s permit and extended his permit only until the end of July 2013 to give relator enough time to remove the radio collars. From its inception, relator ’s research was “built upon intentional activities that cause habituation in bears.” 1 Re l a tor habituates bears using food

. A s a result of

1 Relator defines habituation a s the “waning of a bear’s natural response to a neutral stimulus. When a bear is habituated to human contact, the bear’s natural response of wariness and avoidance is altered such that the bear appears to ignore the presence of a person.” The DNR does no t dispute that definition. We use it as an agreed definition

.3

ha bituation, he is able to closely observe bears, rest with them, and place radio collars around their nec ks. The bears are “continually fed” at WRI from feeding troughs and, until 2012, by hand. Re l a tor is able to get close enough to the bears to take their pulse. Relator also pets, pats, strokes, and engages in other physical contact with the bears. Not all bears will interact with relator . H e does not force bears to interact with him if they do

not do so willingly. Re l a tor ’s research al so in cludes the use of den cams: cameras placed in a bear den to allow remote viewing of what happens in the den. Relator’s den cams have been highly praised in the scientific and educational communities for their

c ontributions to the shared knowledge of bears in dens. Since 2003, relator has operated a Bear Field Study Course at WRI. For $2,500
each , participants may participate in a four

- day program that allows them to locate a collared bear in the wild, observe bears at WRI, listen to lectures presented by relator , visit an unoccupied bear den, look for bear signs in the forest, analyze bear scat, and, until 2012, hand feed uncollared and collared bears, as well as pet, kiss, sit next to, and pose for pictures w ith bears. Relator and his assistant, Susan Mansfield, “encouraged Bear Field Study Course participants not to post or otherwise publish pictures of bear handling and interaction taken during course activities, advising participants that the activities wo uld not reflect well on the WRI.” The DNR’s public safety concern s regarding WRI increased in 2012. A collared bear, her yearling, and another uncollared bear were reported in a homeo w n er’s yard. When the homeowner attempted to chase the bear s away, the bear s did not leave. A cabin owner reported that, while watching television, he noticed a collared bear pressed4

against his window, “two feet from his head .” A conservation officer reported that a collared bear (accompanied by two other bears) “walk ed w i thin four feet of the officer, stood up on her hind legs and put her left paw on [the officer’s] gun belt.” The DNR received another report that a collared bear and her two cubs were circling vehicles in a nearby state park. In another report, a dog was injured after the dog’s owner was unable to scare away a bear. On another occasion, an officer needed to shoot a collared bear after the bear approached a woman and her two smal l children. The woman had been unable to scare away the bear, even after hitting the bear with a broom. When the officer arrived, the bear approached the officer and “made contact with the officer’s hand with
its teeth .” The officer destroyed the bear “ [b]ecause it did not appear to be afraid of humans and [ would] not leave the area.” The DNR’s experts cited relator for the nuisance bear problems and recommended the DNR not renew relator ’s permit. In 2013, the DNR received information that relator had taught over 650 Bear Field Study C ourse participants how to feed bears by hand. The DNR also received two videos: one showing members of the public finding and disturbing a bear’s den where relator had placed a den cam, and the other showing relator
pun ching a bear in the face. The DNR ultimately decided not to renew relator ’s permit. Relator sued the DNR and the Commissioner in the district court for Ramsey County, seeking review of the DNR’s decision not to renew relator’s permit. Relator
moved the district court for a temporary restraining order requiring reinstatement of the permit. The parties stipulated to the commencement of a contested

- case proceeding and the district court stayed the proceedings before it, but retained jurisdiction until the5

completion of the contested

- case proceeding. The district court ordered that, until the completion of the contested case proceeding, relator could continue to collar the bears already collared but could collar no others, he could install den cams pursuant to the December 21, 2012 permit , but could neither live

- stream the den cam footage nor engage in bear

- habituation activities other than activities necessary to change the batteries on the radio

- collars. In the contested case proceeding, r elator moved f or s ummary disposition in January 2014, arguing that his activities amounted to neither possession nor taking of bears. The Administrative Law Judge (ALJ) concluded , as a matter of law , that relator ’s conduct could not be considered a “taking” under Minn. Stat. § 97A.401, subd. 3(a), and summarily granted relator ’s pre - hearing motion disposing of this issue. B ut the ALJ
denied relator ’s motion concerning whether relator’s conduct amounted to possession, concluding that issues of material fact remained for resolution

. A n evidentiary hearing was held over the course of nine days . In May 2014 , the ALJ recommended that the

c ommissioner deny relator ’s permit, based on a determination that relator’s activities
amounted to possession of bears within the meaning of Minn. Stat. § 97A.401, subd. 3(a). In September 2014, the c ommissioner adopted the ALJ’s recommendation to deny relator ’s permit, concluding that relator’s conduct amounted to both taking and possession of bears

. This certiorari appeal followed. ISSU E
Does attaching a radio collar t o an habituated b lack bear , with the resulting capacities to remotely track and locate the bear in the wild and to locate the den of the6

bear , amount to constructive possession of a wild animal within the meaning of Minn. Stat. §§ 97A.401, subd. 3 (a) and 97A.015, subd. 36? ANALYSIS Minnesota’s game and fish laws , enacted for the purpose of preserving wild animals for the enjoyment and use of future generations, have been codified since 1891 :

The preservation of [wild] animals as are adapted to consumption as food, or to any other useful purpose, is a matter of public interest; and it is within the police power of the state, as the representative of the people in their united sovereignty, to enact such laws as will best preserve such game, and secure its beneficial use in the future to the citizens. State v. Rodman , 58 Minn. 393, 400, 59 N.W. 1098, 1099 (1894). “[O]wnership of wild animals rests in the state for the benefit of all its people in common.” Waldo v. Gould , 165 Minn. 128, 130, 206 N.W. 46, 47 (1925); see also Minn. Stat. § 97A.025 (2014) (“A person may not acquire a property right in wild animals

. . . unless authorized under the game and fish laws

. ”). On certiorari review, we consider whether an agency’s d ecision violates a constitutional provision, exceeds the agency’s statutory authority, is arbitrary or capricious, is unsupported by substantial evidence, is made upon an unlawful procedure ,

or is affected by other error of law. Minn. Stat. § 14.69 (2014) . We may, among other things, affirm or reverse the decision of the c ommissioner or remand the case for further proceedings. Id.7 I. This case concerns the proper interpretation of the words “take” and “possess” in Minn. Stat. § 97A.401, subd. 3 (a)

. Th e statute provides:

[S]pecial permits may be issued without a fee to take , possess , and transport wild animals as pets and for scientific, educational, rehabilitative, wildlife disease prevention and control, and exhibition purposes. The commissioner shall prescribe the conditions for taking, possessing, transporting, and disposing of the wild animals. Minn. Stat. § 97A.401, subd. 3(a) (emphasis added). While interpretation of a statute is a question of law reviewed de novo, we give deference to an admini strative agency’s interpretation of the challenged statute in two
situations. In re Cities of Annandale & Maple Lake NPDES/SDS Permit Issuance , 731 N.W.2d 502, 516 (Minn. 2007) (hereinafter “ Annandale ”). First, we give deference to an administrative agency’s interpretation when “the agency is legally required to enforce and administer the [statute] under review.” Id. Second, we give deference to an administrative agency’s interpretation when “the meani ng of the words in the [statute is ]

. . . unclear and susceptible to different reasonable interpretations

— ambiguous.” Id. If we decide that a statute is “unclear and susceptible to different reasonable interpretations,” we must decide if the agency’s int erpretation of that statute is reasonable. Id. If the agency’s interpretation is reasonable, we will defer to the agency’s interpretation. Id.8

The ALJ concluded here that relator’s action s amounted to possession , but not taking. The c ommissioner concl uded that relator ’s actions constituted both taking and possession under Minn. Stat. § 97A.401, subd. 3 (a)

. Concerning whether relator ’s actions constitute possession, the parties agree that
hand

- feeding of bears is legal in Minnesota. It requires no p ermit.
T he c ommissioner ’s September 2014 denial of relator’s permit application
concluded that both radio

- collaring and intentional and repeated handling of bears may constitute possession. D uring oral argument before us, the DNR abandoned its position that intentional and repeated handling might amount to possession. W e therefore address only whether radio

- collaring , as has been performed by relator , constitutes possession under Minn. Stat. § 97A.401, subd. 3 (a)

. Minnesota’s game and fish laws define “possess ion ” to include “both actual and constructive possession and control of the th ings referred to.” Minn. Stat. § 97A.015, subd. 36 (2014) . The game and fish laws do not define the terms “actual,” “constructive,” or “control.”
The c ommissi oner concluded that , “no matter how temporary” the possession of a bear might be , a permit is required when such possession “results with a bear having a collar on it so it can be tracked and found again .” In su pport of this proposition on appeal , the c om missioner reasons that

[p]ossession occurs when a collar is placed on a bear even though that activity takes place in a short amount of time and the bears remain in the wild

. . . [because] the collars provide continued access to the bears that the genera l public does not9 have and the bears are unable to avoid the continued human intervention. The c ommissioner argues that relator exercised actual possession of the bears when he affixed radio collars around their necks. Further, the c ommissioner argues that a radio collar allows relator to exercise sufficient control over the bears to amount to constructive possession , and that the radio collars are an insignia of possession. Relator argues that possession requires “ confinement, capture, or removal fr om
nature , ” citing to several out

- of

- state authoritie s . He vigorously maintains that, despite being habituated and therefore comfortable with relator’s touching and collaring of them, the bears are not captured nor are they forced to have physical contact with relator or other humans. They remain in the wild.
N o reported Minnesota case addresses the definition of possession under Minn.
Stat. § 97A.015, subd. 36. T herefore , we address whether radio

- collaring an animal constitute s possession under Minn. Stat. § 97A.401, subd. 3(a) , as an issue of first impression

. “Possession” in the law has no single, clear definition. See Baehr v. Penn

- O

- Tex Oil Corp. , 258 Minn. 533, 536, 104 N.W.2d 661, 664 (1960) (stating that “[p]ossession is a chameleon

- like term which takes its meaning from its context both in common speech and in legal ter minology” (quotation omitted)); Jacobso n v. Aetna Cas. & Sur. Co. , 233 Minn. 383, 386 , 46 N.W.2d 868, 87 0 (1951) (“The word p ossession has many shades of meaning and, as applied to a variety of facts, is not capable of one exact definition

. ” (emphasis omitted ) ) ; see also Nat ’ l Safe Deposit Co. v. Stead , 232 U.S. 58, 6 7, 34 S. Ct.10

209, 212 (1914) (“[T] here is no word more ambiguous in its meaning than pos session. It is interchangeably used to describe actual possession and constructive possession which often so shade into one another that it is difficult to say where one ends and the other begins.”).
“A ctual possession” means physical control of the th ing possessed. See State v. Florine , 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975); see also State v. Simion , 745 N.W.2d 830, 842 (Minn. 2008) (defining “actual possession ” as “direct physical control”); Baehr , 258 Minn. at 537, 104 N.W.2d at 664 (defini ng “actual possession” in the context of land disputes as “‘actual occupan [c] y ,’ which means physical presen ce upon and control of premises ”)

. Actual possession does not require the possessor to have a property interest or ownership interest in the item p ossessed. See State v. Johnson , 551 N.W.2d 244, 246 (Minn. App. 1996) (rejecting argument that ownership is sufficient to prove possession) , review denied (Minn. Sept. 20, 1996) ; see also Ehle v. Prosser , 293 Minn. 183, 189

- 90, 197 N.W.2d 458, 462 (Minn. 1972) (requiring that the possessor of land in an adverse possession action not also be the owner of the possessed land and, instead, have an intent to “oust the owner”). “[C]onstructive possession exi sts wholly in contemplation of law without possession in fact.” Jacobso n , 233 Minn. at 388, 46 N.W.2d at 871; see also Simion , 745 N.W.2d at 842 (explaining that constructive possession “exists where an owner intentionally gives actual possession

. . . of the property to another in order for that person to do some act for the owner to or with the property ”); Baehr , 258 Minn. at 537,11

104 N.W.2d at 664 (defining constructive possession as “the legal right to possession
which follows from title without actual possession ”). A brief history of the origin of the legal concept of constructive possession help s to illuminate the amorphous nature of the concept

. Constructive possession was originally used in the master

- servant context, where, in order for a maste r to prove larceny by a servant , there must have first been a trespass. Jacobs o n , 233 Minn. at 387

- 88, 46 N.W.2d at 871. A trespass at common law amounted to taking from the possession of another without the other’s consent

. Id. at 387, 46 N.W.2d at 871

. However, when a master placed an item into a se rvant’s care, the servant gained possession with consent and, therefore, without trespassing

. Id. A servant who had originally taken actual possession with the master’s consent and then permanently deprived the master of the item could not be found to have committed larceny because there had been no trespass. Id. In order to “prevent[] injustice , ” “[t]he cou rts resorted to the fiction of c o nstructive possession to expand the definition of possession.” Id. at 3 87

- 88, 46 N.W.2d at 871 (emphasis omitted)

. The master who gave property to a servant was said to have retained constructive possession of it even after surrendering actual possession

. See generally id. The concept of constructive possession in the modern context of possession of
contraband has taken a curious turn . Whereas the concept was originally developed in the law of larceny to criminalize actual possession without legal title , the law now criminalizes constructive possession based on circumstantial evidence of past likely possession of contraband without present actual possession. See Florine , 303 Minn. at12

104

- 05 , 226 N.W.2d at 6 10. In c ontraband

- possession cases, law enforcement often does not find the defendant actually possessing contraband

. See State v. Salyers , 858 N.W.2d 156, 157

- 58 (Minn. 2015) ( affirming defendant’s conviction of possession of a firearm after a search resulted in law enforcement finding a shotgun in a locked gun safe in defendant’s bedroom ); Florine , 303 Minn. at 103

- 04, 226 N.W.2d at 610 ( affirming the conviction of a defendant of possession of controlled substances after cocaine and marijuana were found in an unlocked abandoned vehicle) . In order to prosecute the crime of possession without proof of the defendant having actual possession, modern criminal law has come to rely on the legal fiction of constructive possession. See Salyers , 858 N.W.2d at 159; Florine , 303 Minn. at 105, 226 N.W.2d at 611; State v. Dickey , 827 N.W.2d 792, 796

- 97 (Minn. App. 2013).
In the contraband

- possession context, constructive possessi on serves to include within the possession statute those cases where the state cannot prove actual or physical possession at the time of arrest but where the inference is strong that the defendant at one time physically possessed the substance and did not abandon his possessory interest in the [illicit item] but rather continued to exercise dominion and control over it up to the time of the arrest. Florine , 303 Minn. at 104

- 05, 226 N.W.2d at 610. In order for the state to prove that a
person possessed an item in violation of law, there must be evidence (1) “that the police
found the [illicit item] in a place under defendant’s exclusive control to which other people did not normally have access, ” or (2) “that, if police found it in a place to which
other s had access, there is a strong probability (inferable from other evidence) that13

defendant was at the time consciously exercising dominion and control over it.” Id. at 105, 226 N.W.2d at 611. “Possession” is “susceptible to different reasonable interpre tations” as used in Minn. Stat. § 97A.401, subd. 3 (a) , and is therefore ambiguous. See Annandale , 731 N.W.2d at 516. The meaning s of “actual possession” and “constructive possession” being dependent on the legal context in which they are used, we interpr et the terms here in light of the DNR’s obligation to administer and enforce the g ame and fish laws. Minn.
Stat. §§ 97A.015, subd. 10, .201, subd. 1, .401, subd. 1 (2014). D eference to the agency in t his case is appropriate if the c ommissioner’s interpretation of the statute is reasonable.
See Anna ndale , 731 N.W.2d at 516. Relator argues that there is no evidence in the record tending to show how relator places radio collars on bears:

The DNR did not present any evidence regardi ng how Dr. Rogers places radio collars on bears or interacts with bears to maintain those collars. In fact, the DNR did not present any witness that had personally observed Dr. Ro gers or Mansfield collar a bear. Relator also argues that the ALJ “did not find that the act of placing a collar on a bear constitutes possession.” Relator’s contentions are not supported by the record. The commissioner adopted the ALJ’s conclusion that “[a]ffixing a tracking collar to a bear for the purpose of locating the b ear in the wild, in whatever manner the collar is attached, meets the definition of ‘possession’ as the term is used in Minn. Stat § 97A.401, subd. 3(a).”14

The record also contains Mansfield ’s testimony that collars are placed on bears by “slipping the col lar around their neck and there’s two bolts that have to go through the collar, a metal plate that goes on the bolts and then nuts on the bolts and you tighten the nuts.” While relator maintains that the bear’s movement is not restricted when the collar
i s affixed to the bear and that the bears are free to walk away during the p rocess of collaring, Mansfield also testified that, in order to collar a bear , Mansfield or relator will hand

- feed the bear , availing themselves of its habituation to keep it in one place. The record therefore does contain evidence of “how Dr. Rogers places radio collars on bears.” Indeed, the record before us is thorough, the parties having carefully and extensively demonstrated both what Dr. Rogers does, and the effects of his actions on bears. The c ommissioner reasons that collaring bears constitutes possession because the collars “provide continued access to the bears that the general public does not have and
the bears are unable to avoid the continued human interventi on.” This conclusion
para llels the ALJ’s reasoning that

[b]y putting a collar on a bear and using that co llar to track its location, [re l a tor] exercises an intentional power to alter the bear’s natural freedom in at least one critical respect: the bear is no longer free to avoid humans. It loses its natural ability to be left alone

. . . . [R el a tor] has control of whether, and to what extent, humans intrude upon the bear’s natural world on a regular basis.
Relator responds that , “even if a bear has a working collar, it is fr ee to avoid humans.” (Internal quotation marks omitted

. ) He further argues that the ALJ’s analysis , adopted by the c ommissioner , “is dependent upon [relator] having the intent to actually15

locate the bear in the wild,” and that to interpret “possession” in this manner would lead
to an absurd result. Relator’s argument that the conclusions reached by the ALJ and the c ommissioner would lead to an absurd result suppose s that affixing a tracking collar on a bear is not possession, bu t tracking a bear’s location is possession . But neither the ALJ nor the

c ommissioner concluded that tracking a bear’s movements alone could constitute possession. The DNR instead reasons that the bears are possessed by relator because “the
bears are unab le to avoid the continued human intervention , ” and argues that this inability of the bears to avoid contact with humans supports the ultimate conclusion that affixing a tracking collar to an animal amounts to possession. While there is evidence in the rec ord to support relator’s assertion that the DNR at one time questioned whether radio

- collaring a bear amounted to “possession” under Minn. Stat. § 97A.401, subd. 3(a) (1998) (using the same language as the version at issue here) , 2 we are persuaded that feeding a bear and habituating it in order to keep it in one

2 In 1999 , an employee of the DNR received information that relator sought to enter the private property of a landowner in order to observe a bear den. The employee surmised that the only way relator would have known where the den was located was if he had radio

- co llared the bear. The employee sought clarification from an assistant director of enforcement for the DNR about whether relator could be cited for collaring bears, or otherwise prevented from collaring bears, in light of re l ator’s “claims he slipped a coll ar on the bear while he fed it.” The assistant director reasoned that “[i]f [re l ator] has tagged or collared a bear he had to have the animal in his possession if only for a short period of time to affix the collar or tag,” but ultimately conclud ed that h e “wouldn’t write anybody a ticket for slipping a collar or tag over a bear ’ s head

. . . . [T] he analysis is thin until we get to a place where a cub is taken or a blood sample is taken.” This uncertainty arose in 1999 and the DNR has consistently maintain ed since then, for 15 years, that radio

collaring a wild animal requires a permit. And relator has consistently applied for and16

place while a rad io collar is affixed to it is a significant form of exerting control over the animal. Because the definition of “possession” in the game and fish laws inc ludes “const ructive possession, ” Minn. Stat. § 97A. 015 , subd. 3 6 , a term in the law with a meaning highly dependent on the legal context in which it is used, we are persuaded by the DNR ’s reasoning. In the context of wild animals, the “quality of possessi on required to satisfy” Minn. Stat. § 97A.401, subd. 3(a) , is satisfied by affixing a radio collar to a bear

. See State v. Bagley , 286 Minn. 180, 187, 175 N.W.2d 448, 453 (Minn. 1970) (holding that the “quality of possession required to satisfy the theft or larceny statute is personal and exclusive possession ” but that “ ‘personal ’ possession does not require that the property be actually in [ the ] defendant’s hands or on his pers on ”). The c ommissioner reasonably concluded that the amount of control necessa rily exercised over a bear in
order to collar it is sufficient to meet the definitio n of possession. Because t he

c ommissioner’s interpretation of possession is reasonable, we defer to it. See Annandale , 731 N.W.2d at 516. We hold that the act of attachi ng a radio collar to a bear with the atte ndant capacities to track and locate the bear in the wild and to locate the bear’s den amounts to constructive possession of the bear under Minn. Stat. §§ 97A.015, subd. 36 and 97A.401 , subd. 3(a)

.

acted pursuant to those permits, all of which were issued on the premise that relator’s actions amounted to possession.17

Because we hold that relator’s actions concerning bears amount to possession within the meaning of Minn. Stat. § 97A.401, subd. 3 (a) , and therefore require a permit under the statute, we do not address whether relator’s actions are also a taking. 3
II. Relator challenges the c ommissioner’s interpretation of Minn. Stat. § 97A.401, subd. 3(a), arguing that interpreting the statute to encompass relator ’s conduct would render the statute unconstitutionally vague . He urges us to apply the rule of lenity and
argues that , under the c ommissioner’s interpretation of Minn. Stat. § 97A.401, subd. 3(a) , “the public will not have fair notice of when legal feeding, touching, interaction, and habituation of bears becomes illegal.” He further argues that the c ommissioner’s
in terpretation “could lead to subjective and arbitrary enforcement.”
But r elator does not argue in his principal brief that he did not have fair notice or that he was subject to subjective o r arbitrary enforcement. I n his reply brief, relator argues that “the statute is unconstitutionally vague as applied to his conduct” and that he “demonstrated that the statute, as the DNR has applied it to [his] conduct, engenders arbitrary and discriminatory enforcement.” “Constitutional challenges are questions of l aw, which we review de novo. In conducting this review, we recognize that Minnesota statutes are presumed constitutional,

3 We ob serve that none of the parties here had the benefit of the Minnesota Supreme Court’s decision in State v. Schmid , 859 N.W.2d 816 (Minn. 2015), when briefing whether relator ’s actions could fall under the definiti on of “taking” in Minn. Stat. § 97A.401, sub d. 3(a). The Minnesota Supreme Court in Schmid affirmed the holding of this court’s decision and narrowly defined “taking” by “pursuit” to mean “to follow in an effort to overtake or capture.” Schmid , 859 N.W.2d at 824 ( citing The American Heritage Dicti onary 1431 (5th ed. 2011)).18

and our power to declare a statute unconstitutional is exercised with extreme caution and only when absolutely necessary.” State v. Campbell , 756 N.W.2d 263, 268 (Minn. App. 2008) (quotation and citation omitted), review denied (Minn. Dec. 23, 2008). “The void

for

- vagueness doctrine requires that a legislative enactment define a criminal offense with sufficient definiteness and certai nty that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Id. at 269 (quotation omitted) . “We do not expect mathematical certainty from the English language, and a statute that is flexible and reasonably broad will be upheld if it is clear what the statute, as a whole, prohibits.” Id. “The void

- for

- vagueness doctrine does not allow one who has received fair warning of the criminality of his own conduct from the statute in question to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.” State, City of Minneapolis v. Reha , 483 N.W.2d 688, 691 (Minn. 1992) (quotation omi tted). However, a party may bring a void

- for

- vagueness challenge if the statute at issue encompasses constitutionally protected conduct or if there is a potential for arbitrary and discriminatory enforcement. Id. at 691

- 92

. B ut see Campbell , 756 N.W.2d at 275 (refusing to void a statute for vagueness when “the danger of arbitrary enforcement is speculative and insufficient to
render the statute unco nstitutionally vague as applied ”).
Relator was first warned by the DNR in 1999 tha t radio

- collaring bears requires a permit because the DNR considered such collaring to be “possession” under Minn. Stat. § 97A.401, subd. 3(a). From that time forward, relator was granted permits on the19

premise that such c ollaring amounted to possession. The permits allowed rad io

- collaring of bears. On this record, r elator cannot credibly argue that he was not on notice that radio

- collaring bears constituted possession and required a permit.
We also observe that relator’s acquiescence to the DNR’s interpretation of possessio n is important in assessing his void

- for

- vagueness arguments. One would ordinarily not seek a permit for conduct that one does not believe requires a permit , and would instead challenge government action premised on the need for a permit. Here, relator s eems to have understood and tacitly agreed, for 15 years, that radio

- collaring bears is possession under the law. On appeal , neither party argues that Minn. Stat. § 97A.401, subd. 3 (a) , concerns a constitution ally protected right. And a prohibition on ra dio

- collaring a wild animal without a permit is a very specific proscription , unlikely to lead to arbitrary or capricious enforcement. Re l a tor has failed to provide us with sufficient reason to reach the void

- for

vagueness analysis here. See Reha , 483 N. W.2d at 691 ; Campbell , 756 N.W.2d at 275. The rule of lenity requires that courts interpret statutes with potential criminal
consequences in favor of the more lenient interpretation when, even after applying the canons of construction, the statute remains ambiguous. Kasten v. Saint

- Gobain Performance Plastics Corp. , 131 S. Ct. 1325, 1336 (2011) (stating that, a lthough the rule of lenity is ordinarily applied in the criminal context, it may be applied in the civil context when violation of the challenged s tatute could result in a criminal sanction ). We have here applied traditional methods of statutory interpretation to conclude that possession has the meaning ascribed to it by the c ommissioner. And that is the meaning20

of possession on which the parties t o this appeal have acted over the course of more than a decade under various incarnations of a permit issued to relator. T he statute here is not sufficiently ambiguous to warrant the application of the rule of lenity. See id

. III. Relator also argues th at , even if he is denied the right to radio

- collar bears, the record fails to support a finding that the DNR had good cause to deny relator a permit to use den cams. The c ommissioner argues that relator focuses on the wrong issue, and that the issue in th is case is whether the DNR had cause to deny relator t he existin g permit in its entirety. The c ommissioner argues that the agency is not required to ascertain whether some of the activities allowed under the earlier permit(s) might be insufficient to

cons titute possession

. The c ommissioner argues that , because there was cause to deny
relator a permit, the entire permit may be denied. The game and fish laws provide: Wherever the game and fish laws specifically provide for the issuance of a permit by the commissioner, the commissioner may do the following in accordance with criteria and procedures established in rules adopted by the commissioner: (2) d eny, modify, suspend, or revoke a permit for cause. Minn. Stat. § 97A.418 (2014). The c ommissioner di d not revoke relator’s permit because of relator’s den cams. The record contains no conclusion, nor even a suggestion, that a den cam amounts to possession under the law. As such, relator needs no permit for placement of such21

cameras. 4 Relator provides no authority for the notion that the DNR must comb through permits and determine whether there is good cause to deny, modify, suspend, or revoke the permit as to eac h permitted activity. A plain reading of the statute does not require this. Relator’s per mits were issued for radio

- collaring of bears and activities ancillary to such collaring . Because such collaring is possession, the DNR declined to renew the permit for the reasons noted. The c ommissioner did not err in declining to renew relator ’s permi t , eve n though some of the activities identified by the permit do not amount to possession

. D E C I S I O N A permit is required to possess a bear under Minn. Stat. § 97A.401, subd. 3 (a) of the Minnesota g ame and f ish l aws. The meaning of “possession” in Minn. Stat. §§ 97A.401, subd. 3 (a) and 97A.015, subd. 36 , is ambiguous . The DNR , tasked with the enforcement of the game and fish laws , has reasonably interpreted “possession” under Minn. Stat. §§ 97A.401, subd. 3 (a) and 97A.015, subd. 36 , to include relator’s radio

collaring activities . We therefore defer to the c ommissioner’s reasonable interpretation of “possession” and hold that the act of attaching a radio collar to an habituated b lack b ear with the resulting capacities to remotely track and loca te the bear in the wild and to locate the den of the bear , amounts to constructive possession of the wild animal within the meaning of Minn. Stat. §§ 97A.401, subd 3(a) and 97A.015, subd. 36

. Affirmed.

4 We note that the use of trail cameras and the like is commonplace ; they are used by hunters and wildlife enthusiasts. No argument is made in this appeal that automated photography of wildlife requires a permit.