ST. PAUL, Minn. (AP) – A northern Minnesota bait dealer is off the hook after the state Court of Appeals ruled that a minnow is not a fish.
Kim Barsness of Baudette was caught by a Department of Natural Resources conservation officer in May 2009 harvesting minnows in Upper Red Lake. Barsness had a permit to harvest minnows, but he was using equipment with orange DNR tags labeled for infested waters only — equipment the DNR says he wasn’t supposed to use there.
The labels are part of a DNR effort designed to stop the spread of an invasive species, the spiny water flea. Upper Red Lake in northern Minnesota is not infested with the spiny water flea, and the DNR said Barsness wasn’t supposed to use equipment labeled for infested waters in the lake.
The St. Paul Pioneer Press reports Barsness was convicted of attempting to illegally sell wild animals — in this case, shiny minnows. He was fined and lost his commercial minnow license for three years.
On appeal, Barsness argued that what he was doing wasn’t a crime. The appeals court agreed in a ruling Tuesday that Minnesota’s game and fish laws and administrative rules don’t specifically say it’s a crime to use infested-waters-only equipment to harvest minnows in waters that are not infested.
The state argued that Barsness violated a general prohibition against netting fish except as specifically authorized and that using infested-waters-only equipment in violation of his permit was not authorized netting of fish.
But the appeals court found minnows are not treated as fish under state law and reversed his conviction.
“Although we appreciate the state’s common-sense argument that ‘minnows are fish,’ we cannot ignore a statutory scheme that plainly and consistently distinguishes between fish and minnows,” Judge Michelle Larkin wrote for the three-judge panel.
The court recognizes that preventing the spread of invasive species to Minnesota waters that are not infested is “a serious matter, and we are not insensitive to the larger environmental issue,” Larkin wrote.
But the court held that Barsness’ conduct wasn’t illegal because minnows are “not treated as fish under the plain language of the game and fish laws.”
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