On February 25, 2015, the Minnesota Supreme Court, in a unanimous decision written by Justice Lillehaug, held that the prohibition in Minn. Stat. § 97B.301, subd. 1 that a person may not “take” deer without a license, includes pursuing deer as well as actually killing them. State v. Schmid, ___ N.W.2d ____ (Minn. 2015).

Deer (wolf.org)

Minnesota hunters require a license to “take” a deer.  (Source: http://www.wolf.org)

The defendant in this case was convicted of violating section 97B.301, subd. 1 for pursuing (not killing) a deer without a proper license; a Department of Natural Resources (DNR) officer found him sitting on his ATV in an open field with a loaded gun, camouflage blind raised, wearing blaze orange clothing.

At issue on appeal was the definition of “take.” The fish and game statutes include a definition for “taking,” Minn. Stat. 97A.015, subd. 47, which includes “pursuing, shooting, killing, [or] capturing … wild animals” and specifies that “taking” includes “attempting to take wild animals.”  However, the defendant argued that this definition was inapplicable because section 97B.301 uses the word “take,” not “taking”; accordingly, the common law definition of “take” should be used instead, which is “to acquire possession or control” of a deer and does not include simply pursuing one.

The Court disagreed and held the statutory definition applied. It undertook a grammatical analysis and concluded that there was no relevant difference between “take” and “taking” in this case (“the only definitional difference between the root ‘take’ and the progressive form ‘taking’ is the timing of the action”). Furthermore, the Court found persuasive a prior case, State v. O’Heron, 250 Minn. 83 (1957), in which the Court applied a similar statutory definition of “taking” to a statute making it illegal to “take” migratory waterfowl.

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