The New Wisconsin Amphibian and Reptile Regulations’ Confusing (and Color Blind) Color Variant Mess!

Tyrosinase-positive albino snakes. Fully melanistic snakes. 10% or more piebald snakes. Oh My!

If these sound more like color variants found in white-tailed deer than in snakes and other reptiles and amphibians commonly found in herpetoculture, you might be onto something, considering they were formulated entirely internally between Wisconsin Natural Resource Board (NRB) members and Wisconsin Department of Natural Resources (WDNR) staff with no meaningful input or collaboration with knowledgeable stakeholders that might know what a “color morph” or “color variant” more fundamentally is.

So how did we get here with such an absurd and nonsensical “list” of “allowed” color variants? Well, throughout the rulemaking process for CR 25-092, which was known as the Wisconsin native amphibian and reptile regulations rule update, that list was originally much more expansive, based on WDNR’s public “input” with stakeholders, which in of itself seemed more like taking “inventory” of what Wisconsin reptile keepers and breeders had rather than actually coming up with a fair and objective definition. That should tell anyone that a ban on keeping all native herptiles, including even common species, except for the aforementioned “exceptions” was already predetermined.

Within the rule itself, this “color variant” definition can be found in section 6, which also included “patternless” “gophersnakes” and milksnakes. Why only those two species, and why patternless? Color morphs of reptiles found in herpetoculture change constantly, with new morphs being found or produced every year. So why does WDNR need a list, which would be impossible and completely impractical to keep up to date, when there are far simpler ways of defining what a color morph is more fundamentally?

But there is a bigger statutory problem here in the way WDNR went about (attempting) to define, painfully, what a color morph is. Wisconsin state statute 169.12(4)(a) states:

Color variants of these wild reptiles and wild amphibians that have been bred in captivity and have coloration that is clearly distinct from the normal morphological color patterns.

Throughout the rulemaking process of this rule, we heard constantly from WDNR that “no definition of a color variant exists, so we must define it”. Except a definition already does exist, in the above statute. WDNR itself even acknowledges it in its rule-making materials by stating that the rule “ defines what a ‘color variant’ means for the purposes of s. 169.12 (4) (a), Stats.” That, in of itself, however, does not automatically confer rulemaking authority to define the term “color variant”. So was this yet another case of the left hand not knowing what the right hand is doing in state bureaucracy?

But the bigger statutory dilemma here is this: Per § 227.11(2)(a)1., the Department’s own statements of legislative intent or policy cannot supply or augment its rule-making authority. To the extent the Department relies on its own interpretation that a “color variant” must occur exclusively outside Wisconsin and/or consist only of natural, wild-type variation normally found in the wild, that interpretation adds substantive criteria not found in § 169.12(4)(a) and is therefore incorrect. The Legislature was explicitly referring to captive-bred animals in that provision (or animals that have been bred in captivity), but did not impose those additional qualifiers. Accordingly, the Department’s policy or interpretive rationale cannot substitute for an express statutory delegation authorizing it to define “color variant” in a manner that adds substantive criteria to the statutory concept.

Now, WDNR’s argument here would be partially correct, in that we do not actually have a stand-alone statutory definition for a “color variant” currently found in Chapter 169 statutes. But, because the term “color variant was instead defined as an exception under s. 169.12(4)(a), we should instead interpret it as intended by the Legislature, to mean its plain meaning and most common understanding. Which in this case, was clearly referring to genetically bred and influenced, captive-bred color morphs of reptiles and amphibians found in herpetoculture. In fact, we even see draft notes from earlier Wisconsin captive-wildlife bills indicating that the term is to be construed as “captive-bred” animals.

Another contradiction can be found in the department’s responses to public comments on the proposed rule. In one of its responses to public comments, on the color variant issue, the department seemingly concedes that an objective definition of a “color variant” is needed, and that everyone can agree. But then, in the same response, it states that some “color variants” were considered to be exempted”, such as Kingsville “red” bullsnakes, but were not, because they “look too close to a Wisconsin phenotype bullsnake”, which is in of itself, subjective.

If WDNR’s objective with this rule change was to improve clarity and consistency with the general public, it has already failed in the color variant department before the rule even goes into effect on January 1st, 2027. It should consider revising this portion of the rule to three simple criteria anyone can understand:

1). Must be captive-bred, or bred in captivity.
2). Must be a genetically heritable or influenced trait.
3). By adulthood, displays colors and/or patterns that are clearly and visibly distinct from any of the normal morphological colors and patterns of animals normally found in the wild.

There. Now that would be a far simpler definition of a “color variant”.