Reptile & Amphibian Forums

Wisconsin’s new native amphibian and reptile (herptile) regulations have a major statutory construction, not to mention a transparency problem. Or actually several to be more precise!

This is where the meat and potatoes lay regarding much of CR 25-092, which was Wisconsin’s most recently updated herptile regulations. Throughout the rulemaking process in 2025 and 2026, we heard constantly from the Wisconsin Department of Natural Resources (WDNR) that “Wisconsin’s native amphibian and reptile regulations need to be updated to be bought in line with all other vertebrate taxa in Wisconsin”. That seems like a bit of an odd thing for the WDNR to be saying, when that call belongs to the Legislature which wrote Chapter 169 statutes in the first place, not unelected state agencies.

Whenever we examine a rulemaking, we should always start with the scope statement, or statement of scope. This is basically a preliminary document examining all of the relevant authorizing statutes and other detailed descriptions and objectives of, and scope for which a state agency plans to begin drafting an administrative rule. In this case, this was SS-041-25, for NH 04-25. When we compare this rule’s scope statement with the authorizing statutes used in the actual draft rule and final rule, there is one big discrepancy which stands out right away:

Under Section 4 of the Statement of Scope, Detailed explanation of statutory authority for the rule (including the statutory citation and language), is the following statute:

Section 169.04 (1) (b), Stats., prohibits the possession of any live animal unless that person holds a license or other approval, and the person complies with this chapter and the rules promulgated under this chapter.

This statute is essentially making the premise that any native, wild animals in Wisconsin require some sort of license. Ok, fair enough. We completely agree that there *should* be regulations for native species, including native amphibians and reptiles. But was the above referring to the definition of an “animal” under s. 169.01(1) or to a “Wild Animal” under s. 169.01(37)?

(37) "Wild animal" means any animal of a wild nature that is normally found in the wild and that is not a domestic animal.

Interestingly, we also have separate statutory definitions for “Wild Amphibian”, s. 169.01(36) and “Wild Reptile”, s. 169.01(39) that are not to be treated as merely surplusage. The Wisconsin Legislature specifically created and subjected possession of native amphibians and reptiles to s. 169.12 instead.

HOWEVER, when one examines the actual draft rule and final rule for NH 04-25, 169.04(1)(b) is omitted and no longer included. Where did that statute go? When was it determined that §169.04(1)(b) would no longer be identified as an interpreted/authorizing statute? Who made that determination and when? Those are all questions we are seeking to find out through a subsequent records request with the WDNR, and further information will be posted if or when it becomes available.

But an even bigger question here is: Why does both the draft rule and final rule continue to contain language substantively similar to §169.04? We did a side-by side comparison. Section 7 of the rule CR 25-092 essentially establishes a default ban or prohibition on any new keeping and ownership of native herptiles (including even captive-bred animals) while s. 169.04 is the general possession statute for all “other” wild animals in Wisconsin other than reptiles and amphibians (we’ll get to why this is also an important distinction a bit later on).

*See Overlapping Concepts Between CR 25-092 and s. 169.04 highlighted in Red.

From Wisconsin Statute 169.04:
(1) RESTRICTIONS ON POSSESSION.
(a) No person may possess any live wild animal unless the wild animal is legally obtained.
(b) No person may possess any live wild animal unless the person holds a license or other approval to possess the wild animal as required under this chapter or under s. 29.319 and the person is otherwise in compliance with this chapter and the rules promulgated under this chapter.
(2) TEMPORARY POSSESSION.
(a) A person possessing a live native wild animal for a period not to exceed 24 hours is exempt from having a license or other approval as required under sub. (1) (b) if the person is possessing the wild animal for any of the following purposes:
1. To restrain or transport the wild animal for medical treatment by a veterinarian or by a person holding a rehabilitation license.
2. To remove or transport the wild animal from one location to a more appropriate location.

From section 8 of CR 25-092, which effectively is recreating the same legislative statute:

d) Temporary possession. A person may take and possess live native wild amphibians or reptiles for up to 24 hours as follows, provided that such amphibians and reptiles are humanely retained and housed and not comingled with any other amphibians or reptiles:
1. A person may restrain or transport a live native wild amphibian or reptile for medical treatment by a veterinarian or person holding a rehabilitation license. If the native live animal is able to be returned to the wild after medical treatment, it should be done within one mile of the location of original capture.
2. A person may remove or transport a live native wild amphibian or reptile from one location to a more appropriate location provided the new location is within one mile of the location of original capture.

But there is a big catch here. Wisconsin statute 169.04(6)b) on “Inapplicability to Certain Wild Animals” then goes on to exclude reptiles and amphibians from those statutes:

(b) The possession of native wild reptiles and native wild amphibians is subject to s. 169.12 and not to this section.

Let’s turn our attention to that statute, then, s. 169.12 and see what that says? 169.12(1) includes the following:

(1) Possession; general. No person may take from the wild or possess live native wild reptiles or live native wild amphibians unless the person is authorized to do so under rules promulgated by the department or unless sub. (3) applies.

But has “unless authorized to do so under rules promulgated by the department” always been the language used within 169.12(1)? No, it has not! When we dig bag to the original draft bill for 1997 Assembly Bill 514, we will find that an a different possession scheme for reptiles and amphibians was there:

(1) Possession of more than 5 prohibited. No person may take from the wild or
3possess live native wild reptiles or live native wild amphibians unless the person
4takes or possesses less than 5 of any subspecies or unless sub. (2) or (3) applies.
5(2) Possession of more than 5. (a) A person may take from the wild or possess
6more than 5 leopard frogs, 5 mud puppies, 5 tiger salamanders, 5 snapping turtles
7or 5 painted turtles if so authorized by the department under a Class A captive wild
8animal farm license.
9(b) An authorization under par. (a) for a type of wild reptile or wild amphibian
10may be subject to a quota established by rule by the department that protects from
11excessive taking of the population of that wild reptile or wild amphibian from the
12wild.
13(c) 1. For any type of native wild reptile or native wild amphibian, other than
14a wild reptile or wild amphibian subject to par. (a), a person may take from the wild
15or possess more than 5 of that type of wild reptile or wild amphibian if permission
16has been granted to the person by the department.
172. A request for permission under subd. 1. shall be in writing and shall include
18the name of the species, the number of wild reptiles or wild amphibians, the location
19of the proposed taking and the reason for the proposed possession.
203. The natural resources board shall create a council under s. 15.04 (1) (c) to
21review requests for permission under subd. 1. The council shall make
22recommendations to the department to assist the department in deciding whether
23it will grant the permission.

That is very different, and much more substantial language from what there is now, “unless authorized to do so under rules promulgated by the department”. Even if we were to just interpret that today as “the department can create whatever regulations it wants for native reptiles and amphibians”, there is still a major statutory construction problem here. And it never clearly states in 169.12 (or back then, 22.12) that native reptiles and amphibians require a license, which is contrary to s. 169.04(1)b) found in CR 25-092’s original scope statement.

Let’s look at all of the other rulemakings the department has promulgated since Chapter 169 originally became Act 56 in 2001 relating to native herptiles, which include CR-03-30, CR-05-031, CR-14-025, and most recently, CR-25-092. Scope statements for most of these earlier rulemakings, except for CR 14-025 were not available to go by unfortunately, so we have just the authorizing statutes for the rules themselves to go by.

But what it shows here is telling. S. 169.04 has never been used or appeared as an authorizing or interpreted statute in any of these prior rulemakings, which makes CR 25-092 and its concepts a significant departure from Wisconsin’s prior longstanding regulations as to how native herptiles have been regulated for the past 25 years or more.

There is another big statutory construction problem here though. Section 7 of the rule CR 25-092 adds the following default ban, or prohibition:

NR 16.12 Possession of reptiles and amphibians.

(1) Applicability. This section applies to the collection, possession and exhibition of live native wild reptiles and live native wild amphibians in Wisconsin except those listed as endangered or threatened in s. NR 27.04.

(2) Possession restricted. Beginning on January 1, 2027, no person may take from the wild or possess any live native amphibians or reptiles except as provided under sub. (3). Any live native wild reptiles or amphibians possessed before January 1, 2027, must be registered with the department in a manner determined by the department on or before June 30, 2027. Any native wild reptiles or amphibians not registered with the department on or before June 30, 2027, will be presumed to be in violation of this chapter.

So what sort of “registration system” is found within Chapter 169 which would support this for animals which have been able to be legally kept and bred for many decades in Wisconsin? Interestingly, even the Wisconsin Legislative Rules Clearinghouse had questions on that. In its review of the rule’s materials, is the following:

b. Within SECTIONS 7 and 8 of the proposed rulemaking order, s. NR 16.12 (2) and (3) generally provide that native amphibians and reptiles possessed prior to January 1, 2027, must be registered with the department. The department could consider providing additional detail regarding these registration requirements, as it does not appear that other provisions within the proposed rulemaking order or the chapter, as currently promulgated, address this type of registration.

So what will the details be for this type of “registration system”, and will WDNR even be able to follow through on that? Or will they finally realize that the new rule will be practically unenforceable and structurally defective, and therefore be forced to rescind it after all? As of November 2026, we have not seen or heard any details into this. Time will tell whether or not we even do as we move into early next year.

If the Wisconsin Legislature wanted native herptiles to be regulated identically to “all other wildlife and vertebrate taxa in Wisconsin”, it could have done that in 1997 when the first captive wildlife bills began to be drafted. It did not. It recognized the many pragmatic considerations associated with regulating native herptiles separately. That, therefore, was a decision the Legislature already deliberately made. WDNR should have stayed in its own lane with CR 25-092.

But there is one last major discrepancy here as well. S. 169.04 was also never listed or included in the Statutes Interpreted section of CR 25-092 when, as we have clearly shown above, it was. Waitasecond! That is a big transparency problem with CR 25-092 which the Wisconsin Legislature should take a closer look into next session. And we will do everything we can to make sure that it does.

The big issue we have here seems to be this: The Legislature originally defers regulations entirely to the agency (in this case, WDNR).WDNR does not have an affirmative legislative framework to go by for native herptiles, so they just defer back to the Legislature with approximately 55 to 65% of CR 25-092 being just replications of statutes that already exist in Chapter 169. The Legislature needs to work with stakeholders in order to create a more affirmative regulatory structure for herptiles which protects and conserves our native species and the environment, while also allowing responsible reptile keepers to be able to keep, sell, and breed responsibly sourced native amphibians and reptiles. Wisconsin needs reasonable, pragmatic, and enforceable regulations written into legislative statutes, not just defer them entirely to the agencies. The State of Illinois has done just that, as well as most other U.S. states, which absolutely do allow at least some keeping and possession of native herptiles to some extent or another.

Otherwise, this will just be a never ending circular problem.