Missouri Deer Owners Win Preliminary Legal Challenge

August 14, 2015

Missouri Deer Owners Win Preliminary Legal Challenge Against Restrictive New State Rules

Contact: Jean Paul Bradshaw at Lathrop & Gage LLP (816-460-5507/jpbradshaw@lathropgage.com)

(Aug. 13, 2015) – A Missouri state court has entered a ruling blocking enforcement of new state regulations that threaten the existence of the state’s growing farmed-deer industry by preventing the importation of privately owned cervids into the state.  
In a 33-page ruling entered today, Judge Robert D. Schollmeyer of the 20th Judicial Circuit Court of Missouri granted Plaintiff’s Motion for a Preliminary Injunction in the matter of Donald Hill, et al. v. Missouri Conservation Commission, et al.  The Court held that Plaintiffs are likely to prevail in their argument that the privately owned animals they raise and import for breeding and hunting (including white-tailed deer and other cervids, or hoofed animals) are not subject to regulation by the Missouri Department of Conservation (MDC) as communally owned “wildlife resources of the state.”
As a result, importation of privately owned cervids will be allowed under rules administered by the Missouri Department of Agriculture (MDA).  Prior to the adoption of the new rules by the MDC, the MDA had regulated the importation of cervids as livestock.  Those rules include, among other requirements, that the animal being imported come from a herd that is certified as having no positive test results for Chronic Wasting Disease (CWD), as well as a number of other diseases, for at least five years.  This program was designed by the United States Department of Agriculture.
The order prohibits the MDC from enforcing a controversial series of  new regulations that went into effect earlier this year—including a complete ban on importing cervids into Missouri—until the legality of the regulations can be finally resolved.  The Court found not only that Plaintiffs had shown that the MDC likely was without the authority to issue the new regulations, but that the potential harm to Plaintiffs outweighed any threat posed by Chronic Wasting Disease, the stated reason for the regulations.
“Without question, Plaintiffs will suffer irreparable harm… up to and including the loss of their businesses should the regulations remain in effect throughout the upcoming hunting season,” the Court’s order stated. “By contrast, Defendants cannot show an imminent threat to Missouri’s cervid population or other public interests that would justify the regulations remaining in effect while their Constitutionality is finally resolved.”
Contrary to Defendants’ argument that farmed cervids are communally owned “wildlife resources of the state,” the ruling noted that the Missouri Court of Appeals has already ruled that breeder deer owned by Plaintiff Don Hill were “domestic animals” under Missouri law.  The ruling also noted that the MDC’s own regulations require all “hoofed wildlife of the state” to be excluded from private hunting preserves, and that the department has said in other cases that deer on private hunting preserves are “the sole property” of the preserve owner.  
Despite the claimed risks of spreading Chronic Wasting Disease through interstate cervid movement, the Court noted that the MDC itself has imported free-ranging elk from Kentucky in recent years from herds using CWD certifications very similar to that required by the Missouri Department of Agriculture.  Defendants’ expert witness admitted that free-ranging cervids pose a greater risk of spreading disease-causing agents compared with animals in fenced-in preserves.      
The ruling follows a two-day hearing last month in Gasconade County Circuit Court. The next step in the litigation will be a final hearing on a request that the Court enter a judgment declaring the regulations invalid.  No date for that final hearing has been set.  The named Plaintiffs in the action are Donald Hill; Oak Creek Whitetail Ranch, LLC; Travis Broadway; Winter Quarters Wildlife Ranch, LLC; Troy Popielarz; Kevin Grace; and Whitetail Sales and Service, LLC.  Plaintiffs are being represented by Jean Paul Bradshaw, Jay Felton, Rachel Stephens and Eric Weslander of Lathrop & Gage LLP.  Mr. Bradshaw and Ms. Stephens represented Plaintiffs at the hearing.

 


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