Rules Killing Deer Industry, Breeders Claim

     AUSTIN, Texas (CN) – Two deer breeders accuse Texas of passing emergency rules that unfairly target the captive-bred deer industry and in violation of open-meeting rules.
     Ken Bailey and Bradly Peterson sued the Texas Parks and Wildlife Department, executive director Carter Smith, wildlife division director Clayton Wolf, and big game program director Mitch Lockwood on Oct. 1 in Travis County court.
     The plaintiffs are deer breeders who selectively market white-tailed deer, and both say they have had buyers back out of agreements to purchase deer because of the Parks and Wildlife Department’s emergency regulatory scheme.
     The department estimates there are 3.9 million deer in Texas, with 160,000 of those being captive-bred.
     Bailey and Peterson say they have invested extensive amounts of money, time and energy into the captive-bred deer industry, also called the farmed-deer industry.
     According to the complaint, “Plaintiffs’ industry relies on two main types of activities: (a) the selective breeding and marketing of privately owned white-tailed deer for a desirable genetic characteristic-namely, giant ‘trophy’ antler racks; and (b) ‘destination’ hunting on spacious, privately owned reserves, where hunters might pay tens of thousands of dollars for the privilege of hunting and taking trophy bucks, paying a premium for those with the largest antler racks as measured by commonly used scoring standards.”
     Bailey and Peterson say they have a “vested interest” in keeping their captive-bred deer healthy since they are collectively worth millions of dollars. They say their deer are usually healthier than wild deer because the deer do not have to compete for food, their lineage is tracked and they receive regular veterinary care.
     Deer breeding helps prevent an imbalance in the deer population because bucks with large antler racks have historically been targeted by Texas hunters, the men say.
     The complaint says the central issue in the case is whether captive-bred deer are the property of the breeder or the state. In 2005, the Parks and Wildlife Department asked the Texas Attorney General for an opinion on the scope of its authority over captive-bred deer, but it later withdrew the request.
     Bailey and Peterson say an outbreak of chronic wasting disease at one deer breeder’s facility this year is the cause of the dispute. The disease afflicts the central nervous system of cervids such as deer and elk.
     “The defendants decided that the discovery of chronic wasting disease in one area of the state in June justified the emergency shutdown of the entire industry, across the state, on the eve of the marketing, sale, and transport of captive-bred deer in advance of the opening of the Texas deer-hunting season,” the complaint says.
     Parks and Wildlife implemented a ban on the transfer of captive-bred deer when it shut down the computer application process that allows licensed deer breeders to obtain permits to transport their deer.
     The department “railroaded through emergency rules, without notice and comment rule-making, that effectively place a stranglehold on the transportation of captive-bred deer,” the complaint says.
     “The process by which the defendants put together the emergency rules was steeped in secrecy,” the breeders claim. A “purely advisory” taskforce in which “defendant Smith engaged in one-on-one communications with a number of current and ’emeritus’ members of the Parks and Wildlife Commission” was used to circumvent quorum requirements of the Texas Open Meetings Act, they say.
     Because the taskforce did not comply with open-meetings rules, the emergency rules should be rendered void, according to the breeders.
     Bailey and Peterson say their deer have no links to the facility where chronic wasting disease was discovered and that the department never made any inspections of their deer to determine if they were unhealthy. They say due process requires that the department give them individual notices stating their deer are not healthy before banning transfer permits.
     They say the emergency rules require extensive testing of deer for the disease through laboratory sampling of the hind-brain, or obex, to check for the disease-causing agent. The testing would be required prior to the transport of any captive-bred deer for any purpose other than veterinary treatment, and would result in the destruction of hundreds of deer to obtain samples despite the fact there is no demonstrated risk for the disease in those deer.
     Bailey and Peterson also contend that much of the required testing under the emergency rules would be done on captive-bred deer taken by hunters. Such deer are no longer the breeders’ property and not under their physical control.
     “The Parks and Wildlife Department has previously admitted that captive-bred deer are private property until and unless captive-bred deer are released into the wild,” the complaint says. “The actions of defendants Smith, Wolf, and Lockwood, however, reverse that position; they assert that deer breeders and land owners with permits to purchase and manage captive-bred deer hold only ‘temporary possession’ of the deer.
     “The department has just gone too far in treating captive-bred deer as if they are the same as wild deer,” the breeders continue.
     Bailey and Peterson say the department violated the state constitution by suspending transfer permits statewide because “a few captive-bred deer in one county are confirmed to have chronic wasting disease.” Only the Legislature has the power to suspend laws, they say.
     Given that less than 5 percent of deer are captive-bred, this “highlights the irrational basis for targeting only captive-bred deer,” according to the complaint.
     Additionally, the department has circumvented provisions of the Texas Agriculture Code that gives authority to the Texas Animal Health Commission to regulate reportable diseases.
     “The commission has not found the factual basis to implement a quarantine or movement restrictions on all captive-bred deer state-wide,” the complaint says.
     Likewise, the department’s emergency rules are not supported by evidence showing a threat to the species. “What the defendants lack is scientific evidence that the deer-breeding industry is in any way responsible for chronic wasting disease or that effectively shutting down the deer-breeding industry state wide is necessary to preserve the sustainability of the species,” according to the complaint.
     Steve Lightfoot of the Texas Parks and Wildlife Department gave the following statement: “How we manage chronic wasting disease in Texas will ultimately shape our deer-hunting heritage for future generations. The impacts of this lethal neurological disease reach far beyond any facility or ranch. The disease has the potential to impact Texas’ 700,000 licensed deer hunters, their families and the thousands of people in rural communities across the state who rely on deer hunting for their livelihoods. Texas has chosen a path of reasonable and prudent measures to manage this disease in a manner that will ensure the future of our state’s most prized wildlife resource.”
     Bailey and Peterson seek declaratory judgment quieting title to their deer, an order voiding the emergency rules for violating the Open Meetings Act, due process and equal protection.
     They also seek mandamus relief requiring the defendants to comply with their duty to issue movement permits.
     They are represented Jennifer Riggs in Austin and Gary Ramirez in Corpus Christi, Texas.

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