Endangering Missouri's Captive Cervid Industry.

• Author: Hunter, Lauren

1. INTRODUCTION

   Imagine a crisp autumn morning just after the break of dawn. A young hunter sits silently, waiting and watching, basking in the subtle sunlight serenading across the Missouri landscape. Out of the corner of her eye, she sees it --a beautiful ten-point buck slipping slowly into view. Steadily, she takes aim as the beast strolls perfectly between her sights. With a flash, the creature falls and adrenaline pulsates through the young hunter's veins. Each hunting season, these exhilarating experiences are facilitated by captive cervid (1) breeders like Donald Hill, co-owner of Oak Creek Whitetail Ranch. (2) However, with new, demanding regulations promulgated by the Missouri Conservation Commission ("Commission") (3), Hill now finds his business caught between the crosshairs.

   This Note seeks to explore the validity of regulations proposed by the Commission to prevent the spread of chronic wasting disease ("CWD")--a fatal neurodegenerative disease--in cervids, such as white-tailed deer. Part II discusses the facts and circumstances surrounding the Missouri Supreme Court's decision in Hill v. Missouri Department of Conservation. (4) Part III dissects the delicate balance between private property interests and government interests, the scope of the Commission's regulatory authority, as well as the driving forces behind the "right-to-farm" amendment to the Missouri Constitution. Part IV unpacks the court's reasoning in Hill before concluding with a discussion on the implications of the court's holdings on private property rights, the regulatory authority of the Commission, and the interpretation of the right-to-farm amendment.

2. FACTS AND HOLDING

   Donald Hill and his co-plaintiffs, Travis Broadway, Kevin Grace, and Whitetail Sales and Service, LLC (hereinafter "Breeders"), each participate in the selective breeding of captive cervids, such as white-tail deer and elk. (5) In October of 2014, the Commission began amending its regulations to impose stricter standards on the captive cervid industry. (6) Shortly after the Commission's regulations were approved and took effect, the Breeders sued to enjoin the Commission from enforcing its regulations. (7) The Breeders asserted that the new, more stringent regulations would prevent them from successfully operating their businesses and violate their right to farm as granted to them in the Missouri Constitution. (8) Furthermore, the Breeders argued that these regulations fell outside the scope of the Commission's regulatory authority. (9) In response to the Breeders' lawsuit, the Commission contended that regulating the captive cervid industry did fall within its regulatory authority, (10) and, moreover, its stricter regulations on cervid breeding facilities were vital to preventing the spread of CWD. (11)

   CWD is a fatal neurodegenerative disease that infects cervids, such as white-tailed deer. (12) Symptoms of CWD have been likened to mad cow disease, and the two infections are part of the same family. (13) Infecting its victims through contact with proteins--known as prions--the disease can be passed directly through animal-to-animal contact or indirectly through environmental contact with plants, water, and other matter. (14) The disease has an eighteen-month incubation period between initial infection and initial symptoms, and there are no methods of testing animals for the disease while they are still alive. (15) Even if a live test for CWD became available, no cure or vaccination for the disease has yet been discovered or developed. (16) All these factors make CWD incredibly contagious and particularly difficult to contain. (17)

   The increased density of animals in captive cervid facilities increases the risk of CWD transmission. (18) Recognizing this risk and attempting to minimize it, the Missouri Department of Agriculture ("MDA") began regulating captive cervid facilities pursuant to its authority under the Missouri Livestock Disease Control and Eradication Law ("MLDCEL"). (19) These regulations state that captive cervids cannot enter Missouri if they come from a herd that has tested positive for CWD within the previous five years or if they originate from an area where CWD has been reported in the previous five years. (20) The MDA also requires individual identification through ear tagging, strict veterinary records, and enrollment in the CWD program for all captive cervids over one year old. (21) To move within the State of Missouri, captive cervids must meet a CWD status standard, and any herds suspected of contracting CWD must be quarantined. (22) "In 2013, the [MDA]'s CWD-monitoring program was [named ]an 'Approved State Chronic Wasting Disease Herd Certification Program' by the United States Department of Agriculture [("USDA")]." (23)

   On October 17, 2014, the Commission proposed a handful of amendments to regulations directed at the farmed-cervid industry in an attempt to manage the spread of CWD in the Missouri cervid population. (24) The Commission's proposed amendments were approved and took effect on January 30, 2015. (25) The changes to the regulations included clarifying that the Commission's regulations extended to "wildlife raised or held in captivity"; (26) defining "Class I Wildlife" to include white-tailed deer, white-tailed deer hybrids, mule deer, and mule deer hybrids and imposing fencing and confinement requirements on said wildlife class; (27) imposing new fencing requirements for captive cervid facilities; (28) imposing veterinary-testing, record-keeping, and reporting requirements on hunting preserves; (29) and prohibiting out-of-state cervids from being shipped to breeding facilities or held on hunting preserves. (30)

   As participants in the captive cervid industry, (31) the Breeders are all too familiar with the threat that CWD poses to their herds. (32) With cervid herds collectively worth millions of dollars, the Breeders' all have a significant interest in keeping their cervids healthy. (33) The Breeders' cervids are born and bred in captivity and are held on private property in enclosed hunting preserves or breeding facilities throughout their lives. (34) All new cervids that enter the Breeders' properties are purchased from other captive cervid owners. (35) Much like other domesticated animals, the Breeders' cervids are bred naturally or through artificial insemination and are bought, sold, or auctioned to other private breeding facilities and hunting preserves. (36) To successfully run their businesses, the Breeders rely on their ability to selectively breed white-tailed deer and elk, promoting desirable characteristics, such as large antler racks. (37) Selective breeding largely depends on the importation of live breeding stock sourced from out-of-state breeding facilities; (38) however, the Commission's updated regulations prohibit the importation of live cervids from outside the state, thus endangering the Breeders' selective breeding stock. (39) Without the ability to import and hold captive cervids from outside the state, the Breeders will be unable to meet customer demand for "trophy" bucks. (40)

   Because of the threat the Commission's regulations posed to their businesses, the Breeders sued to enjoin the Commission from enforcing its regulations. (41) The Breeders argued that the regulations were invalid because the animals at issue did not fall within the scope of the Commission's regulating authority as defined under article IV, section 40(a) of the Missouri Constitution. (42) Furthermore, the Breeders asserted that the regulations inhibited their fundamental right to engage in farming and ranching practices as granted by article I, section 35 of the Missouri Constitution, also known as the right-to-farm amendment. (43) The Breeders maintained that if the Commission's regulations were enforced, they would face irreparable harm, including significant loss of business and potentially bankruptcy. (44)

   The Commission countered that even though the Breeders' operations were privately owned, involved privately bred cervids enclosed on private property, and were already subject to the regulation of the MDA, the cervids were still wild by nature and were thus "game" and "wildlife" subject to the regulation of the Commission. (45) As to the Breeders' assertion that the regulations violated their right to farm, the Commission argued that the right-to-farm amendment did not apply to the Breeders because they were not engaged in farming or ranching practices. (46)

   After the Breeders requested a preliminary injunction, the court held an initial hearing on July 23, 2015. (47) On August 13, 2015, the Circuit Court of Gasconade County, the Honorable Judge Robert D. Schollmeyer presiding, granted the Breeders' request for a preliminary injunction, finding that the Breeders had demonstrated a probability of success on the merits. (48) A second hearing on the full merits of both counts was held on June 8, 2016. (49) After the second hearing, the court found in favor of the Breeders, declaring the regulations imposed by the Commission invalid and granting the request for a permanent injunction. (50)

   The Commission appealed the circuit court's decision on both counts. (51) The Missouri Court of Appeals for the Eastern District heard the appeal. (52) For its first point on appeal, the Commission claimed the circuit court erred in finding that the regulations at issue were not authorized under the Missouri Constitution. (53) More specifically, the Commission argued that it was error to conclude that privately owned animals were neither game, wildlife, nor a resource of the state as defined under article IV, section 40(a). (54) On its second point, the Commission argued that the circuit court erred in holding that the regulations inhibited the Breeders' right to farm as granted by article I, section 35. (55) The Eastern District affirmed the circuit court's findings as to count one and two but requested transfer to the...