Academic journal article Missouri Law Review

Endangering Missouri's Captive Cervid Industry

Academic journal article Missouri Law Review

Endangering Missouri's Captive Cervid Industry

Article excerpt

I. 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.

II. 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"). …

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