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Hill v. Missouri Department of Conservation

Court of Appeals of Missouri, Eastern District, First Division

October 10, 2017

DONALD HILL, et al, Respondents,

         Appeal from the Circuit Court of Gasconade County Hon. Robert D. Schollmeyer

          ROBERT G. DOWD, JR., Presiding Judge

          The Missouri Conservation Commission ("the Commission"), its individual members, James Blair, David Murphy, Marilynn Bradford and Don Bedell, and the Missouri Department of Conservation (collectively "Appellants") appeal from the judgment entered in favor of Donald Hill, Travis Broadway, Oak Creek Whitetail Ranch, LLC, Winter Quarters Wildlife Ranch, LLC, Kevin Grace and White Tail Sales and Sendee, LLC, (collectively "Respondents") enjoining enforcement of amended regulations enacted by the Commission pertaining to the importation and possession of deer, which took effect in January of 2015. We would reverse the judgment of the trial court. However, because of the general interest and importance of the questions involved here, we transfer this case to the Missouri Supreme Court under Rule 83.02.

         The Commission, a constitutional entity, was created by Missouri voters through a ballot initiative in 1936, which vested the Commission with authority over the "control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wildlife resources of the state, including hatcheries, sanctuaries, refuges, reservations and all other property owned, acquired or used for such purposes and the acquisition and establishment thereof, and the administration of all laws pertaining thereto." Mo. Const, art. IV, § 40(a). The Commission now acts through the Missouri Department of Conservation. See Section 252.002.

         Among the wildlife the Commission regulates are elk and white-tailed deer, which are native to Missouri. Both species are in the family cervidae, commonly known as cervids. Respondents participate in Missouri's captive cervid industry, which relies on two main types of activities: (a) selective breeding of cervids for desirable genetic traits like large antler racks and (b) the operation of private hunting preserves, where hunters pay thousands of dollars to hunt and take trophy bucks. Respondents rely on an interstate market in captive cervids to obtain the animals they need for their breeding operations and to meet demands for hunting on their preserves.

         Respondent, Donald Hill, is the co-owner of Oak Creek Whitetail Ranch, a 1, 300-acre hunting preserve and white-tailed deer breeding operation, and Respondent, Travis Broadway, is the owner of Winter Quarters Wildlife Ranch, a 3, 000-acre hunting preserve and luxury lodge. Respondent, Kevin Grace, runs a breeding facility for white-tailed deer, sika and red deer. He also brokers deals between breeders and hunting preserves and presides over captive cervid auctions each year.

         Chronic Wasting Disease ("CWD") is a fatal neurodegenerative disease infecting cervids. It is spread directly through animal-to-animal contact as well as indirectly through environmental contamination. CWD was first detected in Missouri in February 2010 at Heartland Wildlife Ranches ("Heartland"). There is no method approved by the United States Department of Agriculture for testing cervids for CWD while they are still alive. The approved test must be performed post-mortem. CWD also has an incubation period of eighteen months, meaning a cervid can be CWD-positive for a period of time without showing any signs of the disease.

          In an effort to manage the continued threat of CWD, the Commission proposed a series of amended regulations, which went into effect January 2015 and were directed at Missouri's captive cervid industry. The industry had been subject to previous unchallenged regulation by the Commission. Respondents filed the present action against Appellants challenging these amended regulations and seeking to enjoin Appellants from enforcing them. Respondents claim that because their captive cervids were not "game" or "wildlife resources of the state" under Article IV, Section 40(a) of the Missouri Constitution, the Commission did not have the constitutional authority to regulate Respondents' cervids. Respondents also claim the amended regulations interfere with their fundamental right to farm. The specific amended regulations that Respondents challenged include the following:

1. 3 CSR 10-4.110(1), prohibiting the possession of wildlife except as permitted by the Commission's regulations and clarifying that it applied to "wildlife raised or held in captivity";
2. 3 CSR 10-9.220(2), designating all white-tailed deer, white-tailed deer hybrids, mule deer and mule deer hybrids in the state, without regard for ownership or captivity, as "Class I Wildlife" and imposing fencing and confinements requirements;
3. 3 CSR 10-9.220(3), imposing new fencing and confinement requirements for facilities that hold cervids;
4. 3 CSR 10-9.353 and 3 CSR 10-9.359, imposing a variety of permitting, record-keeping and reporting requirements on breeding cervids;
5. 3 CSR 10-9.565(1)(B) and 3 CSR 10-9.566: imposing comparable veterinary-testing, record-keeping and reporting requirements on hunting preserves;
6. 3 CSR 10-9.353(2), (9) and 3 CSR 10-9.565(1)(B)(9), prohibiting out-of-state cervids from being shipped to breeding facilities or held on hunting preserves ("Only cervids born inside the state of Missouri may be propagated, held in captivity, and hunted on big game hunting preserves.").

         After issuing a preliminary injunction, the trial court held a hearing on the full merits of Respondents' claims. Following that hearing, the trial court declared all the challenged amended regulations to be invalid pursuant to Section 536.050.1[1] and prohibited the Commission from directly or indirectly relying on or enforcing them. The trial court, however, specifically allowed the Commission to rely on and enforce the regulations as they existed prior to the January 2015 amendments.

         The trial court addressed Article IV, Section 40(a) of the Missouri Constitution, which vests in the Commission the "control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wildlife resources of the state" The trial court found that the evidence showed that the Respondents' cervids were not "game . . . [or] wildlife resources of the state" but were privately owned by Respondents and that Appellants therefore "have not been granted valid rulemaking authority on this subject." In addition, the trial court found that Respondents and others affected by the regulations at issue were allowed both to import "white-tailed deer, white-tailed deer hybrids, [and] mule-deer hybrids" into Missouri and to hold live cervids imported into Missouri in licensed big game hunting preserves, subject to existing regulations by the Missouri Department of Agriculture or any other relevant state or federal regulations not challenged in the present case, including the Commission's regulations as they existed prior to the January 2015 amendments.

         The trial court found that if the amended regulations were enforced, Respondents "would suffer irreparable harm in the form of lost business, loss of customer goodwill, and being subject to unauthorized enforcement activities in a manner that intrudes upon their property rights." The trial court also noted: the regulations had been under development for years, the prevalence of CWD in Missouri remains extremely low, the Commission is managing CWD through measures shown to stabilize its prevalence in other states, no mass mortalities attributed to CWD have occurred since the amended regulations were proposed, there have been no new CWD~positive tests in captive preserves in the previous five years and CWD has had no impact on hunting patterns in Missouri since it was first detected, except in some target areas. The trial court also noted that captive cervids pose less of a risk to the spread of CWD outside their captive preserves, and the state has a better ability to respond to a CWD-positive cervid in a captive preserve because the cervids are enclosed.

         The trial court further found that Respondents are engaged in "farming and ranching" practices protected by the Missouri Constitution. In particular, the trial court noted that Respondents' activities, including "acquiring, keeping, feeding and caring for herds of cervids, " breeding the cervids for desired traits and building and maintaining appropriate fencing and other facilities to contain the cervids, fall within the plain and ordinary meaning of "farming and ranching" practices. The trial court further found: the amended regulations substantially burden Respondents' right to farm and ranch by eliminating the interstate market for captive cervids and causing Respondents to potentially incur hundreds of thousands of dollars to comply with the amended fencing regulations. The trial court noted that Respondents face the possibility of the cancellation of scheduled hunts and an inability to meet their customers' demand for both breeding and hunting events if they are unable to import cervids from outside the state. The trial court concluded that because the amended regulations would significantly impact Respondents' right to farm and ranch, the amended regulations were subject to strict scrutiny.

         The trial court found the amended regulations are not narrowly tailored, and therefore, do not survive strict scrutiny. The trial court also concluded: the importation ban is not narrowly tailored and is "patently both over-inclusive and under-inclusive." It is over-inclusive because it prohibits importation of healthy cervids under a separate United States Department of Agriculture program, and it is under-inclusive in that the Commission claims that eliminating interstate movement of cervids is essential to managing CWD but the Commission itself also recently imported elk, which are also cervids. The trial court found that historically an "extraordinarily small percentage" of cervids shipped from CWD-certified herds were later found to be CWD-positive.

         As for the amended regulations related to fencing, the trial court noted the previous version of the regulations included fencing standards for these captive preserves. The trial court found that because the Commission suggested that a variance to the amended fencing regulations could be granted, the amended regulations could not be considered strictly necessary to achieve a compelling state interest. In addition, the trial court found the amended fencing regulations are not ...

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