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Hill v. Missouri Department of Conservation

Supreme Court of Missouri, En Banc

July 3, 2018

DONALD HILL, et al., Respondents,
v.
MISSOURI DEPARTMENT OF CONSERVATION, et al., Appellants.

          APPEAL FROM THE CIRCUIT COURT OF GASCONADE COUNTY The Honorable Robert Schollmeyer, Judge.

          Paul C. Wilson, Judge.

         The Missouri Conservation Commission ("Commission"), its individual members, [1] and the Missouri Department of Conservation ("Appellants") appeal the judgment of the circuit court in this declaratory and injunctive relief action brought by Donald Hill and Oak Creek Whitetail Ranch, LLC, Travis Broadway and Winter Quarters Wildlife Ranch, LLC, and Kevin Grace and Whitetail Sales and Service LLC ("Respondents"). This Court has jurisdiction under article V, section 10 of the Missouri Constitution, and the judgment is reversed.

         Background

         This case concerns the regulatory authority of the Commission, which was created by an amendment to the Missouri Constitution first approved by the voters in 1936. Under this amendment, the Commission has authority over the "control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wildlife resources of the state." Mo. Const. art. IV, § 40(a). Today, the Commission acts through the Missouri Department of Conservation, see § 252.002, RSMo 2000, and regulates a variety of animal species, including elk and deer. These species are members of the family cervidae and are commonly known as cervids.

         Respondents participate in the captive cervid industry, which generally engages in two types of commercial activities: the selective breeding of cervids for large antlers and other desirable genetic traits, and the operation of private hunting preserves at which hunters pay 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 Hill is the co-owner of Oak Creek Whitetail Ranch, a large hunting preserve and white-tailed deer breeding operation. Evidence in the record shows he has about 300 deer in his hunting preserve and about 500 deer in his breeding facility. Respondent Broadway is the owner of Winter Quarters Wildlife Ranch, a large hunting preserve and luxury lodge. He offers three-day guided hunts of a variety of animals, including elk. Respondent Broadway also maintains an elk and red deer breeding operation to stock his hunting preserve. Respondent Grace is the owner of Whitetail Sales and Service LLC, a breeding facility for white-tailed deer, sika, and red deer. He also brokers deals between breeders and hunting preserves and presides over periodic captive cervid auctions. Respondents cannot operate their hunting preserves and breeding facilities without permits from the Department of Conservation. See § 252.040, RSMo 2000; 3 CSR §§ 10-9.350, 10-9.351, 10-9.560. Respondents Hill and Broadway have separate permits for their breeding and hunting activities, and Respondent Grace has a breeder's permit.

         Cervids, like those owned by Respondents, can be infected with a fatal neurodegenerative disease known as chronic wasting disease ("CWD"). CWD can be spread directly through animal-to-animal contact or indirectly through environmental contamination. Symptoms of CWD include emaciation, bizarre behavior, and problems with movement. Over time, the disease seriously damages the brain of an infected cervid and eventually results in death. The disease has an incubation period of roughly 18 months, however, meaning a cervid can carry CWD - and possibly infect other cervids with it - long before it shows any symptoms. There is currently no known cure for the disease, and there is no approved method for testing cervids for CWD while they are still alive. The only approved test must be performed postmortem.

         CWD was first discovered in 1967. Since then, it has been detected in 24 states, two Canadian provinces, South Korea, and Norway. CWD was first detected in Missouri in 2010 at Heartland Wildlife Ranches (which was eventually purchased by Respondent Broadway and renamed Winter Quarters Wildlife Ranch). In response, the Commission created a surveillance zone within 25 miles of that facility. From 2010 to 2013, the Commission tested more than 14, 000 deer within this zone and found 10 free-ranging deer infected with CWD. The Commission later tested 356 deer at a second Heartland facility (also owned now by Respondent Broadway) and found 10 captive deer infected with CWD.[2] Over the next three years, the Commission detected CWD in 14 free-ranging deer, several of which were found near closed or currently operating captive cervid facilities.

         In an attempt to eradicate CWD, the Commission proposed a series of regulatory amendments that were to take effect in January 2015. Those amendments were directed at the captive cervid industry, which already was regulated by the Commission. As amended, the regulations most pertinent to this case (a) banned the importation of cervids, see 3 CSR §§ 10-9.353(2), (9), 10-9.565(1)(B)(9); (b) imposed more rigorous fencing requirements, see 3 CSR § 10-9.220(3); and (c) imposed more rigorous recordkeeping and veterinary inspection requirements, see 3 CSR § 10-9.353(3).

         Respondents sued Appellants to prevent these amended regulations from going into effect. After issuing a preliminary injunction, the circuit court held a trial. Following the trial, the circuit court declared the challenged regulations were invalid and enjoined the Commission from enforcing them. The circuit court entered judgment for Respondents on Count I of the petition, concluding the amended regulations were invalid and could not be enforced against Respondents because their cervids are not "game" or "wildlife resources of the state" that are subject to regulation by the Commission under article IV, section 40(a), of the Missouri Constitution.[3] The circuit court also entered judgment for certain Respondents[4] on Count II of the petition, concluding the amended regulations were invalid and could not be enforced because they infringed upon Respondents' right to farm under article I, section 35 of the Missouri Constitution.

         Analysis

         In an appeal from a court-tried civil case, "the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." White v. Dir. of Revenue, 321 S.W.3d 298, 307-08 (Mo. banc 2010) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). The circuit court's determinations of questions of law are subject to de novo review. See Pearson v. Koster, 367 S.W.3d 36, 43-44 (Mo. banc 2012).

         Appellants raise three points. First, they claim the circuit court erred because Respondents' cervids are "game" and "wildlife resources of the state" and, therefore, can be regulated by the Commission under article IV, section 40(a) of the Missouri Constitution. Second, Appellants claim the circuit court erred because the Commission's exercise of its constitutional authority to promulgate the regulations at issue in this case does not implicate or infringe upon Respondents' right to farm under article I, section 35 of the Missouri Constitution. Finally, Appellants claim the circuit court erred by enjoining the Commission's enforcement of the new regulations against any person in Missouri, rather than merely against Respondents. Because this Court reverses and enters judgment for Appellants on the first two claims, it does not reach or decide this third claim.

         I.

         The Commission's power to regulate Respondents' cervids derives from article IV, section 40(a), of the Missouri Constitution. In pertinent part, this provision authorizes the Commission to regulate "the bird, fish, game, forestry and all wildlife resources of the state." Mo. Const. art. IV, § 40(a). In interpreting this language, the Court must ensure the words of this provision bear the meaning they were understood to have in their proper context when Missouri voters adopted this provision. See Farmer v. Kinder, 89 S.W.3d 447, 452 (Mo. banc 2002).

         Respondents' claim is captive cervids are not "wildlife" or "game" and, therefore, the Commission has no authority under article IV, section 40(a), to promulgate regulations concerning them. Respondents contend the term "wildlife" refers to individual animals that are both: (a) wild by nature; and (b) never tamed or domesticated. Even though captive cervids are members of species that are wild by nature, Respondents argue they cannot be "wildlife" because they are domesticated and, therefore, akin to livestock. Respondents also appear to argue "game" is a subset of "wildlife," i.e., that "game" is merely "wildlife" pursued for sport, food, or other lawful purposes. Because captive cervids are too domesticated to qualify as "wildlife," Respondents contend those individual animals cannot - by definition - qualify as "game."

         The Court rejects these readings. The terms "game" and "wildlife" are plain and unambiguous as used in article IV, section 40(a), which is concerned with the preservation and conservation of the state's forestry and wildlife resources. In this context, the term "wildlife" plainly includes all species that are wild by nature. See, e.g., Wild Animal, Black's Law Dictionary (10th ed. 2014) (the term "wild animal" - or animal ferae nature - refers to "[a]n animal that is not customarily devoted to the service of humankind in the place where it normally lives," especially "a type of animal that … is naturally untamable, unpredictable, dangerous, or mischievous").[5] Similarly, the term "game" plainly includes all species that are wild by nature and that are often pursued for sport, food, or other lawful ends. See Webster's Third New International Dictionary 933 (1966) ("game" are "animals considered worthy of pursuit by sportsmen; esp : wild animals hunted for sport or ...


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