Has anyone ever legally challenged a states closure of its borders to farmed whitetails? How many states currently have closed borders and what reason did they use to JUSTIFY the closing of those borders?
Closing Borders
- Thread starter Hollowroad Whitetails
- Start date
These closed border laws can only be upheld if the state can show that the law serves a significant local interest that could not be furthered by a non-discriminatory law. This is something the closing state must be able to demonstrate. Is prevention of CWD the cited "local interest" these closed states are trying to protect against? I know the more recent closures and bans relate to CWD, but how about a state such as Texas?
Closing of borders to the interstate commerce of certified healthy farm raised deer hardly seems appropriate when wild whitetails can freely cross from state to state and even multiple states. A wild deer from Ohio is not going to know that it is crossing into Pennsylvania or New York or Indiana and vice versa. For all we in Pennsylvania know, the CWD found here could have walked across our border in a wild deer and spread it to the farmed deer.
I have always questioned that also. We all know that the CWD card is BS. I would think this is a trade embargo. The state commissioners of commerce need to get involved in this.
Gary
Gary
The saddest part of it all is ...there were Deer Farmers involved with getting the borders closed......THAT should be the first priority of this industry to address!! ......if that happened in any other industry they would be burned out of their own homes!! I'm not saying that is what needs to be done....but they certainly should be held accountable for their actions!!
Joined Oct 2009
3,165 Posts | 1+
upstate ny
Dan,
NY is trying to close the borders on the basis of the CWD fear that they do not want it in NY. We have expressed our concerns with the wild deer roaming from state to state and not one person is going to tell a deer that they can't walk into NY, PA, OH or any other state. The State guys just shrug their shoulders and say you are right but if we can prevent it from coming in, they we are going to prevent it. Our Ruling expires Oct 17th and then it will go to public comment. In the meantime, we are putting emails together to try to stop the ruling.
NY is trying to close the borders on the basis of the CWD fear that they do not want it in NY. We have expressed our concerns with the wild deer roaming from state to state and not one person is going to tell a deer that they can't walk into NY, PA, OH or any other state. The State guys just shrug their shoulders and say you are right but if we can prevent it from coming in, they we are going to prevent it. Our Ruling expires Oct 17th and then it will go to public comment. In the meantime, we are putting emails together to try to stop the ruling.
If they make their decision on public comment then the border will likely close. The public is in great fear of CWD, though it is not understood. I don't know how many hunters there are in NY but I suspect a high number like PA, putting you at a great disadvantage since the general hunting public will be supporting closed borders. That's why it is important to let them know that although it might be what the public wants, it's not legal and legal action will be taken. Interstate commerce is a fundamental right every person/industry has the right to expect.
Joined Apr 2009
1,136 Posts | 0+
Bedford, PA
Daniel - Not to put you on the spot, but perhaps based on your profession you may be able to help direct us on a local if not National level. While we are taking steps to be represented by legal counsel, any and all assistance can be helpful.
Joined May 2009
2,369 Posts | 0+
Chillicothe, Missouri
Hollowroad Whitetails said:
Daniel, I agree in Missouri.................Folks DO NOT know the difference between CWD and EHD..........The Public believes what MDC tells them and MDC makes NO real attempt to Educate the Public Otherwise!............All MDC want is the Public and Hunters to wage war against............Deer Farmers and it is playing out well for MDC and Public Perception of Deer Farmers !!
There surely are not many who believe all borders will not be closed in the next couple years. States "leaders" will be looking for ways to protect their investments by making deals to prolonging their income. I compare it to a person freezing to death, first the fingers and toes, then arms and legs and then the vitals. We are at the stage of losing the arms and legs now.
Joined Feb 2013
780 Posts | 1+
Markleville IN
Mike:
I am trying to educate myself on the issues so that I can put my legal experience to work and help in anyway I can. The legal profession has many different areas of expertise. The area of federal and state regulation and interstate commerce rights, are not my areas if expertise. Although I recieved education in these areas, I have not practiced them. That does not mean that I cannot educate myself on the issue and obtain guidance from colleagues who do in order to assist in what I believe is a very important cause. Right now I am trying to obtain as much information as I can and doing research on the issue.
I will also myself available to assist legal counsel in our state or any other states who are fighting this battle by doing legal research etc in order to offset legal fees. If the PA Deer Farmers Association would like my help and guidance, I am only a phone call away. You were there when I needed you and I will support you in anyway I can. I never forget.
I am trying to educate myself on the issues so that I can put my legal experience to work and help in anyway I can. The legal profession has many different areas of expertise. The area of federal and state regulation and interstate commerce rights, are not my areas if expertise. Although I recieved education in these areas, I have not practiced them. That does not mean that I cannot educate myself on the issue and obtain guidance from colleagues who do in order to assist in what I believe is a very important cause. Right now I am trying to obtain as much information as I can and doing research on the issue.
I will also myself available to assist legal counsel in our state or any other states who are fighting this battle by doing legal research etc in order to offset legal fees. If the PA Deer Farmers Association would like my help and guidance, I am only a phone call away. You were there when I needed you and I will support you in anyway I can. I never forget.
Joined Apr 2009
1,136 Posts | 0+
Bedford, PA
Thanks Daniel. I understand. I have several friends that are attorneys, and they wouldn't know where to begin in helping with our particular situation. Obviously there is specific training.
Thanks for opening the door. I will follow up with you once I have more information.
Best,
Mike
Thanks for opening the door. I will follow up with you once I have more information.
Best,
Mike
If anyone has any thoughts or insight, please do not hesitate to pick up the phone and call me, shoot a text or email. Communication on a large scale is important.
Jerrilee: Many states have tried to close borders for different reasons, some, I am sure have done so successfully but many attempts fail once litigated. I can think of one example....the transportation of garbage and waste into other states. States have tried to close borders to limit this, but ultimately failed. Those states would cite health safety and welfare as reasons, similar to what you are seeing here. I even read a case out of Oklahoma I believe, where the state tried to close borders to the transportation of minnows over state lines. Yes, you heard me right, minnows.
If u look deep enough into the issue it seems to always come back to politics, closing borders helps certain people within the state to monopolize an industry to an extent. Not saying that is what is happening here, because there is no question that CWD started it, however, there will be farmers in those states who see a brighter future with closed borders.
If u look deep enough into the issue it seems to always come back to politics, closing borders helps certain people within the state to monopolize an industry to an extent. Not saying that is what is happening here, because there is no question that CWD started it, however, there will be farmers in those states who see a brighter future with closed borders.
Joined Feb 2013
780 Posts | 1+
Markleville IN
Daniel,
found this hope it helps
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/statecommerce.htm
Baldwin v G. A. F. Seelig (1935) invalidated a New York law prohibiting the sale in the state of New York of milk bought outside of New York. New York argued the law was necessary to avoid price competition that would drive dairies into producing less wholesome milk. The Court, more realistically, saw the law as protectionist. Justice Cardozo wrote that when "a state tries to isolate itself economically" it must show an important interest for doing so and that it had no less discriminatory mean open for accomplishing its goal. Cardozo's test has become the standard test for evaluating state laws that discriminate against out-of-state commerce.
In another New York milk case, H. P. Hood and Sons v Dumond (1949), the Court applied the Baldwin test for protectionist laws to the state's denial of a license to operate a depot to collect milk for distribution to Boston. The Court saw the license denial as an effort by New York to horde a resource and thereby keep prices for its consumers low.
Dean Milk Co. v Madison (1951) deals with discrimination against out-of-state (as well as much in-state) commerce not by a state, but by a city. At issue in yet another milk case was a Madison, Wisconsin ordinance that prohibited the sale of milk in Madison that was bottled more than five miles from the city's center. The ordinance was justified by Madison as necessary to facilitate inspection by city dairy inspectors. Finding the ordinance discriminatory and believing that reasonable non-discriminatory alternatives existed, the Supreme Court invalidated the ordinance despite the fact that a Milwaukee dairy was shut out of town just as much as one from Illinois.
Edwards v California (1941) considered a challenge to a California law aimed at reducing the influx of dustbowl indigents to the state. The California statute made it a crime to bring into the state any indigent non-resident. Finding people in this case to be "articles of commerce," the majority found the statute to be a form of unconstitutional discrimination against out-of-state commerce. (Four concurring justices would have preferred to invalidate the law on 14th Amendment privileges and immunities grounds.)
In Philadelphia v New Jersey (1976), the Court struck down a New Jersey law that prohibited the importation of garbage into the state. Concluding that garbage was "commerce," the Court viewed the law--despite its environmental justification--as unconstitutional discrimination agains out-of-state commerce. The Court held that as long as reasonable, non-discriminatory alternatives exist that serve the states legitimate interests, they must be used instead of a discriminatory ban.
In Hughes v Oklahoma (1979), the Court invalidated an Oklahoma law prohibiting the interstate transportation of minnows taken from Oklahoma waters. The Court rejected Oklahoma's law that states "own" wildlife and therefore wildlife is not "an article of commerce." The law could be upheld only if the state could show it served a significant local interest that could not be furthered by a non-discriminatory law--this Oklahoma could not show.
Maine v Taylor (1986) is a rare example of a Supeme Court decision upholding a state statute that discriminated against out-of-state commerce. The Court accepted the trial court's findings that no non-discriminatory alternatives to Maine's ban on the importation of live baitfish adequately served the state's interest in preventing the introduction into Maine waters of new parasites and non-native fish species that might upset Maine's ecosystems.
found this hope it helps
http://law2.umkc.edu/faculty/projects/ftrials/conlaw/statecommerce.htm
Baldwin v G. A. F. Seelig (1935) invalidated a New York law prohibiting the sale in the state of New York of milk bought outside of New York. New York argued the law was necessary to avoid price competition that would drive dairies into producing less wholesome milk. The Court, more realistically, saw the law as protectionist. Justice Cardozo wrote that when "a state tries to isolate itself economically" it must show an important interest for doing so and that it had no less discriminatory mean open for accomplishing its goal. Cardozo's test has become the standard test for evaluating state laws that discriminate against out-of-state commerce.
In another New York milk case, H. P. Hood and Sons v Dumond (1949), the Court applied the Baldwin test for protectionist laws to the state's denial of a license to operate a depot to collect milk for distribution to Boston. The Court saw the license denial as an effort by New York to horde a resource and thereby keep prices for its consumers low.
Dean Milk Co. v Madison (1951) deals with discrimination against out-of-state (as well as much in-state) commerce not by a state, but by a city. At issue in yet another milk case was a Madison, Wisconsin ordinance that prohibited the sale of milk in Madison that was bottled more than five miles from the city's center. The ordinance was justified by Madison as necessary to facilitate inspection by city dairy inspectors. Finding the ordinance discriminatory and believing that reasonable non-discriminatory alternatives existed, the Supreme Court invalidated the ordinance despite the fact that a Milwaukee dairy was shut out of town just as much as one from Illinois.
Edwards v California (1941) considered a challenge to a California law aimed at reducing the influx of dustbowl indigents to the state. The California statute made it a crime to bring into the state any indigent non-resident. Finding people in this case to be "articles of commerce," the majority found the statute to be a form of unconstitutional discrimination against out-of-state commerce. (Four concurring justices would have preferred to invalidate the law on 14th Amendment privileges and immunities grounds.)
In Philadelphia v New Jersey (1976), the Court struck down a New Jersey law that prohibited the importation of garbage into the state. Concluding that garbage was "commerce," the Court viewed the law--despite its environmental justification--as unconstitutional discrimination agains out-of-state commerce. The Court held that as long as reasonable, non-discriminatory alternatives exist that serve the states legitimate interests, they must be used instead of a discriminatory ban.
In Hughes v Oklahoma (1979), the Court invalidated an Oklahoma law prohibiting the interstate transportation of minnows taken from Oklahoma waters. The Court rejected Oklahoma's law that states "own" wildlife and therefore wildlife is not "an article of commerce." The law could be upheld only if the state could show it served a significant local interest that could not be furthered by a non-discriminatory law--this Oklahoma could not show.
Maine v Taylor (1986) is a rare example of a Supeme Court decision upholding a state statute that discriminated against out-of-state commerce. The Court accepted the trial court's findings that no non-discriminatory alternatives to Maine's ban on the importation of live baitfish adequately served the state's interest in preventing the introduction into Maine waters of new parasites and non-native fish species that might upset Maine's ecosystems.
Joined Apr 2009
947 Posts | 0+
Annville, Pennsylvania
I think we need to do much much more on education the general public on just what CWD is and how it is not a captive deer disease alone, it threatens us all. The Government has done a great job along with the Humane Society and local Game Commissioners to paint a glum picture to sportsmen who in numbers can sway a politician. WE MUST DO MORE TO GET THE WORD OUT TO THE GENERAL PUBLIC LETTING THEM KNOW THE TRUTH OR JUST CLOSE OUR DOORS BECAUSE THEY ARE REALLY TAKING IT TO US.
Henry: This is something we need to give more thought to. Does the general public and the hunting public care? If they don't care then they won't ever listen. I too thought educating the public was critical, but the more I talk to people the more I think they just don't care. If there is even the slight chance of one of our deer transmitting a disease to the wild deer, you can bet they will be for closed borders and more restrictions, no matter what they are told. The truth is that yes CWD exists and yes, there is a chance that a positive deer can be transported into a state and spread it to the wild deer. However, over-regulating this industry and closing borders will not prevent the transfer of the disease, whose origin no one seems to be able to pinpoint.
The general hunting public will never support us because in large part, they simply don't agree with or like what we do.
I believe the issue simply has to be litigated once and for all.
The general hunting public will never support us because in large part, they simply don't agree with or like what we do.
I believe the issue simply has to be litigated once and for all.
Joined Apr 2009
1,428 Posts | 0+
Northeast Wisconsin
You make some good points. This shouldn't be a fight about getting public support for what we do. There are a lot of businesses that if put to a vote wouldn't win the majority of public support, but they still have the right to do business. The government has a lot of latitude when it comes to health and disease issues and as you know are not subject to the same standards as everyone else. There are plenty of other animals that carry diseases that move freely throughout the country. To stop movement of just whitetail deer seems arbitrary and capricious then. A lawsuit challenging it would be interesting.