Legal Opinion Regarding Commerce Clause

From the American Cervid Alliance News Room


2/7/2014


 


18pxLeadership Council Provided Legal Opinion Regarding Commerce Clause
ACA Attorney: “Good Argument for Violation if State Closes Borders�


AYR, NE- Upon request of the American Cervid Alliance leaders, the ACA’s law firm on retainer has provided the council with their opinion of the Commerce Clause as it relates to states considering the closure of their borders to out of state cervids.  After a thorough review, Clint Patty, of the Frieden, Unrein, & Forbes law firm, in Topeka, Kansas, concluded “Given the lack of any scientific basis for favoring in-state cervid producers, it is our opinion within a reasonable degree of legal probability that any action taken by the State of Missouri to close its borders to out-of-state cervids violates the Commerce Clause of the United States Constitution.â€�


Mr. Clint Patty’s review of the constitutionality of the proposed Missouri border closing on out of state cervids provided the council numerous precedents from Supreme Court cases and analysis of known science for justification of such dramatic action.  It is well know Missouri cervid producers have been under fire from proposals and suggestions of closing Missouri borders by wildlife conservation special interests groups. 


 


Two of the ACA Council members, the Missouri Whitetail Deer Breeders & Hunting Ranch Association and the Missouri Elk Farmers Association, have been working  diligently with local state legislators to oppose any proposals from state agencies or special interest groups to close their state borders. The grassroots effort has been very effective educating legislators, however, Missouri cervid leaders are still concerned about proposals from their state conservation agencies.  Literature and even radio ads from special interests groups contend the closure of state borders would contain the spread of Chronic Wasting Disease.  


 


Other states such as New York and Florida have recently closed their state borders for similar reason, even though the New York Deer & Elk Farmers Association is exhausting all options to block the closure.  


 


The ACA Leaders know the legal opinion is not a guarantee to open state borders nor will prohibit any subsequent proposals of closure, but gives the industry precedent to challenge.  “The days of this industry sitting back and watching borders close and regulations increase are over,â€� said ACA Moderator Eric Mohlman. “Win or lose, policies that are not based on science will be challenged.â€�


 


In addition to legal precedent, Clint Patty cited recent events could easily cause the State of Missouri both credibility and legal issues with pending litigation brought by Missouri Attorney General Chris Koster.  Just this week, Attorney General Koster filed a lawsuit in the United States District Court in Fresno, California, seeking to strike down a California law regulating the living conditions of chickens.  The California law closes California’s borders to eggs from chickens raised in cages that don't comply with California's new size and space requirements. Missouri bases its arguments on the Commerce Clause, arguing that the California law infringes on the interstate commerce protections of the U.S. Constitution by effectively imposing new requirements on out-of-state farmers.


 


Donald Hill, ACA Councilman representing the Missouri Whitetail Deer Breeders & Hunting Ranch Association, said, “This research just shows the bias used against our industry. Our association and its members are grateful for the legal assistance provided by the American Cervid Alliance.�


 


http://www.americancervidalliance.org/news.cfm?id=97

This is great news !!!!!   These government agencies have gone to far, and it's time we call them on it !!!!


 


Gary Olson

This is really great news and one that our lawyers will put on their list along with other rights that were taken from our farmers here. Those doing the taking will be called out on this soon enough!!

I applaud the efforts of the ACA so far on being willing to fight. I am not for open borders or closed borders, it simply does not matter to me because i live in a state that allows hunting in a preserve. That is where my deer are going - to the preserve. it seems to me the biggest issue in many states is your state is closed to high fence hunting. If your state does not have preserve hunting, it is effectively closed to people out side of your state wanting to sale shooters. The battle should also be to open all states up to hunting!!!! if you make hunting legal, then most people would sale there deer right down the road instead of half way across the country. I see the desire or need to ship breeders long distances but the need to ship shooters out of state is the due to the lack of a market for your own state. Fight both battles - borders and land owner rights in the states closed to hunting.


It is time to fight for everything involved - hunting, borders, testing and anything else that gets in the way!

Deerchaser, you're right!


 


Government abuse is like a cancer. You can't just deal with a small piece and ignore the rest of the cancer in other areas. If you do, you're fighting a losing battle. You have to fight the whole cancer, wherever it is. It's past time to stop just putting out these small fires. This government abuse needs to be challenged in every area. 

I would like to see the fight for all state BORDERS to be OPENED.

Agree that all state borders should be open.  They will continue to use CWD as their "scientific" evidence that a border should be closed.  Once CWD is found in every state they will lose that argument. 

Yay the sad thing is there are a lot of the ACA association supporters that want to keep them closcsed in some states. That don't sound like support to me but maybe they will weed them out later.

Texas has had a CWD positive mule deer but still keep their borders closed. Heard at a recent meeting that they hadn't tested any more mule deer because no one had harvested one. So I guess the theory that CWD is caused by high densities of animals isn't true. The CWD crutch continues to be used by all state DNR's to advance their agendas. It is also a convenient bandwagon for advocates of closed borders to jump on to. The silly part is that wild deer don't recognize state borders!

It was interesting at the TDA last week to hear the breeders complaining about moving up and testing 20% of their animals.  We have testing at 100% for over 10 + years.  No wonder they  can brag about not finding CWD on their farms, when very few are testing!  Texas will go into shock, if they have to comply with the Federal Program like we do!  

(51,51,51);small;background-(221,221,153);Georgia (102,102,102);8.3ptPosted:  margin:0pxFriday, February 7, 2014 10:51 am 

 
margin:0px;(51,51,51);Georgia, serif;small;background-(221,221,153) 


 
margin:0px
margin:0px
margin:0px 0px 22px (51,51,51);Georgia, serif;small;background-(221,221,153);margin:0px Georgia 11.3ptThe first case of chronic wasting disease in a deer in Will County was reported Thursday — the result of testing of a deer killed in the Kankakee Sands Preserve between Braidwood and Wilmington.
margin:0px 0px 22px (51,51,51);Georgia, serif;small;background-(221,221,153);margin:0px margin:0px Georgia 11.3ptThe deer was killed Dec. 10 in the culling program by the Forest Preserve District of Will County to control population density at the preserve.


margin:0px;(51,51,51);Georgia, serif;small;background-(221,221,153)
margin:0px 
margin:0px 
margin:0px
margin:0px 0px 22px Georgia 11.3ptAs a result of the CWD confirmation, the Illinois Department of Natural Resources has requested culling an additional 20 deer from Kankakee Sands and adjacent preserves south of Illinois Route 113 and west of the Kankakee River, the FPD announced.

margin:0px
margin:0px 0px 22px Georgia 11.3ptDNR also will be culling deer on property it owns at the adjacent Wilmington Shrub Prairie. Its policy when confirming CWD is to remove more deer from the area to maintain deer herd health and reduce the spread of the degenerative neural disease.

margin:0px
margin:0px 0px 22px Georgia 11.3ptIf additional deer test positive, their meat will be disposed of. If they test negative, the carcasses will be sent to a processor and the meat donated to a food bank, as is done with other culled deer. DNR will pay for processing or disposal, according to Marcy DeMauro, the forest district executive director.

margin:0px
margin:0px 0px 22px Georgia 11.3ptDNR's request for additional deer culling in the Kankakee Sands region will be considered at the Feb. 13 Forest Preserve Board meeting.

margin:0px
margin:0px 0px 22px Georgia 11.3ptThe forest district's winter culling plan called for reduction of the Kankakee Sands deer herd by 21. District biologists estimate that DNR's decision to cull 20 more will result in a population of about 23 deer per square mile in the Sands area, which would meet the district plan of maintaining a range of 20-30 deer per square mile.

margin:0px
margin:0px 0px 22px Georgia 11.3ptCWD infected deer have been confirmed previously in counties adjacent to Will County, but not in the county itself.

margin:0px
margin:0px 0px 22px Georgia 11.3ptSince CWD testing began in Illinois, 408 deer have been confirmed with the disease in 11 years — the bulk of them in the Wisconsin border counties of Winnebago (Rockford) with 145 and Boone (Belvidere) 127. DeKalb County, south of Boone, has had 50.

margin:0px
margin:0px 0px 22px Georgia 11.3ptAdjacent to Will County, and not far west of Kankakee Sands, Grundy County has had 10 confirmed cases in the past three years, three of them last year. Kendall and DuPage counties, also adjacent to Will, each had one last year.

margin:0px
margin:0px 0px 22px Georgia 11.3ptCDW has been confirmed in a dozen northern Illinois counties, with Will, Grundy and LaSalle the farthest south.




So here we have another case found because they have to MANY DEER!  How can this be? Why is it that every time they find it. they find while killing deer because there are to many deer in the area. Now they want to go kill perfectly healthy deer in another area because there are to many deer just to see if they have cwd!     Strange!!!!

Unfortunately deer are guilty until proven innocent. I think someone compared testing for CWD to the Salem Witch Trials.

Travis


I would like to know what can be done about states that do not allow high fence hunting.

It seems this is a property right. Why can't someone fence their property? I understand driving out any wild deer, those are public property. Anyway, most deerfarmers aren't looking for those deer. Then stock the property with purchased deer, why not? I can understand some regulations on size of the property, but not crazy, maybe 150 acres or something. Under those conditions it should be legal anywhere. It has zero impact on the public hunt, or the public period. You are not taking public land out of the equation or publicly owned deer. I really don't know why anyone cares what a person does on their land. DNR should have nothing to say about it because it doesn't involve anything they oversee, public deer or public hunting. Again it is a property right.

Deerchaser903101392086925


Travis

I would like to know what can be done about states that do not allow high fence hunting.


That is a difficult question to answer as states are so different with their procedure and process. If possible, it would be on a state by state basis. Advocates of no highfence hunting often utilize the ballot initiative process to do this, like we saw in Montana and North Dakota. This industry has done well working together to combat these as of late but it is always a fear. Not all states have this process though, roughly just half.


It really just depends on the state....

Travis903151392128610



That is a difficult question to answer as states are so different with their procedure and process. If possible, it would be on a state by state basis. Advocates of no highfence hunting often utilize the ballot initiative process to do this, like we saw in Montana and North Dakota. This industry has done well working together to combat these as of late but it is always a fear. Not all states have this process though, roughly just half.


It really just depends on the state....




To me this is the very issue that is the most important.  if they close hunting in the states, then we are all raising pets.  A lot of the people want the borders open because they can't sale a stocker buck int their state so that states border is effectively closed to all.  I agree that it is a property rights issue but one that should be addressed.   hopefully, the ACA will continue to have positive results on all issues and can address this one soon.