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No. 03-17-00703-CV IN THE THIRD COURT OF APPEALS,

AUSTIN, TEXAS

Ken Bailey and Bradley Peterson, Appellants, v.

Texas Parks &Wildlife Department, et al., Appellees.

On Appeal from the 98th Judicial District Court, Travis County, Texas Trial Court Cause No. D-1-GN-15-004391

AMENDED BRIEF OF AMICUS CURIAE ON BEHALF OF TEXAS WILDLIFE ASSOCIATION, BOONE AND CROCKETT CLUB,

TEXAS CHAPTER OF THE WILDLIFE SOCIETY, ASSOCIATION OF FISH AND WILDLIFE AGENCIES,

THE NATIONAL WILDLIFE FEDERATION, NATIONAL WILD TURKEY FEDERATION, TEXAS CHAPTER OF

THE COASTAL CONSERVATION ASSOCIATION, BACKCOUNTRY HUNTERS & ANGLERS, AND TEXAS AND SOUTHWESTERN CATTLE RAISERS ASSOCIATION

IN SUPPORT OF APPELLEES Joseph B.C. Fitzsimons State Bar No. 07099100 Dana B. Deaton State Bar No. 24082551 UHL, FITZSIMONS, JEWETT, BURTON & WOLFF, PLLC 4040 Broadway Street, Suite 430 San Antonio, Texas 78209 Telephone:(210) 829-1660 Facsimile: (210) 829-1641 jfitzsimons@ufjbwlaw.com ddeaton@ufjbwlaw.com ATTORNEYS FOR AMICI CURIAE

ACCEPTED03-17-00703-CV

26953831THIRD COURT OF APPEALS

AUSTIN, TEXAS8/23/2018 4:02 PMJEFFREY D. KYLE

CLERK

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TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................... iii

STATEMENT OF INTERESTS AND IDENTITY OF AMICI CURIAE .............. vi

SUMMARY OF THE ARGUMENT ........................................................................ 1

ARGUMENT ............................................................................................................. 5

I. Privatization of Wildlife Runs Afoul of the Public Trust Doctrine and the North American Model of Wildlife Conservation. ............................. 5

A. The Public Trust Doctrine .......................................................................... 5

B. The North American Model of Wildlife Conservation .............................. 9

II. Texas Law Prohibits the Private Ownership of Wildlife. ............................. 12

A. Breeder Deer are Wild Animals. ..............................................................13

B. Possession and Control Requires a Permit. ..............................................14

III. Appellants’ Procedural Due Process Claims Are Meritless……………..17

CONCLUSION ........................................................................................................ 22

CERTIFICATE OF COMPLIANCE ....................................................................... 23

CERTIFICATE OF SERVICE ................................................................................ 24

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INDEX OF AUTHORITIES

Cases

Anderton v. Parks and Wildlife Department, et al., 605 Fed. Appx. 339 (5th Cir. 2015) ....................................................... 13, 14, 19 Cummins v. Travis Cnty. Water Control & Improvement Dist. No. 17, 175 S.W.3d 34 (Tex. App.—Austin 2005, pet. denied) .....................................12 Geer v. Connecticut, 161 U.S. 519 (1896) ...................................................... 6, 7, 11 Hill v. Missouri Department of Conservation, 2018 WL 3235854 (Mo. July 3, 2018) ........................................................ 15, 16 Hollywood Park Humane Soc. v. Town of Hollywood Park, 261 S.W.3d 135 (Tex. App.—San Antonio 2008, no pet.) ................................16 Hughes v. Oklahoma, 441 U.S. 322 (1979) ...........................................................7, 8 Hunt v. United States, 278 U.S. 96 (1928) ................................................................ 7 Illinois Cent. R. R. v. Illinois, 146 U.S. 387 (1892) .............................................6, 11 Kleppe v. New Mexico, 426 U.S. 529 (1976) ............................................................. 7 Lacoste v. Dep’t of Conservation, 263 U.S. 545 (1924) ............................................ 7 Martin v. Lessee of Waddell, 41 U.S. 367 (1842). ..................................................... 6 Missouri v. Holland, 252 U.S. 416 (1920) ................................................................. 7 PPL Montana, LLC v. Montana, 132 S. Ct. 1215 (2012) .......................................... 5 State v. Bartee, 894 S.W.2d 34 (Tex. App.—San Antonio 1994, no writ) ...... 16, 18

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Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26 (Tex. App.—Austin 1999, no pet.) .....................................................................18 Takahashi v. Cal. Fish and Game Comm’n, 334 U.S. 410 (1948) ............................ 7 Tex. Water Rights Comm’n v. Wright, 464 S.W.2d 642 (Tex. 1971) ........... 5, 12, 14 Constitutional Provisions, Statutes and Rules

Tex. Const. art. I, § 19 ......................................................................................................... 18 art. XVI, § 59(a) ............................................................................................. 5, 12

Tex. Civ. Prac. & Rem. Code

§ 5.001 ............................................................................................................. 15 Tex. Parks & Wild. Code

§ 1.011(a) ............................................................................................... 13, 15, 19 § 1.013 .......................................................................................................... 13, 15 § 1.101(4) ..................................................................................................... 13, 14 § 12.0011(a) ........................................................................................................13 § 43.357(a) ................................................................................................... 19, 20 § 43.357(b) ..........................................................................................................21 § 43.362(a) ................................................................................................... 19, 20 § 43.364 .................................................................................................. 14, 15, 17 § 43.366(a) ..........................................................................................................17 § 43.362(b) ................................................................................................... 20, 21

Other Authorities

Gordon R. Batcheller, et al., The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada, THE

WILDLIFE SOCIETY TECHNICAL REVIEW 10-01(Sept. 2010) ................................ 9 Jason Henderson & Sean Moore, The Impact of Wildlife Recreation on Farmland Values, JOURNAL OF AGRICULTURAL AND APPLIED ECONOMICS,

Vol. 38 (3) (December 2006) ................................................................................ 3

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Other Authorities cont. John F. Organ, et al., The North American Model of Wildlife Conservation, THE WILDLIFE SOCIETY AND THE BOONE AND CROCKETT CLUB TECHNICAL

REVIEW 12-04 (December 2012) ....................................................................9, 10

Letter from United States Senator John Cornyn to Honorable Wilbur Ross, Secretary of Commerce (June 6, 2018) (Exhibit A)………………………….. 10

Michael C. Blumm & Lucas Ritchie, The Pioneer Spirit and the Public Trust: The American Rule of Capture and

State Ownership of Wildlife, 35 ENVTL. L. 673 (2005) ....................................8, 9 Michael W. Miller & John R. Fischer, The First Five (or More) Decades of Chronic Wasting Disease: Lessons

for the Five Decades to Come, Fair Chase 32, 60-65 (2016) ......................... 2, 21 Oliver A. Houck, Why Do We Protect Endangered Species, and What does that Say About Whether Restrictions on Private Property to Protect

Them Constitute “Takings”?, 80 IOWA L. REV. 297 (1995) ................................ 8 U.S. Fish & Wildlife Service and U.S. Census Bureau, 2011 National Survey of

Fishing, Hunting, and Wildlife-Associated Recreation—Texas, available at https://www.census.gov/prod/2013pubs/fhw11-tx.pdf ........................................ 2

Valerius Geist, et al., The Challenge of CWD: Insidious and Dire, Alliance for Public Wildlife (March 2017), available at http://www.apwildlife.org/publications ............................................................1, 2

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STATEMENT OF INTERESTS AND IDENTITY OF AMICI CURIAE

Amici Curiae (“Amici”) the Texas Wildlife Association, Boone and Crockett

Club, Texas Chapter of The Wildlife Society, Association of Fish and Wildlife

Agencies, the National Wildlife Federation, the National Wild Turkey Federation,

Texas Chapter of the Coastal Conservation Association, Backcountry Hunters &

Anglers and Texas and Southwestern Cattle Raisers Association, respectfully

submit this Amended Brief of Amicus Curiae in support of the positions urged by

Appellees.1 Amici and their thousands of members have a long history of both land

and wildlife stewardship, and have an equally strong interest in preserving the

ability of the State, through Texas Parks & Wildlife Department (“TPWD”), to

implement rules and regulations aimed at preventing the spread of chronic wasting

disease (“CWD”); only then can wildlife and the interests of the people be

protected. This brief was commissioned by the following Amici:

The Texas Wildlife Association (TWA) was formed in 1985 by a group of

ranchers, wildlife managers and hunters dedicated to the conservation,

management, and enhancement of wildlife and wildlife habitat on private lands.

Over 9,500 members share in TWA’s mission of serving Texas wildlife and its

habitat, while protecting property rights, hunting heritage, and the conservation

efforts of those who value and steward wildlife resources.

1 This Amended Brief of Amicus Curiae is intended to replace and supersede the previous brief filed on August 20, 2018, wherein the Dallas Safari Club was incorrectly included as amicus curiae.

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TWA supports public ownership of wildlife resources, and is, and will

remain, opposed to any efforts that result in conversion of Texas’s wild deer to

private ownership. TWA strongly supports the position that our native white-tailed

and mule deer are to remain publicly-owned wildlife regardless of the natural or

manmade situations in which they are found; and that deer intentionally released

from breeder pens remain the property of the people of the State. TWA believes

deer breeders should continue to enjoy and benefit from certain privileges extended

by statutes governing deer breeder permits. TWA also believes reasonable

regulatory oversight as provided through statute is desirable for both the continued

integrity of the deer breeding business and the protection of wild deer.

The Boone and Crockett Club is the oldest wildlife conservation

organization in North America – founded in 1887 by Theodore Roosevelt and

George Bird Grinnell. The Boone and Crockett Club supports the Public Trust

Doctrine and opposes any legislation or judicial efforts that would allow deer

breeders to privatize native wildlife or transfer management authority over their

operations from state, provincial, or tribal wildlife agencies to other management

authorities. The Boone and Crockett Club maintains that the threat of spread of

CWD by the escape and/or transport of captive animals is a real and documented

problem. The Club seeks to reduce the spread of CWD and other diseases to both

captive and wild cervid populations, and consequently supports those states

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attempting to do so with reasonable rules and regulations. The Club recognizes and

endorses the importance of private property rights, but maintains that what is best

for wildlife is for it to remain a public and not a private resource.

The Texas Chapter of The Wildlife Society was formed in 1965 for the

purposes of: promoting the professions related to the conservation and

management of wildlife resources; disseminating information to the public

concerning wildlife research, management, and conservation; and recognizing

notable achievements of the Texas Chapter in wildlife management in Texas.

Membership in the Texas Chapter of The Wildlife Society is some 900 members

composed of wildlife professionals in the public and private sector and students

from universities that have wildlife conservation programs. The Texas Chapter

conforms to the policies, code of ethics, objectives, and position statements of The

Wildlife Society, an international organization serving and representing wildlife

professionals in all areas of wildlife conservation and resource management.

The Association of Fish and Wildlife Agencies (AFWA) serves as the

collective voice of North America’s state, provincial, and territorial fish and

wildlife agencies. These agencies are tasked with conserving the continent’s

wildlife resources on public and private lands within their borders. AFWA favors

science-based management and conservation policy for species and habitats, as

well as a cooperative approach to governance. In service of these goals, AFWA has

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collaborated for more than a century with a broad network of constituencies to

develop robust and flexible approaches to wildlife management and related

challenges. In the nation’s courts, AFWA has participated as amicus curiae to

protect the rights and interests of its members, and offers a valuable perspective on

the specific issues of state wildlife management authority. The right of one of

AFWA’s member agencies to enforce its laws is at issue here, and the

consequences of not being able to do so are severe, potentially affecting the deer

population in Texas and, thus, its economy.

The National Wildlife Federation (NWF) is the largest member supported

wildlife conservation organization in the United States. NWF works to improve

and conserve wildlife habitat and water quality for the next generation of anglers,

hunters, and wildlife conservationists. With over four million members, partners

and supporters nationwide, NWF has been the conservation voice for anglers,

hunters, scientists, and outdoor enthusiasts since its founding in 1936. NWF has a

strong interest in preserving the continued ability of state agencies to protect

wildlife resources, as its members fish, hunt, and observe wildlife.

The National Wild Turkey Federation (NWTF) is a national organization

dedicated to the conservation of the wild turkey and the preservation of our

nation’s hunting heritage. The NWTF’s 230,000 members are hunters,

conservationists, and outdoorsmen and women who are committed to upholding

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the North American Model of Wildlife Conservation. NWTF, in accordance with

the Public Trust Doctrine and its fundamental importance to the North American

Model, recognizes wildlife as a public resource and affirms the state’s management

authority over all wildlife resources. While NWTF respects the importance of

private property rights, it maintains that in order to protect America’s wildlife and

hunting heritage, wildlife is best managed as a public resource.

Texas Chapter of the Coastal Conservation Association (CCA Texas) is a

non-profit marine conservation organization comprised of nearly 70,000

recreational anglers and coastal outdoor enthusiasts. CCA was founded in Texas in

1977 and has grown to include state chapters along the Gulf of Mexico, Atlantic

Seaboard and Pacific Coast. The stated purpose of CCA is to advise and educate

the public on the conservation of marine resources. CCA’s objective is to conserve,

promote and enhance the present and future availability of these coastal resources

for the benefit and enjoyment of the general public. CCA Texas recognizes that

TPWD has both the authority and expertise to regulate fish and wildlife resources

within its jurisdiction and that reasonable rules and regulations help ensure healthy

populations of these State resources for the public, including future generations.

CCA Texas has a strong interest in the outcome of this case, as the arguments

raised threaten to erode TPWD’s authority to conserve fish and wildlife resources.

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Backcountry Hunters & Anglers (BHA) is the voice for our nation’s wild

public lands, waters and wildlife. BHA seeks to ensure North America’s outdoor

heritage of hunting and fishing in a natural setting through education and work on

behalf of fish, wildlife and wild places. With over 250,000 members and

supporters and chapters in 34 states, Washington, D.C., Alberta and British

Columbia, BHA is increasingly drawing support from sportsmen and women from

across the continent. BHA represents the challenge, solitude and adventure that

only the backcountry can provide, and strives to ensure that the backcountry is

protected for the fish and wildlife that thrive there. In addition to advocating for

policies that protect the backcountry, BHA also works to promote ethical hunting

and fishing practices and protect special landscapes that have high quality fish and

wildlife habitat values. BHA recognizes that the North American Model of

Wildlife Conservation and the Public Trust Doctrine are vital to preserving wildlife

and their habitat and opposes efforts that compromise their integrity or challenge

the legitimacy of these doctrines.

The Texas and Southwestern Cattle Raisers Association (TSCRA) is a

141-year-old non-profit trade association and is the largest and oldest livestock

organization based in Texas. TSCRA has more than 17,500 beef cattle operations,

ranching families and businesses as members. These members represent

approximately 50,000 individuals directly involved in ranching and beef

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production who manage over 4 million head of cattle on more than 76 million

acres of range and pasture land primarily in Texas and Oklahoma, but throughout

the Southwest. The mission of TSCRA is to protect the stewards of land and

livestock in Texas and the Southwest. As landowners and livestock owners,

TSCRA members have a vital interest in preventing the spread of harmful wildlife

diseases such as CWD among wildlife populations.

In accordance with Texas Rule of Appellate Procedure 11(c), Amici hereby

disclose no counsel for a party authored this brief in whole or in part, and no

person other than Amici, their members, or their counsel made a monetary

contribution to its preparation or submission.

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SUMMARY OF THE ARGUMENT

White-tailed deer have been a part of Texas’s great hunting heritage and

tradition for generations and are the driving force behind Texas’s hunting

economy. Although traditional forms overwhelmingly dominate hunting, the deer

breeding business has become an established presence across the State over the last

two decades. While the growth of the deer breeding business has contributed to

Texas’s robust hunting economy, it has also brought with it unique management

challenges and issues.

CWD is a disease affecting the nervous system of members of the deer

family, including mule and white-tailed deer, and that is commonly associated with

captive deer populations.2 CWD has been detected in twenty-five states and two

Canadian provinces as of 2018.3 The disease is infectious, communicable and

100% fatal.4 Outbreaks of CWD have proved virtually impossible to eradicate

primarily because of three unique characteristics: (1) CWD is highly transmissible,

both directly (e.g., saliva, urine, feces) and indirectly (e.g. soil, vegetation, water)5;

2 See Valerius Geist, et al., The Challenge of CWD: Insidious and Dire, Alliance for Public Wildlife, 3, 5 (March 2017), available at http://www.apwildlife.org/publications (noting “by far the highest levels of CWD infections, persistence, and geographic transfer have been found in commercial game farms”) (internal citation omitted). 3 National Wildlife Health Ctr., U.S. Geological Survey, Update to the Association of Fish and Wildlife Agencies: Chronic Wasting Disease 1 (2018). 4 See Geist, et al., The Challenge of CWD: Insidious and Dire, at 8. 5 See Geist, et al., The Challenge of CWD: Insidious and Dire, at 3 (describing the multiple direct and indirect pathways of transmission).

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(2) prions that cause CWD can persist and remain infectious in the environment for

several years6; and (3) CWD has a relatively long incubation period, allowing

infected deer to spread the disease for months before the deer shows any noticeable

symptoms.7 CWD is arguably the most serious threat the State’s white-tailed deer

populations have experience since they were on the brink of extinction in the early

twentieth century.

Texas has a vital interest in preventing the spread of CWD, both for the sake

of the public’s right to enjoy those herds and to prevent the crippling of an activity

which contributes more than $2 billion dollars to the Texas economy every year.8

The strength of Texas’s hunting heritage and tradition has a direct correlation with

the health of its white-tailed deer population. If deer populations decline, it will

detrimentally affect hunting seasons, hunter participation, and effective wildlife

management, as funding from license fees will be reduced.9 Because Texas is 95

percent private land, CWD presents additional risks that are of particular concern

6 See Geist, et al., The Challenge of CWD: Insidious and Dire, at 3. 7 See Michael W. Miller & John R. Fischer, The First Five (or More) Decades of Chronic Wasting Disease: Lessons for the Five Decades to Come, Fair Chase 32, 60-65, 65 (2016). 8 In Texas, recreational hunting has an economic impact of around $2.5 billion a year. In 2011, all hunting-related expenditures in Texas totaled $1.8 billion. See U.S. Fish & Wildlife Service and U.S. Census Bureau, 2011 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation—Texas, 10, available at https://www.census.gov/prod/2013pubs/fhw11-tx.pdf. 9 For example, in Wisconsin, nine months after the discovery of CWD in three wild white-tailed deer, “hunting license sales had declined by over 90,000, revenue to the Wisconsin Department of Natural Resources (WDNR) had dropped by over $3,000,000, and the economic loss was estimated at over $50,000,000.” See Geist, et al., The Challenge of CWD: Insidious and Dire, at 18 (quotation marks and citations omitted).

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to landowners in rural parts of the State. Ranchers and farmers stand to lose a

significant source of income from leasing hunting rights if hunting participation

declines.10 Moreover, because of its environmental persistence, there is a very real

risk that detection of CWD will negatively impact property values.

For over a century, state agencies have responded to threats facing fish and

wildlife with guidance from the Public Trust Doctrine and the North American

Model of Wildlife Conservation. Under these doctrines, wild animals, including

white-tailed deer, are collectively owned by all citizens rather than any one

individual. Consistent with these doctrines, the Texas Legislature has declared all

“wild animals . . . inside the borders of this state” to be the “property of the people

of this state” and has vested Texas Parks & Wildlife Department (TPWD) with the

authority to protect the State’s fish and wildlife resources. Despite their history and

proven success, the Public Trust Doctrine and the North American Model are now

being threatened by economically motivated groups and individuals seeking to

undermine public ownership of wildlife and thereby avoid constitutionally

authorized, reasonable regulations, for their own private benefit.

10 See Jason Henderson & Sean Moore, The Impact of Wildlife Recreation on Farmland Values, JOURNAL OF AGRICULTURAL AND APPLIED ECONOMICS, Vol. 38 (3): 597-610 (December 2006) (highlighting that “wildlife recreation has emerged as another income stream for farmers who rent land to hunters, anglers, and other outdoor enthusiasts”).

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Appellants Ken Bailey and Bradley Peterson are deer breeders who contest

the authority of TPWD to implement increased disease-testing and reporting

requirements for certain permits authorizing the transportation or movement of

captive-bred deer. The rules at issue were implemented by TPWD after CWD was

detected at a breeding facility in Medina County in 2015. To help promote their

argument, Appellants claim captive deer are “their personal property, i.e. their

‘goods.’” Appellants’ Br. 17. This position stands in sharp contrast to established

law set forth in the Texas Parks & Wildlife Code declaring wild animals the

property of the people of Texas and undermines the fundamental concept of the

Public Trust Doctrine and the North American Model.

The district court correctly rejected Appellants’ position, granting summary

judgment to Appellees on Peterson’s Uniform Declaratory Judgment Act and

Administrative Procedure Act claims because deer breeders do not own the deer

they are permitted to possess pursuant to State-issued permits. The notion that

wildlife cannot be subject to private ownership is consistent with a hundred years

or more of jurisprudence requiring the states to hold vital natural resources in trust

for both present and future generations of their citizens. Unless this Court is

willing to dispense with one of the most basic tenets of North American wildlife

management and conservation, Appellants’ argument must be firmly rejected.

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ARGUMENT I. Privatization of Wildlife Runs Afoul of the Public Trust Doctrine and

the North American Model of Wildlife Conservation.

Appellants’ argument, that captive-bred deer can be subject to private

ownership, is contrary to the Texas Constitution, the Wildlife Code, and the Public

Trust Doctrine, upon which the State’s conservation and protection of natural

resources is premised. See TEX. CONST. ART. XVI, § 59(a); see also Tex. Water

Rights Comm’n v. Wright, 464 S.W.2d 642, 649 (Tex. 1971). By seeking to

establish that deer breeders have a protected property interest in certain white-

tailed deer, Appellants are advocating for the privatization of a natural resource

that belongs to the people of Texas. Further, Appellants’ efforts to privatize a

public wildlife resource threaten the health of over 4.2 million white-tailed deer in

Texas and millions of acres of Texas land that are presently free of this insidious

and deadly disease.

A. The Public Trust Doctrine

The United States has a strong tradition for natural resource stewardship as a

matter of policy both at the federal and at the state levels. See PPL Montana, LLC

v. Montana, 132 S. Ct. 1215, 1235-36 (2012) (recognizing that the Public Trust

Doctrine is reflected in state laws and constitutional provisions throughout the

nation and that federalist principles affirm the state’s rights and duties over public

trust resources within their borders). For centuries, state fish and wildlife agencies

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have operated pursuant to a set of principles known as the North American Model

of Wildlife Conservation. A primary feature of the Model is that wildlife is a

public trust resource, managed and maintained by state agencies for the benefit of

all citizens. The Public Trust Doctrine holds that certain natural resources are of

such importance to the public that they cannot be subject to private ownership, but

must be preserved and protected by the states for their citizens. See Illinois Cent. R.

R. v. Illinois, 146 U.S. 387, 455 (1892) (characterizing public trust assets as those

resources that are “a subject of concern to the whole people of the state”).

In 1842, the United States Supreme Court established the Public Trust

Doctrine for wildlife and navigable waters in the United States. In Martin v.

Waddell, a landowner claimed to own submerged lands under a navigable

waterway, the fish in the water above the bay floor, and an oysterbed on the bay

floor. 41 U.S. 367, 407-08 (1842). The Court held that certain natural resources

such as fish and oysters belong to the states, which hold the resources in trust for

the public benefit and use, and therefore the landowner had no property right in the

estuary land or its living marine resources. Id. at 413, 416, 418. It based its

decision on the theory that the English Crown held title to navigable waters and to

marine resources in the waters in trust for the public, and this title passed to the

states as a result of the Revolution, thereby giving the states trust title to these

resources. Id. at 411-414, 416.

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The United States Supreme Court further solidified wildlife as a public trust

resource in its decision in Geer v. Connecticut, 161 U.S. 519 (1896). In Geer, the

United States Supreme Court recognized that a state’s trustee ownership of wildlife

is a power to be exercised “as a trust for the benefit of the people.” Geer v.

Connecticut, 161 U.S. 519, 527 (1896), overruled on other grounds, Hughes v.

Oklahoma, 441 U.S. 322 (1979) (striking down a state statute that restricted the out

of state export of minnows because it improperly discriminated against interstate

commerce). Geer underscores that each state has general police power under which

the state can enact laws to conserve and maintain wildlife populations for

beneficial use by their citizens. See id. at 529-30; see also Lacoste v. Dep’t of

Conservation, 263 U.S. 545, 552 (1924) (“[p]rotection of the wildlife of the State

is peculiarly within the police power, and the State has great latitude in

determining what means are appropriate for its protection”).

In the decades following Geer, the federal government began to limit the

states’ powers to regulate wildlife through federal legislation and judicial

decisions.11 Geer was narrowly overruled in Hughes v. Oklahoma, 441 U.S. 322

11 See, e.g., Missouri v. Holland, 252 U.S. 416, 435 (1920) (holding that state regulation of migratory birds was superseded by the Migratory Bird Treaty Act); Hunt v. United States, 278 U.S. 96, 101 (1928) (holding that the Property Clause allows the federal government to control deer that are overgrazing federal land); Hughes v. Oklahoma, 441 U.S. 322, 342 (1979) (striking down state statute because it improperly discriminated against interstate commerce); Takahashi v. Cal. Fish and Game Comm’n, 334 U.S. 410 (1948) (regulation violates the Equal Protection Clause of the 14th Amendment); Kleppe v. New Mexico, 426 U.S. 529, 547 (1976) (holding that

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(1979), in the context of the Commerce Clause. However, Hughes did not overrule

the principle that wildlife is a public trust resource that states have a responsibility

to preserve for future generations. See Hughes, 441 U.S. at 342 (noting that the

rule adopted by the Court “makes ample allowance for preserving, in ways not

inconsistent with the Commerce Clause, the legitimate state concerns for

conservation and protection of wild animals underlying the 19th-century legal

fiction of state ownership”).12 Indeed, the Court in Hughes emphasized that

conservation and protection of wild animals are “legitimate state concerns” and

that its decision in Hughes “does not leave the states powerless to protect and

conserve wild animal life within their borders.” Hughes, 441 U.S. at 335-36.

Despite the instances where states’ power to regulate wildlife resources are

limited by federal laws and federally protected interests, the concept of sovereign

ownership of wildlife has largely prevailed. Forty-one states claim ownership of

their wildlife through statutes that embody Public Trust Doctrine principles, while

even more states have legislated a clear “mission and purpose” to serve the

the Wild Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 et seq., and the Property Clause grant the federal government authority over wild horses and burros). 12 See also Oliver A. Houck, Why Do We Protect Endangered Species, and What does that Say About Whether Restrictions on Private Property to Protect Them Constitute “Takings”?, 80 IOWA L. REV. 297, 311 n.77 (1995) (saying Hughes “did not, and could not, overrule principles dating back to Roman law that wild animals are the common property of the citizens of a state”); Michael C. Blumm & Lucas Ritchie, The Pioneer Spirit and the Public Trust: The American Rule of Capture and State Ownership of Wildlife, 35 ENVTL. L. 673, 706 (2005) (“[Hughes] did not dislodge the states’ trustee relation with wildlife that had been confirmed in Geer.”).

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interests of public beneficiaries.13 Thus, as Professor Michael C. Blumm

recognizes, “the state ownership doctrine lives on in the twenty-first century in

virtually all states, affording states ample authority to regulate the taking of

wildlife and to protect their habitat.”14

B. The North American Model of Wildlife Conservation

The North American Model of Wildlife Conservation is a set of wildlife

conservation principles that jurisdictions in the United States and Canada have

applied over the past century to develop successful wildlife management programs.

The North American Model is based on seven foundational tenets: wildlife is held

in the public trust; commerce in wildlife is regulated; allocation of wildlife by law;

wildlife can be killed only for a legitimate purpose; wildlife is an international

resource; science is the basis for wildlife policy; and, the democracy of hunting.15

13 Gordon R. Batcheller, et al., The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada, THE WILDLIFE SOCIETY TECHNICAL REVIEW 10-01, 21-22 (Sept. 2010) (examining statutory and constitutional expressions of the public trust doctrine). In North Carolina “wildlife resources of the State belong to the people of the State as a whole...” (N.C. Gen. Stat. §113-133.1). Ohio and West Virginia have similar statutes, with Ohio holding title to all wild animals “in trust for the benefit of all the people” (Ohio Rev. Code §1531.02), and West Virginia holding title to all wild animals “as trustee for the people” (W. Va. Code §20-2-3). A New Hampshire statute states “[i]t shall be the policy of the state to maintain and manage [wildlife] resources for future generations” (N.H. Rev. Stat. §212-B:2). In Kentucky, the state policy is “to protect and conserve the wildlife … to insure a permanent and continued supply of the wildlife resources of this state for the purpose of furnishing sport and recreation for the present and future residents of this state” (Key. Rev. Stat. §150.015). See id. at 22. 14 Blumm & Ritchie, The Pioneer Spirit and the Public Trust, 35 ENVTL. L. 673, at 706. 15 John F. Organ, et al., The North American Model of Wildlife Conservation, THE WILDLIFE SOCIETY AND THE BOONE AND CROCKETT CLUB TECHNICAL REVIEW 12-04, viii-ix (Dec. 2012).

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The Model was developed around the turn of the twentieth century after

commercial overexploitation decimated many North American wildlife species,

and has continued to evolve through judicial decisions, legislative enactments, and

executive action. The principles of the Model allow it to adapt over time to

fluctuating challenges, from unregulated hunting of game, to conservation of

migratory birds across national borders.16 The North American Model has been

widely accepted by wildlife professionals, conservationists, and its principles have

been incorporated into the statutory and regulatory frameworks of many state

wildlife agencies, including TPWD.

Only recently United States Senator John Cornyn re-affirmed the validity of

the North American Model at the federal level in a letter to Secretary of Commerce

Wilbur Ross regarding the Exempted Fishing Permits for red snapper adopted by

the National Marine Fisheries Service. In addressing the management of red

snapper fishing in federal waters, Senator Cornyn stated, “[r]ed snapper are a

public resource and should remain so. We should strive to uphold the fundamental

concept of the North American Model of Wildlife Conservation, which is central to

the great hunting and fishing heritage of our United States.”17 Although Senator

Cornyn’s letter involved the management of red snapper in federal waters, his 16 See Organ, et al., The North American Model of Wildlife Conservation, THE WILDLIFE SOCIETY AND THE BOONE AND CROCKETT CLUB TECHNICAL REVIEW 12-04, at 14-17. 17 See Letter from United States Senator John Cornyn to Honorable Wilbur Ross, Secretary of Commerce (June 6, 2018) (Exhibit A).

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voiced support of the North American Model is no less persuasive here in the

context of efforts to privatize white-tailed deer.

Private ownership of captive white-tailed deer fails to conform to the

principle of managing wildlife as a public resource and threatens the ecological

stability of white-tailed deer populations belonging to, and enjoyed by the public.

The Public Trust Doctrine requires trust resources to be managed for public benefit

rather than private exploit. See Geer, 161 U.S. at 529 (the trust is “for the benefit

of the people, and not . . . for the benefit of private individuals as distinguished

from the public good”); see also Ill. Cent. R. R., 146 U.S. at 455-56 (trustee

ownership “of the navigable waters of the harbor, and of the lands under them . . .

is governmental, and cannot be alienated”). The privatization of trust resources is

only acceptable when it is done to serve the public interest and will not

substantially impair remaining resources. See Ill. Cent. R. R., 146 U.S. at 455.

The declaration sought by Appellants would essentially eliminate the State’s

trustee ownership over captive-bred deer and result in a valuable resource being

removed from the public trust, jeopardizing significant State interests as well as the

economic interests of thousands of landowners. Private ownership of breeder deer

would potentially inhibit TPWD’s efforts to regulate captive white-tailed deer,

putting the State’s free-ranging deer herds at risk of CWD.

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II. Texas Law Prohibits the Private Ownership of Wildlife.

In Texas, the State’s authority to regulate fish and wildlife resources is

rooted in both the Texas Constitution and statutes. The Conservation Amendment

of 1917 declares the conservation of natural resources of the State to be a “public

right” and directs the Legislature to adopt statutes to preserve and conserve natural

resources. See TEX. CONST. ART. XVI, § 59(a). Texas courts have construed the

Conservation Amendment as implying a constitutional duty to protect natural

resources held in the public trust. See Tex. Water Rights Comm’n v. Wright, 464

S.W.2d 642, 648 (Tex. 1971) (stating with reference to the Conservation

Amendment,“[t]he State, in administering its water resources, is under a

constitutional duty to conserve water as a precious resource and that duty is also

inherent in the grant of a water permit”).18 In fulfillment of its constitutional

mandate, the Legislature enacted the Parks & Wildlife Code and vested TPWD

with authority to regulate all fish and wildlife resources in Texas, including

white-tailed deer. See TEX. PARKS & WILD. CODE § 43.364 (“All breeder deer and

increase from breeder deer are under the full force of the laws of this state

pertaining to deer.”).

18 See also Cummins v. Travis Cnty. Water Control & Improvement Dist. No. 17, 175 S.W.3d 34, 49 (Tex. App.—Austin 2005, pet. den.) (stating, “[t]he purpose of the State maintaining title to the beds and waters of all navigable bodies is to protect the public is interest in those scarce natural resources”).

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A. Breeder Deer are Wild Animals.

The Parks & Wildlife Code expressly declares all “wild animals . . . inside

the borders of this state” to be the “property of the people of this state.” TEX.

PARKS & WILD. CODE § 1.011(a). “Wild,” when used in reference to an animal,

means a species, including each individual of a species that “normally lives in a

state of nature and is not ordinarily domesticated.” Id. § 1.101(4). All white-tailed

deer are wild animals because members of the species historically lived in the wild

and are not ordinarily domesticated. Even if one particular white-tailed deer

somewhere could be considered domesticated, all white-tailed deer in Texas are

“wild” animals as a matter of law and therefore subject to TPWD regulations. See

id. § 12.0011(a), § 43.364.

Texas law rejects Appellants’ argument that breeder deer are not wildlife

because they are born in captivity and confined until their release. The Wildlife

Code expressly provides that white-tailed deer do not lose their status as wildlife

simply because a landowner uses a high fence to restrict their movement. Id.

§ 1.013 (“The existence of a fence does not affect the status of wild animals as

property of the people of this state.”). By definition, all white-tailed deer within the

State are “wild” animals, and all “wild” animals are held in trust by the State for

the benefit of the people of Texas. See id. § 1.011(a), § 1.101(4); see also Anderton

v. Texas Parks and Wildlife Department, et al., 605 Fed. Appx. 339, 347 (5th Cir.

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2015) (“Under Texas law, though, breeder deer belong to the state, not the

permittee.”). The confinement of breeder deer does not change the nature of the

species and, therefore, does not remove captive white-tailed deer from the category

of “wildlife” under the purview of TPWD regulations. See TEX. PARKS & WILD.

CODE § 43.364.

B. Possession and Control Requires a Permit.

The issuance of a deer breeder permit by TPWD does not create private

property rights in the deer breeder. See Tex. Water Rights Comm’n v. Wright, 464

S.W.2d 642, 648 (Tex. 1971) (holding that when the State grants use of a public

resource through a permit, the State retains “rights as the owner of the” resource).

When deer breeders exercise dominion and control over captive-bred deer, they do

so under a State-issued permit that grants them the authority to temporarily possess

the breeder deer until they are released into the wild. See id. § 43.364 (“breeder

deer may be held in captivity for propagation in this state only after a deer

breeder’s permit is issued by the department”). In fact, the very permit by which

deer breeders possess white-tailed deer is specifically predicated upon recognition

of continued public ownership of the deer.

Appellants’ reliance on common law concepts regarding ownership of wild

animals in captivity is wholly misplaced. The common law only applies in the

absence of a statute or constitutional provision. TEX. CIV. PRAC. & REM. CODE

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§ 5.001. Here, the Legislature has superseded the common law by declaring “all

wild animals . . . inside the borders of this state are the property of the people of

this state.” TEX. PARKS & WILD. CODE § 1.011(a). The Legislature has also made it

clear that possession of captive-bred deer does not confer ownership rights. See id.

§ 43.364 (deer may be possessed only for “propagation” or liberation”). The fact

that Appellants and other deer breeders use high fences to limit movement of deer

does not affect their “status . . . as property of the people of this state.” Id. § 1.013.

Thus, the degree of dominion and control that Appellants and other breeders claim

to exercise over deer they temporarily possess is irrelevant.

The argument that captive bred deer are not considered “wildlife” was

recently rejected by the Missouri Supreme Court in Hill v. Missouri Dep’t of

Conservation, 2018 WL 3235854 (Mo. July 3, 2018). In Hill, a deer breeder

challenged CWD regulations implemented by the Missouri Conservation

Commission on the basis that captive deer are not “wildlife” because they are

domesticated and, therefore akin to livestock. The Missouri Supreme Court upheld

the Missouri Conservation Commission’s authority to regulate captive deer,

holding that the term “wildlife” in the Missouri Constitution “plainly includes all

species that are wild by nature.” Id. (citing 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

{1183/003/00164357.DOCX;2} 16

where it normally lives,” especially “a type of animal that ... is naturally

untamable, unpredictable, dangerous, or mischievous”). The same logic applies in

this case.

Even if the Legislature had not codified the State’s trustee ownership of

wildlife or the use of high fencing, the legal standard regarding ownership of wild

animals in captivity would still not apply in this case. State v. Bartee and

Hollywood Park Humane Society v. Town of Hollywood Park, stand for the

proposition that a person cannot be held liable or recover for the value of wild

animals if taken unless “the person claiming ownership has removed the animal

from nature, confined it, and placed it under the person’s dominion and control.”

Hollywood Park Humane Soc. v. Town of Hollywood Park, 261 S.W.3d 135, 140

(Tex. App.—San Antonio 2008, no pet.); see also State v. Bartee, 894 S.W.2d 34,

41-43 (Tex. App.—San Antonio 1994, no writ) (stating that wild animals “belong

to the state and no individual property rights exist as long as the animal remains

wild, unconfined, and undomesticated”). Neither of these cases address whether

deer breeders have an ownership interest in the deer they possess pursuant to a

deer-breeder permit. See State v. Bartee, 894 S.W.2d at 46 (holding that white-

tailed deer were not subject to theft and criminal mischief, except in limited

situations); Hollywood Park Humane Soc. v. Town of Hollywood Park, 261 S.W.3d

at 140-41 (holding landowner had no definitive or certain vested property rights to

{1183/003/00164357.DOCX;2} 17

deer roaming on his land). While the existence of possession or control over a wild

animal, or lack thereof, may be instructive in a tort or property dispute between

individuals, they have no bearing in a dispute concerning TPWD’s authority to

manage and regulate wildlife resources for the benefit of the citizens of the State.

TPWD’s management authority extends to all fish and wildlife within the

State, including those white-tailed deer bred in captivity under a permit. See TEX.

PARKS & WILD. CODE § 43.364; accord § 43.366(a) (breeder deer held under a

deer breeder’s permit are subject to all Texas laws and regulations pertaining to

deer). The responsibility of TPWD to protect and properly manage the fish and

wildlife resources within the State is not conditioned on whether the animal is born

in the wild or bred in captivity. To the contrary, the Wildlife Code states that “[a]ll

breeder deer and increase from breeder deer are under the full force of the laws of

this state pertaining to deer,” which includes the statutes that declare them to be

wild animals owned by the people of the State. Id. § 43.364; accord § 43.366(a).

The transfer of State-issued breeding permits to individuals has no effect on

TPWD’s ability to implement and enforce emergency rules and regulations

concerning CWD. This fact is fatal to Appellants’ argument.

III. Appellants’ Procedural Due Process Claims Are Meritless.

In addition to Peterson’s ownership interest argument, Peterson also raises

constitutional challenges to the Wildlife Code and the CWD rules on the grounds

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that they violate Peterson’s due-process rights because TPWD does not provide

notice, a hearing, or appeal when proposing to deny a transfer permit. Due process

is, by its own terms, not implicated unless the government threatens to deprive

someone of “life, liberty, property, privileges or immunities.” TEX. CONST. ART. I,

§ 19. And the nature of a property interest itself is defined by Texas law. See

Stratton v. Austin Indep. Sch. Dist., 8 S.W.3d 26, 29-30 (Tex. App.—Austin 1999,

no pet.).

Under Texas law, Peterson cannot own, and does not own, the breeder deer

in his possession. See State v. Bartee, 894 S.W.2d 34, 41 (Tex. App.—San Antonio

1994, no writ) (recognizing that the common law of Texas and the rest of the

United States is that “the general ownership of wild animals, as far as they are

capable of ownership, is in the state, not as proprietor, but in its sovereign capacity

as the representative and for the benefit of all its citizens in common”). Hence, he

is not entitled to transfer State property whenever he wants. Therefore, his due-

process challenges fail. Moreover, even if Peterson could somehow establish a

constitutionally protected interest, he was afforded the process he was due during

the adoption by the Parks and Wildlife Commission, following public notice and

the opportunity for public comment, of the Comprehensive Rules.

Deer breeders do not have a constitutionally protected interest in the deer

that they possess by virtue of a breeder permit or a vested interest in the issuance

{1183/003/00164357.DOCX;2} 19

of any transfer permits, therefore notice and a hearing are not required before

TPWD restricts the movement of those deer. As previously discussed, the

Legislature has precluded private ownership of wildlife by providing that “[a]ll

wild animals” within the State “are the property of the people of this state.” See

TEX. PARKS & WILD. CODE § 1.011(a). This statutory declaration of ownership

precludes Peterson and other deer breeders from asserting a constitutionally

protected interest in captive-bred white-tailed deer. See Anderton v. TPWD, 605 F.

Appx. 339, 348 (5th Cir. 2015) (holding that deer breeders cannot claim a

constitutionally protected interest in the deer herd . . . .”). Nor does Peterson have a

vested right in obtaining new transfer permits.

There is no liberty or property interest implicated by TPWD’s issuance of a

deer breeder permit; rather, the right to breed deer in captivity is a privilege

conferred by the Legislature and delegated to TPWD. See TEX. PARKS & WILD.

CODE § 43.357(a) (“holder of a valid deer breeder’s permit may” possess deer to

breed deer). The issuance of a deer breeder permit or a transfer permit grants the

permittee the privilege, not the right, to engage in the activity specified under the

permit. A deer-breeder permit only allows the holder to possess deer. And to

transfer or sell the right to possess a deer possessed under a breeder permit requires

another permit. Id. § 43.362(b) (“[N]o person may purchase, obtain, sell, transfer,

or accept in this state a live breeder deer unless the person obtains a transfer permit

{1183/003/00164357.DOCX;2} 20

from the department.”). The issuance of transfer permits is left to the discretion of

TPWD. TPWD’s discretion to grant transfer permits is limited by Section

43.362(a), which provides that “[o]nly breeder deer that are in a healthy condition

may be sold, transferred, bartered, or exchanged. Id. § 43.362(a). The language of

Section 43.362(a) does not limit the discretion that TPWD has to deny a transfer

permit for any reason it deems appropriate. Here, given the risks that CWD poses

to the State’s white-tailed deer and to landowners, TPWD clearly did the right

thing in restricting the movement of breeder deer.

Even if Peterson could divine a way to circumvent the provisions of the

Wildlife Code and somehow establish that the breeder deer TPWD gave him a

permit to possess are “goods” that he owns, his due-process claim would still fail.

Peterson was afforded all the due process he was entitled to receive concerning his

ability to transfer breeder. In order to lawfully transfer captive-bred deer within the

State, the Wildlife Code requires that the breeder deer be in a healthy condition,

and that a transfer permit be obtained. See TEX. PARKS & WILD. CODE

§§ 43.362(a), 43.362(b) (“[N]o person may purchase, obtain, sell, transfer, or

accept in this state a live breeder deer unless the person obtains a transfer permit

from the department.”). The Legislature specifically authorizes the Parks and

Wildlife Commission to adopt “procedures and requirements” for those transfer

permits. See id. § 43.357(b). The Comprehensive Rules adopted by the Parks and

{1183/003/00164357.DOCX;2} 21

Wildlife Commission establish procedures and requirements for the transfer of

breeder deer, set reporting requirements, and regulate the possession of and

reporting requirements regarding breeder deer, as expressly authorized by Section

43.357(b). They also implement the statutory command that only healthy breeder

deer may be transferred.

The rulemaking process leading up to the adoption of the Comprehensive

Rules was inclusive, transparent, and involved close cooperation with the Texas

Animal Health Commission and input from various stakeholders, including deer

breeders.19 Due to the unique characteristics of CWD, imposing restrictions on the

movement of potentially infected breeder deer is and continues to be a necessary

and reasonable method of minimizing the potential spread of the disease.20

Moreover, the due process that Peterson claims to be entitled to—individualized

notice, hearing, and appeal—would be exceptionally burdensome on both deer

breeders and TPWD. Accordingly, the Parks and Wildlife Commission acted well

within its authority when it adopted the Comprehensive Rules after full notice and

comment.

19 41 TEX. REG. 5726, 5733 (Aug. 5, 2016) (describing the Commission’s rulemaking process leading up to the adoption of the Comprehensive Rules and its efforts to arrive at consensus with stakeholders and the regulated community). 20 See Michael W. Miller & John R. Fischer, The First Five (or More) Decades of Chronic Wasting Disease: Lessons for the Five Decades to Come, Fair Chase 32, 64 (noting that “human-facilitated movement of live animals . . . is the only confirmed contributing activity linked to CWD’s spread between distant locations”).

{1183/003/00164357.DOCX;2} 22

CONCLUSION

The Public Trust Doctrine and North American Model of Wildlife

Conservation have historically formed the basis for State wildlife law, and

continue to provide for successful wildlife management. TWPD’s public-trust-

based legal authority is its authority to regulate in favor of fish and wildlife

conservation. This includes the authority to implement regulations aimed at

preventing the spread of harmful wildlife diseases like CWD.

Amici urge this court to uphold the district court’s rulings. Captive-bred

white-tailed deer are not subject to private ownership, but are instead held in trust

by the State, for the benefit of all people in Texas.

Respectfully submitted,

By: /s/ Joseph B.C. Fitzsimons Joseph B.C. Fitzsimons

State Bar No. 07099100 Dana B. Deaton State Bar No. 24082551 UHL, FITZSIMONS, JEWETT, BURTON & WOLFF, PLLC 4040 Broadway Street, Suite 430 San Antonio, Texas 78209 Telephone:(210) 829-1660 Facsimile: (210) 829-1641 jfitzsimons@ufjbwlaw.com ddeaton@ufjbwlaw.com

ATTORNEYS FOR AMICI CURIAE

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CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i)(2), I hereby certify that this brief contains

6,988 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1).

In making this certificate of compliance, I am relying on the word count provided

by the software used to prepare the document.

By: /s/ Joseph B.C. Fitzsimons Joseph B.C. Fitzsimons

{1183/003/00164357.DOCX;2} 24

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Amended Brief of Amicus

Curiae has been forwarded to all counsel and parties of record via electronic

service in accordance with the Texas Rules of Appellate Procedure on this 23rd day

of August, 2018.

By: /s/ Joseph B.C. Fitzsimons

Joseph B.C. Fitzsimons

ddeaton

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EXHIBIT A

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PART 1This series will give our readers a closer look at chronic wasting disease. It will touch on the various challenges posed by this disease and begin to update you and all hunters about the status of CWD and what science can tell us about it today.

The first part in this series will outline what CWD is and the tangled history of the disease.

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THE FIRST FIVE (OR MORE) DECADES OF CHRON IC WAST ING DISEASE:

LESSONS FOR THE FIVE DECADES TO COME

Chronic wasting disease (CWD), an infectious pri-on disease of at least five cervid species, has run the gamut from minor scientific curiosity to na-tional crisis since the syndrome was first rec-ognized in the late 1960s.

As of September 2016, CWD had been reported in captive and/or free-ranging cervids in 24 U.S. states, 3 Canadian provinces, South Korea, and Norway. With few exceptions (New York and perhaps Minnesota), the disease has persisted in the wild in the face of widely varied control attempts. Natural and anthropogen-ic factors have contributed to the geographic spread and persistence of CWD. Natural factors include pro-longed incubation, multiple routes of agent shedding, the agent’s envi-ronmental persistence, and migra-tory and dispersal movements of wild cervids. Anthropogenic factors in-clude movements of infected live animals (and perhaps infectious tissues and other materials), con-centration of normally dispersed

wild cervids, and other artificial wildlife management practices. Many facets of CWD biology and ecology now are well understood, but sci-ence-based, effective management and control strategies remain com-paratively incomplete. Eradicating CWD appears infeasible given its extensive distribution and other ep-idemiological attributes. Regardless, adaptive approaches for containing foci and reducing infection and transmission rates have shown some promise and deserve further atten-tion. Such pursuits undoubtedly will be more difficult to champion and garner support for in sociopolitical climates ranging from apathetic to combative, particularly when disease control prescriptions impinge upon or conflict with commercial enclo-sures or hunting by the general pub-lic.. We believe there are two import-ant motivations for making progress toward sustainable containment and control strategies for CWD in the coming decades. First, data from several sources suggest that heavi-ly-infected cervid populations will not thrive in the long term. Second, data on CWD prions and experience with other animal prion diseases suggest minimizing human exposure to these agents is prudent.

MICHAEL W. MILLERSENIOR WILDLIFE VETERINARIAN, COLORADO DIVISION OF PARKS AND WILDLIFE, FORT COLLINS, COLORADO

JOHN R. FISCHERB&C PROFESSIONAL MEMBER

DIRECTOR AND PROFESSOR, SOUTHEASTERN COOPERATIVE WILDLIFE DISEASE STUDY, UNIVERSITY OF GEORGIA ATHENS, GEORGIA

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LONGER THAN YOU THINK: BRIEF HISTORY AND KNOWN DISTRIBUTION OF CHRONIC WASTING DISEASEThat the duration of an out-break often is underestimated seems perhaps the most im-portant overarching lesson about CWD. Despite its likely occurrence in multiple loca-tions since the 1960s or earlier, many wildlife and animal health professionals, as well as our lay and media publics, per-ceive CWD as having emerged and spread rapidly only since the early 2000s. This percep-tion has fostered the broader notion that newly discovered disease foci are truly new (very recent) occurrences. To the contrary; given imperfect sur-veillance approaches, incom-plete or inaccurate knowledge about local exposure risks, and the insidious progression of an outbreak in its early stages, the first case detected in a locale is rarely the first case that has occurred. Consequently, on further investigation new foci tend to have larger spatial di-mensions and higher preva-lence than expected, thereby perpetuating misconceptions about the speed of spread. This lesson has been illustrated by experiences in Colorado and Wyoming, in Saskatchewan, in Wisconsin, and most

recently in Arkansas where expanded surveillance dis-closed 79 additional cases within two months after their first case was diagnosed in February 2016.

Chronic wasting dis-ease history remains incom-pletely documented. The chronic wasting syndrome first was recognized in captive mule deer held for research in Colorado in the 1960s, but un-recognized cases could have occurred in Colorado or else-where before that time. Clin-ical cases also were recognized in captive mule deer in the Denver and Toronto zoos in the 1970s, and in captive Rocky Mountain elk in research and zoological collections in Colo-rado and Wyoming.

Undocumented in-volvement of other private collections or menageries during the 1960s and 1970s seems likely. Within little more than the first two de-cades after its characteriza-tion as a transmissible spon-giform encephalopathy, CWD cases were diagnosed in wild mule deer, white-tailed deer, and elk in northeastern Colo-rado and southeastern Wyo-ming (1980s–1990s), in com-mercial captive elk facilities in Saskatchewan (1996) and in South Dakota (1997), in com-mercial captive white-tailed deer facilities in several

jurisdictions (2001–2002), and eventually in wild moose. Cas-es from what have become recognized as large foci in wild deer in Saskatchewan-Alberta and Wisconsin-Illinois also were first detected in the ear-ly 2000s. As of October 2016, cases of CWD had been report-ed in captive and/or free-rang-ing cervids in 24 states (77 captive herds in 16 states and free-ranging cervids in 21 states), 3 Canadian provinces (including Ontario’s Toronto Zoo in the 1970s), and South Korea. In the spring of 2016, CWD was detected in two free-ranging moose and a sin-gle wild reindeer in Norway marking the first detections in Europe. Based on experience to date, the true geographic distribution of CWD likely remains underestimated.

TWO GOOD STORIES: THE DRIVERS OF THE SPREAD OF CHRONIC WASTING DISEASE

A second overarching lesson—a corollary to the first—is that new CWD foci often can be explained by two or more equally plausible (and equally undeniable) origin stories. Distorted temporal perceptions on the likely timing of introduction under-lie the plurality of origin sto-ries, as do sociopolitical moti-vations to deflect or lay blame

CHRONIC WASTING DISEASE: LESSONS LEARNED FROM THE FIRST FIVE DECADESChronic wasting disease, an infectious prion dis-ease of at least five cervid species, has run the gam-ut from minor scientific curiosity to national crisis since the syndrome’s first recognition in the late 1960s. Moving forward, we believe this wildlife disease merits attention somewhere between those extremes. Collective experiences and observa-tions made over the last five decades can serve—for better or worse—as a solid foundation for wild-life and animal health professionals to build upon in addressing antic-ipated challenges posed by CWD in the decades to come. Here we overview what we regard as the key lessons learned over the first five or more decades of North America’s expe-rience with CWD.

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Infected cervids likely shed prions for most of the disease course, thus affording ample

opportunities for transmission within and among social

groups. Migration movements also have potential for

contributing to longer-distance jumps in distribution.

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CWD THROUGH THE YEARSYEAR EVENTS

1967 n Wasting syndrome observed in captive mule deer at a Colorado wildlife research facility

1975−81 n Wasting syndrome observed in Toronto Zoo mule deer that came from the Denver Zoo

1978 n “Chronic wasting disease” (CWD) diagnosed as transmissible spongiform encephalopathy (TSE)

1979 n Recognized in captive mule deer at Wyoming wildlife research facility

1981 n Detected in wild elk in Colorado

1985 n Detected in wild mule deer in Colorado and Wyoming

1996 n Detected in a captive elk farm in Saskatchewan; 38 other linked farms eventually found positive

1997 n Detected in captive elk facilities in South Dakota

1998 n Detected in captive elk facilities in Montana and Oklahoman Model Program for Surveillance, Control, and Eradication of CWD in Domestic Elk presented at US Animal Health Association to establish

monitoring and control standards

1999 n World Health Organization indicates no evidence CWD is transmissible to humans, but advises that exposure should be avoided nonetheless

2000 n Detected in wild mule deer in Nebraska and Saskatchewann Research: molecular studies compare host ranges for CWD, scrapie, and bovine spongiform encephalopathy prions; environmental

contamination and subclinical infection contribute to transmission; prevalence estimates in wild populations in Colorado and Wyoming

2001 n Detected in captive elk in Kansas n Detected in captive elk in South Korea imported from Saskatchewann Detected in wild white-tailed deer in South Dakotan USDA declares CWD emergency in captive elk; funds available for disease control

2002 n Detected in captive elk in Minnesota, captive white-tailed deer in Alberta, and wild and captive white-tailed deer in Wisconsinn Detected in wild white-tailed deer in Illinois, mule deer in New Mexico, and elk in South Dakotan Joint CWD Task Force of USDA/DOI/States/Universities develops Plan for Assisting States, Federal Agencies, and Tribes in Managing CWD

in Wild and Captive Cervids (National CWD Plan)n Colorado establishes guidelines to minimize transport of high risk carcass materialsn 1st International CWD Symposium (Denver, Colorado)n Research: tonsil biopsy as a live animal test; improved high-throughput diagnostics

2003 n Detected in wild mule deer in Utahn APHIS funds available for CWD work in captive and wild cervids (through 2011)n USDA publishes Proposed Rule for CWD herd certification and interstate shipping program (HCP) to eradicate CWD from captive white-

tailed deer and elkn Research: horizontal transmission of CWD likely important in CWD epidemiology

2004 n Detected in wild elk in New Mexico n National CWD Plan progress report published and new priorities discussedn Research: environmental sources, decomposed carcasses can contribute to transmission

2005 n Detected in captive and wild white-tailed deer in New York, wild mule deer in Alberta, moose in Colorado, and white-tailed deer in West Virginia

2006 n Detected in captive white-tailed deer in Minnesota and wild white-tailed deer in Kansasn USDA publishes CWD HCP Final Rule – never implementedn Research: prions in muscles of infected deer; transmitted in saliva and blood

2007 n Research: prions in environment more infective in particular (clay) soil types

2008 n Detected in captive white-tailed deer in Michigan, wild elk in Saskatchewan, and moose in Wyomingn Research: CWD may be a plausible explanation for local deer population declines in Colorado

2009 n APHIS plans to withdraw 2006 CWD Final Rule, issue a new rule based on 2006 rule and 2009 proposed rulen Research: prions shed in feces from deer in early stages of CWD; prions in urine and saliva

2010 n Detected in captive white-tailed deer in Missouri and wild white-tailed deer in North Dakota and Virginia

2011 n Detected in wild white-tailed deer in Maryland and Minnesotan Severe reduction of USDA funds for CWD work

2012 n Detected in captive white-tailed deer in Iowa and Pennsylvania, wild white-tailed deer in Missouri, and wild mule deer in west Texasn APHIS Interim Final Rule for CWD Herd Certification and Interstate Movement and CWD Program Standards publishedn Research: possible link between scrapie and CWD

2013 n Detected in wild white-tailed deer in Pennsylvania

2014 n Detected in captive white-tailed deer in Ohio n CWD Program Standards revisedn APHIS CWD Final Rule implementedn Research: plants may play role in CWD transmission and environmental maintenance; experimental aerosol transmission in white-tailed deer

2015 n Detected in wild white-tailed deer in Michigan and captive white-tailed deer in Texasn Research: plants can bind prions superficially and uptake prions from contaminated soil

2016 n Detected in wild elk and white-tailed deer in Arkansasn Detected in a wild reindeer in Norwayn CWD found in two wild moose and a free-ranging reindeer in Norway

FAIR CHA SE | WINTER 201664

elsewhere when “new” cases arise. But perhaps most per-vasive is the lack of complete information on contributory events, particularly for out-breaks involving free-ranging cervids. Although the lack of a singular explanation can be dissatisfying, failing to con-sider plausible alternative timelines and exposure sourc-es may be more problematic when disease prevention and control efforts are misin-formed or misled. For exam-ple, the widely held belief that all CWD occurrences can be traced back to a single Colora-do research facility has pre-cluded wildlife and animal health professionals from considering that some out-breaks may be arising from unrecognized exposure events that occur repeatedly over time. The recent Norwegian reindeer and moose cases may stimulate broader thinking.

In fact, natural and anthropogenic factors have contributed to the geograph-ic spread and persistence of CWD over the last five de-cades. Regardless of the

ultimate origin, much of the geographic spread of CWD appears attributable to natu-ral movements in some juris-dictions; Wyoming, for exam-ple, has only one private game farm and consequently com-mercial enterprise is unlikely to have driven the widespread distribution there. Alterna-tively, the role of commercial elk operations in CWD out-breaks in Saskatchewan and South Korea was well-docu-mented, with inadvertent spillover apparently giving rise to a large free-ranging focus spanning the Saskatch-ewan-Alberta border. In Col-orado, a combination of natu-ral and anthropogenic factors likely contributed in different measures to separate out-breaks along the Front Range and on the Western Slope.

Natural factors con-tributing to persistence and geographic spread include prolonged incubation, multi-ple routes of agent shedding, the agent’s environmental persistence, and movements of free-ranging cervids. In-fected cervids likely shed

prions for most of the disease course, thus affording ample opportunities for transmis-sion within and among social groups. Migration movements also have potential for con-tributing to longer-distance jumps in distribution. Be-cause infectivity can be har-bored in some environments for an extended time, trans-mission occurs on overlapping ranges even in the absence of direct interactions between infected and uninfected ani-mals. Indirect transmission also increases the likelihood of interspecies transmission.

The primary anthropo-genic factor identified in the dissemination of CWD is hu-man-facilitated movement of live animals, and to date, this is the only confirmed contrib-uting activity linked to CWD’s spread between distant loca-tions. These animal move-ments typically are fostered by other highly artificial wild-life management activities, such as captive wildlife prop-agation and high-fenced shoot-ing enclosures. Translocating free-ranging cervids from an

infected source also would present a similar risk for spreading CWD. Local wildlife may be exposed to CWD if infected captive animals es-cape, or if there is ingress/egress of free-ranging cervids with exposure to infected cap-tive animals or to contaminat-ed environments. Fence-line contact offers another oppor-tunity for direct transmission. (Note that these transmission opportunities are a two-way street, i.e., CWD can move in either direction between cap-tive and wild cervids.) Other possible modes for the anthro-pogenic spread of CWD in-clude transport of infected carcasses, products manufac-tured or contaminated with prion-laden deer or elk urine, saliva, or feces, and movement of hay or grain crops contam-inated with the CWD agent. None of these has been docu-mented in the field, although proof of concept has been demonstrated experimentally.

In addition, other anthropogenic factors can substantially increase the likelihood of establishing, maintaining, and disseminat-ing CWD and other diseases in free-ranging wildlife. In particular, artificial manage-ment activities, such as wild-life baiting and feeding or other practices that congre-gate normally dispersed wild animals, enhance pathogen transmission opportunities.

Current known distribution of chronic wasting disease (CWD). In addition to North America, cases have been reported in South Korea (captive only) and Norway (free-ranging only). North America map from U.S. Geological Survey (2016).

CWD BY THE MAP

65FAIR CHASE | WINTER 2016

This article is excerpted from the complete paper to be published in the “Transactions of the 81st Wildlife and Natural Resources Conference.” It was presented in the special session “Science-based Management Strategies for Fish and Wildlife Diseases” in March 2016. The complete Transactions paper will be available through the website of the Wildlife Management Institute at wildlifemanagementinstitute.org.

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THINGS WE NOW KNOW: CHRONIC WASTING DISEASE BIOLOGY AND ECOLOGYMany facets of CWD biology and ecology that were myster-ies even into the early 2000s now are well understood. For example, notable advances have been made in diagnostics and in our understanding of transmission routes and host factors modulating disease progression that have appli-cation in CWD detection and control. These and other ad-vances have been reviewed thoroughly elsewhere; here we offer a brief synthesis of findings most relevant to CWD detection and control, which we will address in the

second article in this series. Chronic wasting dis-

ease appears to be caused by one or more strains of infec-tious prions. Although the ultimate historical origin never will be known with cer-tainty, we regard exposure of native cervids to the sheep scrapie agent at one or more times and locations as a pos-sible explanation. Regardless of their origin(s), sustained outbreaks now occur as large and small foci in wild cervid populations and in captive wildlife facilities (Fig. 1). Nat-ural cases of CWD have oc-curred in five host species native to North America: mule deer, white-tailed deer, Rocky Mountain elk, moose, and

reindeer/caribou. No immu-nity, recovery, or absolute resistance to infection has been documented in any of the susceptible species. However, natural variation in the host gene encoding for cellular prion protein does modulate disease progression, thereby extending survival times and perhaps lowering infection probabilities for relatively resistant genotypes. The dis-ease course typically is mea-sured in years. Clinical signs—altered behavior ini-tially, with body condition declining much later—be-come progressively apparent relatively late in the disease course. Infection can be de-tected in carcasses, as well as

in live animals, and diagnostic tests become increasingly reliable in individual animals as the disease progresses.

Chronic wasting dis-ease is infectious. Infected individuals shed prions from several routes during most of the disease course, exposing others either directly or through contamination of shared resources or environ-ments. Shed prions can per-sist for years in the environ-ment, and their binding to soil elements (e.g., clay) en-hances persistence and infec-tivity. The uncoupling of transmission from the imme-diate presence of infected animals greatly complicates CWD control. n

Part 2 will be featured in the Spring 2017 issue of Fair Chase.