The Associated Press
LOUISVILLE — A federal judge has dismissed a challenge to Kentucky’s ban on transporting deer and elk into the state, saying the lawsuit was premature because a state court has already struck down the law.
U.S. District Judge Danny Reeves on Tuesday at least temporarily turned away a challenge to the law brought by the North American Deer Farmers Association.
Reeves, who is based in Frankfort, cited a ruling in April by McCracken Circuit Judge Craig Clymer that said the law was vague and therefore unconstitutional. Until there’s a final appellate ruling on the law in state court, any federal challenge is untimely, Reeves said.
Reeves wrote that it’s uncertain whether the law would be enforced if members tried to transport deer and elk along Kentucky roadways.
The dispute arose in September 2007 after officers from the Kentucky Department of Fish and Wildlife arrested Timothy Cory Looper of Livingston, Tenn., as he passed west of Paducah with a load of elk and deer.
The animals were headed from Hostetler Wildlife Farms in Miller, Mo., and destined for a hunting lodge in Tennessee, but the state destroyed the animals.
Looper was charged with six felony counts of illegally importing elk and deer into Kentucky. Looper challenged the indictment and law in state court and the Lake City, Minn.-based deer farmers association attacked the law in federal court.
Kentucky state law banned the importation of elk and deer to protect the state’s elk and white-tailed deer herds from chronic wasting disease. State officials had enforced the law to prohibit anyone from bringing deer or elk across state lines, even if the animals were destined for another state.
Violating the law is a felony, punishable by up to $10,000 in fines and five years in prison.
Looper attacked the law as being vague because it doesn’t give fair notice of what activities are prohibited or include language that would prevent arbitrary enforcement.
The deer farmers attacked the law on the grounds that it violates the Commerce Clause of the Constitution.
Lawyers for the state asked Reeves to dismiss the challenge in federal court because the constitutionality of the law was being questioned in state court and a final ruling had not been handed down.
It is unfortunate that Looper was not aware of Kentucky’s laws. Having hunted out west I have seen the impact of chronic wasting disease on elk and deer herds. This law must be VERY seriously enforced. Once this incurable disease takes hold, our herds may be gone forever. All it takes is one infected herd brought into the wrong spot at the wrong time, even if it was not intentional. Perhaps take a different route next time.
This is a clear-cut case of a violation of the US Constitution’s Commerce Clause. States cannot make laws which interfere in interstate commerce. If KY doesn’t want the animals here, then that’s their choice. But they cannot stop someone from transporting them along roadways paid for with federal dollars when they were going from Missouri to Tennessee with no intent to be released into the wild in KY. Therefore, their argument about the wasting syndrome is futile, if these animals had it they wouldn’t give it to any KY animals, only to the animals in TN where they were being moved to. This will probably drag on for years, making attorneys millions but will eventually land on the US Supreme Court’s doorstep, where they will say (in a probably unanimous ruling) that KY cannot regulate what travels through its state when it’s going from a business in one state to a business in another. Keep fighting it, you will win.
I understand the interstate commerce laws and agree that they will probably eventually win their case. BUT I think there is something that needs to be done about wildlife being transported any where. That would also include wildlife agencies moving herds across state lines, which KY has done. They moved elk to the Smokey Mountains.
I agree that wildlife passing down a highway will NOT infect our herd. But if they are accidentally released, such as a traffic accident or are released on our boarding states, they COULD infect our herd. With that said, why can’t all wildlife that is going to be transported have a vet check before moving. If horses are moved from country to country, they are quarantined. If horses perform at shows, they have to present records of immunization and health records. Is this not possible with wildlife?
Why shouldn’t they be healthy and the wildlife farms and state agencies be held accountable? We have laws for neglect and abuse of animals. Wouldn’t any unhealthy deer or elk fall under that law?? Even if the animals are going to be slaughtered for consumption. Would you want to eat an unhealthy deer or elk??? We wouldn’t want a sick cow in our food chain.
Make the wildlife healthy and prove it… that is my answer. Then they can be transported without any problems.