REGIONAL- Has Minnesota gone too far in imposing regulations on cervid farms intended to prevent the spread of chronic wasting disease?
A lawsuit filed with the Minnesota federal district court in December says yes, contending that regulatory amendments passed by the Legislature in 2023 imposing strict restrictions on the registration and operation of white-tailed deer farms severely infringe upon the plaintiffs’ constitutional rights and livelihoods.
Chronic wasting disease
The situation at the heart of the dispute is the state’s ongoing effort to control chronic wasting disease (CWD) in both the farmed and wild cervid population, including deer, moose, elk, reindeer, and sika deer. CWD, a disease caused by prions, misfolded bits of proteins, is incurable and always fatal to the animals that are infected. The disease causes symptoms such as drastic weight loss, stumbling, listlessness and other neurologic symptoms followed by death. While the overall incidence of CWD in free-ranging deer is quite low across the 32 states where it has been discovered, in locations where the disease is well-established rates may exceed ten percent, and some localized rates exceeding 25 percent have been reported, according to the Centers for Disease Control. Infection rates in confined farm herds can be higher, and a 2020 study found that movements of cervids between farms presents a risk for spreading CWD in Minnesota.
The Department of Natural Resources reports that 273 cases of CWD in wild deer have been identified since 2010, 63 percent of which were identified through samples provided by hunters. With increased surveillance efforts, the number of cases identified since July 1, 2023, is 56. The majority of total cases have been found in five southeastern Minnesota counties, although four cases have been reported in nearby Itasca County.
Officials are not only concerned about the health of wild deer populations, but also of humans. While there are no documented cases of CWD affecting humans, studies using primates have shown that they can get CWD by ingesting affected meat. A new Minnesota-based multidisciplinary international effort is intended to develop plans to deal with the possible transmission of CWD to humans.
The movement for controlling CWD by regulating registered cervid farms in Minnesota has been taken up primarily by DFL legislators, who have been pushing for increased restrictions since the early 2010s. Their cause has been supported by the Minnesota Deer Hunters Association, and former executive director Craig Engwall said in a 2021 news report that increased regulation doesn’t go far enough.
“We’re really past the point of taking incremental measures now, like double fencing or restricting (shipping) movement of farmed deer,” Engwall said. “For the sake of the state’s population of wild deer, and our tradition of deer hunting, we need to eliminate deer farms entirely.”
And a pair of DFL legislators interviewed by MinnPost prior to the 2023 legislative session expressed similar sentiments.
“When you’re dealing with disease, stopping the bleeding – metaphorically – is what a moratorium does,” said Rep. Rick Hansen, DFL-South St. Paul. “A moratorium is the minimum, not the answer.”
Sen. John Marty, DFL-Roseville, was more direct in speculating about what action the Legislature might take.
“I’m guessing at a minimum not allowing new deer farms and probably more likely phasing them out,” he said.
Courtney Wheeler, a senior veterinarian with the Board of Animal Health, told MinnPost that deer farmers have already gotten the message. “A lot of producers are electing to get out because of the very strict regulations in this state,” she said.
And in December, the DNR’s farmed deer and captive species coordinator Mike Oehler told Outdoor News he expected the decline in the number of white-tailed deer farms to continue. The state has already seen a drop from 195 registered farms at the end of fiscal year 2020 to 117 last October, Oehler said.
“I have about 20 producers that will be out before the close of the year,” Oehler said. “The take home message is that we’re going to be sitting below 100 farms (going into) 2024. We’re going to be well below 2,500 (farmed) deer statewide.”
The federal lawsuit is the clearest evidence to date that deer farmers blame increased regulations for the dire state of the industry in Minnesota.
Lawsuit claims
The Minnesota Deer Farmers Association was joined in the lawsuit by 40 individual plaintiffs, including former deer farm operator Dennis Udovich, of Greaney. Udovich figures prominently in the case, as after voluntarily ceasing his deer farming activities, he now finds himself unable to re-enter the profession due to a moratorium on new registrations for white-tailed deer farming. The regulations also limit the transfer of existing registrations to immediate family members, effectively prohibiting non-family members like Udovich from entering the industry. Udovich’s situation illustrates the broader impact of the law on individuals wishing to pursue deer farming.
In Udovich’s written statement included with the lawsuit, he noted that he discontinued his deer farm in 2021 after an emergency rule issued by DNR stopped the complete movement of farmed white-tailed deer due to a CWD incident involving three Minnesota farms and five deer from Wisconsin. This cut off Udovich’s ability to sell his bucks to established clients in Wisconsin, Iowa, and Louisiana, a key component of his business operation.
The lawsuit claims that legislative changes enacted in Minnesota violate several constitutional rights, including the Equal Protection Clause of the Fourteenth Amendment, by discriminating against deer farmers without immediate family members and those without registrations. They also assert violations of the Takings Clause of the Fifth Amendment, arguing that the DNR is authorized to destroy herds without just compensation, and the Due Process Clause of the Fourteenth Amendment, noting how the regulations represent a complete prohibition against pursuing their trade.
The plaintiffs argue that the state’s regulatory framework, which they claim is aimed at eradicating white-tailed deer farming, lacks justification. While the stated purpose of these restrictions is to contain CWD, the plaintiffs assert that the measures aren’t reasonable, given the industry’s efforts to manage and contain the disease effectively. They point out that there is no direct evidence linking CWD incidents among farmed deer to those in the wild and vice-versa and criticize the state’s failure to recognize the industry’s proactive measures to address CWD, including monitoring programs and DNA testing for disease susceptibility.
The lawsuit also emphasizes the economic hardship forced on deer farmers through the restriction on the ability to transfer their registration and herds to anyone other than close family members, and by costly new fencing requirements intended to prevent physical contact between wild and farmed deer. The DNR has three fencing options that would involve constructing a second fence, and a third which would require covering an existing fence with wood, tin, or densely-woven shade cloth.
One of the plaintiffs, Steve Uchytil, owner of Crow River Whitetails in Atwater, said in the fall MDFA newsletter that he intended to clear out his entire herd and start over in another state because the fencing requirement is cost-prohibitive.
The state has responded with a motion for the judge to dismiss the suit, arguing that the regulations are justified and therefore constitutional by the state’s interest in preventing the spread of CWD and protecting public health and the wild deer population. The state’s motion said the lawsuit lacks merit and does not establish viable claims upon which relief can be granted to the plaintiffs under the constitutional arguments they advanced. As of Tuesday, no hearing date had been set by the court to consider the dismissal motion.