Earlier this month, the Court of Appeals of Texas, Fifteenth District, Austin, issued its opinion in a dispute between the Texas Parks and Wildlife Department (“TPWD”) and a white-tailed deer breeder. (Editor’s Note: I can’t say I had personally ever heard of anyone breeding white-tailed deer before reading this opinion, as in Virginia and North Carolina white-tailed deer seem to make more than enough of themselves without anyone’s help.) The deer breeder in this case, Mr. Williams, operated a captive breeding facility under a TPWD “breeder deer” permit. Mr. Williams declined various plans by TWPD to try to manage an outbreak of Chronic Wasting Disease (“CWD”) on his property, and the ranch developed what TWPD described as the worst outbreak of CWD in Texas history. Eventually TWPD sought to depopulate (read euthanize) all of the deer kept at the facility to halt the outbreak and try to keep it from spreading to public deer herds. TWPD eventually did depopulate the facility, and among other claims, Williams tried to bring a takings claim.
CWD is a type of transmissible spongiform encephalopathy (“TSE”), also known as a prion disease, that “causes holes in the brain,” in deer anyway. Other examples include Mad Cow Disease (scientific name Bovine Spongiform Encephalopathy) and scrapie in sheep. One of the more interesting lines in the opinion is where the court notes
Responding to opposing counsel’s question attributing the presence of misfolded prions to scrapie instead of CWD, one Department official explained, ‘Well, regardless of what you call the disease, it’s a TSE and it’s having impacts on the deer and the deer herd…. You could call it snuffleupagus disease if you want to, but it’s still having an effect on those deer.’
As you might have guessed when the fact pattern involved a permit at the outset, the Court of Appeals did not sustain the takings claim here. The Court of Appeals joined other Texas and Fifth Circuit decisions holding that breeder deer are held under a permit subject to extensive statutory regulation and that there is no property interest to base a takings claim on here. Williams had no vested property right in wildlife that belong to the state but were only held by Williams pursuant to a TWPD permit.
If you are a property rights nerd, the court’s analysis about the nature of the property interest or lack thereof, may be of some interest because while the breeder might have deer on his ranch, removing the deer from nature did not make the deer belong to him:
Using the common law rule of capture as a backstop, Williams argues that the Parks and Wildlife Code “does not deprive the deer breeder of his common law property interest in the breeder deer through legal captivity and dominion,” but instead “simply imposes conditions on how and when deer may be held captive.” Williams points to Section 43.357, which says a deer breeder may “sell” and “transfer to another person” live breeder deer.But while breeder deer can be sold and transferred, they may be “purchased” and “received”—the logical consequences of being sold and transferred—”only for the purposes of liberation or holding for propagation.” Deer sold or transferred are thus either freed (onto a release site) or continue on as breeder deer. In the latter scenario, the Legislature clarified in the very same provision that deer may be held “for propagation … only after a deer breeder’s permit is issued.” William’s theory that deer breeders have a vested property interest in breeder deer under some common-law authority running parallel to, but not inconsistent with, Subchapter L is incompatible with the Legislative scheme completely regulating deer breeding.
Approaching the issue from a different common-law angle, Williams argues that deer breeders obtain a vested property right in breeder deer because “wild animals become property when removed from their natural liberty and made subject to man’s dominion.” The criminal cases Williams cites relied on that rule in examining whether a wild animal could be the subject of a criminal offense like theft or criminal mischief. But while a deer breeder may have “qualified rights of ownership or possession of white-tailed deer” such that a person is amenable to prosecution for certain crimes involving a breeder deer, that right remains subordinate and subject to the Legislature’s authority to regulate the deer breeding industry. In this context, a possessory right does not equate to a vested right.
Williams looks to the bankruptcy context for support, but a similar rationale applies. Although a deer breeder may have a “possessory interest” in the deer and an “expectancy interest in profits derived from those deer” such that the deer may be considered property of a bankruptcy estate, it does not necessarily follow that those interests give rise to a heightened vested property interest entitled to due process protection.
The ruling is also interesting because it never mentions the words police power, i.e. the government’s over-arching power to protect the health, safety, and welfare of the people, a single time, perhaps because CWD has not been shown at this point to infect humans, as compared to Mad Cow Disease where humans can develop variant Creutzfeldt-Jakob disease (vCJD) from consuming beef products contaminated with Mad Cow Disease.
Ross Greene is a firm shareholder and chair of the firm’s Eminent Domain / Right of Way Practice Group. He focuses his practice in the areas of eminent domain, real estate, wills, trusts, estates, and business matters.
Leave A Comment