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Court sides with state wildlife officials in battle over deer disease

The authority of the state’s wildlife agency to combat a deadly contagious disease found in white-tailed deer has been upheld in court, delivering a blow to some businesses that breed the animals for the $2.2 billion hunting industry in Texas and had contended the new regulations were too heavy-handed.

The Texas Parks and Wildlife Department has been attempting to curtail the spread of chronic wasting disease — which affects deer, elk and moose, but not humans— since July 2015, when it was discovered in a captive white-tailed deer herd in Medina County.

The agency temporarily halted the transportation of captive deer and called for postmortem testing of some of the affected herd. Later, it put in place regulations limiting the movement of breeder deer across the state, and it instigated increased live and postmortem testing for chronic wasting disease.

Some deer breeders objected to the state’s response, and two of them — Ken Bailey and Bradly Peterson — filed a lawsuit, seeking to upend the rule-making authority of the Texas Parks and Wildlife Department by challenging a century-old provision in which all deer in Texas are considered public property.

The pair, framing the issue in part as a violation of their private property rights, contended among other things that the state shouldn’t have authority to “regulate privately owned, captive-bred deer” as wildlife. State officials “have asserted they own the deer as wild deer,” their suit contended, going on to pan the wildlife agency’s regulations and the procedures it used to put them in place.

But District Judge Tim Sulak sided with the state in a recent ruling — and he ordered Bailey and Peterson to pay a total of nearly $426,000 for the state’s attorney’s fees.

Jennifer Riggs, an Austin attorney representing Bailey and Peterson, took issue with a number of aspects of Sulak’s ruling Monday, saying they’re considering an appeal.

“We are very disappointed that the trial court declined to recognize very basic property rights,” Riggs said.

Patrick Tarlton, executive director of the Texas Deer Association, didn’t respond Monday to requests for comment. Tarlton’s group wasn’t a party to the lawsuit, although he previously expressed support for it and called the state’s response to the disease “unreasonable and heavy-handed.”

Texas Attorney General Ken Paxton heralded the judge’s decision, however, saying the wildlife agency’s regulations “serve to protect Texas’ 700,000 licensed deer hunters, along with the thousands of people in rural communities across the state whose livelihoods depend on deer hunting.”

Paxton said the rules “reduce the probability of (chronic wasting disease) being spread from deer-breeding facilities, where it may exist, and increase the chances of detecting and containing (the disease) if it does exist.”

Chronic wasting disease, a neurological condition, was first documented in Texas in 2012 in a free-ranging mule deer in far West Texas, according to the Texas Department of Parks and Wildlife. The disease causes weight loss, behavioral changes, brain lesions, excessive salivation, pneumonia, difficulty swallowing and head tremors.

Since then, a total of 50 cases of the disease have been documented in Texas — 32 of which involved white-tailed deer either in or originating from captive deer breeding facilities, according to the wildlife agency. Sixteen of the cases involved free-ranging mule deer, one was a free-ranging elk and one involved a free-ranging whitetail deer.

Steve Lightfoot, a spokesman for the wildlife agency, said the disease so far appears to be under control in Texas.

“The fact that we are monitoring and sampling deer is to ensure that the health of the resource is maintained,” Lightfoot said Monday. “Texas is internationally know for its whitetail deal, (and) it’s a huge economic boon to the state. A lot of rural communities rely on deer hunting for their livelihood.”

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