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SAN ANTONIO (AP) — They're raised in high-fenced pens, named and nurtured from birth by breeders hoping for a big payoff when the deer are sold as quarry for hunters or to propagate elsewhere.
But despite the coddling and commerce associated with an estimated 110,000 captive-bred whitetails, they're still deemed by the state to be wild animals — and public property.
The San Antonio Express-News (http://bit.ly/1h3HXFP ) reports legal ambiguity over that claim makes it ripe for a judge to sort out, some say — and the state's initial response to the discovery in June of chronic wasting disease in a captive herd in Medina County almost triggered such a showdown.
"All wild animals, fur-bearing animals, wild birds and wild fowl inside the borders of this state are the property of the people of this state," reads the Parks and Wildlife Code. That claim doesn't apply to exotic species such as axis deer, which are treated as livestock subject to the rules of the Texas Animal Health Commission, officials say.
The first report of chronic wasting disease in Texas whitetails prompted state leaders to discuss whether to euthanize all 238 deer at Texas Mountain Ranch for testing, concerned that farm-raised bucks could infect wild deer when released in advance of the fall hunting season.
The ranch's owner, Robert Patterson, took the offensive by filing suit July 15 against the Texas Parks and Wildlife Department and the Texas Animal Health Commission, asking a state district court in Hondo to block the taking of any deer there not exhibiting CWD symptoms and to declare him the rightful owner of breeder deer in his possession.
But Patterson dropped the lawsuit two days later, and the agencies agreed instead to incrementally test his herd. So far, four of the 43 deer euthanized at Patterson's ranch have tested positive for CWD.
"We are still considering additional measures, including more testing," TPWD spokesman Steve Lightfoot said.
Statewide, the agencies have expanded mandatory testing for CWD in captive-bred deer and are restricting their movements and release sites. Increased testing is also planned on hunter-harvested deer, but it's voluntary.
The new rules take effect Monday and are intended to safeguard the state's estimated 3.9 million wild deer and a deer-hunting industry that contributes an estimated $2.1 billion annually to Texas' economy.
The denial of ownership rights to their four-legged inventories has long been a sore point among the state's 1,300 breeders of native deer, whose state-issued permits merely allow them to raise, transport, buy, sell and release the animals.
"There's a tremendous amount of confusion and disagreement in the community about who owns the deer," said Chase Clark, whose tenure ended last Saturday as president of the Texas Deer Association.
"There's enough discrepancy out there in how these animals are treated in both (court) case law and in the permitting process, that it will probably come to a head," he said.
Patterson's attorney, John Chunn, wouldn't detail the legal basis for his client's claim to own the deer but said the issue is still very much alive, even though the lawsuit was dropped. "That area of law has really not been well litigated," he said.
Protecting the public's faith in the health of hunted deer outweighs concerns about lost profits among deer breeders who entered the business "with their eyes wide open," said David Yeates, director the Texas Wildlife Association.
"The captive breeder permit issued by the state specifically states it is a permit to possess, not a permit to own," he said, adding, "The breeding industry creates a higher-risk profile of disease transmission than native deer by raising them in high-density pens and transporting them around the state."
Before the Medina County cases this year, the only other Texas CWD cases involved seven wild mule deer diagnosed since 2012 in far West Texas, officials say.
A form of spongiform encephalopathy similar to mad cow disease, CWD is fatal, believed to be spread through saliva, blood, urine, carcasses and infected plants and soil. The state uses post-mortem tests on the brain stems of deer to diagnose it.
Patterson didn't mention his lawsuit in a July 27 interview at his ranch, where he hand-fed peanuts to young deer.
His wife, Susan, who names all their deer, likened the animals to thoroughbred racehorses. The couple put the value of one of the bucks put down for state testing at $50,000.
Tests on 174 deer at other sites that did business with Patterson have yielded no CWD cases, Lightfoot said this week.
He said Patterson's lawsuit claims were "without merit," and he cited a recent federal court ruling in a separate case as verification of state ownership of captive-raised deer.
In that case, James and Jimmie Anderton of Quinlan sued TPWD and TAHC officials over the shooting of 71 deer for CWD testing after the Andertons admitted in 2010 to smuggling deer to their ranch from Arkansas.
The admissions prompted the TPWD not to renew their breeder's permit and resulted in the father and son serving time in federal prison. A judge dismissed the Andertons' lawsuit complaints, which included claims they were subject to unconstitutional searches and seizures.
In upholding that decision in March, the 5th U.S. Circuit Court of Appeals said TPWD officials "lawfully entered the Andertons' property and had the right to kill the deer" since the animals, without a valid permit, were there illegally.
The deer ownership debate arose in the case, said Steve Griggs, the Andertons' attorney. "The stance of the state is that all deer are wildlife and all of the wildlife is owned by the state, but there hasn't been court finding that captive-bred deer are wildlife," he said.
The issue has also surfaced in the Legislature. Rep. Ryan Guillen, D-Rio Grande City, was unsuccessful in pushing for a bill in 2011 that would have made all deer held under a breeder permit or born in a breeder facility the personal property of the breeder.
"There's only a couple of states in the country where they are like Texas and consider that they own captive-bred deer," said Tim Condict of Deer Breeders Corp., an industry group.
"We believe that we own the deer because we buy them, sell them, feed them, build pens for them and breed 'em," he said. "When they are turned out into the wild, they are the state's animals at that point."
But Jenny Sanders of Texans For Saving Our Hunting Heritage said such arguments don't square with history.
"Going back to a Supreme Court decision in 1841, we have this idea of the Public Trust Doctrine, where wildlife resources are managed by the state for the people," she said. "It's pretty well settled."
Information from: San Antonio Express-News, http://www.mysanantonio.com
This is an AP Member Exchange shared by the San Antonio Express-News
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