Deer quarantine law doesn’t extend to hunting preserves, Iowa Supreme Court rules

By: Rox Laird on June 16th, 2017

The Iowa Department of Natural Resources went too far when it quarantined a 330-acre hunting preserve to prevent the spread of a deer disease, the Iowa Supreme Court ruled Friday. But the Court held that the quarantine did not amount to a government “taking” of the owners’ property under the Fifth Amendment to the U.S. Constitution.

The state department has the authority to quarantine deer under a law enacted by the Iowa Legislature to prevent the spread of Chronic Wasting Disease (CWD) that is attacking deer herds in many states. But the statute does not authorize extending a quarantine to include land, according to the decision written by Justice Brent Appel joined by Chief Justice Mark Cady and Justices David Wiggins, Daryl Hecht and Bruce Zager.

In a dissent joined by Justice Thomas Waterman, Justice Edward Mansfield said the majority read the statute too narrowly and said he would have upheld the DNR’s action.

Tom and Rhonda Brakke operated the hunting preserve in Davis County, hosting as many as 100 hunts a year. But when a 300-pound buck shot on the preserve tested positive for CWD in 2012, the Brakkes agreed to remove all remaining deer and close the preserve.

This legal dispute arose when the DNR subsequently issued a quarantine order covering the entire preserve for five years, which the Brakkes said exceeded the department’s statutory authority.

The Court agreed.

State law gives the DNR the authority to regulate whitetail deer on preserves. Such deer must be “free of diseases considered reportable for wildlife,” and the department “may provide for the quarantine of diseased preserve whitetail that threaten the health of animal populations.”

But the Court said the DNR stretched the language of the statute too far when it created an administrative rule saying that a positive CWD test result will trigger a minimum five-year quarantine on the preserve and on all animals remaining in the infected reserve.

“The DNR seeks to release itself from the verbal chains of the statute to achieve what it views as a better, more thorough, and more comprehensive result,” the Court said. The majority was not willing to do that in this decision, however. “We decline to write a passage related to quarantine of the premises into the Iowa law, which authorizes only the quarantine of animals,” Appel wrote. “If the legislature wants to assert new regulatory powers over private landowners, it should do so expressly.”

Justice Mansfield disagreed with what he called the majority’s “hypertechnical” reading of the statute. He said it is not “irrational, illogical, or wholly unjustifiable” to read the statute as giving DNR the authority to “require reasonable actions to prevent the spread of the disease based upon where the animals previously were in addition to simply moving the diseased animals themselves.” Besides, he wrote, “this law operates in a public health area where the State historically has broad authority to act.”

Though the justices were divided on the question of the DNR’s regulatory powers, they were unanimous on the issue of whether the state’s quarantine of the hunting preserve amounted to an unconstitutional taking of the Brakkes’ property.

The Court said there is no doubt that the Brakkes were affected economically by the quarantine, but the land had value for purposes other than hunting, and the Court has previously held that the loss of potential profits is not recoverable in takings cases.

Moreover, the purpose of the government action must be considered. “Here, the purpose of the government action was to protect wildlife in Iowa from a potentially contagious disease by imposing a quarantine on land where the diseased deer had been present,” Appel wrote. “There is no doubt the Brakkes felt the brunt of the government’s action. Yet there is nothing in the record to suggest the Brakkes were arbitrarily singled out for special treatment.”

For more background on this case, see our earlier posts previewing this case and the oral argument.

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On Brief is devoted to appellate litigation, with a focus on the Iowa Supreme Court, the Iowa Court of Appeals, and the United States Court of Appeals for the Eighth Circuit.
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