Iowa Supreme Court 2016-17 Preview: Did DNR go too far in protecting deer from Chronic Wasting Disease?

By: Rox Laird on November 14th, 2016

The owners of a whitetail deer hunting preserve in southern Iowa say the Iowa Department of Natural Resources exceeded its authority in its efforts to prevent the spread of a deer disease, which ultimately led to the closure of the preserve and the loss of nearly $1 million in business.

A Polk County District judge agreed, the state appealed, and now the question is before the Iowa Supreme Court, which will hear oral arguments in the case Wednesday.

The outcome could limit how aggressively the state can combat the spread of Chronic Wasting Disease (CWD) that threatens the health of deer herds in Iowa and the $200 million economy generated by deer hunting. Also, the Court is being asked to declare the DNR’s regulatory actions affecting the hunting preserve to be an unconstitutional taking of property without just compensation.

Until 2013, Tom and Rhonda Brakke operated a 330-acre hunting preserve in Davis County, divided into two sections. The south half was owned by the Brakkes and the north half by a separate corporation. The Brakkes ran as many as 100 hunts a year on the preserve for fees that ranged from $2,500 to $12,000 depending on the number of deer harvested.

When a 300-pound buck shot on the north half of the preserve tested positive for CWD in 2012, the DNR and the Brakkes reached an agreement in which the operators would remove all remaining deer and disinfect the premises after completion of the 2012-13 hunting season. Two more deer harvested from the north half of the preserve in the final season tested positive for CWD.

After the Brakkes removed all remaining deer, they shut down the preserve, surrendered their state operating permit, and began removing the perimeter fence. In response, the DNR issued an emergency order that the fence be restored and maintained to prevent wild deer from entering the property and contracting CWD from soil contaminated by infected deer.

That emergency order is at the heart of this appeal.

The Brakkes argue that the DNR exceeded its statutory authority when it ordered the fence restored and issued a quarantine of the former preserve for five years. And they assert that the state’s actions amounted to a taking of their property without just compensation in violation of the Fifth Amendment because the emergency order denies them economically viable use of the property. The state’s regulatory actions, they say, cost them $917,309 in lost business.

The state responds that the DNR acted within its statutory authority to protect and manage wildlife, which includes combatting the spread of disease among whitetail deer on regulated hunting preserves. Moreover, the state argues, the extended quarantine was justified by the fact that the threat of spreading CWD exists even after deer were removed from the preserve.

As for the takings argument, the state counters that the quarantine is for a limited period and the owners can put the property to other economically beneficial uses, such as fishing, hunting of other wild animals and agriculture.

Many Iowans might think the highways and their backyard gardens would be safer if a few more deer succumb to Chronic Wasting Disease. But the issues raised in this case are of obvious importance to the Brakkes and the DNR, not to mention hunters and those who make a living from the hunting industry. The court will hear oral arguments in the case at 9 a.m. Wednesday.

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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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