Monday, May 11, 2009

KENTUCKY NEWS: CWD-Based Ban on Deer and Elk Importation Unconstitutional

The Kentucky Court of Appeals ruled Friday that the state's law banning the importation of deer and elk to prevent the spread of chronic wasting disease in local herds was unconstitutionally vague.

A three-judge panel ruled Friday that Kentucky's law did not clearly define what it means to "import" animals into the state. At issue was the case of a Tennessee man arrested in 2007 on charges of illegally importing elk and deer into Kentucky.

McCracken County Circuit Court Judge Craig Clymer had ruled previously that the state law under which Timothy Cory Looper was charged was unclear and thus void. Looper was not convicted.

"He engaged in no deception," Chief Judge Sara Combs wrote in Friday's opinion. "It is reasonable to believe that he drove through Kentucky in good faith — having no fair notice from a statute lacking the precision to alert as to the possibility of criminal consequences."

Kentucky lawmakers in 2006 instituted a statewide ban on the importation of the animals into Kentucky. The law, as enforced, prohibited people from crossing Kentucky state lines with deer or elk — a measure intended to protect local herds.

Looper, of Livingston, Tenn., was arrested in 2007 near Paducah while transporting animals from Hostetler Wildlife Farms in Miller, Mo., to Wilderness Hunting Lodge in Monterey, Tenn. Looper was charged with six felony counts of illegally importing the animals into the state.

He had with him five elk, one deer, two antelope and 12 exotic sheep. The five elk and one deer were destroyed, according to the ruling.

Shane A. Young, Looper's attorney, said the law was poorly written and confusing. He said that made it difficult to understand exactly what was illegal.

The exact effect of Friday's appellate court ruling was uncertain. Attorneys for the state have the option of appealing to the state supreme court.

Bill Clary, a spokesman for the Kentucky Department of Agriculture, said the "practical consequences" of the ruling "are not very great.

Kentucky's law was also challenged in federal court in a lawsuit brought by the North American Deer Farmers Association. But a federal judge dismissed the challenge in September 2008.

Mark Marraccini, a spokesman for the Kentucky Department of Fish and Wildlife, said a new law that takes effect this summer also bans the importation of members of the deer family into the state, but allows for exemptions.

For example, the law will allow the animals to be imported if they are from a herd that has been disease-free for five years and is from a disease-free state, Marraccini said.


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