Private Property Rights in Captive Breeder Deer: How Wild Are They?

Abstract

Chronic wasting disease is an incurable and 100% fatal disease that is ravaging America’s native deer population. Despite the state’s best efforts, the disease spread to Texas in 2012. It now threatens to wreak havoc on Texas’s ecosystems and a hunting and fishing industry that accounts for 14.4-billion-dollars of Texas’s economy. Unfortunately, unless prompt action is taken, there will be a third—perhaps unforeseen—victim: Texas citizens’ property rights. The Texas Parks and Wildlife Department has responded to the disease primarily through containment and euthanasia of any deer suspected to be at risk of having the disease. This is because it is impossible to test for the disease on a live deer and because deer can be asymptomatic for years while spreading the disease. Unfortunately, this has resulted in the seemingly draconian effect of having entire herds of captive breeder deer euthanized when the disease is discovered in one member of the herd. For the unfortunate citizens who own these ranches, this means the destruction of their livelihoods and the loss of millions of dollars’ worth of breeder deer. Consequently, deer breeders have been bringing takings claims in order to recover compensation for the destruction of their property by the government. However, an individual must have a property interest to be able to bring a successful takings claim. Therefore, courts have had to broach the question of whether captive breeder deer can be private property. Most recently in Texas, the Austin Court of Appeals in Bailey v. Smith held — much to the chagrin of the deer breeder industry and property right supporters everywhere — captive breeder deer are not private property, but merely public property held under permit. This interpretation of Texas’s common law and regulatory scheme to abrogate Texas citizens’ property rights in captive breeder deer cannot stand. This Article argues that Texas courts and legislators must take steps to uphold and strengthen its citizens’ private property rights in their captive breeder deer. Classifying theses expensive animals as public property, aside from infringing on citizens’ property rights, will likely have a myriad of negative effects, ranging from destabilizing an important sector of Texas’s economy to destroying individuals’ abilities to protect their interest against third parties. There are many academic articles providing analysis of private ownership of wild animals as this subject is thousands of years old. However, this Article is the first to consider the ownership of captive breeder deer through the lens of Texas’s statutory and common law scheme and in the light of the recent decision in Bailey v. Smith. Further, this Article gives unique insight into the yet unaddressed negative effects classifying captive breeder deer as public property would have. This topic will only become more pertinent as chronic wasting disease continues to spread through Texas causing it and the Texas Parks and Wildlife Department’s regulations to affect more and more people.