DocketNumber: No. SC 96739
Citation Numbers: 550 S.W.3d 463
Judges: Wilson
Filed Date: 7/3/2018
Status: Precedential
Modified Date: 1/21/2022
The Missouri Conservation Commission ("Commission"), its individual members,
Background
This case concerns the regulatory authority of the Commission, which was created by an amendment to the Missouri Constitution first approved by the voters in 1936. Under this amendment, the Commission has authority over the "control, management, restoration, conservation and regulation of the bird, fish, game, forestry and all wildlife resources of the state." Mo. Const. art. IV, § 40(a). Today, the Commission acts through the Missouri Department of Conservation, see § 252.002, RSMo 2000, and regulates a variety of animal species, including elk and deer. These species are members of the family cervidae and are commonly known as cervids.
Respondents participate in the captive cervid industry, which generally engages in two types of commercial activities: the selective breeding of cervids for large antlers and other desirable genetic traits, and the operation of private hunting preserves at which hunters pay to hunt and take trophy bucks. Respondents rely on an interstate market in captive cervids to obtain the animals they need for their breeding operations and to meet demands for hunting on their preserves.
Respondent Hill is the co-owner of Oak Creek Whitetail Ranch, a large hunting preserve and white-tailed deer breeding operation. Evidence in the record shows he has about 300 deer in his hunting preserve and about 500 deer in his breeding facility. Respondent Broadway is the owner of Winter Quarters Wildlife Ranch, a large hunting preserve and luxury lodge. He offers three-day guided hunts of a variety of animals, including elk. Respondent Broadway also maintains an elk and red deer breeding operation to stock his hunting preserve. Respondent Grace is the owner of Whitetail Sales and Service LLC, a breeding facility for white-tailed deer, sika, and red deer. He also brokers deals between breeders and hunting preserves and presides over periodic captive cervid auctions. Respondents cannot operate their hunting preserves and breeding facilities without permits from the Department of Conservation. See § 252.040, RSMo 2000; 3 CSR §§ 10-9.350, 10-9.351, 10-9.560. Respondents Hill and Broadway have separate permits for their breeding and hunting activities, and Respondent Grace has a breeder's permit.
Cervids, like those owned by Respondents, can be infected with a fatal neurodegenerative disease known as chronic wasting disease ("CWD"). CWD can be spread directly through animal-to-animal contact or indirectly through environmental contamination. Symptoms of CWD include emaciation, bizarre behavior, and problems with movement. Over time, the disease seriously damages the brain of an infected cervid and eventually results in death. The disease has an incubation period of roughly 18 months, however, meaning a cervid can carry CWD-and possibly infect other cervids with it-long before it shows any symptoms. There is currently no known cure for the disease, and there is no approved method for testing cervids for CWD while they are still alive. The only approved test must be performed postmortem.
CWD was first discovered in 1967. Since then, it has been detected in 24 states, two *466Canadian provinces, South Korea, and Norway. CWD was first detected in Missouri in 2010 at Heartland Wildlife Ranches (which was eventually purchased by Respondent Broadway and renamed Winter Quarters Wildlife Ranch). In response, the Commission created a surveillance zone within 25 miles of that facility. From 2010 to 2013, the Commission tested more than 14,000 deer within this zone and found 10 free-ranging deer infected with CWD. The Commission later tested 356 deer at a second Heartland facility (also owned now by Respondent Broadway) and found 10 captive deer infected with CWD.
In an attempt to eradicate CWD, the Commission proposed a series of regulatory amendments that were to take effect in January 2015. Those amendments were directed at the captive cervid industry, which already was regulated by the Commission. As amended, the regulations most pertinent to this case (a) banned the importation of cervids, see 3 CSR §§ 10-9.353(2), (9), 10-9.565(1)(B)(9) ; (b) imposed more rigorous fencing requirements, see 3 CSR § 10-9.220(3) ; and (c) imposed more rigorous recordkeeping and veterinary inspection requirements, see 3 CSR § 10-9.353(3).
Respondents sued Appellants to prevent these amended regulations from going into effect. After issuing a preliminary injunction, the circuit court held a trial. Following the trial, the circuit court declared the challenged regulations were invalid and enjoined the Commission from enforcing them. The circuit court entered judgment for Respondents on Count I of the petition, concluding the amended regulations were invalid and could not be enforced against Respondents because their cervids are not "game" or "wildlife resources of the state" that are subject to regulation by the Commission under article IV, section 40(a), of the Missouri Constitution.
Analysis
In an appeal from a court-tried civil case, "the trial court's judgment will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law."
*467White v. Dir. of Revenue ,
Appellants raise three points. First, they claim the circuit court erred because Respondents' cervids are "game" and "wildlife resources of the state" and, therefore, can be regulated by the Commission under article IV, section 40(a) of the Missouri Constitution. Second, Appellants claim the circuit court erred because the Commission's exercise of its constitutional authority to promulgate the regulations at issue in this case does not implicate or infringe upon Respondents' right to farm under article I, section 35 of the Missouri Constitution. Finally, Appellants claim the circuit court erred by enjoining the Commission's enforcement of the new regulations against any person in Missouri, rather than merely against Respondents. Because this Court reverses and enters judgment for Appellants on the first two claims, it does not reach or decide this third claim.
IA.
The Commission's power to regulate Respondents' cervids derives from article IV, section 40(a), of the Missouri Constitution. In pertinent part, this provision authorizes the Commission to regulate "the bird, fish, game, forestry and all wildlife resources of the state." Mo. Const. art. IV, § 40(a). In interpreting this language, the Court must ensure the words of this provision bear the meaning they were understood to have in their proper context when Missouri voters adopted this provision. See Farmer v. Kinder ,
Respondents' claim is captive cervids are not "wildlife" or "game" and, therefore, the Commission has no authority under article IV, section 40(a), to promulgate regulations concerning them. Respondents contend the term "wildlife" refers to individual animals that are both: (a) wild by nature; and (b) never tamed or domesticated. Even though captive cervids are members of species that are wild by nature, Respondents argue they cannot be "wildlife" because they are domesticated and, therefore, akin to livestock. Respondents also appear to argue "game" is a subset of "wildlife," i.e., that "game" is merely "wildlife" pursued for sport, food, or other lawful purposes. Because captive cervids are too domesticated to qualify as "wildlife," Respondents contend those individual animals cannot-by definition-qualify as "game."
The Court rejects these readings. The terms "game" and "wildlife" are plain and unambiguous as used in article IV, section 40(a), which is concerned with the preservation and conservation of the state's forestry and wildlife resources. In this context, the term "wildlife" plainly includes all species that are wild by nature. See, e.g., Wild Animal , Black's Law Dictionary (10th ed. 2014) (the term "wild animal"-or animal ferae nature -refers to "[a]n animal that is not customarily devoted to the service of humankind in the place where it normally lives," especially "a type of animal that ... is naturally untamable, unpredictable, dangerous, or mischievous").
*468Similarly, the term "game" plainly includes all species that are wild by nature and that are often pursued for sport, food, or other lawful ends. See Webster's Third New International Dictionary 933 (1966) ("game" are "animals considered worthy of pursuit by sportsmen; esp : wild animals hunted for sport or food"). Applying these plain meanings, Respondents' cervids-whether tame or wild-are "game" and "wildlife" within the meaning of article IV, section 40(a).
Respondents argue the terms "game" and "wildlife" are ambiguous. When viewed in light of history, grammar, and other contextual clues, Respondents argue these terms connote individual animals within a species rather than a wild species as a whole. This Court disagrees. Even if the Court were to find the terms "game" and "wildlife" ambiguous, it would simply make it appropriate for the Court to consult the canons of construction. Ivie v. Smith ,
As an initial matter, Respondents' readings are unreasonable because they would have the Commission's authority be determined not on a rational species-by-species basis but on an unworkable animal-by-animal basis. See Bassen v. Monckton ,
Furthermore, though historical context can help give meaning to an ambiguous word or phrase, State ex rel. O'Connor v. Riedel ,
*469Those operations were regulated under statutes that used terms making cervids "wildlife" and "game" even if they were domesticated or raised in captivity.
This Court similarly interpreted the term "game" (and, therefore, "wildlife") in State v. Weber ,
Accordingly, before article IV, section 40(a), was adopted, both this Court and prior statutes used the term "game" to include any animal belonging to a species both wild by nature and generally pursued for food, sport, or other lawful ends. More to the point, both this Court and prior statutes expressly included cervids-captive and otherwise-within the terms "game" and "wildlife." This Court must presume the voters were aware of and accounted for this common use when they adopted article IV, section 40(a). State, on Inf. of McKittrick v. Cameron ,
The Court's decision in this case also is consistent with the regulations first adopted by the Commission in implementing article IV, section 40(a). After the voters adopted this provision, the Commission began to regulate captive cervid operations and, in 1941, the Commission adopted a code of regulations explaining that deer and elk-whether free or confined, wild or domesticated-are "game" and "wildlife." The code's definition of "game" is clearly concerned with animal species. See Wildlife and Forestry Code of the State of Missouri, p. 45 (1941) (the term "game" includes *470"all the species listed herein as game birds, game animals, game fish, minnows, and frogs"). Notably, the code lists deer as one of the very first examples of "game,"
Therefore, even if this Court were to agree the terms "wildlife" and "game" are ambiguous, the regulations interpreting them and the statutes addressing similar subjects shortly after the adoption of article IV, section 40(a), are consistent with this Court's holding that the term refers to species, not individual animals. See 1 J. Story, Commentaries on the Constitution of the United States § 408, p. 301 (4th ed. 1873) ("[T]he most unexceptionable source of collateral interpretation is from the practical exposition of the government itself in its various departments...."). As is the fact that the Commission has regulated captive cervid enterprises for a significant period of time. See State ex inf. McKittrick ex rel. Ham v. Kirby ,
In sum, the Court holds the terms "game" and "wildlife" as used in article IV, section 40(a) are unambiguous: "wildlife" means species that are wild by nature, and "game" means wildlife species that are often pursued for sport, food, or other lawful ends. Even if the terms "wildlife" and "game" were ambiguous, canons of construction merely confirm these meanings.
II.
Even if Respondents' captive cervids are "wildlife" and "game," Respondents claim the Commission may not regulate them under article IV, section 40(a), because they are owned by Respondents and, therefore, are not "resources of the state." Mo. Const. art. IV, § 40(a). The Court rejects this interpretation of the quoted phrase.
As noted above, the Commission's regulations under article IV, section 40(a), have always regulated captive deer and elk owned by private parties. This long-settled construction weighs against the interpretation for the phrase "resources of the state" urged by Respondents. Kirby ,
Respondents' interpretation rests on an outdated legal fiction. Under that reading, game and wildlife are "resources of the state" only when they are in the wild because "wild" animals are said to be "owned" by the state. The notion that the state "owns" animals in the wild does find some support in the language of older cases, see, e.g., State v. Heger ,
[I]t is pure fantasy to talk of [the State] "owning" wild fish, birds, or animals. Neither the States nor the Federal Government, any more than a hopeful fisherman or hunter, has title to these creatures until they are reduced to possession by skillful capture.... The "ownership" language of [older] cases ... must be understood as no more than a 19th-century legal fiction expressing "the importance to [the] people that a State have power to preserve and regulate the exploitation of an important resource."
Hughes v. Oklahoma ,
Rather than adopt Respondents' strained interpretation of the phrase "resources of the state," the Court holds this phrase plainly and unambiguously refers to resources inside the territory or geographical boundaries of this state. When people speak of "the mountains of Wyoming," "the lakes of Minnesota," or "the forests of Michigan," they do not mean only the mountains, lakes or forests owned by those state governments. By the same token, when Missouri voters approved constitutional provisions creating the Commission and authorizing it to regulate the "game" and "wildlife resources of the state," they did not understand that authority to be restricted only to such resources owned by the state. Instead, they understood the authority they were giving to the Commission would extend to resources throughout this state.
Again, even if the phrase were ambiguous, making it appropriate to consult historical context, the Court's conclusion would not change. At the time article IV, section 40(a), was adopted, implementing regulations (and even prior statutes) extended the regulatory power of the state to all wildlife and game within its borders, regardless of ownership. See Marsh v. Bartlett ,
Accordingly, this Court holds Respondents' captive cervids are subject to regulation by the Commission under article IV, section 40(a), as "game ... and wildlife resources of the state" because (a) those cervids are members of species that are wild by nature and, therefore, are "wildlife;" (b) they are members of wildlife species generally pursued for food, sport, or other lawful ends and, therefore, are "game;" and (c) even though privately owned, they are physically located within the borders of this state and, therefore, *473are "resources of the state." Appellants' Point I is granted.
II.
In their second point, Appellants contend the circuit court erred in concluding the January 2015 regulations were invalid and could not be enforced because those regulations impermissibly infringed on Respondents' right to farm under article I, section 35 of the Missouri Constitution. The Court agrees.
Respondents' challenge to the validity of the amended regulations is subject to de novo review. Hill v. Boyer ,
The claim that article I, section 35, protects Respondents from regulations promulgated under the authority granted to the Commission under article IV, section 40(a), fails at the threshold. Article I, section 35, added to our constitution in 2014 by Missouri voters, guarantees "the right of farmers and ranchers to engage in farming and ranching practices." Respondents failed to show they are "engage[d] in farming and ranching practices" and, therefore, cannot invoke this guarantee.
The precise contours of "farming and ranching practices" protected by article I, section 35, are difficult to identify, as is the nature of the protection afforded by that provision. But neither question needs to be answered in this case. Instead, it is sufficient to resolve this case to hold only that nothing in the language of article I, section 35, suggests it was intended to limit the Commission's constitutional authority under article IV, section 40(a), to regulate Respondents' captive cervids as "wildlife" and "game" resources of this state.
The Court's decision in State v. Shanklin ,
Here, captive cervid enterprises such as those operated by Respondents have been closely regulated for nearly a century, first by statute and later by regulations adopted by the Commission under article IV, section 40(a).
Conclusion
For the reasons set forth above, the circuit court's judgment in favor of Respondents is reversed and, pursuant to Rule 84.14, judgment is entered in favor of Appellants on all counts.
All concur.
Don Bedell, James Blair, Marilynn Bradford, and David Murphy.
Evidence in the record shows Respondent Broadway thereafter had only four cervids on his hunting preserve and was prohibited from introducing new cervids until July 2017. There has not been a white-tailed deer hunt on the Winter Quarters property during Respondent Broadway's ownership, and he is currently prohibited from breeding white-tailed deer.
Notwithstanding this reasoning, the Respondents did not challenge-and the circuit court expressly did not prevent the Commission from enforcing-those regulations governing captive cervid operations that were in effect prior to January 2015.
Respondents Grace and Whitetail Sales and Service, LLC were not plaintiffs to this second count. Before trial, the other Respondents sought leave to add Respondents Grace and Whitetail Sales and Service, LLC as plaintiffs. The circuit court permitted their addition as plaintiffs to the first count (concerning the Commission's power under article IV, section 40(a) ), but not to the second count (concerning the right to farm under article I, section 35 ).
See also Restatement (Second) of Torts § 506(1) (1977) ("A wild animal ... is an animal that is not by custom devoted to the service of mankind at the time and in the place in which it is kept."); Union Pac. R.R. Co. v. Nami ,
By the early 1900s, "several large farms in ... Missouri" were "furnishing numbers of deer" raised in captivity. The Country Gentleman, Vol. LXXIV, p. 576 (June 10, 1909). One of these farms was run by Mr. C.H. Roseberry, who was then fairly prominent in the deer farming world. See id. (referring to Roseberry as one of "the largest producers"). Mr. Roseberry had substantial experience with raising and domesticating deer in Missouri, and it seems he sold his deer "almost exclusively [as] pets and for propagating purposes, although a few surplus bucks [were] sold for venison." The Country Gentleman, Vol. LXXIV, p. 1002 (Oct. 21, 1909). At the same time, individuals and associations were also placing cervids in private preserves. For example, the St. Louis Park and Agriculture Company then had "about 1,000 deer and 400 elk in [its] 5,000-acre preserve in Taney County." D.E. Lantz, Deer Farming in the United States 18 (1908) (farmers' bulletin issued by U.S. Department of Agriculture). Some cervids were held in private preserves for sport; others were held for conservation, because cervid populations were exceedingly low around that time. See id. at 13 (noting deer were "practically" extinct in the Midwest). Moreover, such operations were not unique to Missouri. See generally John Dean Caton, The Antelope and Deer of America 276-309 (1881) (commenting on experiences with raising and domesticating various types of captive cervids, including moose, caribou, elk, mule deer, black-tailed deer, and white-tailed deer); Lantz, supra , at 10-18 (commenting on experiences of elk and deer breeders and private preserve owners). In fact, by that time, deer had been hunted in enclosed parks and raised in captivity for centuries. See generally J. Birrell, Deer and Deer Farming in Medieval England, 40 Ag. Hist. Rev. 112 (1992); E.P. Shirley, Some Account of English Deer Parks with Notes on the Management of Deer (1867).
See, e.g., § 8299, RSMo 1929, p. 2349, (no one may "maintain a game farm for raising deer and elk ... without first obtaining a license," and those with a license may not use "domesticated game raised or held in captivity" to frustrate the "enforcement [of] laws relating to ... wild game") (punctuation altered).
This definition is substantially similar to the definition of "wildlife" provided in federal law. See
To be clear, the Court rejects Respondents' many arguments to the contrary, including their claim an animal is not "game" or "wildlife" unless it is in the wild and has not been brought under the dominion or control of man. Confining a member of a species does not change the nature of that species and, therefore, does not remove the captured member from the category of "wildlife" subject to regulation under article IV, section 40(a). The Court also rejects Respondents' argument that the Court should reject the construction of the terms "wildlife" and "game" supported by the history and context set forth above merely because this might create an inconsistency with the use of those terms in wholly unrelated fields such as tort or property law. See, e.g., Oak Creek Whitetail Ranch, L.L.C. v. Lange ,
See also Missouri v. Holland ,
Respondents suggest this statute supports their reading on the ground that the use of different terminology ("of" and "within") suggests the word "of" should not convey the same meaning as the word "within." The Court disagrees. The words "of" and "within" are clearly redundant here. This is a classic example of lawmakers repeating themselves because of "a lawyerly penchant for doublets"-like "aid and abet, cease and desist, [and] null and void." King v. Burwell , --- U.S. ----,
This Court, too, has consistently refused to read ownership requirements into statutory language plainly intended to be broad and inclusive. See Reid v. Ross ,
The reference in article I, section 35, to article VI, by itself, is not sufficient. See Shoemyer v. Mo. Sec'y of State ,
As noted above, prior to the adoption of article IV, section 40(a), the legislature enacted several game laws governing the operation of captive cervid enterprises. No one could breed captive game, including deer and elk, without first obtaining a license. See § 8299, RSMo 1929, p. 2349 ("The issuance of [game breeding] licenses shall be discretionary with the state game and fish commissioner...."). Even if someone received a license, it could be revoked by the state game and fish commissioner "at his will and pleasure."