United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM AND ORDER 
STARRETT, UNITED STATES DISTRICT JUDGE
matter is before the Court on both Defendants' and
Plaintiff's recommendations regarding the appropriate
depopulation protocol for a captive white-tailed deer
facility in Forrest County, Mississippi.
Wasting Disease (“CWD”) is a contagious prion
disease found in mule deer, white-tailed deer, and elk. These
animals are known as “cervids.” E.S. Williams,
Chronic Wasting Disease, 42 Veterinary Pathology
530, 538 (2005). Simply, a prion is a misfolded protein found
on the surface of neurons. CWD prions are found in the brain,
spinal cord, eyes, peripheral nerves, and lymphatic tissues
of CWD-infected cervids. Ermias D. Belay et al., Chronic
Wasting Disease and Potential Transmission to Humans, 10
Emerging Infectious Diseases 977, 979 (2004). CWD is likely
the most efficiently transmitted mammalian prion disease.
Christina J. Sigurdson & Adriano Aguzzi, Chronic
wasting disease, 1772 Biochimica et Biophysica Acta 610,
612 (2007). CWD symptoms include weight loss, excessive
salivation, head tremors, and behavioral changes. Williams,
supra at 531. Currently, there is no evidence that
CWD is transmissible to humans. Williams, supra at
Trot is a captive deer facility in Forrest County,
Mississippi owned by Edward L. Donaldson and John Jared
Oertling (collectively “Defendants”). It is home
to between 262 and 309 white-tailed deer. This case stems
from Defendants' illegal importation of deer into
January and March of 2012, Turkey Trot bought and imported
six deer (the “subject deer”) into the state.
Supp. Fact Hist.  at p. 1. These deer originated from two
Pennsylvania-based captive deer facilities, one owned by Troy
Luckenbaugh (“Luckenbaugh”) and the other owned
by Brian Rutter (“Rutter”). Id. Four of
the subject deer came from Luckenbaugh's facility and two
came from Rutter's facility. Id.; see
also Depopulation Hearingat p. 54. Both Luckenbaugh and
Rutter had previously bought deer from a different captive
deer facility owned by Rutter's father, Ron Rutter. Supp.
Fact Hist.  at p. 1. A third Pennsylvania-based captive
facility, owned by Carl Rockey (“Rockey”), bought
deer from Ron Rutter in June 2012. Rockey Deer Purchase
Invoice [28-3]. A CWD-Positive deer was found on Ron
Rutter's facility in October 2012. Supp. Fact Hist. 
at p. 1.
October 2012, the Pennsylvania Department of Agriculture
placed a five (5) year quarantine on the Luckenbaugh, Rutter,
and Rockey facilities. See Luckenbaugh Quarantine
Ord. [28-1]; Supp. Fact Hist.  at p. 1; Rockey Quarantine
Ord. [28-4]. Luckenbaugh's quarantine was lifted in 2014.
Luckenbaugh Quarantine Release [28-2]. There was no
depopulation or reported CWD incidence on Luckenbaugh's
property during its quarantine. Supp. Fact Hist.  at p.
1. Rutter decommissioned his facility two years into his five
year quarantine, removed the high fence surrounding the
property, and sold his property. Id. Rockey's
quarantine was lifted in 2017. Rockey Quarantine Release
[28-5]. There was no depopulation, sampling, or reported CWD
incidence on Rockey's facility during its quarantine.
Supp. Fact. Hist.  at p. 2. However, no mention is made
as to Rutter's father's facility.
October 2012, Defendants received information that the
subject deer had come from a herd that may have been exposed
to CWD. Defs.' Mot. Establish Depopulation Protocol And
For Authorization To Retain Private Contractor [hereinafter
“Defs.' Mot.”]  at ¶ 2. In November
2012, Defendants proactively self-reported their malfeasance
to the United States Attorney's Office and, subsequently,
the Mississippi Department of Wildlife, Fisheries, and Parks
(the “MDWFP”) placed Turkey Trot under
quarantine. Supp. Fact Hist.  at p. 2; Defs.' Mot.
 at ¶¶ 2-3. In the three (3) years following
Turkey Trot's quarantine, the MDWFP sampled 20, 20, and 16
deer, respectively, and none of these deer were CWD-Positive.
Depopulation Hearing at pp. 54-55.
the State and the Defendants have suggested depopulation
protocols for Turkey Trot. They are analyzed below.
The Parties' Proposed Depopulation
The MDWFP's Depopulation Plan
MDWFP has regulatory authority over captive deer facilities
and CWD prevention in Mississippi. As evidenced by their
recent, and apparently effective, battle against CWD in
Issaquena County, the MDWFP takes any possible CWD
occurrences in Mississippi extremely seriously. They have
recommended that Turkey Trot be completely depopulated.
Depopulation Hearing at pp. 6, 33-34, 37. The MDWFP's
main goal is to keep CWD out of Mississippi, and they argue
that complete depopulation is necessary in order to be
completely confident that CWD is not present on Turkey Trot.
Id. at p. 60.
The Defendants' Depopulation Plan
have submitted two different depopulation plans. In both
plans, Defendants request that a private contractor perform
the depopulation instead of the MDWFP. Supp. Fact Hist. 
at p. 4; Defs.' Mot. . Their first plan proposed a
50% depopulation followed by a five-year monitoring and
testing program run by the MDWFP. Defs.' Mot.  at
¶¶ 19-20. Their second and most recent plan
proposes no depopulation at all. However, if the Court
decides that depopulation is necessary, they propose a
maximum of 5-10% depopulation followed by a three-year
monitoring and testing program. Supp. Fact Hist.  at p.
4. This three year monitoring program would be performed by
the private contractor and supervised by the MDWFP.
Id. at p. 5.
base their reasoning for their second plan, and propose the
Court do the same, on the United States Department of
Agriculture's (“USDA”) CWD Program Standards
(the “USDA Program Standards”). Supp. Fact Hist.
 at pp. 3-4; Defs.' Herd Mgmt. Plan [28-8]. The USDA
Program is an optional program states may follow to comply
with the legal requirements outlined in 9 C.F.R. §§
55 and 81, the federal CWD regulations. United States Dept.
of Agriculture, Chronic Wasting Disease Program Standards at
5 (2014) [hereinafter USDA Program Standards]. Twenty-eight
states follow this program. The USDA Program Standards
classify herds and animals based on their CWD exposure level.
This classification determines the management options
available for herds and animals suspected or confirmed to be
exposed to CWD. USDA Program Standards at Part B.
Court understands the very real threat CWD poses if it were
to spread any further into Mississippi. Hunting is a
significant economic driver in many rural communities and the
health of wildlife populations is important to every citizen
of our state. Citizens and visitors to our state rely on
state agencies to take educated, science-based actions to
protect Mississippi's ecosystem and wildlife. However,
this Court also considers the unreasonable and extreme
consequences of (1) destroying a perfectly healthy deer herd
and (2) taking no action at all. For the reasons below, this
Court orders a five-year quarantine of Turkey Trot, effective
immediately. During this five-year quarantine, Turkey Trot
will be subject to the annual sampling and testing of
twenty-two deer by the MDWFP, in accordance with MDWFP CWD
testing and sampling guidelines and protocols found in the
MDWFP Chronic Wasting Disease Response Plan (the “MDWFP
Response Plan”). Additionally, every deer mortality
occurring during this five-year quarantine will be tested for
CWD in accordance with MDWFP CWD testing and sampling
guidelines and protocols found in the MDWFP Response Plan. If
any deer within Turkey Trot tests positive for CWD during
this five-year quarantine, the MDWFP shall completely
depopulate Turkey Trot under the terms and conditions that
will be established by this Court as hereafter set forth.
Immediate Whole-Herd Depopulation is Inconsistent With
Established MDWFP Policy
MDWFP proposes that Turkey Trot be completely depopulated.
This plan errs on the side of caution, and the Court agrees
that the only way to be 100% certain that CWD has not
infiltrated Turkey Trot is to depopulate 100% of the herd.
This Court has said “[a]ny deer potentially bringing in
CWD to Mississippi should be tested, and the only way to test
is to destroy the deer and test a part of the deer's
brain.” United States v. Slade, No.
2:16-CR-2-KS-MTP (S.D.Miss. June 7, 2017) (Starrett, J.).
However, given the length of time that has passed and the
epidemiology of CWD, a complete depopulation of Turkey Trot
is excessive and contrary to the MDWFP's CWD guidelines.
MDWFP Response Plan, published in August 2017, illustrates
their management actions should CWD ever be discovered in
Mississippi. All management actions in this plan are
premised on finding a confirmed CWD-Positive deer.
Once a CWD-Positive deer is confirmed, the MDWFP will
institute three management zones of increasing radius
emanating from the confirmed CWD-Positive deer's
location. MDWFP Response Plan at pp. 6-7. Each zone
has its own management actions which decrease in severity as
the radius from the CWD epicenter increases. Id.
Within the “High Risk Zone”-the five-mile radius
zone immediately surrounding the confirmed CWD-Positive
deer-the MDWFP Response Plan states that the MDWFP will
sample and test deer in the zone to a sufficient statistical
probability “to detect CWD with 95% confidence if the
disease exists at a prevalence of at least 1% throughout the
zone.” Id. at p. 7. The number of deer sampled
is dependent upon the population of the zone's
herd. If no additional CWD-Positives are found
after this sampling goal is met, sampling is reduced to only
suspect animals, and roadkill samples are taken from the
CWD-Positive county and all adjacent counties for five years.
Id. at p. 7.
MDWFP Response Plan has additional guidelines for “if
CWD is confirmed within a captive cervid facility
within Mississippi.” Id. at p. 8 (emphasis
added). All deer within the facility will be depopulated and
tested. The MDWFP will trace all animals or reproductive
material emanating from the CWD-Positive facility to another
Mississippi facility in the previous five years. The
transferee facility will be quarantined and the transferred
deer will be sampled immediately. “After the average
CWD incubation period of two years has elapsed[, ]” the
MDWFP will sample and test the herd to a sufficient
statistical probability “to detect CWD with 95%
confidence if the disease exists at a prevalence of at least
1% throughout the herd.” Id. Additionally, any
captive facility within five miles of the initial confirmed
CWD-Positive deer will be sampled to the same confidence
MDWFP's whole-herd depopulation recommendation for Turkey
Trot is contrary to their own guidelines. The MDWFP Response
Plan is premised on the discovery of a confirmed
CWD-Positive deer. As such, the MDWFP's plan to protect
Mississippi and its residents from the spread of CWD, a plan
they have already implemented in the state, is less
aggressive than what they are proposing. The only time the
MDWFP Response Plan prescribes whole-herd depopulation is
when CWD is confirmed within a captive facility. CWD has not
been confirmed on Turkey Trot. The state knew about Turkey
Trot's possible CWD exposure in November 2012 when it was
quarantined. In the years following this quarantine, the
MDWFP found that sampling 20, 20, and 16 deer was sufficient
to monitor for CWD. The Court agrees with the Defendants when
they say “depopulation at this time is
excessive.” Supp. Fact Hist.  at p. 6.
Whole-Herd Depopulation is Inconsistent With Current CWD
case at hand, whole herd depopulation is scientifically
inappropriate for three reasons. First, Turkey Trot has been
quarantined for nearly six years, which is three times longer
than CWD's accepted average incubation period. Second,
CWD spreads rapidly through captive herds, and no
CWD-Positive deer have been found. Third, death occurs
rapidly after the onset of CWD symptoms, and no unusual
deaths have been reported on Turkey Trot. Each of these