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United States v. Donaldson

United States District Court, S.D. Mississippi, Eastern Division

August 13, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
EDWARD L. DONALDSON, ET AL. DEFENDANTS

          MEMORANDUM AND ORDER [1]

          KEITH STARRETT, UNITED STATES DISTRICT JUDGE

         This 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.

         I. Scientific Background

         Chronic 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 539.

         II. Factual Background

         Turkey 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 Mississippi.

         In January and March of 2012, Turkey Trot bought and imported six deer (the “subject deer”) into the state. Supp. Fact Hist. [28] 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 Hearing[2]at 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. [28] 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. [28] at p. 1.

         In 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. [28] 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. [28] 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. [28] at p. 2. However, no mention is made as to Rutter's father's facility.

         In 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.”] [21] 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. [28] at p. 2; Defs.' Mot. [21] at ¶¶ 2-3. In the three (3) years following Turkey Trot's quarantine, the MDWFP sampled[3] 20, 20, and 16 deer, respectively, and none of these deer were CWD-Positive. Depopulation Hearing at pp. 54-55.

         Both the State and the Defendants have suggested depopulation protocols for Turkey Trot. They are analyzed below.

         III. The Parties' Proposed Depopulation Plans

         a. The MDWFP's Depopulation Plan

         The MDWFP has regulatory authority over captive deer facilities and CWD prevention in Mississippi.[4] 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.

         b. The Defendants' Depopulation Plan

         Defendants 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. [28] at p. 4; Defs.' Mot. [21]. Their first plan proposed a 50% depopulation followed by a five-year monitoring and testing program run by the MDWFP. Defs.' Mot. [21] 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. [28] at p. 4. This three year monitoring program would be performed by the private contractor and supervised by the MDWFP. Id. at p. 5.

         Defendants 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”).[5] Supp. Fact Hist. [28] 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.[6] 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.

         IV. Analysis

         The 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”).[7] 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.

         a. Immediate Whole-Herd Depopulation is Inconsistent With Established MDWFP Policy

         The 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.

         The MDWFP Response Plan, published in August 2017, illustrates their management actions should CWD ever be discovered in Mississippi.[8] 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.[9] 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.[10] 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.

         The 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 level. Id.

         The 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. [28] at p. 6.

         b. Whole-Herd Depopulation is Inconsistent With Current CWD Science

         For the 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 ...


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