Iowa case centers on state’s power to stop deer disease from spreading

Grant Rodgers , grodgers@dmreg.com 7:40 p.m. CST November 16, 2016

bucks

White tail deer congregate in a harvested bean field to forage for food.
The high fences at the Pine Ridge Hunting Lodge in southeast Iowa were put up to keep deer inside, where hunters could pay for the chance to shoot a trophy-sized whitetail buck.
Those same fences now keep wild deer out.
The hunting preserve was shuttered in 2013 and all of the whitetail deer and elk on the grounds were killed to stop the spread of chronic wasting disease, a fatal neurological disease threatening deer and elk herds nationwide.
The Iowa Supreme Court heard arguments Wednesday about whether the Iowa Department of Natural Resources has the authority to order the owners of the land to keep the fences in place to stop wild deer from entering the grounds and potentially being exposed to the disease.
The DNR and the owners of the Davis County preserve have fought since the summer of 2013 over an emergency order the state agency sought to keep the fences standing for five years.
It’s a necessary move because the molecules that spread CWD can infect an area long after diseased deer are removed, Assistant Iowa Attorney General David Dorff argued. Stopping the spread of the disease justifies giving the state agency authority to keep the fence up, he said.
“I think given the nature of this disease, it’s something that the DNR should be given a lot of deference,” he said. “I think it’s fair to say that the legislators who enacted this statute probably weren’t microbiologists and veterinarians who understood the pathology of this disease.”
A total of three deer shot at the preserve tested positive for CWD, the first one in 2011.
But Tom and Rhonda Brakke, the owners of the 330-acre preserve, have argued that Iowa law gave DNR officials authority over the property only while their farm-raised deer were still on the grounds. The ongoing quarantine and requirement that the fence stay up have left the Brakkes with an unusable property that has dropped in value, their attorney argued Wednesday.
Both Tom and Rhonda Brakke listened to the oral arguments, but declined to speak with The Des Moines Register.
It will be up to the justices to decide whether the threat posed by the disease warranted the quarantine, or whether the move was a heavy-handed response that went beyond the authority Iowa lawmakers gave the DNR. Though the case focuses on specific issues, it puts the Iowa Supreme Court in the middle of a debate on CWD being fought across the Midwest and elsewhere.
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CWD has been a national concern since it was first recognized in 1967 in captive mule deer at a research facility in Colorado. The always-fatal disease is transmitted by protein molecules called prions that degrade the nervous systems of deer, causing them to lose weight, coordination and drool as the disease progresses.
In briefs submitted to the court, Dorff argued that research has shown the prions can live on the ground in an area for 10 years or more.
The disease has been detected in both wild and captive deer and elk herds in 24 states across the country and in Canada. The first case detected in a wild Iowa deer was in Allamakee County, which borders Wisconsin in the northeastern corner of the state, following the 2013 shotgun hunting season. That prompted increased surveillance and monitoring efforts in the area by the DNR.
Though there is “near consensus” among wildlife biologists that CWD should be taken as a serious threat, there are still uncertainties about the dangers the disease poses to humans and other livestock, said Adam Janke, an assistant professor and extension wildlife specialist at Iowa State University. There is no evidence yet that the disease has been transmitted to humans, but the Centers for Disease Control and Prevention urges people not to eat meat from CWD-positive deer and elk.
Discussions about managing CWD have become similar to the debate over climate change, with different interest groups all advocating certain positions, said experts interviewed by the Register.
“It’s a clash of interests and values, really,” said George Meyer, executive director of the Wisconsin Wildlife Federation.
In Wisconsin, hunters have balked at prevention techniques that are perceived to affect population levels, such as intentionally culling deer from high-density areas to reduce the chances for infections, Meyer said.
The captive deer breeding and farming industry has deployed lobbyists to fight increased regulation, such as a moratorium on new deer farms and preserves that was proposed in Missouri after CWD was found there, a 2014 investigation by the Indianapolis Star found. The North American Deer Farmers Association has pushed back strongly against predictions that CWD will irreparably harm deer herds and rural hunting economies.
“Since CWD was discovered nearly four decades ago, we’ve repeatedly seen headlines predicting the disease will wipe out entire populations of deer and elk,” Shawn Schafer wrote in a May letter released on the group’s website. “The fact is that no state’s deer population has ever been decimated by CWD.”
Rebecca Brommel, an attorney representing the Brakkes, made similar arguments in front of the justices Wednesday. The DNR’s enforcement efforts at the Pine Ridge preserve are “out-of-whack” compared to the relatively low threat posed by CWD, she said, arguing that research shows infected deer will usually die some other way before the slow-working disease kills them.
“Most of the time these deer are going to die from hunting, getting hit by a car or other causes before they are killed by CWD,” she said. “In effect, CWD really has no impact on the population, which is what the DNR says they’re trying to protect.”
But Bryan Richards, a CWD researcher with the U.S. Geological Survey, said in an interview with the Register that some of the most recent peer-reviewed research shows potential for long-term impacts on deer populations. A University of Wyoming study published in August found that diseased deer in one white-tailed deer herd were 4½ times more likely to die annually than deer that were not sick, suggesting that the disease can cripple populations in areas where it becomes prevalent.
“Prevention is the biggest tool, the most important, the most effective tool that wildlife managers have,” he said. “When disease has become established in free-ranging populations, successful management stories are extremely limited.”
Meyer said that the spread of CWD in Wisconsin has wreaked psychological havoc on sportsmen, which could ultimately damage the economic opportunity hunting offers. Though researchers have said the risk of the degenerative disease spreading to humans is low, nobody wants to be the first, he said.
“Its sort of like the lottery,” he said. “Someone always wins the lottery. You’re individual chance may be low, but the lottery does get won.”
Dorff pushed back during his oral argument at a suggestion from Justice Brent Appel that the DNR was asking for too much enforcement authority.
“The position that you’re arguing for is a very strong regulatory position that suggests that we should read the statute by context to put in this real muscular provision,” Appel said.
“If the intent is to protect the wild deer in this state from getting this disease, then the muscle has to be there in that statute,” Dorff responded.

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