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Deer bait to have its day in court
Wednesday, September 24, 2008
A petition was filed in Lansing Circuit Court seeking to have the DNR’s ban on baiting and feeding deer overturned Tuesday. The ban was issued by Department of Natural Resources Director Rebecca Humphries August 28 after one deer was found to have chronic wasting disease at a captive deer operation in Kent County. The DNR has stated that baiting and feeding can concentrate deer and cause diseases like CWD to spread more rapidly.
The petition and a motion for an expedited hearing were filed by attorneys Edward J. McNeely III and Matthew Malleis of Grand Rapids. The case is expected to be heard by Judge Joyce Draganchuck.
Among the petitioners is farmer Gerald Malburg of Oceana County, a licensed wildlife rehabilitator, a store owner and hunters.
Malburg grows fodder beets and carrots on his Oceana farm and has said that the beets he planted this spring are specifically grown for deer feed and are not a type that could easily be sold to livestock farms. He also estimated about 46 percent of his carrots are “cull” carrots unsuitable for his primary market of restaurants. Malburg told the Daily News his carrots have no other market than deer feed or bait. The petition states he stands to lose hundreds of thousands of dollars due to the order.
The DNR’s interim order prohibiting the baiting and feeding of wild deer also prohibits treating injured or orphaned deer and fawns, according to the petition. Holly Susan Hadoc of Wildlife Acres Rehabilitation is petitioning to have that portion overturned after accepting 12 orphaned fawns for treatment over the last summer.
Members of the Bartholomew family of Roscommon County who own the stores “Bart’s Fruit Market” are also contesting the order. According to the petition, the Bartholomews estimate they have lost $10,000-$15,000 since the order took effect.
Highland Fuel and Development, an Oakland County company that sells feed and bait, estimates it has lost $20,000 since the order took effect.
Robert Turner, an Eaton County resident who has a second residence on Beaver Island is challenging the interim order on the basis that the island is 20 miles offshore and deer will not swim 20 miles. The other petitioners are also challenging on the basis of their own hunting interests, with the exception of Hadoc.
The petition also challenges the order on procedural grounds, noting that state law requires any order have “adequate public notice, opportunity for public comment and due regard for traditional (procedural) methods and practices…”
McNeely said the petitioners are a diverse group of people.
“I think the key is that the interim order, this isn’t just about those that are in favor of hunting or not in favor of hunting,” McNeely said. The order bars caring for deer and I was surprised to find out, quite frankly, how many licensed caregivers there are for deer. The order prohibits rehabilitating deer at all. One group that we don’t have in there are deer watchers and apparently there’s a growing group of people that put out deer feed to be able to watch deer.”
McNeely’s press release states that the DNR estimated the portion of the farm industry related to baiting as being worth $50 million in 1991. He said it’s not just that Malburg can’t sell his beets and carrots, it’s that he has to pay a fee to dispose of them.
“Although I haven’t looked into the question yet, there may be a legal issue with them getting rid of them on the back 40 because it may be feeding,” McNeely said.
McNeely said the procedural concerns in the case deal with the DNR’s interim order and the manner it was issued. He said the emergency plan that he has read seems to indicate gradations of responses based upon how serious an outbreak is. He said he’s not sure you can get lower-grade than one captive deer on one fenced-in facility where none of the other deer tested positive.
“The plan that I’ve seen certainly envisioned different gradations of response,” McNeely said. “On this one, they seem to have pushed the nuclear button.”
The DNR also violated procedures for an interim order, McNeely said.
“When they pass an order like this, it’s really legislating,” McNeely said. “What the courts require is that you have public input. Otherwise, you get bureaucrats that answer to no one legislating.”
McNeely said Jeff Powers, a Beaver Island veterinarian, has been contacted about the scientific aspects of the case.
“It is our position that this is not based on sound science,” McNeely said. “We’ve been consulting with him.”
DNR spokesperson Mary Dettloff said as the matter is in litigation, it is being reviewed with legal counsel and she could not comment.