Summary of a Recent
Judicial
Development in
Food Safety
Tennessee Ban on Private Possession
of White-Tailed Deer Does Not
Violate the Commerce Clause
Emilie H. LeibovitchNational AgLaw Center Graduate Assistant
In Bean v. Bredesen, No. M2003-01665-COA-R3-CV, 2005 Tenn. App. LEXIS 267 (Tenn. Ct. App., May 2, 2005), the Tennessee Court of Appeals held that a State ban on private possession of white-tailed deer did not violate the Commerce Clause because the State’s interest was legitimate, the ban did not discriminate between out-of-state white-tailed deer and in-state white-tailed deer, and the effect on interstate commerce was not excessive compared to the benefits to Tennessee.
Plaintiffs challenged Tenn. Code Ann. § 70-4-403(4)(B)’s ban on private possession of white-tailed deer by arguing it was unconstitutional because it placed an undue burden on interstate commerce. Bean, 2005 Tenn. App. LEXIS 267 at *5.
In determining that Tennessee had a legitimate interest in passing this law the court pointed to the State’s interest in the prevention of the spreading of Chronic Wasting Disease (CWD), a type of transmissible spongiform encephalopathy that affects only white-tailed deer, mule deer, and Rocky Mountain elk and is always fatal. See id. at *9-11. Studies have shown that the disease is spread more easily when the animals are kept in captivity, and the medical examination of the animals infected with the disease can only be done post-mortem. See id. at *15. The court recognized CWD posed a significant threat to white-tailed deer and that “[t]he State ha[d] an interest in conserving and protecting its wildlife that [was] similar to its interest in protecting the health and safety of its citizens.” See id. at *16.
After finding a legitimate state interest, the court examined whether the statute violated the commerce clause by first deciding “whether the measure discriminated against interstate commerce or whether it regulated evenhandedly with only ‘incidental’ effects on interstate commerce.” Id. at *19. The court held that because “the statute [made] no distinctions based on the origin of the white-tailed deer [and] proscribe[d] the possession of indigenous white-tailed deer in precisely the same way that it proscribe[d] the possession of white-tailed deer from other states,” the statute did not discriminate against interstate commerce. Id. at *22-23. Because the court did not find the statute to be discriminatory and the court had already determined that the state’s interest was legitimate, the court then applied the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) to determine whether the statute’s “effect on interstate commerce was clearly excessive in relation to its benefits to Tennessee.” Bean, 2005 Tenn. App. LEXIS 267 at *24. The court concluded that the effect of the statute on interstate commerce was not excessive given the fact that the interest in preventing the spread of CWD was very high and that there were no less burdensome alternatives. See id. at *24-32.
The case was decided on May 2, 2005; this summary was posted Jan. 4, 2006.