Summary of a Recent
Judicial Development in
Biosecurity

State Statute Prohibiting Importation of Cervids
Declared Unconstitutionally Vague

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In North American Deer Farmers Association v. Gassett, No. 3:08-04-DCR, 2008 WL 4148907 (E.D. Ky. Sept. 2, 2008), the United States District Court for the Eastern District of Kentucky dismissed the plaintiff's complaint because the claims asserted were unripe and non-justiciable; therefore, the court lacked subject matter jurisdiction. The plaintiff brought the instant action as a facial challenge to Kentucky Revised Statute § 150.740, alleging that the statute violated the Commerce Clause of the United States Constitution by forbidding the plaintiff from transferring cervids across Kentucky state lines. The plaintiff also sought a permanent injunction to enjoin future enforcement of the statute.

Background

Only July 12, 2006, the State of Kentucky enacted Kentucky Revised Statute § 150.740 (CWD statute) which banned the importation of cervids into Kentucky to prevent the spread of chronic wasting disease (CWD) to the state's native cervid population. Id. at *1. Specifically, the statute banned the "importation of the members of the family Cervidae into the Commonwealth." Id. On September 20, 2007, Timothy Looper, a Tennessee citizen, was transporting elk and deer from a Missouri farm to a shooting preserve in Tennessee through Kentucky. Id. Looper was arrested by an officer of the Kentucky Department of Fish and Wildlife Resources (DFW) for violating the CWD statute. Id. Looper's attorney wrote a letter to DFW to determine whether future planned transportation of elk from Kansas to Tennessee would be permitted under the CWD statute. Id. The DFW's response letter stated that transporting elk on Kentucky interstate roads requires a party to first import the cervids into Kentucky, which would be a violation of the CWD statute. Id.

Arguments

The North American Deer Farmers Association (NADeFA) sought a judgment declaring that the DFW's interpretation of the CWD statute abridged rights secured to its members by the Commerce Clause and a permanent injunction against the statute's enforcement. Id. at *2. The DFW responded by filing a motion to dismiss on the grounds that the plaintiff's claims were not ripe and, therefore, the court lacked subject matter jurisdiction. Id.

Analysis and Holdings

Ripeness "is a question of timing." Id. at *3. When a cause of action is filed too early, the claim is not ripe and is nonjusticiable. Id. The court applied a two-part test to determine whether the claim was sufficiently ripe to be heard in federal court. Id. The first inquiry was whether the claim was fit for judicial decision "in the sense that it [arose] in a concrete factual context and [concerned] a dispute that [was] likely to come to pass," and the second examined the hardship to the parties of withholding consideration. Id. In the case at bar, the NADeFA presented a facial challenge to the DFW's interpretation of the CWD statutory language, specifically of the word "importation." Id. Prior to the instant litigation, a Kentucky state court had ruled that the CWD statute was unconstitutionally vague, and therefore void. Id. Because it was not clear that the DFW would enforce the CWD statute in the future after being declared unconstitutionally vague and void, and because there was no concrete factual context upon which the court could address the statute on an as-applied basis, the court held that the instant action was premature. Id. The court did not address the hardships to the parties. Id.

The case was decided on September 2, 2008.