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Pacific Northwest Venison Producers v. Smitch

United States Court of Appeals for the Ninth Circuit

February 3, 1994, Argued, Submitted, Seattle, Washington ; April 1, 1994, Filed

Nos. 92-36766, 92-36953

Opinion

 [*1010]  OPINION

SKOPIL, Circuit Judge:

Plaintiffs Pacific Northwest Venison Producers and several of its members (collectively, "PNVP") appeal the district court's summary judgment in favor of the Washington Department of Wildlife and the Washington State Wildlife Commission (collectively, "Department of Wildlife" or "Department"), upholding the constitutionality of the Department's regulations banning the private ownership and [**2]  exchange of several species of wildlife. We affirm.

FACTS AND PRIOR PROCEEDINGS

In January 1991, the Department of Wildlife promulgated regulations that prohibit the "importation, holding, possession, propagation, sale, transfer or release" of "deleterious exotic wildlife," including mouflon sheep. See Wash. Admin. Code § 232-12-017(1)(d)(iv), -017(2). In June 1992, the Department promulgated emergency regulations which added fallow deer and sika deer to its list of prohibited deleterious exotic wildlife. Wash. St. Reg. 92-14-015 (amending Wash. Admin. Code § 232-12-017(d)(v)). At the same time, the Department promulgated emergency regulations that prohibit the same activities regarding certain native wildlife species, including elk. Id. at 92-14-014 (amending Wash. Admin. Code § 232-23-064(2)). The purported reason for the emergency regulations was to guard against perceived dangers to native wildlife presented by captive herds of these animals.

Following the promulgation of the regulations, the Department invited several wildlife experts to speak at a workshop to determine whether these animals actually present risks to native wildlife. The Department invited only experts [**3]  who had previously expressed concern about the risks that game farms pose to native wildlife. Neither experts who support game farms nor ranchers who raise  [*1011]  the prohibited wildlife were allowed a hearing to present evidence to counter the concerns raised at this workshop.

The experts at the workshop identified several risks to native wildlife presented by game farms. First, the importation of any animals presents a risk of importing diseases such as tuberculosis and brucellosis. Animals carrying the disease can infect native wildlife either after escaping, or through fenceline transmission.

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20 F.3d 1008 *; 1994 U.S. App. LEXIS 6028 **; 94 Cal. Daily Op. Service 2279; 94 Daily Journal DAR 4327

PACIFIC NORTHWEST VENISON PRODUCERS, a Washington corporation; ROBERT V. BAKER; JAMES E. RICH; D. BRUCE MORGAN; WASHINGTON ALTERNATIVE LIVESTOCK ASSOCIATION, a Washington corporation, Plaintiffs-Appellants, v. CURT SMITCH, Director of Washington Department of Wildlife; DEAN A. LYDIG, JAMES M. WALTON, MITCH JOHNSON, TERRY KARRO, JOHN MCGLENN, NORMAN F. RICHARDSON, Commissioners of the WA State Wildlife Commission, WASHINGTON STATE DEPARTMENT OF WILDLIFE, Defendants-Appellees.

Subsequent History: Certiorari Denied October 3, 1994, Reported at: 1994 U.S. LEXIS 6989.

Prior History:  [**1]  Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-92-1076-WLD. William L. Dwyer, District Judge, Presiding.

CORE TERMS

commerce, wildlife, animals, interstate, native, deer, ban, species, discriminatory, diseases, fallow, promulgated, parasite, herds, farms, sika, protectionism, incidental, in-state, captive

Business & Corporate Compliance, Transportation Law, Interstate Commerce, State Powers, International Trade Law, General Overview, Transportation Law, Federal Powers, Constitutional Law, Congressional Duties & Powers, Commerce Clause, Commerce With Other Nations, Prohibition of Commerce, Governments, Federal Government, US Congress, International Law, Authority to Regulate, State Legislation, State Taxes, Balancing Tests, Environmental Law, Solid Wastes, Disposal Standards, Per Se Invalidity, Flow Control, Civil Procedure, Summary Judgment, Opposing Materials, Judgments, Evidentiary Considerations, Entitlement as Matter of Law, Appropriateness, Genuine Disputes, Materiality of Facts