REGIONAL- While the battle in federal court over a 2023 Minnesota law imposing strict regulations on the cervid farming industry rages on, the battleground shifted to the state House Agriculture and Finance Policy Committee on Monday where lawmakers heard testimony on a bill that would reverse two key components that cervid farmers contend threaten the existence of their businesses.
Cervids are another term for species in the deer family, including deer, elk, and moose.
The regulations were intended to tighten controls to prevent the spread of chronic wasting disease, or CWD. CWD infection rates in confined farm herds of deer and other cervids can be higher than in free-ranging populations, and a 2020 study found that movements of cervids between farms presents a risk for spreading CWD in Minnesota. Preventing the spread of CWD gained additional steam when researchers promoted a theory that the non-curable prion-based disease, similar to mad cow disease, could be transmitted to humans.
Dennis Udovich, of Greaney, was one of 40 individual plaintiffs who joined with the Minnesota Deer Farmers Association (MDFA) to file a lawsuit against the Department of Natural Resources and the Board of Animal Health (BAH) in December 2023 challenging the regulations. Udovich figures prominently in the case, arguing that he has a constitutional right to pursue the profession of his choice. Udovich had, at one point, voluntarily ceased his deer farming activities for a time. Then, the state’s moratorium on new registrations for white-tailed deer farming and a provision that prohibited transfer of existing registrations to anyone other than immediate family members made it impossible for Udovich to re-enter the industry.
Minnesota U.S. District Court Judge John R. Tutheim dismissed the lawsuit in August 2024, and denied a motion that would have prevented DNR and BAH from enforcing the regulations. The plaintiffs filed an appeal of the rulings in the Eighth Circuit U.S. Court of Appeals which is still ongoing. In the most recent action in the appeal, the plaintiffs again tried to obtain a preliminary injunction against the state’s enforcement of the regulations, arguing in part that the regulations had already caused nearly 40 cervid farms to go out of business.
“The DNR estimated a loss of 39 white-tailed deer farms from 140 in January of 2023 to 101 farms as of February 2024,” the motion stated. “The most recent losses are attributed to recent changes in the law, and the DNR’s recent requirement for an additional exclusionary fence, economically devastating to white-tailed deer farmers.”
The motion was denied by the court on Feb. 13.
Legislative remedy sought
Three days before that ruling, Rep. John Burkel, R-Badger, introduced House File 40, a bill that would roll back the provision requiring fencing that prevents nose-to-nose contact between captive and wild deer. That requirement, according to the DNR, is critical to halting the spread of CWD. But Burkel and deer farmers say it’s unnecessary, expensive, and scientifically unsupported.
“As things stand, the current statute is just unjust and frankly it’s a regulatory taking of these farmers’ livelihoods,” Burkel told colleagues Monday during a House Agriculture Finance and Policy Committee hearing.
The DNR currently enforces rules requiring eight-foot-tall fences, which must be built to prevent the escape of farmed deer, entry of wild deer, and physical contact between the two. Options include double fencing with a 48-inch gap or electrified barriers – measures that some cervid farmers argue are financially out of reach.
“This provision is the primary reason breeders are leaving the industry, with many breeders who have had decades of great compliance and surveillance now forced to exit the industry,” Minnesota Elk Breeders Association board member Brenda Hartkopf told the committee. “The barrier’s effectiveness is questionable. We’ve seen examples of closed, double-fenced herds that still contracted CWD, and no other state mandates such a barrier. Many of our breeders are still struggling with this requirement, facing significant financial burdens due to the unfunded mandate. We all share the goal of eliminating CWD, but driving breeders out of business isn’t the solution.”
Tim Spreck, of MDFA, said that the fencing guidance provided by DNR is inadequate to insure compliance with the regulations.
“What (they have) is four different options, most of which are extremely expensive and very hard to comply with, and also ambiguous in their nature,” Spreck said. Noting that the DNR fencing pamphlet included a disclaimer that “nothing in this document should be considered legal advice,” Spreck summarized the conundrum farmers face.
“We’ve got a statute that was very hard to interpret,” he said. “The DNR did what they did in interpreting it, provided this document to deer farmers, and then told them oh, by the way, if you do comply with this at great cost, it may not be good enough and it may fail. So, what are we doing to deer farmers here? We’re putting them in a position that’s untenable, where they can never comply and as a result we can drive them out of business. And currently, farmers are being fined.”
MDFA President Scott Fier estimated that it would cost a minimum of $50,000, and more likely in the neighborhood of $70-80,000, to build a compliant double-fence.
“As president, I field the calls daily,” Fier said. “People are struggling financially, mentally, emotionally. How can we afford this fence?”
Burkel’s bill would remove the requirement for physical separation, leaving in place height and containment rules but allowing for the possibility of deer getting close enough to touch through a single fence.
Lt. Col. Robert Gorecki, assistant enforcement director for the DNR, said that’s a risk the state can’t afford.
“Eliminating the physical separation requirement would potentially increase the chances of transmission of CWD in both directions,” he said.
The DNR also pushed back on another provision in the bill that would weaken enforcement tools. Specifically, the proposal would strip the Board of Animal Health of its authority to revoke a farm’s registration if there are multiple escapes within six months or uncorrected violations after inspection. It would also take away language that gives DNR the ability to seize and destroy animals in the event a deer from the herd escapes.
“Removing the potential penalty of revocation in particular would leave little to no consequences to incentivize farmers to maintain their fences and prevent escapes,” Gorecki said. “If there is a producer who flat out refuses to follow fencing guidelines, including fencing rules that have been in place for decades, neither the BAH nor the DNR could take action against their herd registrations or take any serious actions against the producer to ensure compliance. Overall, this bill would increase the likelihood of CWD spread.”
The House Agriculture Committee laid the bill over for possible inclusion in a broader committee package later this session. No vote was taken.