The Minnesota Deer Farmers Association (MDFA) opposes the Minnesota Department of Natural Resources’ (DNR) emergency rule temporarily prohibiting the movement of all farmed white-tailed deer within the state, effective through the end of July 2021.
Preventing and minimizing the spread of Chronic Wasting Disease (CWD) is very important to MDFA, as its members’ livelihoods depend on the health of their deer and the ability to move their deer within and outside the state. The DNR’s emergency rulemaking is improper, however, because it is based on inaccurate and incomplete evidence and because the Legislature delegated authority to the Board of Animal Health (BAH), not the DNR, to regulate farmed deer.
The BAH was delegated authority to regulate domestic animals, including farmed Cervidae, under Minn. Stat. §§ 35.03 and 35.155. In contrast, the DNR is only delegated to capture and control domestic animals that have escaped or are posing a threat to wildlife under Minn. Stat. §97A.045 subd 1(b). MDFA’s members are familiar with and utilize BAH’s import and intrastate movement permitting process under Minnesota Rules 1721.0400 and 1721.0410. The BAH also has a CWD-herd certification program under Rule 1721.0420, which verifies the herd has been surveilled by the BAH without any evidence of CWD or any determination that the herd has been exposed to CWD for a period of time. The DNR’s new emergency rule banning the movement of farmed white-tail deer effectively invalidates BAH’s import and movement permitting process, making it illegal for anyone to move farmed whitetail deer into or within the state, regardless if they comply with the BAH’s rules and regardless if the herd is CWD-free certified.
This is improper, considering the Legislature’s delegation of authority to BAH to regulate farmed Cervidae.
The DNR’s emergency rulemaking is further improper because it is based on inaccurate and incomplete evidence. The basis of the DNR’s emergency rule (discovery of CWD in a Beltrami County herd) is the same as a proposed emergency rule that the BAH recently attempted to enact this April. The BAH tried to remove the current exclusion in Minn. R. 1721.0420, subp. 3 that [29203-0001/4266703/1] allows movement of farmed deer from a CWD endemic area if the herd was double-fenced and maintained in such a way to prevent commingling of farmed and wild Cervidae for at least 36 months or no later than 180 days after the initial designation of the area as CWD endemic.
Administrative Law Judge Jim Mortensen rejected the BAH’s proposed rule and specifically found that: “There is no evidence in the record showing how CWD, or animals infected with it, pose a serious and immediate threat to the public health, safety or welfare, to warrant emergency rulemaking.”
Order on Review of Rules Under Minn. Stat. § 14.388, available at: https://mn.gov/oah/assets/9048-37492-animal-health-cervidae-farming-good-cause-exemptrules-report_tcm19-481599.pdf.
The DNR’s emergency rule similarly lacks the type of factual and scientific proof needed for an agency to engage in emergency rulemaking, rather than traditional public-and-comment rulemaking. MDFA therefore respectfully opposes the DNR’s new rule banning the movement of farmed deer.