The question in today’s case is an old one: can you own wild animals?
In Texas Parks & Wildlife Dep’t v. RW Trophy Ranch, Ltd., No. 15-24-00112-CV (Apr. 10, 2025), the Texas Court of Appeals said no. At least not when that wild animal is a white-tailed deer.
Here are the facts. Generally, you can’t possess a white tailed deer in Texas. (We bet you can hunt ’em. But you can’t, like, domesticate them.) But there are exceptions to that general rule. One of these exceptions allows you to obtain a breeder permit, by which you can keep breeder deer in captivity for propagation purposes. The Ranch is such a deer breeding facility.
But white-tailed deer in Texas — and elsewhere — are susceptible to a disease that sounds truly horrible: Chronic Wasting Disease, “a type of transmissible spongiform encephalopathy[.]” Slip op. at 2. One of the ways to control the disease is “depopulation” of (aka killing) the entire herd.
The Department first detected CWD in one of the Ranch’s breeder deer in 2021, leading to a series of moves and countermoves by the Department and the Ranch. The Department apparently offered several ways to control the spread of CWD that did not involve the more drastic depopulation, but each time the Ranch said no. But this approach changed when the Department alleged that the mortality rate was increasing.
Next up was a notification from the Department that the Ranch’s deer had to go. “In early 2022, the Department notified Williams that it would ‘euthanize and initiate postmortem disease testing of all the deer’ in his breeding facility[.]” Slip op. at 3-4. The Ranch at the same time was getting a TRO in state court preventing depopulation. To kill “our” deer would be a taking of private property was one of the reasons advanced in support.
Barista’s note: when the court writes “[t]he next month saw a flurry of filings[,]” slip op. at 4, you know there’s got to have been a lot of moves and countermoves. Read pages 4 and 5 for more details. Lots of filings. The sum of which, we gather, were competing views of the facts: the Ranch saying the deer “were in exceptional shape,” that the increasing numbers of dead and dying deer were due to a different deer diseases (the equally horrific-sounding “Epizootic Hemorrhagic Disease”), and that deer were dying with, and not of, CWD. The Department, not surprisingly, saw it entirely differently. This was a crisis, they needed to put down the Ranch’s deer to stop the spread, and all the things you would expect from your knowledge of the famous cedar rust case.
And we cannot resist this summation of the Department’s position, as quoted in the opinion:
“Well, regardless of what you call the disease, it’s a TSE and it’s having impacts on the deer and the deer herd…. You could call it snuffleupagus disease if you want to, but it’s still having an effect on those deer.”
Slip op. at 6.
In the end, the courts came down on the side of the Department, and depopulation of the Ranch’s white-tail deer. Deer me!
The court of appeals affirmed. Skip forward to page 11 for the stuff where the court analyzed whether the Ranch possesses a property right (triggering due process and takings protections). Although the court phrased this as a “vested rights” analysis, to us it sounds more like a question of what is and isn’t property.
The court started with the proposition that wild animals are incapable of private ownership:
In Texas, all wild animals—including white-tailed deer—belong to the state, as trustee for the people. It is illegal to possess them “for any purpose not authorized by” the Parks and Wildlife Code. That code authorizes a person to hold live deer captive for only two purposes: breeding and management. Our concern here is with breeding.
Slip op. at 12 (footnotes omitted). Yes, the Department can issue licenses to keep and possess deer for breeding purposes, but this isn’t some kind of entitlement and thus isn’t property. This is a “privilege of possession and breeding deer in captivity only pursuant to a permit issued by the Department[.]” Slip op. at 14. Thus, “[a]ny interest Williams claims in his breeder deer is subordinate to the Legislature’s right to amend the laws governing deer breeding, or to abolish the interest altogether. This is precisely the type of interest that is not vested.” Slip op. at 15.
The court rejected the Ranch’s arguments that it had a common law right property interest in keeping and possessing the deer. No, sorry, the Legislature has completely preempted the field: “William’s theory that deer breeders have a vested property interest in breeder deer under some common-law authority running parallel to, but not inconsistent with, Subchapter L is incompatible with the Legislative scheme completely regulating deer breeding. Slip op. at 16.
The court also rejected the Ranch’s Penn Central takings claim, first noting that it had “a difficult time understanding how euthanizing breeder deer represents a restriction on the use of Williams’s land.” Slip op. at 22 (footnote omitted). It also wasn’t a taking of the Ranch’s permit rights, because it can still possess and keep deer (just not CWD deer). Added, up, “the Department’s depopulation efforts did not go ‘too far’ so as to rise to a regulatory taking.” Slip op. at 23 (footnote omitted).
Agree or disagree with the outcome and the analysis, this one is a fascinating read. Check it out.
