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Location: Summit, IL
Joined: 10/22/2006
Posts: 706
TN Whitetail Management

§70-4-101. Wildlife; state ownership
a) The ownership of and title to all forms of wildlife within the jurisdiction of the state,
as are not individual property under the laws of the land, are hereby declared to be in
the state. No wildlife shall be taken or killed in any manner or at any time except the
person or persons so taking or killing the wildlife shall consent that the title thereto
shall be and remain in the state for the possession, use and transportation thereof after
such taking or killing as set forth in this chapter.
b) The taking or killing of any and all forms of wildlife at any time, in any manner, and
by any person, shall be deemed a consent on the part of such person that the title to
such wildlife shall be and remain in the state for the purpose of regulating the
possession, use, sale and transportation of the wildlife for the public welfare.

NOTE the OWNERSHIP is the STATE!!!

§70-4-401. Prohibited acts
a) It is unlawful for any person to possess, transport, import, export, buy, sell, barter,
propagate or transfer any wildlife, whether indigenous to this state or not, except as
provided by this part and rules and regulations promulgated by the Tennessee wildlife
resources commission pursuant to this part.
b) No person shall possess Class I or Class II wildlife without having documentary
evidence showing the name and address of the supplier of such wildlife and date of
acquisition.
§70-4-402. Definitions
As used in this part, unless the context otherwise requires:
1) “Agency” means the Tennessee wildlife resources agency;
2) “Cage” means the primary enclosure in which an animal is held;
3) “Circus” means a public entertainment consisting typically of a variety of
performances by acrobats, clowns, and trained animals, but does not include
wrestling bears or any type of show in which there is direct contact between the
blic and a Class I animal, except as otherwise provided for in this part;
4) “Commercial propagator” means any person or entity which may sell, barter,
trade, propagate or transfer Class I wildlife (excluding transfers to other
commercial propagators located within the boundaries of Tennessee), and which
meets all other applicable license, permit, zoning and other requirements
necessary to conduct business in the city, county and state where located;
5) “Commission” means the Tennessee wildlife resources commission;
6) “Mobile facility” means a facility designed for the transporting of animals or for
the holding of animals on a temporary basis;
7) “Native wildlife” means those species presently occurring in the wild in
Tennessee and those extirpated species that could reasonably be expected tosurvive in the wild if reintroduced;
8) “Perimeter fence” means a secondary fence that prevents the public from touching
the cage in which the animal is held;
9) “Permanent exhibitors” means those exhibits that are housed the entire year in
facilities located within the state of Tennessee;
10) “Personal possession permit” means a noncommercial type permit issued to
private citizens for ownership or possession of nonbreeding animals in small
numbers;
11) “Stationary facility” means the primary holding facility, including cage and
barriers that remain in a fixed location; and12) “Temporary exhibitors” means those transient animal acts not permanently
located within the boundaries of the state of Tennessee.
70-4-403. Classifications of wildlife
Live wildlife, kept and maintained for any purpose, shall be classified in the following
five (5) classes:
1) Class I - This class includes all species inherently dangerous to humans. These
species may only be possessed by zoos, circuses and commercial propagators,
except as otherwise provided in this part. The commission, in conjunction with
the commissioner of agriculture, may add or delete species from the list of Class I
wildlife by promulgating rules and regulations. The following is a listing of
animals considered inherently dangerous:
A) Mammals:
(i) Primates - Gorillas, orangutans, chimpanzees, gibbons, siamangs,
mandrills, drills, baboons, Gelada baboons;
(ii) Carnivores:
(a) Wolves - All species;
(b) Bears - All species; and
(c) Lions, tigers, leopards, jaguars, cheetahs, cougars - All species;
(iii)Order Proboscidia: Elephants - All species;
(iv) Order Perissodactyla: Rhinoceroses - All species; and
(v) Order Artiodactyla: Hippopotamus, African buffalo;
B) Reptiles:
(i) Order Crocodylia: Crocodiles and alligators - All species; and
(ii) Order Serpentes: Snakes - All poisonous species; andC) Amphibians: All poisonous species;
2) Class II - This class includes native species, except those listed in other classes;
3) Class III - This class requires no permits except those required by the department
of agriculture, and includes all species not listed in other classes and includes, but
is not limited to, those listed in subdivisions (3)(A)-(Q). The commission, in
conjunction with the commissioner of agriculture, may add or delete species from
the list of Class III wildlife by promulgating rules and regulations:
A) Nonpoisonous reptiles and amphibians except caimans and gavials;
B) Rodents - Gerbils, hamsters, guinea pigs, rats, mice, squirrels and chipmunks;
C) Rabbits, hares, moles and shrews;
D) Ferrets and chinchillas;
E) Llamas, alpacas, guanacos, vicunas, camels, giraffes and bison;
F) Avian species not otherwise listed, excluding North American game birds,
ostriches and cassowary;
G) Semi-domestic hogs, sheep and goats;
H) All fish held in aquaria;
I) Bovidae not otherwise listed;
J) Marsupials;
K) Common domestic farm animals;
L) Equidae;
M) Primates not otherwise listed;N) Bobcat/domestic cat hybrids;
O) Hybrids resulting from a cross between a Class II species and a domestic
animal or Class III species;
P) Cervidae except white-tailed deer and except wild elk. Elk originating from a
legal source while held in captivity for the purpose of farming shall be
regarded as Class III wildlife. All other elk shall be wild elk and shall be
regarded as Class II wildlife. No person shall possess elk in captivity within
the eastern grand division of the state as defined in §4-1-202 without having
documentary evidence indicating the origin of the elk being held. This
documentary evidence will be presented to the agents of the department of
agriculture or the wildlife resource agency upon request. Sale documentation
of offspring of purchased elk is not required; and
Q) Furbearing mammals, including those native to Tennessee, raised solely for
the sale of fur;
4) Class IV - This class includes those native species that may be possessed only by
zoos and temporary exhibitors; provided, that rehabilitation facilities may possess
Class IV wildlife as provided by rules established by the commission if authorized
by a letter from the director of the agency:
A) Black bear ( Ursus americanus );
B) White-tailed deer ( Odocoileus virginianus );
C) Wild turkey ( Meleagris gallapavo ) (including the eggs thereof);
D) [Deleted by 1996 amendment.]
E) Hybrids of a Class IV species other than bobcat shall be Class IV; and
F) Animals that are morphologically indistinguishable from native Class IV
wildlife shall be Class IV; and
5) Class V - This class includes such species that the commission, in conjunction
with the commissioner of agriculture, may designate by rules and regulations as
injurious to the environment. Species so designated may only be held in zoosunder such conditions as to prevent the release or escape of such wildlife into the
environment.
Theres ya regs....Now for the regs for having such an enclosure to follow

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Location: Summit, IL
Joined: 10/22/2006
Posts: 706
TN Whitetail Management

§70-4-405. Housing and transportation of wildlife – Requirements
a) Wildlife housed in dangerously unsafe conditions constituting a threat to human
safety shall, at the direction of agency personnel, be placed in agency approved
facilities at the owner’s expense.
b) Any condition which results in wildlife escaping from its enclosure, cage, leash or
other constraint shall be considered maintaining wildlife in an unsafe manner and
shall be a violation of this part.
c) Cages shall be sufficiently strong to prevent escape and to protect the caged animal
from injury.
d) No person shall maintain any wildlife in captivity in any unsanitary or unsafe
condition or in a manner which results in the maltreatment or neglect of such wildlife,
nor shall any species of wildlife be confined in any cage or enclosure which does not
meet the cage specifications.
e) Enclosure in which wildlife is held in captivity shall be maintained as follows:
1) Water. Drinking water shall be provided daily in clean containers. Swimming or
wading pools shall be cleaned as needed to ensure good water quality. Enclosures
shall provide adequate drainage of surface water;
2) Food. Food provided shall be unspoiled and not contaminated; and
3) Waste. Fecal and food waste shall be removed from cages daily and stored or
disposed of in a manner which prevents noxious odors or insect pests. Hard
floors shall be scrubbed and disinfected weekly. Large pens and paddocks with
dirt floors shall be raked every three (3) days and the waste removed.
f) The commission may promulgate rules and regulations requiring specific cage
requirements for any species of live wildlife.
g) Stationary facilities - Class I wildlife.1) All stationary facilities must be surrounded by a perimeter fence (secondary
barrier) of at least eight feet (8’) in height and a minimum of four feet (4’) from
the cage holding the animal, or such other fencing, building or other protection ofthe enclosure where the animal is kept sufficient to prevent unauthorized public
entry or direct physical contact between the animal and the public.
2) All cages shall be well braced and securely fastened to the floor or in the ground
and shall utilize metal clamps or braces of equivalent strength as that prescribed
for cage construction.
3) All cage entrances shall have double safety doors, one (1) of which only opens to
the inside. These doors must remain locked at all times when unattended with
chains and locks of sufficient strength to prevent the animal from breaking open
the door if highly excited.
4) All cages shall be constructed with a den, nest box or other connected housing
unit that can be closed off and locked with the animal inside for the safe servicing
and cleaning of the open area. In lieu of a nest box, a divided cage with a door
between the two (2) compartments may be used.
5) All outdoor cages shall provide adequate shelter from inclement weather
conditions, shade from the sun and provide for the protection and health of the
wildlife held.
6) The mesh size or distance between bars shall be sufficiently small to prevent the
escape of the animal being held.
7) Restraint by tethering cannot be used as a means to hold an inherently dangerous
animal in captivity, except for elephants within a perimeter fence or trained
elephants under the immediate supervision of a qualified trainer or handler.
8) All animals shall be kept in cages which meet the following minimum criteria, or
shall be housed in buildings in which the strength of the walls, and the restraints
affixed to all windows, doors and other means of entry or exit in effect meet such
minimum criteria:A) Felidae and Ursidae.
(i) All cages shall be constructed of and covered at the top with nine (9)
gauge steel chain link or equivalent, with tension bars and metal clamps to
prevent the escape of the animal; provided, that animals, except tigers,
leopards and jaguars, may be held in facilities without a top where the
sides of the cages are a minimum of eleven feet (11’) high with the top
three feet (3’) of fencing turned in at a forty-five degree (45 degrees)
angle. No structures which could provide potential escape routes may be
present near the fence of an open top cage;
(ii) All cages for cougars and cheetahs shall be constructed as specified in
subdivision (A)(i) except that minimum strength shall be of eleven and
one half (11 1/2) gauge steel chain link or equivalent;
B) Canidae. All cages shall be constructed of and be covered at the top with
eleven and one-half (11 1/2) gauge steel chain link or equivalent, with tension
bars and metal clamps to prevent the escape of the animal; provided, that
animals may be held in facilities without a top where the sides of the cage are
a minimum of nine feet (9’) high with the top three feet (3’) of fencing turned
in at a forty-five degree (45 degrees) angle;
C) Elephants, rhinoceros, hippopotamus and African buffalo.(i) Construction materials shall consist of steel bars, masonry block or
equivalent. If masonry block construction is used, the holes in the blocks
must be filled with steel reinforced concrete to provide sufficient strength;
(ii) Restraints consisting of a barrier system of moats or other structures as are
commonly accepted as suitable to restrain and contain these animals in
paddocks or corrals may be used in lieu of a cage;
D) Poisonous animals. Poisonous animals shall be kept in a cage or in a glass
enclosure sufficiently strong, and, in the case of a cage, of small enough mesh
to prevent the animals’ escape. The cage or glass enclosure must be kept
inside an outer cage, or glass enclosures must be kept locked at all times. No
person except the permittee or such person’s authorized employee shall open
any cage or other container which contains poisonous animals. Persons
keeping poisonous animals shall have in their possession antivenin for each
species possessed;
E) Chimpanzees, gorillas, orangutans. Cage construction materials shall consist
of steel bars, two inch (2”) galvanized pipe, reinforced masonry block or their
strength equivalent;
F) Drills, mandrills, baboons, Gelada baboons, gibbons, siamangs. Cage
construction materials shall consist of not less than nine (9) gauge steel chain
link or equivalent; and
G) Alligators and crocodiles. Cages shall consist of fencing at least five feet (5’)
in height of not less than eleven and one-half (11 1/2) gauge chain link or
equivalent.9) A facility that meets the requirements to be a zoological institution may use
methods approved by the American Association of Zoological Parks and
Aquariums for the purposes of restraint, containment and the prevention of escape
and public contact for Class I animals, instead of the requirements listed in the
preceding subdivisions.
h) Mobile facilities. No mobile facility shall be used in transporting any wildlife except
as follows:
1) Facilities shall be equipped to provide fresh air without injurious drafts and
adequate protection from the elements to all animals;
2) The animal traveling area shall be free of engine exhaust fumes;
3) Animal cages shall have openings for the emergency removal of wildlife;
4) Cages shall be large enough to ensure that each specimen has sufficient room to
stand erect and lie naturally;
5) Wildlife transported in the same cage area shall be in compatible groups;
6) Facilities used in transporting or temporarily exhibiting Class I wildlife shall be
constructed of steel or case hardened aluminum of sufficient strength to prevent
the escape of wildlife being transported. Such facilities shall be constructed in
such a manner to prevent contact between the animal(s) and the general public.
All doors shall be locked when the facility is in use;
7) Poisonous reptiles shall only be transported in a strong, closely woven cloth sack,
tied or otherwise secured. This sack shall then be placed in a box. The box shall
be of strong material in solid sheets, except for small air holes, which shall be
screened. Boxes containing poisonous reptiles shall be locked and prominentlylabeled “Danger - Poisonous Snakes” or “Danger - Poisonous Reptiles,” and shall
include the owner’s name, address, telephone number and list of number and
species being transported;
8) Temporary exhibits shall be housed in cages that meet the minimum cage
specifications as provided in the section on stationary facilities when such wildlife
is present in any geographical location for more than ten (10) days; and
9) Prior to entering the state of Tennessee, temporary exhibitors shall submit a
schedule that details the exact locations and dates of shows and places where such
wildlife will be exhibited while in the state. Failure to provide such a schedule
upon application for a permit shall be grounds to deny issuance of such permit.

NOW.....Read through all of that as it comes STRAIGHT from TENNESSEE LAW....NOT some Hearsay crap and bullcrap political inuendo.....You may stop arguing that it is legal to do so because it is CLEARLY and DECISIVELY shown to be ILLEGAL....And I ALSO showed you your answer pertaining to the regulations as far as maintaining the cleanlyness and Health of the animals that you have trapped.....
§70-4-409. Inspections
Any person possessing live wildlife in Class I or Class II shall, during normal business
hours and at all reasonable times, and without the necessity of a search warrant, allow the
executive director or any officer or employee of the agency to inspect all animals,
facilities and records relating to such animals for the purpose of ensuring compliance
with the provisions of this part.

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Joined: 10/15/2006
Posts: 127
TN Whitetail Management

cam69conv,

I am very familiar with the law you are referring to as I was there when it was created.

How would you explain dozens of wealthy land owners holding captive hundreds of native whitetail deer in TN?

How would you explain Ron Fox, a high ranking TWRA official, testifying in court that TWRA has allowed many land owners to high fence their private property and trap hundreds of wild native whitetail deer and hold them captive? According to his testimony, this is completely legal. You don't have to take my word for it as it is a matter of public record. You can call TWRA in Nashville and speak to Ron Fox to verify this.

TWRA has admitted in court, under oath, that it is legal for private individuals to trap and hold captive whitetail deer. Are you saying that TWRA is wrong? Are you saying that TWRA is corrupt?

How would you find whitetail deer on a 1000 acre enclosure and how would you capture all of them to examine them without killing them?

Please at least get on the right page, Whitetail deer ARE NOT CLASS II but are in class IV

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Location: Summit, IL
Joined: 10/22/2006
Posts: 706
TN Whitetail Management

Lynn, I dont care what some moron has admitted in court and what some rich people breaking the law has stated in court....The Law was posted and is CLEAR. Im done arguing with you....It is YOU thats not on the right page....Deer are classified as class 2. They are MENTIONED in class 4 for ZOO'S......If people are IGNORANT and cant READ that then thats THIER problem. You and others are trying to loophole a wording issue and it pure stupidity to try to do so. AGAIN...They are MENTIONED in class 4 for the purpose of DISPLAY by LICENSED Zoo's or Temporary display PERIOD. Stop trying to loophole the LAW.

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Location: Montana
Joined: 03/09/2006
Posts: 111
TN Whitetail Management

I would have to agree at least when you say that one or two got away with it, and they are now in a bind.

I will say that this analysis of the situation lends me to ask again my question, what happens when, in twenty years, 50,60, or 70 percent of landowners have "illegal" but "overlooked" game preserves? What happens to the wild deer population, what happens as far as disease goes, and many other questions? This is the problem with law, in that it can work for you if you have money, and can only work against if you dont have ample resources to fight it.
IMHO, TWRA has a big open can of worms here, and they will have to close it sooner or later. I do agree with a private landowner's rights to manage their wild deer herd and being selective in whom they allow to hunt, if they allow it at all. What I dont agree with is the ability for some to break the law, while others have to follow it. I dont agree with taking a resource away from the people whom pay for its preservation. Regardless of the legal ownership, which I dont agree with in the first place, the animals are managed to preserve the ecosystem, to protect the species, and for the use of the public. When any private landowner takes a wild something that is not theirs, and eliminates its ability to be a free ranging wild animal (committing an illegal act, IMHO) and the state & TWRA watch while doing nothing, I do not think it is right. I KNOW TWRA will have to deal with this situation eventually, and hope for the sake of the species & the taxpayers it is sooner than later.

The classification law I believe, and the reason I stated that I made a mistake, (in my interpretation) states that all of the animals listed as class IV cannot be possessed, as pets, or "livestock," if you will. The only way these animals can be "possessed" is by a zoo, of course unless otherwise permitted as a private game reserve. This only strengthens my opinion that captivating these animals is, and should be, illegal. Cam, not trying to get in to another arguement with you, just stating my interpretation as I read the law a bit closer. I have stated, and will again, that I am not in any legal profession, and every opinion I state about the Laws of tennessee is just that, my opinion. I will stand by my ownership statement, because I did state that as a fact. I dont like it, but it is a FACT in my mind.

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Location: Montana
Joined: 03/09/2006
Posts: 111
TN Whitetail Management

Lynn,

I know nothing of the mismanagement of the whitetail deer at the hands of TWRA. What I do agree with is that landowners must manage their wild herd. Our views differ on how that should be done, that is all. The burden cannot lie solely in the lap of the landowner. We as hunters must take an active role in management as well. We must organize, and quit taking hundreds if not thousands of immature bucks each year. I myself would rather shoot a doe than an immature buck, simply because I care about the quality of future hunting. Irresponsible hunters do much more damage to wild herd quality than do landowners. I am for hunting selectively and responsibly, in order to preserve this PRIVILAGE for my son & his. I think that beyond the legality of the issue, which I have already stated my opinion upon, there are real consequences to high fencing wild deer, and essentially taming & ranching them. Disease rates are much higher on these "Game Farms." That is why Montana has made it so very difficult to engage in this type of "ranching." It also does take from the public a resource that we as taxpayers & hunters pay for. I have never done studies, nor have I ever read one in detail, but I can theorize that in time if enough land owners do high fence their property, that the greater percentage of hunters will be hunting a smaller percentage of the wild animals left roaming freely, and a GREAT percentage of us non-landowners will suffer, as will our future generations, due to the decreasing quality & quantity of wild game left to be hunted. I would wonder if eventually my grandson will only be able to kill (read: NOT HUNT) on high fence ranches because the opportunity to hunt on public land will diminish with the Q&Q of the animals there. I am not a high fence killer, and never will be. With the elimination of the wild animals ability to be wild, roam freely, and escape from human predators, hunting no longer exists. God forbid hunting ever comes to that, cause I will go shoot a beef cow before I shoot a caged deer. I feel that this is a dangerous precedent to set, and as I said, i think TWRA will have to deal with this situation eventually.

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Location: Wandering the World, Currently at Ft. Campbell, KY
Joined: 10/05/2006
Posts: 206
TN Whitetail Management

Good points BigCallin. I agree that the TWRA needs to do something sooner than later. Just because they do not enforce the laws, and punish those who break them, does not make it right.

If we could just educate the hunter to the benifits of proper wildlife management, things would be better. But, that would take more resources that the states just don't have. It is the hunters that need to take the responsibility for this and not the state.

I have property in WI and it has taken about 5-7 yrs to get other land owners there to get on the same sheet of music as far as wildlife management. We now have an unwritten rule of no taking bucks smaller than 6pts. Sure there are a few that still do, but the vast majority are trying to manage the herds in a good way. I to would rather, and have, shoot a doe before taking a young buck. Yes

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Location: Summit, IL
Joined: 10/22/2006
Posts: 706
TN Whitetail Management

Hey Big....Sorry if you felt that was directed at you...It wasnt....Your interpretation was correct as in Class IV was for Zoo's and Game farms and such like that...Lynn is trying to say that since its MENTIONED in IV then its a class IV animal....INCORRECT...Its just a word game with people like that trying to find loopholes in Laws that were created for good. Deer management falls upon the shoulders of Hunters. I TOO would rather have a nice tastey doe in prefrence to a young buck. Im not a rack hunter myself but I do know the importaince of a good racked deer....Those good racks dont just mean they are pretty onna wall..They mean that you have good genetics and proper food for those animals. I used to be all caught up in trophy hunting for a long time. But anymore I just like the meat. I hunt all over the country for Elk...Deer...and Now Bison. The Bison I hunt are on some HUGE fenced LEGAL properties that do NOT fence whitetails. The 3 or 4 places I hunt them are ALL 700+ acres and I hate to tell alot this but these animals are NOT humanized like some people THINK. They are VERY skiddish and some are downright MEAN. Now I do NOT agree with these little places with 250 acres fenced in with no cover, THATS fish in a barrel crap. But say you have 700+ acres with lots of cover and the animals are familiar with the property, then trust me its ALOT more of a challenge than people think...I see alot of talk on that issue and MOST of the people talking bad about it have never even BEEN to a quality run operation. They are all focusing on these lil fly by night make a profit places that Just buy an animal from a farm throw it in a 200x500 yard fence and tell you to go shoot it. Thats crap and you may as well just go to a buff farm and buy a half or whole buff already done up for you like buying a beef cow. I have places that I hunt that we only allow DOE's to be taken for now and if you get all excited and kill a buck you are charged 500 bux and never allowed to hunt that property again ( we make you sign a contract so its legal) Some of the properties we hunt have 145 class deer on them and growing. The only bucks we allow at the moment on one place is 4 year old or better with 8 or less points.(management class cuzz they aint growing right). Then another we allow all because there isnt a single mature buck there with LESS than a 150 set on them unless its a buck from another property that we havnt seen. All these properties are a culmination of 7 to 10 years of management and strict control of who is hunting on them. A friend of mine in PA just went and bought 2 four year old bucks with Saskatuahn (I know I spelled that wrong) genetics in them. They both have 150 class racks and they are BOTH 290+ on the hoof. He closed hunting on his 350 acre property for the next 2 years to anyone other than himself,,,his brother and me because he knows that if we see those 2 MONSTERS we will let them walk and BREED those fine genetics into his herd. By the way he has more money than the catholic church so he aint worried about the cost factor....PA dear are getting VERY weak in the genetics and he is doing what he can to help a little bit. As I said Deer management is upon us because 9 times outta 10 the so called experts have thier heads so far up thier butts its rediculous. Its all a money game with most of them!

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Joined: 10/15/2006
Posts: 127
TN Whitetail Management

cam69conv,

The judges ruled that a person of average intelligence could determine which animals are in which class. Now either TWRA and three judges are wrong or cam69conv is wrong or some one is not of average intelligence.

Read below on this court ruling:

the bottom of page #4, Class IV – This class includes those native species that may bepossessed only by zoos and temporary exhibitors; provided, thatrehabilitation facilities may possess Class IV wildlife as provided by rulesestablished by the commission if authorized by a letter from the director ofthe agency:(A) Black bear (Ursus americanus);(B) White-tailed deer (Odocoileus virginianus);(C) Wild turkey (Meleagris gallapavo)(including the eggs thereof);(D) [Deleted by 1996 amendment

and the bottom of page #6, No one will berequired to guess the meaning of that term.Class II includes native species except those listed in other classes. We think that isself-explanatory. If it is native and not on another list, it falls into this class.

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IN THE COURT OF APPEALS OF TENNESSEEFILEDDecember 3, 1999Cecil Crowson, Jr.Appellate Court ClerkAT NASHVILLEROBERT BEAN, FRANKLIN SHAFFER, )DAVID AUTREY, MACK ROBERTS, )KEVIN ANTLE, TOM NICHOLS, )TAMMIE P. BEASLEY, and )ROXANNE LUCE, ))Plaintiffs/Appellants, )Appeal No.) M1999-01493-COA-R3-CVVS. )) Davidson ChanceryNED RAY MCWHERTER, in his ) No. 91-2558-Icapacity as Governor of the )State of Tennessee, CHARLES W. )BURSON, Attorney General of the )State of Tennessee, TENNESSEE )WILDLIFE RESOURCES COMMISSION, )and GARY MEYERS, as the Director of )the Tennessee Wildlife Resources Agency, ))Defendants/Appellees. )APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTYAT NASHVILLE, TENNESSEETHE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLORFOR APPELLANTS:FOR APPELLEES:F. CLAY BAILEY PAUL R. SUMMERS315 Deaderick Street Attorney General & ReporterNashville, Tennessee 37238ELIZABETH P. MCCARTER
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450 James Robertson ParkwayNashville, Tennessee 37243-0495AFFIRMED IN PART; REVERSED IN PART;AND REMANDEDBEN H. CANTRELL,PRESIDING JUDGE, M.S. CONCUR:KOCH, J.CAIN, J.O P I N I O NThis is a constitutional challenge to an Act of the legislature regulating the possession andsale of animals. Owners, dealers, and licensed propagators of various wildlife species challenged theAct on grounds that it is vague, overbroad, and a burden on interstate commerce. The ChanceryCourt of Davidson County rejected the constitutional challenge. We affirm the decision on thevagueness and overbreadth charge. We think, however, that there are disputed facts bearing on thequestion of whether parts of the Act impermissibly burden interstate commerce. We, therefore,remand for further proceedings on that issue.I.This is the second round of a broad attack on Tenn. Code Ann. § 70-4-401, et seq. whichclassifies wild animals into five general classes and regulates their possession, sale, propagation ortransfer. The first round resulted in a decision of the Supreme Court overruling a challenge to the Act2
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on the ground that the delegation of the power to an administrative agency to add to or delete speciesfrom Classes I and III violated the Tennessee Constitution. See Bean v. McWherter, 953 S.W.2d 197(Tenn. 1997). On remand the chancery court overruled the remaining challenges to the Act.II.Vagueness of Wildlife ClassificationsThe appellants’ attack on the statute centers on the classifications set out in Tenn. CodeAnn. § 70-4-403. We reproduce that section here in its entirety:Classifications of wildlife: – Live wildlife, kept and maintained forany purpose, shall be classified in the following five (5) classes:(1) Class I – This class includes all species inherently dangerous tohumans. These species may only be possessed by zoos, circuses andcommercial propagators, except as otherwise provided in this part. Thecommission, in conjunction with the commissioner of agriculture, may addor delete species from the list of Class I wildlife by promulgating rules andregulations. The following is a listing of animals considered inherentlydangerous:(A) Mammals:(i) Primates – Gorillas, orangutans, chimpanzees, gibbons, siamangs,mandrills, drills, baboons, Gelada baboons;(ii) Carnivores:(a) Wolves – All species;(b) Bears – All species; and(c) Lions, tigers, leopards, jaguars, cheetahs, cougars – All species;(iii) Order Proboscidia: Elephants – All species;(iv) Order Perissodactyla: Rhinoceroses – All species; and(v) Order Artiodactyla: Hippopotamus, African buffalo;(B) Reptiles:(i) Order Crocodylia: Crocodiles and alligators – All species; and(ii) Order Serpentes: Snakes – All poisonous species; and(C) Amphibians: All poisonous species;3
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(2) Class II – This class includes native species, except those listed inother classes;(3) Class III – This class requires no permits except those required bythe department of agriculture, and includes all species not listed in otherclasses and includes, but is not limited to, those listed in subdivisions(3)(A)-(Q). The commission, in conjunction with the commissioner ofagriculture, may add or delete species from the list of Class III wildlife bypromulgating rules and regulations:(A) Nonpoisonous reptiles and amphibians except caimans and gavials;(B) Rodents – Gerbils, hamsters, guinea pigs, rats, mice, squirrels andchipmunks;(C) Rabbits, hares, moles and shrews;(D) Ferrets and chinchillas;(E) Llamas, alpacas, guanacos, vicunas, camels, giraffes and bison;(F) Avian species not otherwise listed, excluding North American gamebirds, ostriches and cassowary;(G) Semi-domestic hogs, sheep and goats;(H) All fish held in aquaria;(I) Bovidae not otherwise listed;(J) Marsupials;(K) Common domestic farm animals;(L) Equidae;(M) Primates not otherwise listed;(N) Bobcat/domestic cat hybrids;(O) Hybrids resulting from a cross between a Class II species anddomestic animal or Class III species;(P) Cervidae except white-tailed deer; and(Q) Furbearing mammals, including those native to Tennessee, raisedsolely for the sale of fur;(4) Class IV – This class includes those native species that may bepossessed only by zoos and temporary exhibitors; provided, thatrehabilitation facilities may possess Class IV wildlife as provided by rulesestablished by the commission if authorized by a letter from the director ofthe agency:(A) Black bear (Ursus americanus);(B) White-tailed deer (Odocoileus virginianus);(C) Wild turkey (Meleagris gallapavo)(including the eggs thereof);(D) [Deleted by 1996 amendment.](E) Hybrids of a Class IV species other than bobcat shall be Class IV;and(F) Animals that are morphologically indistinguishable from native ClassIV wildlife shall be Class IV; and4
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(5) Class V – This class includes such species that the commission, inconjunction with the commissioner of agriculture, may designate by rulesand regulations as injurious to the environment. Species so designated mayonly be held in zoos under such conditions as to prevent the release orescape of such wildlife into the environment.The Act makes certain conduct with respect to wild animals “unlawful.” Therefore, it mustgive a person of ordinary intelligence “fair warning” of what is proscribed. State v. Thomas, 635S.W.2d 114 (Tenn. 1982). Otherwise, it violates the due process clause of the FourteenthAmendment to the United States Constitution. U.S. v. Lanier, 520 U.S. 259 (1997). An act violatesdue process if “men of common intelligence must necessarily guess at its meaning and differ as to itsapplication.” Id. at 266.A. Bean IThe Attorney General argues that the Supreme Court in Bean I essentially decided thatthese classifications are reasonable and intelligible on their face. The Court said:We have carefully considered the entire statutory scheme and find that thestatute implies a standard of reasonableness. We further find that the statute’s guidelines are that animals possessing characteristics consistent with thelegislature’s listed examples and statutory definitions are to be classifiedpursuant to the legislative scheme. These standards are clearly adequate toallow both us and the TWRC to determine whether the legislature’s intent isbeing furthered.953 S.W.2d at 200.We think that the State’s argument that the Supreme Court essentially decided this issue isan admission that it did not specifically decide it. And we are reluctant to conclude that a5
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constitutional defense to a charge of unlawful conduct does not exist because of what was inherent inthe Supreme Court’s decision on another issue. The only question addressed by the Court waswhether the general assembly had the power to delegate the addition or deletion of species withoutexpress or specific standards. 953 S.W.2d at 199. Therefore, the issue of whether the classificationsare too vague to be understood by persons of ordinary intelligence remains for our decision.B. A Fair WarningWe think that a person wishing to possess, breed, swap or transfer wildlife can, withreasonable effort, safely determine what the law requires. First, all wildlife for which some sort of apermit is required (Classes I and II), or which may be possessed only by zoos, circuses, andcommercial propagators (Classes I and IV), or may also be possessed by rehabilitation facilities andtemporary exhibitors (Class IV), can be determined by consulting the lists in the statute and theregulations of the Tennessee Wildlife Resources Commission. The appellants complain that Class I istoo vague because it refers to animals that are “inherently dangerous.” But that is a guideline for theCommission in deciding whether to add any species to the statutory list. All species coming underthis class will be listed in the statute or the regulations. Anyone wishing to possess or deal with anyanimal may look at the lists to determine if it has been classed as inherently dangerous. No one will berequired to guess the meaning of that term.Class II includes native species except those listed in other classes. We think that isself-explanatory. If it is native and not on another list, it falls into this class. Class III includes all species not listed in another class. The Commission has the power to6
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add to or delete species from this class, but the statute and the regulations determine the classboundaries. Nothing is left to speculation.Class IV includes only those species listed in the statute. The Commission does not havethe power to alter this class.Class V includes only those species designated by the Commission. The appellants arguethat “injurious to the environment” is impermissibly vague. However, as we pointed out with respectto Class I, no one is required to speculate about what that means. Only after the Commission, underits rulemaking authority, decides what species fit that description will the general public be affected. See Tenn. Code Ann. § 4-5-201, et seq. for the statutes governing the Commission’s rulemakingauthority. Whether it is a good idea to give the Commission the power to make the decisionsdelegated to it by the Act is not the question. The Supreme Court has decided that the legislature maydo so. Interested persons will be given a voice in the rulemaking process.III.Vagueness or Overbreadth of Tenn. Code Ann. § 70-4-405Tenn. Code Ann. § 70-4-405 governs the housing and transportation of wildlife. Itspertinent sections are as follows:(a) Wildlife housed in dangerously unsafe conditions constituting athreat to human safety shall, at the direction of agency personnel, be placedin agency approved facilities at the owner’s expense.7
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(b) Any condition which results in wildlife escaping from its enclosure,cage, leash or other constraint shall be considered maintaining wildlife in anunsafe manner and shall be a violation of this part.* * *(d) No person shall maintain any wildlife in captivity in any unsanitaryor unsafe condition or in a manner which results in the maltreatment orneglect of such wildlife, nor shall any species of wildlife be confined in anycage or enclosure which does not meet the cage specifications.The appellants argue that subsection (b) applies to all species of animals – including thosein Class III for which there are no caging or restraint requirements – and makes it a criminal offense ifthe animal escapes. Under this interpretation releasing a squirrel in a park or allowing a gerbil toescape its cage would be a criminal offense. Taking subsections (a), (b) and (d) of Tenn. Code Ann.§ 70-4-405 as separate and discrete provisions one could make that assumption. Literally, then,walking a dog on a leash and allowing it to escape would be a criminal act. We think, however, thatsubsection (b) must be read in conjunction with subsection (a) which has as a qualification “constituting a threat to human safety.” The reference in subsection (b) to enclosures, cages, andleashes must mean as necessary to protect human safety. This conclusion is strengthened by theinclusion in subsection (b) of the “unsafe” qualification that also appears in subsection (a). Readingthe sections together, we conclude that it is not a crime to allow an animal to escape if the animal doesnot pose a threat to human safety.IV.Burden on Interstate Commercea. The Permit Requirement8
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The appellants alleged that Tenn. Code Ann. § § 70-4-410 and 411 place an undue burdenon interstate commerce in violation of the commerce clause of the United State Constitution. Art. I §8, clause 3. See Lewis v. B.T. Investment Managers, Inc., 447 U.S. 27 (1980). Specifically, they citesubsections (b) and (c) of § 70-4-410 and subsections (a) and (c) of § 70-4-411. Those sections areas follows:(b) Any nonresident who enters the state for the purpose of sellingClass I or Class II wildlife species in this state shall also be required topurchase and possess a permit. (c) All permits under this section shall comply with all provisions of theUnited States Code and the Code of Federal Regulations relating to exoticanimals, their care, propagation, importation and sale.Tenn. Code Ann. § 70-4-410.(a) All persons wishing to possess Classes I and II live wildlifeobtained outside the state of Tennessee shall have in their possession theimportation permit required by this part. The permit and all bills of ladingand shipping papers relating to any wildlife which such person may have insuch person’s possession shall be open and available for inspection at allreasonable times by authorized agency officers and employees for thepurpose of ensuring compliance with the provisions of this part.(c) An importation permit is required for all interstate movement of livewildlife except Class III, except no permit is required for zoos andtemporary exhibitors.Tenn. Code Ann. § 70-4-411.The appellants argue that taken together these subsections impose an undue burden oninterstate commerce because (1) no intelligent person can identify the class that comes under thepermit requirement and (2) making all permits comply with the CFR provisions relating to exoticanimals unduly burdens the traffic in native animals.9
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Not all state regulations that burden commerce among the states are prohibited by thecommerce clause. States may address matters of legitimate local concern even though interstatecommerce may also be affected. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). State legislationimpacting interstate commerce is not prohibited where the law “regulates evenhandedly to effectuate alegitimate local public interest and its effects on interstate commerce are only incidental, and theburden imposed on interstate commerce is not clearly excessive in relation to the local benefits.”Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 at 530 (Tenn. 1993). The appellants do not question the state’s legitimate interests in the objects of the permitrequirements (knowing where dangerous species are kept and under what conditions; being able toinspect animals that are imported into Tennessee), but they assert that the vagueness of the statuteunreasonably burdens interstate commerce. We have already addressed the appellants’ vaguenessargument. We will not repeat that analysis here. Needless to say, we do not think the statute isimpermissibly vague.With respect to the requirement that permit holders must comply with federal permitrequirements relating to exotic animals, the Tennessee Wildlife Resource Agency (TWRA) hasinterpreted subsection (c) as applying only to wildlife in Class I that are non-native to the UnitedStates. The state concedes that read literally the statute would produce an absurd result. But courtsmust presume that the legislature did not intend an absurdity. Where possible, the courts shouldadopt a reasonable construction of a statute that provides for harmonious operation of the laws andavoids a constitutional conflict. Fletcher v. State, 951 S.W.2d 378 (Tenn. 1997). Although theTWRA’s construction of this statute may be pushing the outside limit, see Covington Pike Toyota,10
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Inc. v. Cardwell, 829 S.W.2d 132 (Tenn. 1992), we think the interpretation is reasonable, and appliesthe exotic animals requirements of the federal regulations only to those who handle exotic animals.b. Importation and Farming of White-Tailed DeerWhite-tailed deer are included in Class IV, along with black bears, wild turkeys, etc., asanimals that may only be possessed by zoos, temporary exhibitors, and rehabilitation facilities. Thiseffectively prohibits the importation of white-tailed deer for the purpose of deer farming.According to affidavits in the record, white-tailed deer farming is common in other states.Farmers breed and raise the animals for the meat and the antlers. White-tailed deer adapt well tocaptivity and are more practical to raise than other exotic animals.The State insists that the Act is not discriminatory because it treats all white-tailed deeralike, regardless of the origin. Also the State’s objectives are to prevent (1) the spread of diseasefrom captive herds to the wild animals; (2) domestication of white-tailed deer, which raises issues ofsafety to the residents of the state; (3) a decrease in the native population by deer being taken from thewild; and (4) the creation of an illegal market in white-tailed deer.Whether the Act promotes any of these objectives is sharply controverted in the record.Since the appellants’ attack on this portion of the statute is based on the undue burden on interstatecommerce, the question is a factual one, Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), and theappellants have the burden of proving that the ban on the private possession of white-tailed deer is11
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excessive compared to the benefits the State seeks to promote. Dorrance v. McCarthy, 957 F.2d 761(10thCir. 1992).Dorrance v. McCarthy is a case similar to this one. Wyoming enacted a ban on thepossession of animals classified as “big trophy game animals.” The plaintiff wished to raise big gameanimals for meat production and possible controlled hunting. Wyoming advanced essentially the sameargument in that case that the State argues here; i.e., disease prevention, preservation of a free-rangingwildlife resource, etc. The plaintiffs by affidavit attacked the conclusion that the total ban onpossession of big game animals was necessary to accomplish these purposes. The court concludedthat the affidavits raised factual issues that made summary judgment improper. See Rule 56, Tenn. R.Civ. Proc.We think there is a question of fact as to whether the near-total ban on the importation ofwhite-tailed deer is necessary to promote the State’s objectives. The State argues that the appellantsdid not offer any specific less drastic alternatives; therefore they failed to carry their burden. This is acase decided on summary judgment, however, and we think that at this point there is evidence fromwhich a trier of fact could conclude that the ban on farming white-tailed deer has no relation to theState’s stated objectives. We remand the cause to the lower court for a determination of the factual question as towhether the ban on farming white-tailed deer imposes an undue burden on interstate commerce.The judgment of the lower court is affirmed in part, reversed in part, and remanded forfurther proceedings. Tax the costs on appeal equally to the appellants and the appellee.12
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_______________________________BEN H. CANTRELL,PRESIDING JUDGE, M.S. CONCUR:____________________________WILLIAM C. KOCH, JR., JUDGE ____________________________WILLIAM B. CAIN, JUDGE 13

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Location: Summit, IL
Joined: 10/22/2006
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TN Whitetail Management

Last post....Lynn....you Keep PROVING what EVERYONE here has TOLD you...ITS ILLEGAL TO POSSESS UNLESS YOU ARE A ZOO OR A REHAB CENTER. Wether its class II or clas IV isnt the issue....If in class 4 THEN ITS RIGHT THERE THAT ITS ILLEGAL....the bottom of page #4, Class IV – This class includes those native species that may bepossessed only by zoos and temporary exhibitors; provided, thatrehabilitation facilities may possess Class IV wildlife ..... NOW WHAT PART OF THAT DONT YOU UNDERSTAND AS ILLEGAL TO POSSESS???? Sheesh some people are thick

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