                    IN THE COURT OF APPEALS OF TENNESSEE

                                      FILED
                                      December 3, 1999

                                      Cecil Crowson, Jr.
                                     Appellate Court Clerk
                                     AT NASHVILLE



ROBERT 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-CV
VS.                                   )
                                  )     Davidson Chancery
NED RAY MCWHERTER, in his                  )         No. 91-2558-I
capacity 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 COUNTY
                          AT NASHVILLE, TENNESSEE

                THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR


FOR APPELLANTS:                         FOR APPELLEES:

F. CLAY BAILEY                       PAUL R. SUMMERS
315 Deaderick Street                  Attorney General & Reporter
Nashville, Tennessee 37238
                                 ELIZABETH P. MCCARTER
                                     450 James Robertson Parkway
                                     Nashville, Tennessee 37243-0495



                            AFFIRMED IN PART; REVERSED IN PART;
                                      AND REMANDED



                                      BEN H. CANTRELL,
                                      PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
CAIN, J.
                                            OPINION



          This is a constitutional challenge to an Act of the legislature regulating the possession and

sale of animals. Owners, dealers, and licensed propagators of various wildlife species challenged the

Act on grounds that it is vague, overbroad, and a burden on interstate commerce. The Chancery

Court of Davidson County rejected the constitutional challenge. We affirm the decision on the

vagueness and overbreadth charge. We think, however, that there are disputed facts bearing on the

question 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. which

classifies wild animals into five general classes and regulates their possession, sale, propagation or

transfer. The first round resulted in a decision of the Supreme Court overruling a challenge to the Act

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on the ground that the delegation of the power to an administrative agency to add to or delete species

from 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 Classifications



          The appellants’ attack on the statute centers on the classifications set out in Tenn. Code

Ann. § 70-4-403. We reproduce that section here in its entirety:

                  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; and
             (C)      Amphibians: All poisonous species;
                                                                                                         3
(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
  domestic animal or Class III species;
  (P)       Cervidae except white-tailed deer; 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
                                                                                  4
             (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 zoos under such conditions as to prevent the release or
             escape of such wildlife into the environment.




          The Act makes certain conduct with respect to wild animals “unlawful.” Therefore, it must

give a person of ordinary intelligence “fair warning” of what is proscribed. State v. Thomas, 635

S.W.2d 114 (Tenn. 1982). Otherwise, it violates the due process clause of the Fourteenth

Amendment to the United States Constitution. U.S. v. Lanier, 520 U.S. 259 (1997). An act violates

due process if “men of common intelligence must necessarily guess at its meaning and differ as to its

application.” Id. at 266.



                                                A. Bean I



          The Attorney General argues that the Supreme Court in Bean I essentially decided that

these classifications are reasonable and intelligible on their face. The Court said:

           We have carefully considered the entire statutory scheme and find that the
           statute implies a standard of reasonableness. We further find that the statute’
           s guidelines are that animals possessing characteristics consistent with the
           legislature’s listed examples and statutory definitions are to be classified
           pursuant to the legislative scheme. These standards are clearly adequate to
           allow both us and the TWRC to determine whether the legislature’s intent is
           being furthered.
953 S.W.2d at 200.



          We think that the State’s argument that the Supreme Court essentially decided this issue is

an admission that it did not specifically decide it. And we are reluctant to conclude that a
                                                                                                        5
constitutional defense to a charge of unlawful conduct does not exist because of what was inherent in

the Supreme Court’s decision on another issue. The only question addressed by the Court was

whether the general assembly had the power to delegate the addition or deletion of species without

express or specific standards. 953 S.W.2d at 199. Therefore, the issue of whether the classifications

are too vague to be understood by persons of ordinary intelligence remains for our decision.



                                             B. A Fair Warning



           We think that a person wishing to possess, breed, swap or transfer wildlife can, with

reasonable effort, safely determine what the law requires. First, all wildlife for which some sort of a

permit is required (Classes I and II), or which may be possessed only by zoos, circuses, and

commercial propagators (Classes I and IV), or may also be possessed by rehabilitation facilities and

temporary exhibitors (Class IV), can be determined by consulting the lists in the statute and the

regulations of the Tennessee Wildlife Resources Commission. The appellants complain that Class I is

too vague because it refers to animals that are “inherently dangerous.” But that is a guideline for the

Commission in deciding whether to add any species to the statutory list. All species coming under

this class will be listed in the statute or the regulations. Anyone wishing to possess or deal with any

animal may look at the lists to determine if it has been classed as inherently dangerous. No one will be

required to guess the meaning of that term.



           Class II includes native species except those listed in other classes. We think that is

self-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 to
                                                                                                           6
add to or delete species from this class, but the statute and the regulations determine the class

boundaries. Nothing is left to speculation.



             Class IV includes only those species listed in the statute. The Commission does not have

the power to alter this class.



             Class V includes only those species designated by the Commission. The appellants argue

that “injurious to the environment” is impermissibly vague. However, as we pointed out with respect

to Class I, no one is required to speculate about what that means. Only after the Commission, under

its 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 rulemaking

authority.



             Whether it is a good idea to give the Commission the power to make the decisions

delegated to it by the Act is not the question. The Supreme Court has decided that the legislature may

do so. Interested persons will be given a voice in the rulemaking process.



                                                    III.

                      Vagueness or Overbreadth of Tenn. Code Ann. § 70-4-405



             Tenn. Code Ann. § 70-4-405 governs the housing and transportation of wildlife. Its

pertinent sections are as follows:

               (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.
                                                                                                           7
             (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.

                                                *    *   *

             (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.



          The appellants argue that subsection (b) applies to all species of animals – including those

in Class III for which there are no caging or restraint requirements – and makes it a criminal offense if

the animal escapes. Under this interpretation releasing a squirrel in a park or allowing a gerbil to

escape 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, that

subsection (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, and

leashes must mean as necessary to protect human safety. This conclusion is strengthened by the

inclusion in subsection (b) of the “unsafe” qualification that also appears in subsection (a). Reading

the sections together, we conclude that it is not a crime to allow an animal to escape if the animal does

not pose a threat to human safety.



                                                         IV.

                                     Burden on Interstate Commerce

                                       a. The Permit Requirement


                                                                                                            8
          The appellants alleged that Tenn. Code Ann. § § 70-4-410 and 411 place an undue burden

on 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 cite

subsections (b) and (c) of § 70-4-410 and subsections (a) and (c) of § 70-4-411. Those sections are

as follows:

              (b)     Any nonresident who enters the state for the purpose of selling
              Class I or Class II wildlife species in this state shall also be required to
              purchase and possess a permit.

              (c)    All permits under this section shall comply with all provisions of the
              United States Code and the Code of Federal Regulations relating to exotic
              animals, their care, propagation, importation and sale.

Tenn. Code Ann. § 70-4-410.

              (a)     All persons wishing to possess Classes I and II live wildlife
              obtained outside the state of Tennessee shall have in their possession the
              importation permit required by this part. The permit and all bills of lading
              and shipping papers relating to any wildlife which such person may have in
              such person’s possession shall be open and available for inspection at all
              reasonable times by authorized agency officers and employees for the
              purpose of ensuring compliance with the provisions of this part.

              (c)     An importation permit is required for all interstate movement of live
              wildlife except Class III, except no permit is required for zoos and
              temporary exhibitors.

Tenn. Code Ann. § 70-4-411.



          The appellants argue that taken together these subsections impose an undue burden on

interstate commerce because (1) no intelligent person can identify the class that comes under the

permit requirement and (2) making all permits comply with the CFR provisions relating to exotic

animals unduly burdens the traffic in native animals.


                                                                                                        9
          Not all state regulations that burden commerce among the states are prohibited by the

commerce clause. States may address matters of legitimate local concern even though interstate

commerce may also be affected. Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). State legislation

impacting interstate commerce is not prohibited where the law “regulates evenhandedly to effectuate a

legitimate local public interest and its effects on interstate commerce are only incidental, and the

burden 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 permit

requirements (knowing where dangerous species are kept and under what conditions; being able to

inspect animals that are imported into Tennessee), but they assert that the vagueness of the statute

unreasonably burdens interstate commerce. We have already addressed the appellants’ vagueness

argument. We will not repeat that analysis here. Needless to say, we do not think the statute is

impermissibly vague.



          With respect to the requirement that permit holders must comply with federal permit

requirements relating to exotic animals, the Tennessee Wildlife Resource Agency (TWRA) has

interpreted subsection (c) as applying only to wildlife in Class I that are non-native to the United

States. The state concedes that read literally the statute would produce an absurd result. But courts

must presume that the legislature did not intend an absurdity. Where possible, the courts should

adopt a reasonable construction of a statute that provides for harmonious operation of the laws and

avoids a constitutional conflict. Fletcher v. State, 951 S.W.2d 378 (Tenn. 1997). Although the

TWRA’s construction of this statute may be pushing the outside limit, see Covington Pike Toyota,
                                                                                                         10
Inc. v. Cardwell, 829 S.W.2d 132 (Tenn. 1992), we think the interpretation is reasonable, and applies

the exotic animals requirements of the federal regulations only to those who handle exotic animals.




                         b. Importation and Farming of White-Tailed Deer



          White-tailed deer are included in Class IV, along with black bears, wild turkeys, etc., as

animals that may only be possessed by zoos, temporary exhibitors, and rehabilitation facilities. This

effectively 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 to

captivity 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 deer

alike, regardless of the origin. Also the State’s objectives are to prevent (1) the spread of disease

from captive herds to the wild animals; (2) domestication of white-tailed deer, which raises issues of

safety to the residents of the state; (3) a decrease in the native population by deer being taken from the

wild; 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 interstate

commerce, the question is a factual one, Pike v. Bruce Church, Inc., 397 U.S. 137 (1970), and the

appellants have the burden of proving that the ban on the private possession of white-tailed deer is
                                                                                                             11
excessive compared to the benefits the State seeks to promote. Dorrance v. McCarthy, 957 F.2d 761

(10th Cir. 1992).



             Dorrance v. McCarthy is a case similar to this one. Wyoming enacted a ban on the

possession of animals classified as “big trophy game animals.” The plaintiff wished to raise big game

animals for meat production and possible controlled hunting. Wyoming advanced essentially the same

argument in that case that the State argues here; i.e., disease prevention, preservation of a free-ranging

wildlife resource, etc. The plaintiffs by affidavit attacked the conclusion that the total ban on

possession of big game animals was necessary to accomplish these purposes. The court concluded

that 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 of

white-tailed deer is necessary to promote the State’s objectives. The State argues that the appellants

did not offer any specific less drastic alternatives; therefore they failed to carry their burden. This is a

case decided on summary judgment, however, and we think that at this point there is evidence from

which a trier of fact could conclude that the ban on farming white-tailed deer has no relation to the

State’s stated objectives.



          We remand the cause to the lower court for a determination of the factual question as to

whether 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 for

further proceedings. Tax the costs on appeal equally to the appellants and the appellee.
                                                                                                               12
                        _______________________________
                       BEN H. CANTRELL,
                       PRESIDING JUDGE, M.S.


CONCUR:




____________________________
WILLIAM C. KOCH, JR., JUDGE




____________________________
WILLIAM B. CAIN, JUDGE




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