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Mule Deer in Alabama? Yes, Sort of.

According to the state Supreme Court, a fawn born of a whitetail doesn't necessarily make it one.

Mule Deer in Alabama? Yes, Sort of.
Whitetails and mule deer sometimes hybridize in the wild. But when two Alabama deer breeders created such hybrids via artificial insemination, it raised a legal issue for the state’s court system. (Photo by Russell Graves)

Reversing a lower court’s decision, the Alabama Supreme Court has ruled that the fact a fawn is born of a whitetail doe doesn’t necessarily make it a whitetail for regulatory purposes.

At issue is the question of hybrids. Several years ago, Terry Kennedy and Johnny McDonald, licensed deer breeders in the state, used artificial insemination to impregnate captive whitetail does with mule deer semen from out of state. The goal was to produce hybrid bucks with larger racks and thus, higher value to hunters.

In May 2017, an Alabama Department of Wildlife and Natural Resources (ADWNR) letter to deer breeders around the state noted that such hybrids would be illegal to hunt. State law defines only whitetails, elk, fallow deer and nonindigenous animals lawfully brought into Alabama prior to May 1, 2006, and their offspring, as “protected game animals” that can be hunted. The law was passed to shut off the importation of non-native deer and other wildlife for hunting purposes.

On June 7, 2018, Kennedy filed a lawsuit against ADWNR Commissioner Christopher Blankenship and Wildlife and Freshwater Fisheries Division Director Charles Sykes, claiming the “and their offspring” part of the law means any fawn born to a whitetail doe should qualify as a game animal. McDonald was added as a plaintiff in an amended complaint filed on July 25, 2018.

On Feb. 25, 2019, the Montgomery Circuit Court ruled in the plaintiffs’ favor, based on application of the old legal maxim partus sequitur ventrem (Latin for “that which is brought forth follows the belly”). In simpler terms, this means the legal status of an offspring is the same as the mother’s. Following this doctrine, any fawn born to a whitetail doe in Alabama would be a game animal, regardless of its father.

ACDNR appealed, sending the case to the Alabama Supreme Court. There, the agency argued that applying partus sequitur ventrem circumvents common-sense interpretation of the law.

The higher court agreed, deciding by an 8-1 vote that “and their offspring” referred only to descendants of nonindigenous animals legally in the state.

“When interpreting a statute, this Court looks to the plain meaning of the words as written by the legislature,” wrote Associate Justice James “Jay” Mitchell in presenting the Supreme Court’s opinion. “If the hybrid deer are ‘protected game animals’ based on another theory, it will be established only following further proceedings.”

So the justices didn’t address the ultimate question of whether or not the hybrids could be scientifically proven to be whitetails, only that having been born to whitetail does is insufficient to make them game animals under Alabama law.

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