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Issues of Special Interest

Deer Lady of Cheektowaga and the DEC

Wildlife Watch brief to the Cheektowaga Town Court

The Honorable Ronald Kmiotek
In the case of Anita Depczynski

Introduction

Wildlife Watch, Inc., is a 501 (c) 3 organization dedicated to the protection of wildlife and their habitat and to the reform of wildlife management policies to best serve the interest of all wildlife, and human society through humane and sustainable policies and methods.

It is the position of Wildlife Watch, Inc. that Ms Anita Depczynski, having been convicted under Part 189, § 189.1 - §189.6, was unfairly convicted under a regulation that is overbroad and based upon imprudent assumptions regarding the risk factors for the spread of Chronic Wasting Disease. Ms Depczynski’s arrest was selective enforcement of the CWD regulation banning the feeding of deer. The population of deer involved in the case, by virtue of their effective isolation in Stiglmeier Park, are a captive and publicly held population and are therefore exempted under the terms of the existing feeding ban.

Since the current appearance of Ms Depczynski is neither for trial nor appeal, but rather for sentencing, the question of guilt is, for the moment, legally settled and questions regarding the validity of the rule under which she was charged are yet to be determined. This court may, however, bear in mind the shaky reasoning of the regulation, the circumstances of the deer and the overriding call of compassion answered by Ms Depczynski when considering an appropriate sentence. In light of these mitigating circumstances, Wildlife Watch recommends that Ms Depczynski be released without fine, community service, incarceration or probation.

1. Problems with Chronic Wasting Disease law & the deer feeding ban

There are several problems with both the CWD science that inspired New York’s current deer feeding ban and the scope and interpretation of such study beginning with the United States Department of Agriculture, Animal and Plant Health Inspection Service (APHIS). The APHIS position has been embraced by the US Fish and Wildlife Service and is the subsequent inspiration for state actions, including the New York state CWD regulations crafted by the Department of Environmental Conservation. In studying CWD, APHIS has overlooked the far more advanced, better funded and more highly regarded work of British scientists in the field of prion diseases. Britain, having suffered far more greatly to date from the effects of bovine spongiform encephalopathy (BSE), has reached reasonable scientific consensus that variant Creutzfeldt-Jakob Disease (vCJD) is a transmissible spongiform encephalopathy (TSE) sparked by a prion; a protein gone bad. There, voices clinging to notions of a virus or bacterial source for CWD, BSE and vCJD are all but non-existent.

All the TSEs are dreadful diseases that government agencies should act to prevent. In so doing, such agencies, including the DEC should be fully informed, current and cautious. The DEC may have had caution in mind when creating the rule, but failed to reasonably prioritize concerns. The result is a flawed regulation overly strict in some aspects while lax in others. By clinging to the flat-earth theory that CWD may be viral, the DEC unduly suspects congregations of deer, away from any known infected population, as holding the potential for the spread of the disease.

Conversely, in failing to grasp the potential danger posed by prion diseases, the DEC imprudently exempts venison farms, game farms and zoos from the feeding ban. Such industries routinely use manufactured pelleted feeds. Gaps in current US law on animal feed use and production leave significant opportunity for mammalian tissue and blood to be feed back to other livestock animals. This is the single universally recognized high risk practice blamed for the spread of mad cow disease. While definitive evidence will never be found, it is highly possible that CWD first entered the western deer population in Colorado through cattle feed. The same processes, manufacturers and rendering plants involved in feed production for cattle are also involved in deer feed production.

It is worth noting at this point that Ms Depczynski fed the deer non-manufactured foods such as apples and corn and did not use manufactured feeds.

The DEC along with the USDA and APHIS overlook the gapping holes in feed production regulations creating grave potential for TSE diseases to spread between species. The landmark paper, “Species-barrier-independent prion replication in apparently resistant species” by AF Hill et al. should have sounded the alarm that TSEs may jump species. Inexplicably, the conclusions of this landmark research are ignored by regulatory agencies including the DEC.

Concerned medical experts, including Michael Greger, M.D., have developed considerable evidence that this lack of prudent agency oversight may already have resulted in a significant spread of TSEs in the United States, including occurrences of CJD in humans.

In short, the law under which Ms Depczynski was convicted treats a harmless behavior harshly, while turning a blind eye to dangerous deer and cattle industry practices.

In the absence of significant evidence in favor of the virus theory for CWD while there is abundant evidence for the prion as the cause, the DEC created an overly broad ban on the feeding of deer. Realistically, occasionally feeding deer known safe foods in areas free of CWD infection pose no significant risk of spontaneously generating the disease.

Banning feeds containing mammalian tissue, as the regulation does, is certainly prudent. Banning all commercial prepared feeds would be still more prudent, but the leap to a universal feeding ban is overbroad and not founded in the best available science.

The final clause of the regulation, “Pursuant to the Department's authority under ECL 11-0325, the Department may undertake any additional measures it deems necessary to eliminate, reduce, or confine chronic wasting disease or to prevent chronic wasting disease from entering the State,” amount to a blank check to the DEC to do whatever it wants as long as it can claim its intent was to stop CWD.

2. Selective Enforcement

The deer of Stiglmeier Park are well known and loved by many of their human neighbors. Whether driven by compassion, the needs of the deer, or simply a desire to bond with the animals, it has been a common practice of many people to feed these deer. Yet, Ms Depczynski alone was singled out for prosecution. Eventually, when selective enforcement became conspicuous, a couple older gentlemen with a little birdseed were bravely collared. While these incidences of enforcement may have deflected attention from the selective enforcement issue, they also point out the capriciousness inherent in the ban. The rule is so broad that any gardener with a compost pile could be cited. Is Ms Depczynski’s practice really so different from that of many other people in the area, or is it only her attitude that sets her apart? Is it possible that her defiant spirit rather than her actions are the reason for her presence before this court? Flawed as it is, the rule is no feeding the deer, but it was the choice to speak her mind that really got Ms Depczynski into trouble.

The District Attorney of Franklin County, Derek Champagne, recognized the flaws of the feeding ban and threw out charges against Mr Larry Boulds stating that to prosecute based on the DEC regulation would be “arbitrary and capricious.”

The DEC was capricious not only in its decision to cite Ms Depczynski, but in its failure to uphold its responsibility to the deer of Stiglmeier Park over the span of decades before today and continuing with no end in sight. The DEC is responsible for the management of wildlife. While it is keen to exercise this management responsibility when it is time to sell hunting licenses it is conspicuous by its absence when the deer involved are not potential targets. The DEC wantonly neglected its wildlife management responsibility over the course of years as this deer population became isolated within the confines of the park through suburban development and fell into dependency on humans.

In a phone call to Mr. Russ Biss, regional wildlife manager for Region 9 of the DEC, I asked why the DEC had not become involved in managing the Deer at any time over the past 30 years. He answered that the Town of Cheektowaga had not asked the DEC to get involved. Did the Town of Cheektowaga ask the DEC to get involved by citing Ms Depczynski? For 30 years the DEC, in spite of the agency’s responsibility for wildlife, never saw fit to concern itself with the deer. Suddenly faced with the looming specter of Ms Deczynski, the DEC rushes to save the deer from the Deer Lady. The DEC was negligent in its inaction and capricious in its action. Ms Depczynski should not be punished for the whims of the DEC.

3. Stiglmeier Park deer are exempted

The deer of have effectively been cut off from wild areas, especially west of town, to which they would normally range. Heavily trafficked roads and suburban and commercial development have effectively held these deer captive in the area of Stiglmeier Park. Within this public park, members of the public have come to support the deer in times of need. Cut off from their range and normal browse, the deer of Stiglmeier Park are publicly kept and are captive on public land. The CWD rule defines captive as “an animal that is privately or publicly maintained or held for any purpose within a perimeter fence or other confined space.” [§189.2, g.]. Exceptions to the feeding ban include, “distribution of food material for legally possessed captive animals of the Genus Cervus or the Genus Odocoileus.” [§189.3, b, 4.]. Setting aside at this time whether the Town obtained these deer legally, they are, nonetheless, captive, publicly held and publicly maintained. Ms Depczynski is just one member of that public which contributes to the maintenance of these deer.

4. Appropriate action

Maintaining a herd of deer in a suburban park without due foresight toward its future is an untenable situation. The DEC, through its past 30 years of inaction, has demonstrated a clear indifference to these deer and has therefore forfeited any role in managing this deer herd. On the other hand, the people of Cheektowaga have shown care, concern and stewardship for these deer. The case of Ms Depczynski has served to illuminate a need for the Town of Cheektowaga to develop a comprehensive and humane management plan for these deer. Wildlife Watch therefore recommends that the Town study the deer herd and implement a humane, sustainable and publicly supported plan for its management.

While the deer of the park are effectively isolated, immunocontraception may be used to control population. When a population is sufficiently small, geographically confined and within which individual females can be readily and consistently recognized, contraceptive vaccine delivered by rifle-fired dart is feasible. In consideration of humane treatment of deer, Wildlife Watch only recommends the use of contraception in isolated population where deer need not undergo the trauma and risk of injury inherent in net captures or tranquilization followed by inoculation. The Stiglmeier Park deer may well constitute a population where this approach is feasible and in which contraception may be a beneficial aspect of a management plan. (See, “Field testing of immunocontraception on white-tailed deet (Odocoileus virginianus) on Fire Island National Seashore, New York, USA;” R.E. Naugle, et al.) University of Pennsylvania biologist, Gary Killian, Ph.D., and The Science and Conservation Center, of Billings, Montana may also provide resources and expertise in this field.

Other elements of such a plan may include road safety improvements, strategic feeding (to sustain a population in transition while encouraging a broader range) and safe egress corridors (to encourage the trapped population to leave the park and return to wild lands). Ideally, as contraception reduces herd size, planned, well-disbursed and varied feeding stations sustain and disburse the deer, while safe egress corridors along the Cayuga Creek allow the deer to return to more wild areas. Such safe egress corridors should be accompanied by a hunting moratorium to assure successful movement of the deer and allow the population to transition from tame to wild.

Such a plan can be developed and implemented locally by a coalition including local governments, academic institutions and non-governmental organizations engaged in wildlife issues. It is important for communities like Cheektowaga to begin to recognize the ever-growing animal protection community and include it as stakeholders in the discussion, on committees and in the decisions.

Currently, it is the norm for state wildlife management agencies like the DEC to favor lethal means of reducing human conflicts with wildlife. It is unlikely that these agencies will change unless local governments, citizens and activists insist on the effective, comprehensive humane alternatives. Wildlife Watch is committed to fostering development and implementation of humane plans to address conflicts between people and wildlife.

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