MONTGOMERY, Ala. (Legal Newsline) – Hunters in Alabama will need to keep looking hard for big bucks, as their Supreme Court has, for now, ruled breeders shouldn’t create a mule deer-whitetail hybrid.
The state's highest court issued its 8-1 decision May 29, overturning a lower court ruling that held hybrids birthed by whitetail who were artificially inseminated with imported mule deer semen would be legal to hunt.
State law stipulating that game animals include whitetail deer “and their offspring” does not apply to the hybrids.
However, the court has instructed the trial court to determine whether the deer would be “protected game animals” based on any other theory.
“(F)or example, because they are considered to be whitetail deer as a matter of scientific fact,” the ruling says.
The issue turned on whether the hybrid should be treated like a whitetail as a game animal or like a species that is not indigenous to the state and therefore illegal to shoot.
Two deer breeders – Terry Kennedy and Johnny McDonald – brought the issue to Montgomery Circuit Court in 2018 after the state Department of Conservation and Natural Resources sent a letter to breeders that prohibited hunting the hybrids.
The breeders successfully motioned for judgment on the pleadings. In 2019, the trial court ruled the “whitetail deer… and their offspring” language in state law applied to the hybrids.
The judge cited the doctrine of partus sequitur ventrem, Latin for “that which is brought forth follows the belly (womb).”
But the Supreme Court’s decision says the trial court got it wrong. The pertinent part of state law says game animals are “whitetail deer, elk, and fallow deer, or species of nonindigenous animals lawfully brought into this state prior to May 1, 2006, and their offspring."
“And their offspring” only applies to nonindigenous animals lawfully brought into the state prior to 2006, the State argued successfully to the Supreme Court.
Thus, the argument over deer hunting came down to grammar.
“Our task here is to use our experience as English speakers to determine which rule makes the most sense… and, by doing so, arrive at the plain and unambiguous meaning of the statute,” Mitchell wrote.
“The series-qualifier principle advanced by the deer breeders is a poor fit compared to the rule of the last antecedent advanced by (the State).”