Traverse City Record-Eagle

Opinion

April 16, 2010

Editorial: Bans keep TB in check

Oops.

Just a few days after Otsego County District Court Judge Patricia Morse threw out (presumably) a Lower Peninsula-wide deer feeding ban, officials announced that a doe in Cheboygan County tested positive for bovine tuberculosis.

While state officials believe the ban Morse overturned was one imposed two years ago aimed at stopping the spread of deadly chronic wasting disease, there is some question whether the ruling also includes a decade-old deer feeding ban in seven Lower Peninsula counties -- including Otsego -- aimed at halting the spread of TB.

As of Thursday, state Department of Natural Resources and Environment officials said they weren't positive that both bans hadn't been overturned.

The irony of Morse lifting either ban -- or both -- just days before a new case of TB was announced did nothing to dispel the perception that her decision was much too broad a reaction to the circumstances.

Morse was ruling in a case brought by wildlife officials against Ken Borton of Gaylord, who was accused -- for the second time -- of illegally feeding deer from his multiple bird feeders.

It all started when some people who viewed Borton's Web site, www.snowmancam.com, called the DNRE to complain that the Web site showed deer gathered under the feeders to eat empty seed casings left by the birds.

Officials told Borton to scoop up casings every day from around the feeders to be in compliance with the law. Morse dismissed a previous case after Borton agreed to use approved feeders and permitted state officials to inspect the site.

But the deer kept coming and he was cited, officials said.

DNRE assistant wildlife division chief Doug Reeves said the state isn't concerned if an occasional deer passes by and sniffs a feeder. The problem comes when multiple deer frequent a single food source; they rub noses and slobber on the food and thus exchange fluids, which is one way for the diseases to spread.

In her ruling, Morse wrote "The statute as drafted gives no guidance as to where and how to exclude wild animals from foraging near bird feeders. It leaves too much room for selective enforcement. It allows fact finders to rely on subjective criteria to determine criminal liability."

Many laws are open to "selective enforcement" and "subjective criteria." And the point of the law isn't to tell those who feed birds, for instance, how to keep the deer away; it just says don't feed them. Period. If homeowners have to stop feeding the birds to accomplish that goal, so be it.

Maybe pursuing Borton all the way to court -- and spending 40 to 80 employee hours to do it -- was overkill by the DNRE.

But if Michigan's deer herd is hit hard by TB or CWD, they're the ones who will take it in the ear.

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