Can Mississippi's Wildlife Commission allow commercial trade of farmed white-tailed deer between licensed breeders?

Plain-English summary

Mississippi has a long-standing prohibition on the buying and selling of game animals: § 49-7-51(1)(a) makes it unlawful to "buy or sell or to offer for sale, exchange for merchandise, or other consideration, within this state, any game birds, game animals, or game fish, or parts thereof, named in this chapter . . . except as specifically permitted by law or regulation." White-tailed deer are game animals under § 49-7-1(a). The Commission on Wildlife, Fisheries, and Parks asked the AG whether it had authority to allow commercial trade of captive white-tailed deer between registered breeders operating high-fenced enclosures.

The AG: yes, with the standard caveat that any regulation must not conflict with existing statutes.

The structural argument runs through three points.

Plenary authority. § 49-7-58(3) gives the Commission "plenary authority in matters related to the importation of white-tailed deer, white-tailed deer in enclosures, and prevention of the introduction of chronic wasting disease into the native wildlife population." The Mississippi Supreme Court in Strong v. Bostick, 420 So. 2d 1356 (Miss. 1982) and Drane v. State, 493 So. 2d 294 (Miss. 1986) confirms that the Commission's rule-making power is broad but cannot conflict with existing statutes.

The exception clause in the prohibition. § 49-7-51(1)(a) bars buying and selling "except as specifically permitted by law or regulation." That word "regulation" is the operative one. The exception clause reads not as legislative-only authorization, but as authorization either by statute or by Commission regulation. The AG: "If the language, 'except as specifically permitted by law or regulation,' is to have meaning, it must be that exceptions may be promulgated by the Legislature or by the regulatory agency, which here, is the Commission."

Captive deer specifically. § 49-7-58.1 already heavily regulates white-tailed deer in private high-fenced enclosures: permits, fees, Department monitoring and oversight. § 49-7-58.4 gives the Commission and Department authority to regulate commercial and non-commercial enclosures of wild animals "in order to conserve and protect native wildlife." The framework supports a Commission-level commercial-trade exception for captive deer between registered breeders.

The opinion also addresses university research facilities. § 49-7-54 authorizes universities to import live white-tailed deer with prior Commission approval. The AG said this does not change the answer; the Commission's authority covers the trade rule regardless of whether the deer originated in or were transported through a university research facility.

The practical upshot: the Commission can pass a rule, and 40 Miss. Admin. Code Pt. 2, R. 8.2(C) sits within the Commission's authority to do so.

What this means for you

If you operate a Mississippi white-tailed deer captive breeding facility

The Mounger opinion supports the Commission's existing or future commercial-trade rule. You can buy and sell deer between registered captive breeders to the extent the Commission's rule allows. Watch for amendments to 40 Miss. Admin. Code Pt. 2, R. 8.2(C) and similar regulations. Stay current on the permit, registration, and disease-monitoring requirements; that is what makes the trade lawful.

If you sit on the Commission on Wildlife, Fisheries, and Parks

Your authority to regulate captive-deer trade is confirmed. Build the rule with disease-prevention controls (chronic wasting disease testing, traceability, registered-breeder-only trade) so the rule supports both the commercial industry and the underlying conservation goals.

If you are an agricultural or hunting industry attorney

The Mounger opinion is useful for advising on captive-deer transactions. The exception in § 49-7-51(1)(a) opens commercial trade only to the extent the Commission affirmatively permits. Read the current regulations carefully; do not assume the prohibition is dead just because high-fenced operations exist.

If you are concerned about disease spread

The Commission's authority is not unrestricted. § 49-7-58(3) specifically links its plenary authority to "prevention of the introduction of chronic wasting disease into the native wildlife population." Trade rules adopted under this authority should support, not undermine, disease prevention. Public comment on Commission rulemaking is a legitimate channel.

If you are a university or state research facility

§ 49-7-54 lets you import live white-tailed deer with prior Commission approval. The Mounger opinion confirms that captive-trade rules apply regardless of whether the deer's chain of custody includes a research facility.

Common questions

Q: Doesn't Mississippi prohibit the sale of game animals?
A: Generally yes, under § 49-7-51(1)(a). But the prohibition includes the phrase "except as specifically permitted by law or regulation." The Mounger opinion reads "regulation" to include Commission regulations.

Q: What is "plenary authority"?
A: A broad grant of regulatory power. § 49-7-58(3) gives the Commission plenary authority specifically over imports of white-tailed deer, deer in enclosures, and chronic wasting disease prevention. Plenary does not mean unlimited; the authority must still operate consistent with statutes and the Constitution.

Q: Can the Commission allow trade between any breeder in any state?
A: The opinion addresses trade between Mississippi-registered captive breeders. Cross-state imports involve the federal interstate commerce clause and federal animal-health rules in addition to state law. The Commission's rule-making applies to in-state activity; cross-border activity often involves additional regulatory layers.

Q: What about chronic wasting disease (CWD)?
A: CWD is an animal-health concern that drives much of the Commission's enclosure-regulation framework. § 49-7-58(3) specifically calls out CWD prevention. Any commercial-trade rule must operate within that disease-control mandate.

Q: Does this apply to other game animals?
A: The opinion is specifically about white-tailed deer in high-fenced enclosures. Other game animals (bear, rabbits, squirrels, game birds) are subject to the general prohibition in § 49-7-51 and would require their own legislative or Commission-level exception.

Q: Can the Commission's rule conflict with a state statute?
A: No. Strong v. Bostick (1982) and Drane v. State (1986) make that limit clear. The Commission's rule-making must operate "subject to any statute." The exception clause in § 49-7-51(1)(a) is the statutory hook for the Commission's trade rule; without that hook, the rule would conflict with the prohibition.

Background and statutory framework

Mississippi's wildlife code (Title 49, Chapter 7) treats game animals as state-managed resources. The general prohibition in § 49-7-51 prevents commercial trade unless specifically authorized. Over time, the Commission has built a regulatory framework around captive white-tailed deer breeding and high-fenced enclosures, recognizing that this segment of the industry serves agricultural, hunting, and conservation goals.

§ 49-7-58.1 governs high-fenced enclosures: permits, fees, monitoring, oversight. § 49-7-58.4 articulates the conservation rationale: "in order to conserve and protect native wildlife for all citizens to enjoy and to protect our recreational economy dependent on native wildlife resources." § 49-7-58(3) is the plenary-authority grant that gives the Commission the rule-making muscle.

The Mounger opinion confirms a structural feature of the system: the legislature drew the prohibition broadly but built in a regulatory exception clause to let the Commission tailor commercial trade as conditions and disease-prevention concerns evolve.

Citations

• Miss. Code Ann. § 49-7-1(a) (game animals defined)
• Miss. Code Ann. § 49-7-51(1)(a) (general prohibition with regulation-exception)
• Miss. Code Ann. § 49-7-51(1)(b) (statutory exceptions)
• Miss. Code Ann. § 49-7-54 (university import authority)
• Miss. Code Ann. § 49-7-58(3) (Commission plenary authority on white-tailed deer)
• Miss. Code Ann. § 49-7-58.1 (high-fenced enclosure regulation)
• Miss. Code Ann. § 49-7-58.4 (commercial and non-commercial enclosure conservation rationale)
• 40 Miss. Admin. Code Pt. 2, R. 8.2(C) (Commission rule on captive breeders)
• Strong v. Bostick, 420 So. 2d 1356 (Miss. 1982) (Commission rule-making within statutes)
• Drane v. State, 493 So. 2d 294 (Miss. 1986) (rule-making subject to statute)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/10/W.Mounger-October-21-2022-Authority-of-Commission-to-Promulgate-a-Regulation-Regarding-Commercial-Trade-of-White-Tailed-Dee.pdf

Original opinion text

October 21, 2022
Mr. William Mounger
Chairman, Commission on Wildlife, Fisheries, and Parks
1505 Eastover Drive
Jackson, Mississippi 39211-6374
Re:

Authority of Commission to Promulgate a Regulation Regarding
Commercial Trade of White-Tailed Deer within High-Fenced Enclosures

Dear Mr. Mounger:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, the Commission on Wildlife, Fisheries, and Parks (the "Commission")
believes that the plenary authority granted to it in Mississippi Code Annotated Section 49-7-58(3)
in matters relating to white-tailed deer in enclosures, provides the authority to promulgate a
regulation allowing for the commercial trade of white-tailed deer held within high-fenced
enclosures between registered white-tailed deer captive breeders.
Questions Presented
1. Given Section 49-7-51's reference to a regulation authorizing the sale of game animals and
the Commission's plenary authority to regulate white-tailed deer in enclosures, is there any
legal prohibition on the Commission promulgating an administrative rule allowing the
commercial trade of white-tailed deer between properly registered white-tailed deer captive
breeders, as authorized by 40 Miss. Admin. Code Pt. 2, R. 8.2(C)?
2. Would your response to the above question be different when applied to white-tailed deer
(or descendant thereof) supplied by a state university and transported into a registered
enclosure from another part of the state or United States?
Brief Response
1. While the law in our state generally forbids the buying, selling, or exchange for
consideration any game animals by an individual, that same law includes an exception

where such trade is specifically permitted by regulation. The Commission has "plenary
authority in matters related to . . . white-tailed deer in enclosures. . . ." Miss. Code Ann. §
49-7-58(3). Therefore, the Commission could craft a regulation allowing for the
commercial trade of white-tailed deer held within high-fenced enclosures between
registered captive breeders without specifically contravening an express legislative act.
2. No. See the response to Question One.
Applicable Law and Discussion
Generally, the Commission and the Department of Wildlife, Fisheries, and Parks (the
"Department") have the authority to regulate both commercial and non-commercial enclosures of
wild animals "in order to conserve and protect native wildlife for all citizens to enjoy and to protect
our recreational economy dependent on native wildlife resources." Miss. Code Ann. § 49-7-58.4.
The law also authorizes the ownership of high-fenced enclosures by private landowners, and such
high-fenced enclosures of white-tailed deer are highly regulated, requiring permits, fees, and
Department monitoring and oversight. Miss. Code Ann. § 49-7-58.1.
Section 49-7-58(3) gives the Commission "plenary authority in matters related to the importation
of white-tailed deer, white-tailed deer in enclosures, and prevention of the introduction of chronic
wasting disease into the native wildlife population." However, the Commission's authority to
promulgate rules and regulations pertaining to white-tailed deer in enclosures cannot conflict with
existing statutes. See Strong v. Bostick, 420 So. 2d 1356, 1362 (Miss. 1982) (". . . the Commission
has the authority, and, under certain situations, the duty, to promulgate rules and regulations
concerning the taking of deer, where they do not conflict with existing statutes.") (emphasis added);
Drane v. State, 493 So. 2d 294, 297 (Miss. 1986) ("Strong made it clear that the rule-making
authority of the commission must be exercised subject to any statute.")
State law expressly prohibits the buying and selling of white-tailed deer. Section 49-7-51(1)(a)
states:
It is unlawful . . . to buy or sell or to offer for sale, exchange for merchandise, or
other consideration, within this state, any game birds, game animals, or game fish,
or parts thereof, named in this chapter, whether taken within or coming from
without the state, except as specifically permitted by law or regulation.
(emphasis added).
Section 49-7-51(1)(b) continues, listing statutory exceptions to this prohibition for the buying and
selling of wild game parts, including skins and sinew of deer and parts of a wild turkey or any
nuisance animal. However, nothing in this language precludes additional exceptions by regulation
of the Commission since they have "plenary authority in matters related to . . . white-tailed deer in
enclosures. . . ." Miss. Code Ann. § 49-7-58(3). If the language, "except as specifically permitted
by law or regulation," is to have meaning, it must be that exceptions may be promulgated by the
Legislature or by the regulatory agency, which here, is the Commission. Miss. Code Ann. § 49-7-51(1)(a) (emphasis added). Therefore, the Commission may promulgate a regulation allowing the
commercial trade of white-tailed deer held within high-fenced enclosures between white-tailed
deer captive breeders.

In response to your second question, Section 49-7-54 authorizes university research facilities to
"import live white-tailed deer upon prior approval of the commission." However, this has no
bearing on our answer to your first question.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Misty Monroe
Misty Monroe
Assistant Attorney General