November 10, 2023
Why are some hunters still skeptical over chronic wasting disease? After all, CWD kills every deer that it infects, it’s spreading across the country and it’s a major threat to the future of deer hunting. Anyone who doubts any of that is a fringe “CWD denier,” right?
I haven’t heard many people deny that CWD is a real threat, but after decades of hysterics, some are asking valid questions about the control measures state agencies use to fight it. You know the ones: carcass transport restrictions, bans on minerals and bait, bans on deer urine and population control measures like increased bag limits and even government sharpshooting.
Agencies enact these regulations and insist they’re for the good of the resource. Affected and disillusioned hunters ask in turn, “Is this really stopping CWD? Because it’s sure screwing up the hunting.”
Indeed, CWD management is a lightning rod of controversy and there have been notable feuds between hunters and DNRs across the country over CWD policy. But the situation I’m covering here might be the most outrageous yet. It’s a story about a single whitetail doe in Tennessee that was announced to the public as being CWD positive, even though there’s a good chance it wasn’t, according to the state’s former head deer biologist. That biologist has filed a whistleblower lawsuit against the Tennessee Wildlife Resources Agency because he claims the agency fired him for speaking up over the state’s CWD testing procedures.
Regardless of the outcome of the lawsuit, it’s indisputable that the situation has affected thousands of hunters in Tennessee and Kentucky and led to multiple lost businesses, declines in local hunter participation, a severe decline in the area’s deer harvest and millions of agency dollars spent. Here’s what happened.
TROUBLE IN TENNESSEE
To understand the full context of this current issue, it’s important to understand the course of events leading up. The ensuing paragraphs follow the order of Tennessee’s CWD regulatory actions, and the subsequent lawsuit filed by James Kelly.
In 2018, the first positive cases of CWD were detected in Fayette and Hardeman counties in Southwest Tennessee. The biologist overseeing the response plan was deer management program leader James Kelly. New regulations for “Unit CWD” were established, including carcass transport restrictions, bans on feeding, minerals and unapproved deer urine and an increased annual buck limit.
Tennessee continued testing for and documenting new CWD cases in the years following that. In September 2021, they announced a positive case in Henry County, which shares a border with Calloway County, Kentucky, but is 120 miles from the CWD “hot zone” in Southwest Tennessee.
In response to the Henry County case, the Kentucky Department of Fish and Wildlife Resources activated its own CWD response plan, which included a prohibition on bait and minerals, carcass transport restrictions, and mandatory testing of harvested deer in five southwest Kentucky counties. The initial response cost the KDFWR more than $1 million. As of this writing, the KDFWR has tested 2,493 deer in the five counties without finding a CWD-positive case. The regulations remain in place.
In 2021, James Kelly began to have doubts about the unusually high number of CWD positive cases being reported in Tennessee, so he became part of a task force to investigate discrepancies in the state’s testing protocols. Directly from the lawsuit Kelly later filed against the TWRA: “Mr. Kelly’s investigation revealed to the TWRA that these discrepancies were in fact erroneously reported to the public as new detections of CWD.”
At the crux of Kelly’s complaint is that the TWRA changed its CWD testing protocols without informing the public. Their initial response plan called for suspect-positive deer tested with the enzyme-linked immunosorbent assay (ELISA) test to be confirmed with an immunohistochemistry (IHC) test before a new CWD-positive case would be announced. But in 2020, the agency stopped using the IHC test to verify suspect-positive ELISA tests, and instead began depending solely on ELISA test results to report new positive cases. Kelly’s lawsuit alleges some of the positives reported were lab errors, but the TWRA refused to publicly correct them.
According to Kelly’s lawsuit, the number of CWD-positive counties in Tennessee isn’t 16, as the TWRA currently claims, but two. Henry County isn’t one of them.
On September 6, 2022, Kelly wrote a memo to the Tennessee Fish and Wildlife Commission requesting the reinstatement of the IHC confirmation protocol, and for the TWRA to produce a corrected map of CWD-positive counties in Tennessee. The TWRA put Kelly on Discretionary Leave Without Pay following that memo, and according to the lawsuit, sent an email to everyone who had received the memo, accusing Kelly of spreading misinformation. Kelly was terminated from the TWRA on Oct. 17, 2022. He filed his lawsuit after that.
The lawsuit says: “In September of 2021 the TWRA received a suspect-positive result from Henry County, a nonconfirmed county that was not contiguous to any other confirmed counties at that point. The sample for [the Henry County deer] was collected from a deer who was believed to be showing symptoms consistent with CWD. However, the ELISA suspect positive was very weak. Following this result…the TWRA did not, at this time, send the suspect positive from Henry County for IHC confirmation. However, the TWRA issued a press release that Henry County was now a confirmed CWD county.”
A spokesperson for the TWRA confirmed with Petersen’s Hunting that: “The CWD-positive deer in Henry County was sampled with ELISA three times and returned positive results two out of three times. It was sampled with IHC and returned negative results.”
In its list of best practices for CWD prevention, surveillance and management, the Association of Fish and Wildlife Agencies says: “All suspect positive ELISA test and Western blot results should be confirmed with IHC (The Gold Standard test).”
In a public statement in September of 2023, TWRA Executive Director Jason Maxedon said, “There’s real cost benefit to the ELISA test. Each ELISA test costs around $22 per sample, while the IHC runs around $35 per sample. That’s real money [saved] to the agency.”
BUSINESSES IN DISTRESS
The TWRA may have saved money on some testing, but the results of the Henry County case were costly to several Kentucky business owners who made their living during deer season. Charlie Hart, owner of Hart Farms in Calloway County, was one of the busiest deer processors in the area. He was open from sunrise to well after dark every day of gun season, except Thanksgiving, and would process 1,200 deer most years. When the new CWD surveillance protocols were announced in 2021, Hart wanted to help. He let the KDFWR agency use his facility as a check and testing station. He says the biologists were friendly and helpful without exception—but the official presence was nonetheless off-putting to his customers.
“They scared people to death,” Hart says. “Lots of people had never heard of CWD. They thought the biologists were cops, and they didn’t want to bring in a deer and then get nitpicked and get a ticket over deer hunting. It was another thing to worry about at a time when the world was running crazy anyway, so people just didn’t hunt.”
Hart says he only processed about 300 deer that fall, and fewer yet the following season. Finally, he stopped processing venison altogether.
In neighboring Marshall County, Logan Thomas had an outfitting business called Rolling Oaks, which he and his wife started in 2019. “My first year, 83% of my clients got a shot at a buck, and close to 80% of them booked to come back,” he said. “I capped us at 50 hunts per year, which was enough to make a living without over-pressuring my farms. We built a lodge in 2021.”
But then the feeding and mineral ban was implemented. Thomas took it in stride at first because he wanted to do what the KDFWR said was best for the deer herd. But the stigma of being in the surveillance zone, and especially the ban on baiting, eventually started costing him clients.
“It was 100% a perception problem,” Thomas says. “We still had plenty of good deer around, but nobody wanted to pay to hunt in one of the only counties in the state where you can’t bait, especially when they could drive a half hour to another county where putting out corn is still perfectly legal.” Thomas’s client list eventually dwindled so low he couldn’t cover his overhead, and so he put Rolling Oaks up for sale.
The decline in hunting participation in the five-county surveillance zone wasn’t confined to a few local businesses, either. Based on Kentucky’s own harvest data, the deer take in the surveillance zone was down by as much as 20% in 2021-22 vs. 2018-2020, compared to just 4% in neighboring counties outside the zone during the same time frame.
I live in Calloway County, Kentucky, and hunt frequently in Henry County, Tennessee. I appreciate a cautious and organized response plan to CWD, even if I don’t like all of the measures taken. But if James Kelly’s accusations are true, and assuming new cases of CWD aren’t found in the area, how the TWRA and KDFWR respond to this situation will be telling. If they double-down on the special regulations, well, that answers the question of why so many hunters are still skeptical of this disease.
I’ve covered CWD for a long time, and know I will probably be called a “denier” for writing this. I reject that label, but I am a response-plan questioner. In a similar vein, I got sick enough myself from Covid-19 to acknowledge that it was real, but I can’t forgive those in power who imposed the lockdowns of schools and businesses.
We’re in a constant state of handwringing over declining hunter participation, yet CWD regulations consistently make it a pain in the ass to go shoot a deer. Maybe they don’t really affect the hunter who owns 100 acres and the equipment to plant food plots. But for the guy with 15 acres of woods and a ladder stand behind the house, a pile of shelled corn on the ground can be the difference in shooting a couple does per year, or not. Take away the ability for to bait; require the guy to drive 30 minutes to have deer tested; have him pin his property on a map for state officials to record; and finally tell him that he’s not allowed to use his favorite processor because that processor is in another county, and guess what that guy does?
Probably something besides deer hunt.