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14 March 2017 at 10:24:29 AM
Wrote about this last week Texas Hog Hunters Association is against Sid Miller's plan to spread rat poison (warfarin) across Texas lands for feral hogs. From their press release
Texas Hog Hunters Association (THHA) Opposes Use of Rat Poison on Feral Hogs
*Agriculture Commissioner Sid Miller has proposed using rat poison on Texas lands for control of feral hogs. Over 15,000 Texas hunters have signed opposition to that plan!
*Spreading rat poison—known as warfarin or Kaput®—across Texas lands will hurt Texas hunters, the multi-million dollar feral-hog meat-processing industry, Texas ranchers and other property owners, livestock, wildlife, and the environment. Using warfarin will damage, not help, feral-hog control in Texas. Hunters and trappers won’t eat or sell poisoned hogs. Those effective, proven methods of control will be reduced.
*Warfarin is an anticoagulant. It kills by literally making the poisoned animal “bleed out” (including blood from nostrils and other body orifices). For feral hogs, death takes 9 days—and feral hogs can travel 5 to 20 miles a day. The death is slow and extremely painful. The 9-day period to death means poisoned hogs will travel across property lines and carcasses will end up on other ranches and properties by the time of the animal’s death.
*Other wildlife and livestock (raccoons, bears, cattle, deer, goats) will get into bait stations and eat the poison, and spread it so that other animals and species eat it. Animals, birds of prey (eagles, hawks, caracaras), and vultures will feed on poisoned ca
rcasses, causing secondary poisoning and spreading the poison.
*Australia tried and abandoned warfarin poisoning on hogs because of the extreme cruelty of the multi-day bleeding-out death and the harm to other wildlife.
*Sodium nitrite (used to cure bacon, so safe for humans) treatment for feral hogs is now under intensive study and should be available in one to two years.
Please act now:
*Prohibit use of any TDA or other state funds for warfarin poisoning.
*Prohibit use of warfarin or other toxic substances or chemicals until thorough, real-wo
rd scientific studies and field studies in Texas on feral hogs have been completed, published, and opened to public comment and hearings.
*Instead, develop a Rapid Response Network of trappers and hunters to provide established, proven methods of feral-hog control (trapping, hunting) for any rancher, farmer, or property owner who has an influx of feral hogs.
Scott Dover, President THHA – (817) 897 3118 firstname.lastname@example.org
Eydin Hansen, Vice-President THHA – (801) 499 7344 email@example.com
Turns out that it's not just a couple of bills filed against Sid Miller, it's a court action too from the Texas Hog Hunters Association. Was sent the following information that sheds light on a legal action, including TRO and upcoming plea for temporary injunction that involves Sid Miller and the use of warfarin against feral hogs. Includes a TRO (Temporary Restraining Order) Texas Hog Hunters Association filed a petition against Texas Department of Ag and Sid Miller, were granted a temporary restraining order on March 2 2017 and there will be a temporary injunction hearing on March 30, 2017. Here are a couple of letters, declarations from people who are against Sid Miller's actions. Griffiths-PDF McDonald PDF
Here is the petition that was filed for declaratory relief against Texas Department of Agriculture and Sid Miller, in his Official Capacity as Commissioner of the Texas Department of Agriculture. PDF Below is part of that petition filing, to see the appendix areas include Title4 on Pesticides, read the entire PDF.
PLAINTIFF’S VERIFIED ORIGINAL PETITION FOR DECLARATORY JUDGMENT
AND APPLICATION FOR INJUNCTIVE RELIEF
TO THE HONORABLE JUDGE OF THE DISTRICT COURT:
NOW COMES Wild Boar Meats, L.L.C. (“Wild Boar Meats”) and files this verified
original petition complaining of actions taken by the Texas Department of Agriculture (“TDA”)
and Sid Miller, in his Official Capacity as Commissioner of TDA (the “Commissioner”), and for
cause of action shows as follows:
I. THIS LAWSUIT
1. On February 21, 2017, the Commissioner announced an “emergency” rule change
to allow the use of a warfarin-based poison for use on feral hogs in Texas. See Exhibit 1
attached hereto and incorporated herein by reference for all purposes. In essence, the
Commissioner proposes to flood Texas with rat poison in an ill-advised, counterproductive
program. If not stopped, the program will damage Texas hunters, the Texas feral-hog meat
industry, ranchers and other landowners, wildlife, and the environment. In fact, the program will
damage, rather than assist, the effort to control feral hogs in Texas. Additionally, the rule is
illegal on its face: no legal “emergency” existed to authorize a dark-of-night “emergency rule”
that will favor a sole-provider manufacturer of a single warfarin-based product for use on feral hogs, Kaput®. Scimetrics Ltd. Corp., a Colorado based company, is the sole manufacturer of the
2. TDA ignored its legal limitations as a state agency, pronounced an emergency
where none existed and issued an emergency rule in violation of the Texas Administrative
Procedure Act (“APA”). Accordingly, Wild Boar Meats asks for declaratory relief from the
Court declaring that the TDA’s emergency rule is invalid and enjoining enforcement of the
3. Wild Boar Meats, L.L.C. intends to conduct discovery under Level 2 of Texas
Rules of Civil Procedure 190.3.
III. PARTIES AND SERVICE OF PROCESS
4. Wild Boar Meats is a Texas company domiciled in Hubbard, Texas doing
business in Hill County, Texas.
5. The Texas Department of Agriculture is the state agency charged with
administration and classification of pesticides. Sid Miller is being sued solely in his official
capacity as the Commissioner of TDA and the Attorney General’s office has agreed to accept
service on behalf of the Commissioner.
IV. JURISDICTION AND VENUE
6. Wild Boar Meats brings this suit for declaratory relief under the authority of TEX.
GOV’T. CODE § 2001.038 and the Uniform Declaratory Judgment Act, TEX. CIV. PRAC. & REM.
CODE § 37.001 et seq. Wild Boar Meats brings its application for injunctive relief under the
authority of TEX. GOV’T. CODE § 2001.038 and TEX. CIV. PRAC. & REM. CODE § 65.001, et seq.
A. Why Warfarin Will Not Work in Texas—The Key Logical Flaw
7. Overwhelmingly Texas lands are owned by private landowners—that is 1 for
approximately 95.8% of Texas land (based on a Google search). Thus, if a private landowner
poisons feral hogs on his or her ranch, eventually the feral hogs on adjoining properties will
move in. Upon information and belief, poisoning an entire region of ranches is unfeasible for
Many property owners want to hunt and consume feral hogs, or lease their
land to feral-hog hunters—not poison the feral hogs.
Many property owners do not like or trust poison or the effects and risks of
poison on domestic animals (e.g., dogs, cats), livestock, wildlife, and the
Many property owners do not want to incur the expense of a program that is
doomed to failure or, at best, minimal, temporary success.
8. The sole-source product that the Commissioner has proposed, Kaput®, according
to its own instructions (see Exhibit 2 attached hereto and incorporated herein by reference for all
purposes), cannot be used in grazing areas. For example, a rancher who owns 1,000 acres would
have to move livestock from the pasture designated for poison. First, according to the product
instructions, several weeks of separation would be necessary to “condition the hogs” to learn to
“open” the poison containers. (As discussed below, those containers are flawed and potentially
expose children and animals to the poison.) Second, the separate pasturing would have to
continue for a substantial period to address the inevitable, continuing influx of hogs from
surrounding properties. In fact, that influx would never end. Third, according to Kaput®
instructions, the separation would have to continue for 90 days after the last use of the poison.
Additionally, according to Kaput® instructions, the product also cannot be used near water or
creeks. Finally, Kaput® instructions require “burial” of poisoned feral hogs. Upon information
and belief, feral hogs can travel 5 to 20 miles in a day. A poisoned feral hog may well end up on
neighboring property, and the property owner may have no idea that a poisoned hog is on the
property, much less any program or desire for burial. That would expose the poison-containing
carcass to other wildlife, including birds of prey, vultures, coyotes, raccoons, etc.—or even
domestic dogs and cats.
B. Australia’s Experience with Warfarin:
9. The Commissioner’s press release cited the use of warfarin in Australia and stated
that Warfarin, an anticoagulant, was used for many years as a feral swine toxicant in Australia.
But in comparing the press release to a 1990 Australian study (attached hereto as Exhibit 3 and
incorporated herein by reference for all purposes), important facts were omitted about the
Australia, in a government-conducted study, experimented with the use of
warfarin in 1987 in the Sunny Corner State Forest.
The study area was 60 square miles and the study period was 3 months.
Over the course of 3 months, 187 of 189 feral hogs were poisoned to death,
using 69 poison sites and placing the poison in wheat left in the open, not in
This application took an average of 2.7 man-hours per feral-hog poisoning.
Ultimately, Australia concluded that the method of death was so cruel, that
use of warfarin should be outlawed—even though Australia is not a culturally
“squeamish” country and even though Australia has more feral hogs than
people. Warfarin is an anti-coagulant, so hogs die by bleeding to death—
including bleeding out the eyes, nose, mouth, and other body orifices. The
death is painful and gruesome.
Australia found that the timeline for feral-hog death was 4-17 days.
In short, the Australian experience conclusively showed that warfarin poisoning is a badly
C. Warfarin Poisoning Will Cause Substantial Economic Damage to Texas Hunters,
the Hunting Industry, Meat Processors, and Other Industries from Warfarin
Poisoning—and Will Reduce in the Effectiveness of Feral-Hog Control in Texas
10. Texas currently has a vibrant, growing economic segment focused on hunting
feral hogs and on the consumption and use of feral-hog meat and byproducts. Thousands of
Texas hog hunters participate in safe, reliable harvesting of feral hogs. Hunting is one of the two
most effective means of controlling the feral-hog population. Ranchers and other property
owners earn substantial revenues from hunting leases and guided hunts for feral hogs. Feral-hog
meat processors have developed a sustainable, environmentally sensible industry to use feral-hog
meat products for human consumption in the United States and abroad and for the pet industry.
Feral-hog hides are even used for boot making.
11. Collectively, those industries result in harvesting tens of thousands of feral hogs
annually in Texas. A warfarin-poisoning program will substantially reduce or destroy those
businesses, including Wild Boar Meats. Given the flawed concepts on which warfarin-poisoning
is based, that program will result in a net reduction in the number of feral hogs removed from
Texas ranches annually. In short, the warfarin-poisoning program will reduce, not increase, the
number of feral hogs killed each year in Texas. The program will make the feral-hog control
problem worse not better.
D. The Cost of Warfarin Poisoning
12. The costs of a warfarin-poisoning program are substantial for any participating
landowner. According to Exhibit 2, each hog feeder (poison-bait station) holds only 25-50 lbs. of
poison. Upon information and belief, studies suggest that a feral hog would have to ingest the
poison for 5 days to die. That means that a hunter or property owner could shoot and consumer a
feral hog, not knowing that it contains poison. And, upon information and belief, Kaput® is the
only known provider of the Kaput® products and feeder.
E. Dangers to humans, animals, and wildlife:
13. Kaput® instructions (Exhibit 2) state: “Harmful if swallowed,” “Keep away from
humans,” “Keep Out of Reach of Children,” “If Swallowed: call a poison control center or
doctor immediately for treatment advise.”
F. “Burial” problems:
14. According to the manufacturer of Kaput®, when a feral hog dies from warfarin
poisoning, the property owner must bury the hog 18” below the ground. See Exhibit 2. That is
impractical (and often impossible) because the death-by-bleeding that results from warfarin
poisoning is slow. Upon information and belief, it can take up to 4-17 days. See Exhibit 5.
Feral hogs can travel 5 to 20 miles per day. It is highly likely that feral hogs that die from
warfarin poisoning will be on some other property owner’s property. That owner well may not
know that someone else has a poison program underway, much less have any desire to bury the
feral hog. The dead feral hog will mostly likely remain exposed to being consumed by other
animals, birds of prey, or even dogs or cats.
15. Even if the carcass of a poisoned hog is found, and even if the person who finds it
has the motivation to bury it, burying a feral hog that weighs 200 pounds (or more) is not easy,
simple, or cheap. At a minimum, it requires a backhoe. In some soils, burial is not feasible at all.
It can be prohibitively difficult, expensive, labor-intensive, and time-consuming. In short, often it
will not happen at all.
G. Problems with Poison Bait Stations
16. The sole-source manufactured bait stations for use of Kaput® warfarin-based
poison have many problems. First, the doors weigh only ten pounds. See Exhibit 2. Many
animals can lift ten pounds. Texas Parks and Wildlife has documented raccoons lifting 28
pounds with just their front paws, so a raccoon can open the bait station, remove and distribute
the poison, therefore putting other wildlife at risk. See Texas Park and Wildlife report attached
as Exhibit 4 and incorporated herein by reference for all purposes. In addition, Kaput® requires
posting bilingual signs in the treated areas, specifically public roads, trails, and pathways. See
Exhibit 2. Unfortunately, young children, raccoons, dogs, cats, deer, goats, and cows do not read.
H. Other Environmental Hazards from Warfarin Poison
17. Kaput® itself lists in Exhibit 2 these Environmental Hazards to wildlife
(including domestic dogs and cats):
“This product may be toxic to fish, birds, and other wildlife”
“Dogs and other predatory and scavenging mammals and bird might be
poisoned if they feed upon animals that have eaten the bait”
“Do not apply this product directly to water, to areas where surface water is
present or to intertidal areas below the mean high-water mark”
I. Alternatives to Warfarin Poisoning:
18. Texas Parks and Wildlife Department has been studying a safer alternative to
warfarin: Sodium Nitrite. Sodium nitrite is used to cure bacon. See Exhibit 4. Humans consume
it. It does not harm humans, but can be lethal to feral hogs. Thus, it would not cause the
collateral economic damage to the hunting industry and the feral-hog meat industry in Texas.
Studies show that with properly administered sodium nitrite, feral hogs typically die within 2
hours of consumption. See publication entitled “Poison baiting for feral pig control in Australia”
attached via the following link: http://www.pestsmart.org.au/poison-baiting-for-feral-pig-control/
as Exhibit 6 and incorporated herein by reference for all purposes. But sodium nitrite is not
harmful to humans or pets. Secondary-poisoning risks from sodium nitrite are much less than
J. Why the Warfarin-poison Program Would Likely Increase the Feral Hog
Population In Texas:
19. Currently the most common feral-hog-control programs result from the kill-to-eat
motivation of the majority of Texas hog hunters. Because of the risks from warfarin poisoning,
harvesting for human consumption will inevitably decrease. (The Texas Hog Hunters
Association opposes the warfarin-poisoning program.) The result will be removal of fewer feral
hogs in Texas. The feral-hog population will actually increase.
20. The same is 1 of the burgeoning kill-to-sell feral-hog industry in Texas.
Warfarin poisoning will reduce or eliminate that industry entirely, eliminating thousands of
21. The same is 1 of the trap-to-sell industry in Texas. Trapping is one of the most
effective means of feral-hog control in Texas. But many trappers sell the hogs for human or petproducts
consumption. That will no longer be feasible. Warfarin can remain in a feral hog for up
to 17 days. See report entitled “A project that investigates current options for managing
feral pigs in Australia and assesses the need for the development of more effective and
humane techniques and strategies” attached via the following link:
http://www.pestsmart.org.au/wp-content/uploads/2010/03/DEHstage1.pdf as Exhibit 5 and
incorporated herein by reference for all purposes. Thus, to be safe, trappers and feral hog
processors would have to feed feral hogs for three weeks to be used for human consumption.
That is cost prohibitive.
22. The bottom line is that a warfarin-poison program is likely to result in a net
decrease in the number of feral hogs harvested in Texas, and net increase in the population of
feral hogs in Texas. That is the very definition of counterproductive!
23. Implementation of a warfarin-poisoning program in Texas is a bad idea that will
have substantial adverse economic consequences for Texas hunters, Texas hunting-supply
industries, Texas ranchers and other property owners, and the feral-hog meat processing
industry. The program would cost Texas jobs and money, it would cause substantial damage to
the Texas environment and wildlife—and ultimately, the program likely would make the
problem of feral hogs in Texas worse, not better. In every sense, it is a lose-lose proposal for
Texas. Texans and TDA should reject this bad idea.
K. No “Emergency”
24. On February 21, 2017, and without notice and comment, TDA adopted an
amendment to 4 TAC §7.30 stating the “amendment adds regulations regarding "State-limiteduse
Pesticides Defined by Active Ingredient and Use," including use and distribution of such
products. The Department is adopting the emergency amendments to address the risk of
inadvertent human consumption of warfarin-poisoned hogs and the risk of potential secondary
poisoning of non-target animals. Amended §7.30 classifies the active ingredient warfarin, when
used as a feral hog toxicant, as a state-limited-use pesticide.” See Exhibit 1.
VI. BRIEF IN SUPPORT
A. Imminent Peril
25. The APA § 2001.0034(a)(1)-(2), (b) and (d) requires an agency to set forth the
following to adopt an emergency rule:
(1) the rule adopted;
(2) written reasons for the rule’s adoption; and
(3) written reasons for the agency’s findings that
(a) an imminent peril to the public health, safety, or welfare exists
26. Judge Scott McCown defined imminent peril as follows:
The words suggest a soon-to-be-upon-us public disaster not merely a serious
policy concern . . . Imminent means soon but not yet. If a problem is here, it is not
imminent, but present. A present problem is not an imminent peril, regardless how
serious. The legislature does not want an agency to address present problems with
emergency rules . . . long standing problems . . . can not be classed as imminent peril . . .
as a corollary, an agency can not allow a distant problem to become an imminent peril by
inaction and then promulgate an emergency rule. . . the test is whether an agency
reasonably could and should have foreseen the problem in time to address it by full
Courts in Travis County are familiar with the requirements for an agency to adopt an
emergency rule as well as the consequences when an agency does not comply with the APA.
See Temporary Restraining Order issued by the Honorable Gisela Triana and Temporary
Injunction issued by the Honorable Orlinda Naranjo in Cause No. D-1-GN-15-000238, Teladoc
v. Texas Medical Board and Scott Freshour in his official capacity as General Counsel for Texas
Medical Board, in the 53rd Judicial District Court of Travis County, Texas.
B. TDA’s purported “emergency” is no emergency
27. Notice, transparency, public participation, and reasoned justification must precede
assertions of agency authority by adoption of rules. As the Austin Court of Appeals has stated,
“We must give effect to these important safeguards, as the Legislature has intended.” Teladoc,
Inc. v. Tex. Med. Bd., 453 S.W.3d 606, 623 (Tex. App.—Austin 2014, pet. denied).
1 F. Scott McCown, Opinion on Temporary Injunction, 1 Tex. Admin. L.J. 16, 27-30 (1992)
C. The harm to Wild Boar Meats
28. The “emergency rule” will have an immediate and severe impact on Wild Boar
Meats ability to do business in Texas in that it will severely impact Plaintiff’s business. Upon
information and belief, there is no way to deactivate the chemical Warfarin in a dead feral hog;
the antidote Vitamin K only works for a living animal. In Exhibit 2, Kaput states that a dye that
accompanies the chemical Warfarin will turn the fatty tissues of a feral hog blue – thereby
providing notice of Warfarin poisoning. Upon information and belief, the fatty tissues will not
turn blue until the feral hog metabolizes Warfarin – which is between 1-2 days. Therefore, a
feral hog could eat warfarin one day, the next day cross onto another ranch, be shot and brought
to Wild Boar Meats, without any blue fatty tissues. Upon information and belief, individually
testing each feral hog for Warfarin takes 2-3 days and is cost prohibitive. Given these
unknowns, Plaintiff’s customers have expressed concerns about the “emergency” rule and are
considering putting future orders on hold. Plaintiff had planned to begin construction of a new
plant next month to substantially expand its facilities. Plaintiff has ongoing negotiations with one
of the largest pet food manufacturers in the world. Now those negotiations have ceased and the
new plant is in jeopardy. If the rule stays in effect, Plaintiff will lose contracts and may go out of
business. Upon information and belief, the same is 1 for the Texas businesses that provide
feral-hog meat for human consumption. The combined meat and hog hunting industry is in the
millions of dollars annually. The financial impact on the thousands of hunters and trappers who
sell feral-hog meat will be much greater, as will be the effect on the companies that operate as
direct buyers from feral-hog hunters and trappers. (One of those companies that supplies Plaintiff
is Hogs Gone Wild; which last year sold several million pounds of feral hogs.) In short, the
adverse economic effects of the “emergency rule” will be massive. Many business failures are
inevitable if this rule stays in effect. Upon information and belief, the net effect of this rule and
the associated program will be to decrease the annual harvest of feral hogs in Texas—the rule
and program will make the feral-hog problem in Texas worse, not better.
VII. CAUSE OF ACTION
A. Request for declaration of rights under the Rule
29. Wild Boar Meats requests that the Court declare that TDA’s emergency rule is
invalid for two reasons. First, there is no imminent peril to public health, safety or welfare and
TDA has made no such finding. Second, TDA did not endeavor to state in writing reasons to
support a finding of the requirements of APA § 2001.034(a)(1)-(2), (b), and imminent peril to the
public health, safety or welfare if one had been made. See Methodist Hospitals of Dallas v. Texas
Industrial Accident Board, 978 S.W.2d 651 (Tex. App. –Austin, 1990, no writ).
B. Application for TRO
30. Wild Boar Meats asks the Court to temporarily enjoin enforcement of the
“emergency rule” adopted by TDA pending a trial on the merits. Wild Boar Meats has a probable
right to the relief it seeks because no imminent peril to public health, safety or welfare exists and
TDA did not follow the requirements of APA § 2001.034(a)(1)-(2), (b), and (d). Harm to Wild
Boar Meats is imminent because TDA issued notice of the emergency rule on February 21, 2017.
The “emergency rule” will have an immediate and severe impact on Wild Boar Meats’ ability to
do business in Texas. Wild Boar Meats has no adequate remedy at law because it cannot recoup
the loss of revenue caused by the implementation of the “emergency rule.”
C. Request for permanent injunction
31. Wild Boar Meats asks the Court for a permanent injunction after trial. TEX.
GOV’T. CODE § 2001.038 authorizes suit to declare validity of a rule including an emergency
rule. The emergency rule of February 21, 2017 is invalid because of absence of an imminent
peril to the public health, safety, or welfare and failure of Defendants to adopt the rule pursuant
to TEX. GOV’T. CODE § Sections 2001.023, 2001.024, 2001.029, 2001.033 and 2001.034.
Agency rules adopted without complying with proper rule-making procedures are invalid and
affected persons are entitled to injunctive relief. See El Paso Hosp. Dist. v. Texas Health and
Human Servs. Comm’n, 247 S.W.3d 709, 715 (Tex. 2008) and Combs v. Entertainment Publ’ns,
Inc., 292 S.W.3d 712, 723-24 (Tex. App.—Austin 2009, no pet.).
WHEREFORE, premises considered, Wild Boar Meats, L.L.C. asks the Court to declare
invalid the emergency rule adopted by TDA and to issue a temporary restraining order enjoining
its enforcement, issue a temporary injunction pending a trial on the merits, and upon trial on the
merits, a permanent injunction enjoining enforcement of the emergency rule. Wild Boar Meats,
L.L.C. asks for costs of suit and all other relief, at law or in equity, to which it may be entitled.
JACKSON WALKER LLP
By: /s/ Matt Dow
State Bar No. 06066500
100 Congress, Suite 1100
Austin, TX 78701
(512) 236-2002 - Fax
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
This is to certify that on this 1st day of March, 2017, a 1 and correct copy of the
foregoing document was served via email on the parties listed below:
Mr. Ted Ross
Office of the Attorney General of Texas
P.O. Box 12548
Austin, Texas 78711-2548
__/s/ Matt Dow________________
On March 2, 20117, Travis County District Court granted a temporary restraining order PDF
texas department of agriculture
texas hog hunters association
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