Traverse City Record-Eagle

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April 9, 2010

2:55 pm: State baiting ban overturned

GAYLORD — An Otsego County judge overturned Michigan's ban on baiting or feeding deer and elk in the Lower Peninsula.

The decision came after state wildlife officials charged a rural Gaylord man with illegally feeding deer from his multiple bird feeders. Ken Borton fought the charge and this week 87th District Court Judge Patricia Morse threw out the case against him and struck down the ban.

Borton said he didn't expect the law to be voided altogether.

"That's not what I was going after. All I wanted was to feed my birds. I'm shocked," Borton said.

The case began when some viewers of Borton's Web site,, reported to the state Department of Natural Resources and Environment that deer ate around the bird feeders where he trained his digital video camera. State officials twice cited Borton for violating the feeding and baiting ban, enacted two years ago after a penned deer in Kent County tested positive for chronic wasting disease.

Officials told Borton to scoop up empty seed casings daily from around his bird feeders to be in compliance with the law.

Morse instead voided the law as "unconstitutionally vague."

"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," Morse wrote in her ruling.

Dean Molnar, DNRE law enforcement assistant chief, declined to comment on Morse's ruling, as did spokeswoman Mary Dettloff.

"We have no comment at this time. We're reviewing the opinion," said Dettloff.

She did discuss reasons for the ban.

"The ban was put in place in the Lower Peninsula because of the discovery of chronic wasting disease in Kent County in 2008. We followed the state emergency response plan for chronic wasting disease, which was approved by the Natural Resources Commission and the state Commission of Agriculture," Dettloff said.

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