Ducks In A Row: Pennsylvania Man Challenges Classification Of Pet Ducks As Prohibited Poultry

300px-Svensk_blå_ankaJames Kistler is in the midst of an expensive row with the city of Delmont over his pets Larry, Moe, Curly and Fred. In May, the city sent Kistler a notice that he was in violation of the city ordinance on domestic pets and that he could not keep ducks as pets. The letter states that he will be subject to a $500 day fine unless he gets rid of the ducks.

He has the option of filing an appeal with the zoning board, but that costs $400.

These ducks are Blue Swedish ducks which are commonly used as pets like the ones shown above. They are an entirely domesticated species and not raised for food. Yet, the ordinance reportedly only bans swine, goats, sheep, insects, reptiles having a venomous or constrictor nature, bovines and quadrupeds — such as elephants, rhinoceros, hippopotamus, moose and deer. The only possible category covering the ducks is “poultry.” The question is whether domesticated pet ducks constitute poultry.

The term is generally defined as “Domestic fowls, such as chickens, turkeys, ducks, or geese, raised for meat or eggs.” If they are not being raised for meat or eggs, is it still poultry?

I found this issue was raised in a Texas regulatory conflict where the classification of some birds as “poultry” triggered transportation requirements. The owner contested the classification for birds to be sold as pets. Here is what the Texas agency ruled:

The Transportation Code does not define pertinent terms in the statute such as “poultry, livestock, livestock products,” or “farm products.” However, you inform us that the owner contends that the animals he transports meet definitions in the Agricultural Code for such terms as “exotic fowl,” “livestock,” or “exotic livestock” and reasons that the listing of animals in Transportation Code section 502.163(a)(1) should be similarly construed to include his animals. Request Letter at 1-2 (citing Agriculture Code sections 1.003(3) defining “livestock,” and 142.001(4)-(5) defining “exotic livestock” and “exotic fowl”).

For undefined terms, “courts generally accept the words used in a statute according to their ordinary meaning.” Garrett v. Borden, 283 S.W.3d 852, 853 (Tex. 2009). Texas courts rely on dictionaries to determine the meaning of terms not defined in statute. CenterPoint Energy Entex v. R.R. Comm’n of Tex., 208 S.W.3d 608, 619 (Tex. App.–Austin 2006, pet. dism’d). Also, courts construing a word not defined in one statute may take into consideration its definitions in another act of similar nature, but “[a] word defined in one act does not necessarily determine the word’s meaning in another act dealing with a different subject.” Brookshire v. Houston Indep. Sch. Dist., 508 S.W.2d 675, 678 (Tex. Civ. App.–Houston [14th Dist.] 1974, no writ); accord Gen. Elec. Capital Corp. v. ICO, Inc., 230 S.W.3d 702, 707 n.2 (Tex. App.–Houston [14th Dist.] 2007, pet. denied); Travis Cent. Appraisal Dist. v. Signature Flight Support Corp., 140 S.W.3d 833, 840 n.4 (Tex. App.–Austin 2004, no pet.).

We first consider the owner’s position that section 502.163(a)(1) of the Transportation Code should be construed to apply to the transportation of birds such as parakeets, which, he asserts, meet the definition of “exotic fowl” in the Agriculture Code. See Request Letter at 2; Tex. Agric. Code Ann. § 142.001(5) (West 2004). Whether the owner’s birds are exotic fowl under the Agriculture Code is irrelevant because the only reference to a bird of any kind in section 502.163(a)(1) of the Transportation Code is to “poultry.” We must “presume the Legislature chose its words carefully and intentionally.” Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009). “Poultry” commonly means “[d]omestic fowls, such as chickens, turkeys, ducks, or geese, raised for meat or eggs.” (3) Several Texas statutes define “poultry” consistently with this common meaning. (4) As one court reviewing Texas statutory definitions of the word poultry has noted, “each definition [of poultry] is aimed at the state’s food supply.” See Hendrickson v. Swyers, 9 S.W.3d 298, 300 n.1 (Tex. App.–San Antonio 1999, pet. denied) (determining that fighting cocks are not “poultry” in a statute concerning the application of nuisance and other law to preexisting agricultural operations). Giving the word its common ordinary meaning, “poultry” in section 502.163(a)(1) does not include birds such as parakeets that are primarily raised to be sold to pet shops.

That logic would seem to favor the ducks in Pennsylvania as it did parakeets in Texas. Indeed, some people have even questioned what the meaning of a horse is.

If all else fails, he could always claim them as “companion animals in training” to deal with the stress of interacting with this local government. He could also retain this good knight who wisely sought to define the meaning of a witch for the common folk and used a duck to prove his case:

Source: Tribune

15 thoughts on “Ducks In A Row: Pennsylvania Man Challenges Classification Of Pet Ducks As Prohibited Poultry”

  1. The duck owner belongs to the Church of the Latter Day Quakers and Moe, Larry and Curley are his priests. The other duck is in training. He is also insured by AFLAC. Quack. This is all protected under the Freedom of Religion Prong of the First Amendment. And if he cant stick that prong in them then he needs a new lawyer.

  2. i was going to ask what they do about parrots. i guess rick perry needs them in austin.

  3. Darren,

    I simply have to applaud anytime someone rhymes “education” and “lactation”. Well played, sir. Well played indeed.

  4. “We don’t need no mum’s lactation.
    We don’t need no, duck control”

  5. “Hey! Delmont! Leave those ducks alone.”

    All in all, we’re all just beaks in the wall.

    (insert David Gilmour guitar solo here)

  6. nick spinelli 1, July 5, 2013 at 11:16 am

    We libertarians understand this quite well, as did our Founding Fathers. The more govt., the more insane regulations like this. It’s really quite simple.
    More is not ipso facto bad.

    Nor ipso facto good.

    It is just more.

    It isn’t an insane regulation, it is a vague regulation.

    Traditionally “poultry” refers only to “birds” grown for killing and eating (sorta like the middle class and poor):



    in animal husbandry, birds raised commercially or domestically for meat, eggs, and feathers. Chickens, ducks, turkeys, and geese are of primary commercial importance

    (Dictionary). It does not sound like a criminal charge, so I am not sure what constraints the statute will face as a regulatory device.

    Perhaps the “arbitrary and capricious” standard as to enforcement?

  7. nick,

    You might be surprised to know that being a lawyer doesn’t mean you think all laws and regulations are ipso facto good laws. That also doesn’t mean that the baby needs to go out with the Constitutional bathwater. In fact, my very first column here was entitled “What Makes a Good Law, What Makes a Bad Law?”. Many bad laws suffer from bad drafting – the language is either vague or obtuse. That’s probably the case here. What seems to be nominally to prohibit unzoned agriculture and owning inherently dangerous animals (not necessarily bad things) is failing for lack of specificity of purpose.

  8. The city must be in a quandry. How can it ban ducks and still meet the demand for ducks in these witch trials?

  9. We libertarians understand this quite well, as did our Founding Fathers. The more govt., the more insane regulations like this. It’s really quite simple.

  10. Gene,
    I do not think Delmont has anything better to do than to worry about ducks over populating the town! If they approve the ducks, the next thing you know pet mountain lions will take over! Yikes.
    Great video clip!

  11. A couple of questions.

    First, oh who is he who is so wise in the ways of science?

    Second, City of Delmont. Don’t you have something better to do? Anything?

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