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Possum-drop litigation leaves issues dangling

At the inaugural New Year’s Eve Possum Drop in Brasstown 25 years ago, 30 people gathered outside Clay Logan’s small-town gas station to watch a ceramic possum lowered to the ground at the stroke of midnight.

The next year someone suggested dropping a live possum, and Logan began a tradition that has given rise to several legal challenges, a court ruling halting the use of live possums and North Carolina’s subsequent “Opossum Right to Work Act.”

On Wednesday, about 357 miles east of the Clay County community where New Year’s revelers watch the possum drop, three N.C. Court of Appeals judges tried to sort through the legal maze and haze.

Standing before them were lawyers from the state attorney general’s office and for People for the Ethical Treatment of Animals.

They were tossing around legal terms such as collateral estoppel and sovereign immunity in relation to an event that its founder once said was created to poke “fun at all the stereotypes of rednecks and hillbillies.”

The judges seemed puzzled about why the state was seeking clarification on a legal question that was unlikely to have any practical effect because of the Possum Right to Work Act, adopted for Clay County in 2014 and extended to North Carolina’s 99 other counties this year.

Those laws suspend wildlife regulations between Dec. 26 and Jan. 2, and questions about their constitutionality remain up in the air.

So on Wednesday, appellate judges Donna Stroud, Mark Davis and Richard Dietz kept coming back to a looming question.

“Given the statute that was passed by the General Assembly…how would any ruling by this court really have any practical effect? Why would it not be moot at this point?” Stroud asked Tamara S. Zmuda from the state attorney general’s office about five minutes into her presentation.

Zmuda argued that she thought it was important to push forward on issues linked to whether a license should have been issued to Logan several years ago to capture a Virginia opossum, cage it in a plexiglass container and lower it — “10, 9, 8, 7…” — from the roof to a ground-release. The state is questioning a decision that gave PETA standing in the case.

After the hearing, Jon Sasser, a Raleigh attorney representing PETA, summed up the essentials of the case without the legalese.

“We’re fighting over who has the right to challenge the possum drop,” Sasser said.

PETA has objected to the possum drop as cruel and ill-conceived. The organization has challenged the 2014 law and its expansion, arguing that the earlier law creates a “zone of lawlessness” that would have made it possible to “burn, water-board, crucify or otherwise torture” the pink-tailed marsupials with the big round eyes.

Logan, a former tree specialist for the U.S. Forest Service, names the possums O.P. for Old Possum and stands behind a provision on clayscorner.com: “We do ABSOLUTELY NOTHING to harm the possum.” They are released back into the wild after every drop, he says.

PETA has argued that capturing and caging the possums could create a shock disease in the wild animal that results in death not long after release.

Those issues and more are likely to go before judges in the lower courts.

Zmuda tried to stress to the appellate judges that all the cases were “so intertwined” that any decision could have an impact on the other cases. She added that if the 2014 and 2015 laws were overturned, Logan could be barred for two years from obtaining a permit for any wildlife-related events.

“We don’t deal with potential. We deal with what’s before us,” Judge Mark Davis replied.

In two weeks, a Superior Court judge will weigh a request to halt the 2015 law that opened the door for possum drops in any North Carolina county.

How the appellate judges will rule remains up in the air, too.

“There are so many threads in this case, depending on which one gets pulled first, this case could split horizontally, vertically or diagonally,” Sasser said Wednesday before the close of the hearing.

Anne Blythe: 919-836-4948, @AnneBlythe1

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