'Lot of balls in air' in possum litigation

Once a quaint event to ring in the new year in the North Carolina mountains, the Possum Drop has become a cottage industry in recent years for both lawmakers and lawyers. One of the legal challenges wound up in the state Court of Appeals on Wednesday, leaving judges scratching their heads on how to handle it.

Posted 7:32 p.m. Oct 21, 2015 — Updated 9:55 p.m. Oct 21, 2015

Matthew Burns

RALEIGH, N.C. — Once upon a time, there was a quaint New Year's Eve event in the crossroads of Brasstown in the North Carolina mountains. A suspended Plexiglas box containing a live possum would be lowered to ground at the stroke of midnight to ring in the new year, and a good time was had by all.

By all except People for the Ethical Treatment of Animals, that is.

PETA complained that the to-do traumatized the normally bashful marsupial and could wind up killing it. The complaints have in recent years resulted in three separate state laws regarding the Possum Drop, with each being challenged in court by PETA, and the event has become so entangled in litigation that it was conducted last Dec. 31 without a possum.

On Wednesday, the first of the three wound up in the laps of a three-judge panel of the North Carolina Court of Appeals, and they expressed reluctance to even rule on it, saying subsequent legislation likely rendered it moot.

After a state judge initially ruled in 2012 that the state Wildlife Resources Commission didn't have the power to permit the Possum Drop, the General Assembly passed a measure in 2013 spelling out the conditions that Possum Drop creator Clay Logan must follow to obtain a permit for the event.

When PETA challenged the legality of the permit, alleging that Logan didn't adhere to the regulations, lawmakers took a different tack and adopted legislation in 2014 that would suspend state wildlife regulations related to possums in Clay County for the week between Christmas and New Year's Day.

A judge ruled that was likely unconstitutional, and lawmakers expanded it in 2015 to exempt possums from wildlife regulations statewide during that week.

Noting that the 2015 law, which hasn't been thrown out yet, would preclude the need for Logan to obtain a permit for the Possum Drop, appeals court Judge Rich Dietz asked why the panel should rule on the legality of the permit under the 2013 law.

Assistant Attorney General Tamara Zmuda said the cases "are so intertwined" that any decision in the 2013 lawsuit could affect the others. Also, if the 2014 and 2015 laws are both overturned, Logan faces a potential two-year ban on obtaining a permit for any wildlife-related event, she said.

"We don't deal with potential. We deal with what's before us," Judge Mark Davis replied.

Zmuda requested that the judges rule that PETA shouldn't have been allowed to sue over the Possum Drop in the first place because the organization wasn't harmed by it.

Jonathan Sasser, an attorney for PETA, agreed with Zmuda that "there are a lot of balls here in the air" but said PETA should have the right to sue over a range of actions by the Wildlife Resources Commission.

"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.

Appellate court rulings can take as long as three months to come down. In the meantime, anyone interested in the legalities of collateral estoppel, aggrieved persons and sovereign immunity can grab some popcorn and watch the hour-long hearing.

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