Wilkins v. Daniels

• Citation: 744 F.3d 409
• Decision Date: 04 March 2014
• Docket Number: No. 13–3112.,13–3112.
• Parties: Terry WILKINS; Sean Trimbach; Mike Stapleton; Cindy Huntsman; Cyril Vierstra, Robert Sawmiller; Steve Frantz, Plaintiffs–Appellants, v. David T. DANIELS, in his official capacity as Director of the Ohio Department of Agriculture; The Ohio Department of Agriculture, Defendants–Appellees, The Humane Society of the United States, Intervenor.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

744 F.3d 409

Terry WILKINS; Sean Trimbach; Mike Stapleton; Cindy Huntsman; Cyril Vierstra, Robert Sawmiller; Steve Frantz, Plaintiffs–Appellants,

v. David T. DANIELS, in his official capacity as Director of the Ohio Department of Agriculture; The Ohio Department of Agriculture, Defendants–Appellees,The Humane Society of the United States, Intervenor.

No. 13–3112.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 22, 2013.

Decided and Filed: March 4, 2014.

ARGUED:Robert M. Owens, Owens Law Office, Delaware, Ohio, for Appellants. Eric E. Murphy, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees. Anna Frostic, The Humane Society of the United States, Washington, D.C., for Intervenor. ON BRIEF:Robert M. Owens, Owens Law Office, Delaware, Ohio, for Appellants. Alexandra Schimmer, Michael J. Hendershot, James R. Patterson, Pearl M. Chin, Office of the Ohio Attorney General, Columbus, Ohio, for Appellees. Anna Frostic, The Humane Society of the United States, Washington, D.C., Donald J. McTigue, Corey Colombo, Mark McGinnis, McTigue & McGinnis LLC, Columbus, Ohio, for Intervenor.

Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

This case involves constitutional challenges to the Ohio Dangerous Wild Animals and Restricted Snakes Act, Ohio Revised Code §§ 935.01–935.99. Plaintiffs-appellants are seven owners of animals regulated by the Act. Defendants-appellees are the Director of the Ohio Department of Agriculture, named in his official capacity, and the Ohio Department of Agriculture. After January 1, 2014, no person may possess a dangerous wild animal or restricted snake as defined by the Act without obtaining a permit. As part of the permitting process, individuals are required to implant a microchip under the skin of their animals; yet individuals are not reimbursed for this expense. There are exemptions from the Act's permitting requirements, including an exemption for individuals accredited by the Association of Zoos and Aquariums (AZA) or the Zoological Association of America (ZAA).

Appellants contend that the Act violates their First Amendment rights to freedom of association and speech because the Act's permitting requirements are so onerously expensive as to constitute a non-option—the only viable means to comply with the Act, appellants assert, is to join the AZA or ZAA. Thus, appellants contend that they are compelled to associate with those organizations and to subsidize the organizations' speech. Appellants also argue that the Act's microchipping requirement constitutes a physical taking in violation of the Fifth Amendment.

We affirm the district court's denial of injunctive relief. Appellants' First Amendment claim fails because appellants have not demonstrated that they are compelled to join the AZA or ZAA. Appellants' Taking Clause claim fails because the Act does not effect a physical taking.

I.

A.

In 2011, an Ohio man released over fifty exotic animals before committing suicide. Partially in response, the Ohio General Assembly passed the Ohio Dangerous Wild Animals and Restricted Snakes Act. Ohio Rev.Code §§ 935.01–935.99. The Act is designed to regulate prospectively the acquisition, purchase, sale and transfer of “dangerous wild animals” and “restricted snakes” as defined in sections 935.01(C) and (L). The Act went into effect on September 5, 2012.

All persons in possession of dangerous wild animals prior to September 5, 2012, were required to register with the Ohio Department of Agriculture, which administers the Act, by November 5, 2012. Id.§ 935.04(A). In order to record and track these animals, the Act requires microchipping each registered dangerous wild animal at the time of registration. Id.§ 935.04(D). This is a commonly used technique to track and identify animals. The microchips must contain unique identification numbers and passive integrated transponders (“PIT tags”). Id. The microchip, about the size of a grain of rice, is implanted under the skin of the animal to provide a permanent form of identification. Once applied, the microchip may not be removed except “for purposes of a medical emergency by a veterinarian that is qualified to provide veterinary care to dangerous wild animals.” Id. § 935.18(B).

As noted above, the Act took full effect on January 1, 2014, prohibiting the possession of a dangerous wild animal following that date. Id. § 935.02(A). A person already in possession of a dangerous wild animal and who wishes to continue to possess the animal after that date may obtain a wildlife shelter permit or a wildlife propagation permit. Id.§ 935.04(E). An applicant for a wildlife shelter permit must provide identifying information as well as information demonstrating his or her ability to possess responsibly a dangerous wild animal. Id. § 935.05(B). In particular, an applicant must provide proof that he or she has at least two years of experience in the care of that species of dangerous wild animal or, in the alternative, the applicant must pass a written examination regarding the care of dangerous wild animals. Id. § 935.05(B)(6). The applicant must also provide “[a] plan of action to be undertaken if a dangerous wild animal escapes.” Id. § 935.05(B)(7). Not only is microchippingrequired for registration under the Act, it is also required prior to the issuance of a permit. Id. § 935.06(A)(2). There is no express exception to the microchipping requirement for permit applicants. ¹

Final issuance of a wildlife shelter permit is contingent upon sterilization of each male dangerous wild animal, unless a qualified veterinarian determines that sterilization is medically contraindicated. Id. § 935.06(A)(4). An applicant must sign an affidavit attesting that he or she will not allow members of the public to be in physical contact with the dangerous wild animal. Id. § 935.06(A)(5). Finally, an applicant must comply with the Department's standards of care and housing adopted by rule. Id. § 935.06(A)(3). The requirements for a wildlife propagation permit are substantially similar. See id. § 935.07(B).

Appellants' claims focus in large part on Ohio's caging regulations. Section 935.17 directs the Director of Agriculture to establish caging requirements for dangerous wild animals. Polly Britton, legislative agent for the Ohio Association of Animal owners, was on a task force assigned to discuss possible caging regulations. Britton testified that the emergency caging regulations adopted by the state were significantly more burdensome than ZAA or AZA requirements. For example, she testified that under the emergency regulations, there was a five-thousand square foot requirement for hyenas as opposed to a ZAA standard of six-hundred square feet. She explained: “The comments that were made during the task force meetings—and these were by Ohio Department of Agriculture officials—was that, when it comes time to write the rules, they would be so strict that owners could not, or would not, be able to keep their animals.” And that, Britton testified, was “exactly what happened.” Appellants point to these caging requirements as a major factor in their inability to comply with the Act's permitting requirements. Subsequent to the district court's order, the Department promulgated final regulations that were less stringent than originally proposed.

As a general matter, the permitting requirements for restricted snakes are substantially similar. However, neither registration nor microchipping is required. SeeOhio Rev.Code §§ 935.04, 935.08–935.10. An animal owner is entitled to appeal the denial or revocation of a permit. Id. § 935.06(E)-(F) (dangerous wild animals); id. § 935.09(E)-(F) (restricted snakes).

The Act's general prohibition on possession of dangerous wild animals and restricted snakes is subject to fourteen exemptions, including: facilities accredited by the AZA or the ZAA; ² research facilities as defined in the federal animal welfare act; research facilities accredited by the association for the assessment and accreditation of laboratory animal care international; circuses; wildlife rehabilitation facilities permitted by the Ohio Department of Natural Resources (“ODNR”); veterinarians providing temporary veterinary care; wildlife sanctuaries; individuals transporting such an animal, subject to various requirements; educational institutions that display a single dangerous wild animal as a sports mascot, subject to various requirements; persons issued permits for scientific or educational use; persons issued permits for native threatened species; mobility impaired persons possessing certain primate species; deaf persons possessing certain primate species; and blind persons possessing certain primate species. Id.§ 935.03(B). An animal owner is not required to microchip his or her animal if he or she meets one of these exemptions. Id.

The Act provides that if an owner is not able to obtain a permit or meet an exemption, the owner must transfer, within thirty days, all animals that the person possesses to a humane society, wildlife sanctuary, rescue facility, facility that is an accredited member of either the AZA or ZAA, or facility that is located in another state and complies with that state's applicable laws. Id. § 935.06(F) (dangerous wild animals); id. § 935.09(F) (restricted snakes). Such a person must pay all costs associated with the transfer. Id. § 935.06(F) (dangerous wild animals); id. § 935.09(F) (restricted snakes). The Director may also assess a civil penalty against any person not in compliance with Chapter 935 or the promulgated rules. Id. § 935.24(B)(1). Any person assessed a civil penalty has the opportunity for an administrative hearing. Id. § 935.24(B)(2). The Act also prescribes criminal penalties for noncompliance with certain provisions. Id.§ 935.99.

Appellants Terry John Wilkins, Cynthia Huntsman, Mike Stapleton, Cyril Vierstra, Robert Sawmiller, Steve Frantz, and Sean...