People for the Ethical Treatment of Animals, Inc. v. Wildlife in Need & Wildlife in Deed, Inc.

• Decision Date: 03 August 2020
• Docket Number: No. 4:17-cv-00186-RLY-DML,4:17-cv-00186-RLY-DML
• Citation: 476 F.Supp.3d 765
• Parties: PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. WILDLIFE IN NEED AND WILDLIFE IN DEED, INC., Timothy L. Stark, Melisa D. Stark, and Jeffrey L. Lowe, Defendants. Melisa D. Stark, Timothy L. Stark, and Wildlife in Need and Wildlife in Deed, Inc., Counter Claimants, v. People for the Ethical Treatment of Animals, Inc., Counter Defendants.
• Court: U.S. District Court — Southern District of Indiana

476 F.Supp.3d 765

PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff,

v.WILDLIFE IN NEED AND WILDLIFE IN DEED, INC., Timothy L. Stark, Melisa D. Stark, and Jeffrey L. Lowe, Defendants.

Melisa D. Stark, Timothy L. Stark, and Wildlife in Need and Wildlife in Deed, Inc., Counter Claimants,

v.People for the Ethical Treatment of Animals, Inc., Counter Defendants.

No. 4:17-cv-00186-RLY-DML

United States District Court, S.D. Indiana, New Albany Division.

Signed August 3, 2020

TIMOTHY L. STARK, 3320 Jack Teeple Road, Charlestown, IN 47111, PRO SE.

JEFFREY L. LOWE, 25803 North County Road 3250, Wynnewood, OK 73098, PRO SE.

ENTRY ON CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT

RICHARD L. YOUNG, JUDGE

Faced with mounting evidence that economic growth and development were threatening various species of fish, wildlife, and plants, Congress passed the Endangered Species Act of 1973 (the "ESA" or "Act"), 16 U.S.C. § 1531 et seq. , to protect endangered and threatened species. Section 9 of the Act makes it unlawful for any person to "take" a protected species. "Take" includes any conduct that harasses, harms, or wounds

the species.

This case asks whether certain animal exhibitors have "taken" various species of lions, tigers, and hybrids (collectively "Big Cats") by declawing them and prematurely separating them from their mothers to use in hands-on, public interactions called "Tiger Baby Playtime". On this record, the court has little difficulty concluding such conduct constitutes a "taking" and thus violates the ESA.

I. Background

People for the Ethical Treatment of Animals, Inc. ("PETA") filed this lawsuit against Timothy Stark, Melissa Lane¹ , and their nonprofit zoo in Charlestown, Indiana, Wildlife in Need and Wildlife in Deed, Inc. ("WIN") (all collectively the "WIN Defendants"). PETA alleges the WIN Defendants have harmed, harassed, and wounded

Big Cats in their possession in violation of the ESA. PETA seeks a permanent injunction and an order authorizing the transfer of the Big Cats off WIN's property. The WIN Defendants contend summary judgment is inappropriate. Additionally, Stark individually seeks partial summary judgment in his favor. The facts are undisputed unless otherwise noted.

A. Wildlife in Need and Big Cats

WIN is a zoo located in Charlestown, Indiana that houses exotic and endangered animals, including Big Cats. (Filing No. 1, Complaint ¶ 13; Filing No. 23, Answer ¶ 1). Stark and Lane formed WIN in 1999. (Filing No. 317-1, PETA's First Evidentiary Submission ("PETA's First Submission") at 30, Deposition of Melissa Lane ("Lane Dep.") at 61:19 – 20). Stark is the President of WIN. (PETA's First Submission at 3, Deposition of Tim Stark ("Stark Dep.") at 44:1 – 2). He oversees the day-to-day operations, manages the animal care, and oversees volunteers who assist with animals. (Complaint ¶ 14; Answer ¶ 1). Lane was the secretary and treasurer for WIN and helped Stark with day-to-day operations up until October of 2019.² (Complaint ¶ 15; Answer ¶ 1).

WIN exhibits Big Cats to the public through hands-on encounters called "Tiger Baby Playtime". (Filing No. 46-1, Transcript of the TRO Hearing on October 19, 2017 ("TRO Tr.") at 6:6 – 10; 52:6 – 7). During Tiger Baby Playtime, WIN invites members of the public to interact, play, and feed Big Cat Cubs in exchange for a twenty-five-dollar donation. (Filing No. 57-8, United States Department of Agriculture ("USDA") Inspection Report, September 8, 2014 at 1). Stark leads Tiger Baby Playtime with the help of WIN volunteers. (Id. ). During these sessions, Stark will give a brief introduction and then carry Big Cat Cubs to the room where anywhere from thirty to fifty members of the public greet the Cubs. (Filing No. 57-7, USDA Inspection Report, September 14, 2015 at 1). There are no barriers between the Big Cat Cubs and attendees: the Cubs roam freely, and attendees can pet, touch, and pick them up. (Id. ). The Cubs’ ages range anywhere from six weeks to sixteen weeks. (PETA's First Submission at 9 – 10, Stark Dep. at 134:23 – 135:1).

Stark routinely declaws Big Cat cubs in his possession. (TRO Tr. at 35:2 – 6; 93:18 – 23; PETA First Submission at 17, Stark Dep. 156:15 – 20). He declaws them so that he can handle them easier—not out of medical necessity. (TRO Tr. 84:23 – 25; 86:10 – 13). Though the number of actual declawed cubs in Stark's possession is disputed, he admitted to declawing at least "about a dozen cubs" in 2016 alone. (TRO Tr. 85:1 – 2). Stark says he ultimately makes the decision to declaw Big Cat cubs:

PETA: What is your criteria for deciding whether or not to declaw a big cat?

Stark: I don't have to have criteria. I own the damn cat. If I want to have it declawed, I will have it declawed. That's my prerogative. I chose to do it. I declaw my house cats.

PETA: Did you consult any veterinarians about whether you should declaw big cats?

Stark: I don't need to declaw [sic] a veterinarian to whether – know whether I need to declaw a big cat. It's not the veterinarian's discretion, and I don't give a damn what any veterinarian's opinion is. I don't care.

PETA: Is that a no?

Stark: I mean, I've talked to them about it. I don't give a sh*t what their opinion is.

(PETA's First Submission at 11, Stark Dep. 139:10 – 25).

With respect to the actual procedure, Stark has used two veterinarians for declawing: Dr. Rick Pelphrey and Dr. Bill McDonald. (PETA's First Submission at 104 – 130, Deposition of Rick Pelphrey ("Pelphrey Dep.") at 136:21 – 24; Filing No. 108, Transcript of Preliminary Injunction Hearing ("PI Tr.") at 6:16 – 7:8). Dr. Pelphrey typically uses a surgical scalpel or a guillotine to declaw the Cub and then uses tissue glue to close the wound

. (Pelphrey Dep. at 136:25 – 137:11). He gives declawed Cubs a long-acting corticosteroid after the procedure; he usually does not prescribe any pain medications. (Pelphrey Dep. at 139:3 – 25). Dr. McDonald typically uses a laser and does not perform any follow-up care unless there is a complication. (PI Tr. at 13:5 – 14).

Stark also separates Big Cat Cubs from their mothers. (PETA's First Submission at 18, Stark Dep. 160:1 – 161:7). He has removed and separated a Cub from its mother as early as one day after birth. (Id. ). Stark says he does this because the mothers have abandoned their cubs. (Id. ). Stark believes it is in the best interest to pull Cubs from their mothers and raise them himself. (Id. ).

B. Stark's License under the Animal Welfare Act and USDA Inspections

Until recently, Stark has been licensed by the USDA to exhibit animals.³ (TRO Tr. at 32:5 – 10). The USDA first granted Stark a license in 1999 when he formed WIN. (Id. ). However, the USDA revoked Stark's license on February 3, 2020. (Filing No. 359-1, PETA's Evidence in Support of Emergency Petition at 57, USDA Termination Letter at 1).

The decision to revoke Stark's license was based, in part, on Stark's checkered history with USDA inspections. In 2013, the USDA cited Stark for not having an attending veterinarian to treat animals at WIN's facility. (Filing No. 57-3, USDA Inspection Report, June 28, 2013 at 1). During that inspection, Stark also admitted to euthanizing a leopard without discussing treatment with a veterinarian. (Id. ). In September of 2014, the USDA cited Stark for improperly handling Cubs during the Tiger Baby Playtime:

2.131(c)(1) REPEAT

HANDLING OF ANIMALS.

On Tuesday August 19th, 2014 two inspectors from USDA/AC attended the 6pm `Tiger Playtime' at the facility. During this encounter up to 30 members of the public are allowed to sit in an area surrounded by fence panels under a tent where two tiger cubs (said to be 14 weeks of age and approximately 25-30lbs) were let into the room to interact freely with the adults and children present. During the show, the licensee was in the area for the first part of the event with one assistant. When the Licensee left, another assistant entered the area. Before the release of the white tiger into the room, the licensee aggravated the tiger by grabbing her by the scruff and bouncing her up and down on his lap and ground while the tiger hissed, growled, and bit at his glove covered hands. The tiger's ears were pinned to the side of its head during that part of the encounter and was not acting in a relaxed manner. As described by the Licensee, the tiger was pissed off. While the tiger was agitated, the licensee dropped the tiger in the lap of the unsuspecting member of the public sitting next to him. The tiger jumped off this man's lap with its ears still pinned to its head. The tiger then walked away and flopped onto the floor. At this time the tiger's ears returned to a normal unagitated position and another tiger was released into the room. The tigers walked, played, and jumped around on many members of the public. People were lying down next to them, petting them and taking photos with them during the length of the event.

(USDA Inspection Report, September 8, 2014 at 2). The following year, USDA cited Stark for dragging cubs who were exhausted out into the Tiger Baby Playtime room and using a riding crop to swat the cubs to discipline them:

On Sunday Sept 13, 2015 two APHIS officials attended the 2 pm Tiger Playtime at this facility. There were approximately 40 to 50 members of the public in attendance, which included one new born baby, one toddler and approximately 10 other children under 10 years of age. The attendants gave a few Instructions on keeping fingers or other body parts out of the cub's mouth and instructed the public to stay seated but crawl or move around as much as possible. The gate to the cub area was opened and Iwo cubs walked out. One cub appeared to be asleep and was dragged out by Its front feet, the fourth cub was pushed out from behind. According to the attendants these cubs were 16 weeks old and weighed 35 to 40 lbs. There were seven attendants present, mostly young people. The owner was not present until the photo opportunity alter the Playtime Each cub, except for the

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