Wilkins v. Daniels

• Decision Date: 20 December 2012
• Docket Number: Case No. 2:12–cv–1010.
• Citation: 913 F.Supp.2d 517
• Court: U.S. District Court — Southern District of Ohio
• Parties: Terry WILKINS, et al., Plaintiffs, v. David T. DANIELS, et al., Defendants.

913 F.Supp.2d 517

Terry WILKINS, et al., Plaintiffs,

v.David T. DANIELS, et al., Defendants.

Case No. 2:12–cv–1010.

United States District Court,

S.D. Ohio,

Eastern Division.

Dec. 20, 2012.

Robert M. Owens, Owens Law Office LPA, Delaware, OH, for Plaintiffs.

James Robert Patterson, Allan K. Showalter, Pearl Chin, Ohio Attorney General's Office, Columbus, OH, for Defendants.

OPINION AND ORDER

GEORGE C. SMITH, District Judge.

This case involves a constitutional challenge to the Ohio Dangerous Wild Animals and Restricted Snakes Act, Ohio Revised Code §§ 935.01—935.99. This matter is before the Court on Plaintiffs' Motion for a Temporary Restraining Order and Preliminary Injunction (Doc. 3). The briefing has been completed and an evidentiary hearing was held December 10–12, 2012. The parties agree that all the necessary facts and evidence, as well as the applicable law, are before the Court, and that this action is ripe for full adjudication on its merits. After review of the parties' arguments, the Court has agreed to consolidate the evidentiary hearing with a trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. For the reasons that follow, Plaintiffs' Motion for a Temporary Restraining Order and Preliminary/Permanent Injunction is DENIED.

I. BACKGROUND

After consideration of the parties' submissions, the admissible evidence, and the applicable law, the Court makes the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure.¹

A. The Plaintiffs

The Plaintiffs in this case are all owners of multiple breeds of exotic animals and are seeking relief from enforcement of the Ohio Dangerous Wild Animals and Restricted Snakes Act (“the Act”). Plaintiff Cyndi Huntsman owns “Stump Hill Farm,” an exotic animal education center in Massillon, Ohio. Stump Hill Farm is a non-profit organization dedicated to educating the public about rare and endangered animal species in captivity and in the wild. Stump Hill Farm is a federally licensed, USDA-inspected facility that also provides rescue and care to animals in need. Its goal is to raise public awareness that will aid the preservation of animals that are disappearing from the wild. The farm cares for a total of 49 animals, such as white tigers, lemurs, leopards, lions, bears, monkeys, chimpanzees, and baboons. The farm's animals have appeared on television shows with Jack Hanna, Maury Povich, David Letterman, Good Morning America, The Howie Mandel Show, Roseanne Barr, Woodrow the Woodsman, The Fox 8 Morning Show, Critter Gitters, The National Wildlife Federation, Rachel Ray, Jay Leno & many others; and they have been used in photo shoots for Vogue, Cosmo, Cosmo Girl, Esquire, Ladies Home Journal & Celebrity Living. The farm owns and cares for the “Massillon Tiger” that serves as the mascot for Massillon High School. (Compl. ¶¶ 13–18).

Plaintiff Huntsmen testified that she has thirty-two years of hands-on experience with the types of animals subject to this Act. She believes that none of the exceptions to a ban on the animals applies to her. She does not agree with the political views of the Association of Zoos and Aquariums (“AZA”) or the Zoological Association of America (“ZAA”), nor does she want to microchip ² her animals, which is required to seek a Wildlife Shelter Permit. She acknowledged that she has registered all 36 of her animals that are subject to the Act and has purchased microchips for each of them, but she has not implanted the chips into the animals. Plaintiff Huntsmen expressed concern for the safety of all of her animals if required to implant them with microchips. She discussed two specific animals that are very old, an African serval and an African lion. According to her treating veterinarian, subjecting them to anesthesia to implant a microchip could endanger their lives. Dr. Jo Anne Green who testified for Plaintiffs confirmed that it would be “malpractice” to put the serval and lion under anesthesia (Tr. at 59). She further opined that “it would be cruel and unjustified to anesthesize these animals for the sole purpose of putting in a PIT tag.” (Tr. at 61).

Plaintiff Huntsmen estimates the value of her property to be around $73,400 based on the ages of the animals and whether they are breedable. (Tr. at 32). After this Act was implemented, she now estimates the value of her property to be zero because she can no longer sell any of her animals, nor can she move her animals to be able to do the photo shoots, TV shows, and similar events. (Tr. at 33–35). Plaintiff Cyndi Huntsmen further testified that it is not economically feasible to meet the requirements to seek a permit under the Act to be able to retain her animals. She estimates the costs to be $116,290 to accommodate the provisions of the Act. (Tr. at 33–36).

Plaintiff Terry Wilkins is a resident of the State of Ohio who owns a retail store in Columbus, Ohio, “Captive Born Reptiles,” which has been in the business of selling reptiles and amphibians since 1994. Mr. Wilkins has worked with reptiles and amphibians since the 1960s, having traveled to over 19 countries and collected over 100 species of over 1,000 reptiles and amphibians, including exceptionally rare breeds and endangered species, such as bog turtles, green anacondas, and St. Lucian Island Boas. Mr. Wilkins took a herpetology course while enrolled at The Ohio State University. He has previously been qualified as an expert witness on the subject of breeding and caring for reptiles and amphibians and provided some expert testimony in this case. For conservation and humanitarian purposes, Mr. Wilkins does not take and resell animals that have been captured from the wild; he only sells animals that are born and bred in captivity. Mr. Wilkins wishes to retain his business and his captive-born species of animals, many of which are now regulated under the Act. (Compl. ¶¶ 7–12). Mr. Wilkins currently possesses 29 reticulated pythons, 15 alligators, 10 Burmese pythons, 8 green anacondas, and 3 African rock pythons that are subject to this Act. (Tr. at 200). He does not hold any licenses, nor is he a member of AZA or ZAA. His opinion of these organizations is that they are “hindrances to the propagation of endangered species worldwide. Their programs aren't consistent with the preservation of these animals.” (Tr. at 203).

Plaintiff Wilkins describes that the cost of complying with the regulations set forth in the Act exceeds the commercial value of the animals, rendering it economically infeasible to retain possession of the animals. Mr. Wilkins wishes to retain and breed his animals, rather than sterilize them. He testified that to be able to meet the State's requirements for cages, he “would be required to build caging that would be about six times the sizes of my current caging” and “wouldn't fit inside my retail stores” (Tr. at 220). He further opined based on his training, experience and work in the field of herpetology, that bigger cages are not better for snakes, “[y]ou would kill the animals putting them in those cages.” “These animals are ambush predators. This animal does not go hunting for its food like a wolf or tiger or bear, what have you. They wait for the food to come to them. That animal's home range is going to encompass the territory that it needs to catch the food it needs to catch, to breed when it needs to breed, what have you. The home range of a lot of these animals amounts to a few feet.” (Tr. at 220–21). Additionally, in over-sized cages, there is a problem keeping the reptiles hot and humid. (Tr. at 221).

Additionally, he opined that microchipping is dangerous to animals, specifically his reptiles in that it could cause them to go sterile. (Tr. at 216–17). He further described how dangerous and difficult it would be to insert the 14 gauge needle with the microchip into a baby alligator. He stated that “there is not much room on that animal to put that tag up underneath the skin. So, you are going to end up going inside the ribcage, inside of the tail, and that's a 14–gauge needle.” (Tr. at 213).

Plaintiff Mike Stapleton is the owner of Paws and Claws Animal Sanctuary in Prospect, Ohio which provides tiger and bear rescue from closing zoos, other sanctuaries that are overcrowded or closing, and from private owners who can no longer care for them. He is currently caring for 11 animals, including 6 black bears and 5 tigers. (Compl. ¶¶ 19–21). He is not a breeder or seller, nor does he make any profit from his animals. (Tr. at 146). Mr. Stapleton testified that he registered his animals with the State and has implanted microchips in his animals. (Tr. at 146–148). He personally injected his animals with the microchips without using anaesthesia because they trust him. However,he would not have recommended that anyone else do this. Mr. Stapleton expressed concern that he registered his animals and planned to keep then, but the caging standards set forth in the emergency rules came out after he registered. Now, he does not believe there is any way he can meet the new standards that have been promulgated under the law. (Tr. at 147). He further stated that despite the fact that the standards for the AZA or ZAA are less stringent, he would not join those organizations because they want to tell him how to take care of his animals. (Tr. at 150).

Plaintiff Sean Trimbach is the owner of Best Exotics LLC in Medway, Ohio, an Ohio Department of Natural Resources (“ODNR”), USDA-licensed “alternative livestock farm” which breeds, raises, and sells exotic animals. Best Exotics currently has a Syrian brown bear, 2 ringtail lemurs, an African serval, and 113 venomous and constrictor snakes. (Am. Compl. ¶¶ 26–28). His business is not open to the public. (Tr. at 192). Mr. Trimbach testified that his animals that are subject to the Act were microchipped by a veterinarian. Two of his animals, the bear and the serval, were anesthetized to insert...