Letting the Cat out of the Bag (Part II)

While ligers were a frequent fascination for Napoleon Dynamite, for the USFWS’ prosecution of the tiger part trade, were a head-ache. Do hybrids tigers, whether a cross between a Bengal and Siberian Tiger and/or with a Lion, fall under the Endangered Species Act?  This problem is best exemplified through “Operation Snowplow” by the USFWS.  The defendant was convicted in killing tigers and then selling their parts.  These actions constituted violations of the Endangered Species Act and the Lacey Act, a set of Federal laws that prohibit the trade of illegally taken wildlife[1].  In his appeal the defendant raised the argument that the government did not prove beyond a reasonable doubt that the animals he killed were not hybrids.  He raises this contention because hybrid animals would not fall under the ESA.  It was eventually proved that the defendant did know he was dealing with purebred species protected under the ESA, but his defense reveals a potential loop-hole for future exploitation[2].  While the USFWS has the authority to regulate the interstate sale of purebred tiger species, most privately held tigers are of mixed breeds.  USFWS could potentially be left without the authority to prosecute future cases[3].

In October 2011, tigers and other exotic animals ran wild after their troubled owner released them near Zanesville, Ohio.  The state legislature swiftly enacted the “Ohio Dangerous Wild Animals and Restricted Snakes Act” in order to better regulate exotic animals in the state.  Among the new legislative requirements included minimum housing requirements for animals as well as mandatory “micro-chipping”.  Non-compliance of the Act resulted in the seizure of the animals by the state.[4] Such regulations did not come without objections to the financial burdens that the requirements would place on big cat owners.  Furthermore, many questioned if their property rights would be violated by the seizure of their animals if they were found to be in non-compliance. In 2012 a class action lawsuit, filed on behalf of multiple exotic animal owners in Ohio, sought constitutional protection from the act[5].  The plaintiffs had various complaints: One claimed that the anesthesia required for micro-chipping would be “malpractice” if it were to be done onto their aging African serval and lion.  Another plaintiff claims that the economic value of their “property” (animals), has been reduced from upwards of $70,000 to a debt of $116,290 in order to gain compliance with the Act.  Furthermore, an expert witness brought by the plaintiffs details the detrimental health effects of micro-chipping reptiles.  Yet another complains that his hyenas are”…nervous animals and their skin is much different than that of other animals.” 

One exception to the act was if the facility was accredited by the Association of Zoos and Aquariums (AZA) and Zoological Association of America (ZAA).  Many of the owners, however, made the claim that they did not share the views of the aforementioned organizations, leading to the question of whether such organizations could justly play a part in the regulation of the private property without violating the 1st Amendment of the United States Constitution.

  How exactly did such diversified claims hold up in the legal setting?  Countering the claims of anesthesia for “micro-chipping”, Dr. Junge, a doctor from the Columbus Zoo claimed that anesthesia should play no role in the “microchipping” process and that no ill effects should be an animal being “microchipped”.  In regards to the zoological organizations, Dr. Forshey offered the solution that if one had ideological oppositions to the AZA and ZAA, one could get a permit directly from the state of Ohio.    

The judiciary, in turn, ruled on the concerns of the plaintiff’s in regards to their complaints of: (1) The violation of the first amendment due to supposed obligatory membership to the AZA and ZAA, (2) violating of due process rights since the Act has no exemption for the “microchipping” process, and (3) a fifth amendment violation for no legislated compensation for the financial burden of becoming compliant with the legislation.  The court agreed with Dr. Forshey in that there were many other ways to obtain approval as an exotic animal owner, other than becoming a member of the ZAA or AZA.  In regards to the due process violation: The court cited an Ohio Supreme Court case that found that “dogs are private property to a qualified extent” due to the fact that they may be “destroyed or otherwise dealt with…for the protection of its citizens”[6] . Applying this reasoning to exotic animals, the court found that the: “Plaintiffs have a limited property interest in their exotic animals” and thus, their constitutional rights were not implicated. 

Finally, in regards to the compensation for “microchipping”:  The plaintiffs claim that the act of “microchipping”, “constitutes a permanent physical occupation of their property” and that the Act prevents them from realizing full financial gain from their animals.  The court, cited a case against the City of Los Angeles that affirmed spay and neutering regulations. It concluded that “microchipping” was far less invasive, economically inconsequential, and most importantly, constitutional[7].  In the case of capital improvements to enclosures of exotic animals, the court while “sympathetic” to owners with inadequate enclosures, ruled that it is within the Ohio’s General Assembly’s power to police animals that pose a public threat.  Thus, the court dismissed the constitutional question of the violation of property rights since exotic animal owners have limited property rights in regards to their animals.  The court cited two cases involving dogs in Colorado in making their decision [8]

In the United States, legislation that protects endangered tigers from human interaction protecting tigers and emerged starting in 1900.  From that point on, complicated legal questions arose: Distinguishing if one was selling a tiger dead or alive, hybrid or pure-bred, domestically or internationally, in-state or interstate was crucial.  The following legal specifications are a testament to the complexities of legislating a large and dangerous animal that is found living in larger quantities in the United States than in its native habitat of Asia.  Furthermore, the implementation of restrictions on existing tiger owners provides for many legal questions on the international, federal, state, and local levels.  These include the questions of whether "grace periods" can be retroactively enforced, the degree of ownership and responsibility of a tiger owner, and even what is considered an endangered "tiger".   

 

  

        

          

 


[1] "ESA Basics." U.S. Fish & Wildlife Service. N.p., Jan. 2013. Web. 23 May 2015.

U.S. v. Kapp, 419 F.3d 666 (Fed. 7th Cir., 2005)

[2] U.S. v. Kapp, 419 F.3d 666 (Fed. 7th Cir., 2005)

[3] Kutner, Max. "America Has a Tiger Problem and No One's Sure How to Solve It." Smithsonian Magazine, Feb. 2015. Web. 24 May 2015.

[4]Pelzer, Jermey. "New State Rules on Exotic Animals to Take Efect Jan." Northeast Ohio Media Group [Columbus, Ohio] 31 Dec. 2013: n. pag. Print.

 "The Latest From the National Desk." Los Angeles Times Blogs. N.p., 20 Oct. 2011. Web. 23 May 2015.

[5] Wilkins v. Daniels (S.D. Ohio, 2012)

[6] Toledo v. Tellings, 114 Ohio St.3d 278, 2007-Ohio-3724.

[7] Concerned Dog Owners of Calif. v. City of Los Angeles, 194 Cal. App.4th 1210, 1230 (2011)

[8] Colorado Dog Fanciers, Inc. v. City and County of Denver, 820 P.2d 644, 651 (Colo. 1991)

See Am. Canine Found. v. City of Aurora, 618 F. Supp.2d 1271, 1278 (2009)

Wilkins v. Daniels (S.D. Ohio, 2012)