Tranchita v. Callahan et al
OPINION AND ORDER. For the reasons stated in the accompanying Opinion and Order, the Court denies Tranchita's motion for a TRO and preliminary injunction. Signed by the Honorable Sara L. Ellis on 1/5/2021:Mailed notice(rj, )
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
COLLEEN CALLAHAN, JOHN FISCHER,
and JOSHUA MOOI,
No. 20 C 5956
Judge Sara L. Ellis
OPINION AND ORDER
On April 24, 2019, agents from Illinois’ Department of Natural Resources (“the IDNR”)
seized four coyotes Plaintiff Tomi Tranchita was raising at her home in Tinley Park, Illinois.
Three of the four coyotes died after the seizure; the only surviving coyote, Luna, is now living at
the Indiana Coyote Rescue Center (“ICRC”) in Burlington, Indiana. Luna is elderly and in poor
health, and Tranchita asserts that Luna may not have much longer to live. Tranchita wants ICRC
to return Luna so that she can live out her remaining days with Tranchita. Tranchita claims,
however, that the ICRC will not release Luna to her until a court declares that Tranchita can
legally possess Luna in Illinois.
On October 7, 2020, Tranchita filed this lawsuit against Colleen Callahan, Director of the
IDNR; John Fischer, Legal Counsel for the IDNR; and Joshua Mooi, a Conservation Police
Sergeant with the IDNR (collectively, “Defendants”). 1 A week later, Tranchita moved for a
temporary restraining order (“TRO”) and preliminary injunction enjoining Defendants from
(1) requiring her to hold a hound running area permit (hereinafter, “Hound Running Permit”) in
order to possess Luna in Illinois; and (2) seizing Luna so long as Tranchita holds a current fur1
Tranchita also named Kwame Raoul, Illinois’ Attorney General, as a defendant, but the Court dismissed
Raoul from this case on October 19, 2020.
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bearing mammal breeder permit (hereinafter, “Breeder Permit”). The Court held two video
hearings on Tranchita’s motion, and the motion is now fully briefed. Because Tranchita has not
demonstrated that she is likely to succeed on the merits of her claims, the Court denies her
motion for a TRO and preliminary injunction .
Tranchita is a wildlife educator living in Tinley Park, Illinois, a suburb of Chicago. In
2006, she began caring for orphaned coyote pups, which she exhibited to the public under a
federal Class C Exhibitor License issued by the United States Department of Agriculture
(“USDA”). Tranchita also obtained Breeder Permits in 2011, 2012, 2013, 2014, and 2015. After
her 2015 Breeder Permit expired in March 2016, however, Tranchita forgot to obtain another
Breeder Permit. She then did not obtain a Breeder Permit in 2017, 2018, or before May 2019.
Nor did she attempt to obtain a Hound Running Permit at any time before May 2019.
By April 2019, Tranchita was raising four coyotes, including Luna. Although Tranchita
possessed a USDA Exhibitor License at this time, she did not possess a Breeder Permit or a
Hound Running Permit.
Breeder and Hound Running Permits
In Illinois, an individual must possess a Breeder Permit before she can keep or raise a fur-
bearing mammal, such as a coyote. Tranchita v. Dep’t of Nat. Res., 2020 IL App (1st) 191251,
¶ 16; see also 520 Ill. Comp. Stat. 5/1.2g (designating coyotes as one of thirteen species of “furbearing mammals”). Section 3.25 of Illinois’ Wildlife Code states that “[b]efore any individual
shall hold, possess or engage in the breeding or raising of live fur-bearing mammals, he shall
first procure a fur-bearing breeder permit” from the IDNR. 520 Ill. Comp. Stat. 5/3.25. Section
3.25 further states that the IDNR will not issue a Breeder Permit to a person for breeding or
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raising “coyotes acquired after July 1, 1978, except for coyotes that are held or possessed by a
person who holds a hound running area permit under Section 3.26 of this Act.” Id.
Section 3.26 of the Wildlife Code, in turn, requires “[a]ny person . . . who desires to
establish a hound running area to pursue authorized species with hounds in a way that is not
designed to capture or kill the authorized species” to apply for a Hound Running Permit. 2 Id.
§ 3.26(a). Upon receiving an application for a Hound Running Permit, the IDNR “shall assess
the ability of the applicant to operate a property as a hound running area,” and the IDNR shall
approve and issue a Hound Running Permit if it “finds that (i) the area meets the requirements of
all applicable laws and rules, (ii) the authorized species are healthy and disease free, and (iii) the
issuing of the permit will otherwise be in the public interest.” Id. The applicable administrative
regulations require a hound running area for use with coyotes to, among other things, have an
area of at least ten contiguous acres. See Ill. Admin. Code tit. 17, § 970.40(d)(1), (2) (requiring
at least one hundred sixty contiguous acres for coyote hound running areas and ten to eighty
contiguous acres for coyote hound running areas “for inexperienced hounds one year or less in
Thus, for an individual to legally possess coyotes in Illinois after July 1978, she must
have a Breeder Permit, which she should not be able to obtain unless she already has a Hound
Running Permit. 3 According to Defendants, this means that Tranchita must possess both a
Breeder Permit and a Hound Running Permit before she can possess a coyote.
“‘Hound running’ means pursuing any fox, coyote, raccoon, or rabbit with a hound,” 520 Ill. Comp.
Stat. 5/1.2y, and a “hound running area” is “[a] fenced enclosure authorized by [the IDNR] where fit
animals,” such as coyotes, “may be pursued by hounds,” Ill. Admin. Code tit. 17, § 970.10.
The administrative regulations further indicate that an individual who applies for a Hound Running
Permit so that she can raise coyotes must already have a Breeder Permit. See Ill. Admin. Code tit. 17,
§ 970.20(c) (“Applicants for Hound Running Area Permits must possess a Fur-bearing Mammal Breeders
Permit for possession of coyotes[.]”). This potentially creates a Catch-22 for individuals who want to
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However, Tranchita claims that an IDNR officer who visited her property in 2011
instructed her that she only needed to purchase a Breeder Permit to raise coyotes. She also
asserts that Defendants have allowed or currently allow ten other individuals or entities to
possess coyotes without requiring them to have a Hound Running Permit. And in practice, an
individual raising coyotes can obtain a Breeder Permit without first obtaining a Hound Running
Permit. The IDNR issued a Breeder Permit to Tranchita five straight years (2011, 2012, 2013,
2014, and 2015) even though she was raising coyotes without a Hound Running Permit at the
time of issuance. The IDNR again issued Breeder Permits to Tranchita in 2019 and 2020
although she did not have a Hound Running Permit when she applied for either of these permits.
Indeed, because the IDNR does not require an applicant for a Breeder Permit “to specify what
species of fur bearing mammal [she] intend[s] to keep,” Doc. 13-1 at 3 (¶ 10), it may not even
know whether the applicant seeks to raise a fur-bearing mammal that requires a Hound Running
Permit, i.e., a coyote.
The IDNR’s Seizure of Coyotes from Tranchita
Mooi is a Conservation Police Sergeant with the IDNR. In March 2019, Mooi, who lived
near Tranchita, became aware of her coyotes, and on April 23, 2019, Mooi obtained a warrant to
search and seize any coyotes from Tranchita’s residential property on the basis that they
constituted evidence of various offenses under the Wildlife Code, including a violation of
Section 3.25. The next day, April 24, Mooi and five other armed IDNR agents seized
Tranchita’s four coyotes. Mooi issued Conservation Citations and Complaints to Tranchita
possess coyotes: they must obtain a Hound Running Permit before obtaining a Breeder Permit, but they
may not be able to obtain a Hound Running Permit without first obtaining a Breeder Permit. But neither
side raises this issue, so the Court does not say anything more about it. See Marling v. Littlejohn, 964
F.3d 667, 669 (7th Cir. 2020) (declining to pursue a potential argument that a party did not make).
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charging her with violating three provisions of the Wildlife Code, including Section 3.26.
Tranchita later pleaded guilty to one count of violating Section 3.25.
Three of the four coyotes seized by IDNR on April 24 ultimately died. The only
surviving coyote, Luna, is currently being held at the ICRC. Luna is elderly and in poor health,
and Tranchita asserts that Luna may not have much longer to live.
Tranchita’s 2019 and 2020 Breeder and Hound Running Permits
Tranchita applied for, and received, a Breeder Permit on May 3, 2019, shortly after the
IDNR’s seizure of coyotes from her property. She also applied for, and received, a Hound
Running Permit on May 18, 2019. But four days later, the IDNR notified Tranchita that it had
erroneously issued the May 18, 2019 Hound Running Permit and that it would be revoking the
permit on June 24, 2019. According to the IDNR, in applying online for the Hound Running
Permit, Tranchita completed a form that “was not in compliance with Illinois law and
administrative rules.” Doc. 13-1 at 5. The IDNR notified Tranchita that she could request a
hearing to appeal the revocation “within 30 days of the date of this notice” pursuant to 520 Ill.
Comp. Stat. 5/3.33. Id. The IDNR also included the “correct” Hound Running Permit
application for Tranchita to complete. Id.
Tranchita completed this application, which she submitted to the IDNR on June 20, 2019.
In the application, Tranchita identified the size of her property, 1.125 contiguous acres, and
represented that she would be keeping one coyote on the property. Tranchita also submitted a
“petition for hearing request.” Id. at 18. On August 26, the IDNR returned Tranchita’s
application on the basis that it did not meet the necessary requirements for a Hound Running
Permit. Specifically, Tranchita’s proposed hound running area (“HRA”) did not meet the
definition of an HRA, the minimum HRA acreage required was not achievable in the proposed
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location, and the proposed HRA was “located in a developed urban area where the operation of
an HRA would not be compatible or appropriate.” Id. at 8. After the IDNR denied her June
2019 application, Tranchita withdrew her request for a hearing. See id. at 3 (¶ 6) (“After the
second application was denied, Ms. Tranchita withdrew her appeal.”).
On March 2, 2020, Tranchita again applied for, and received, a Breeder Permit. The
following month, she applied for a Hound Running Permit as well. Despite its revocation of
Tranchita’s previous Hound Running Permit in June 2019, and despite its denial of Tranchita’s
Hound Running Permit application in August 2019, the IDNR issued a Hound Running Permit to
Tranchita on April 30, 2020. At the hearings on Tranchita’s motion, Defendants asserted that
this issuance was erroneous because Tranchita does not meet the acreage requirements for a
Hound Running Permit. Defendants say that Tranchita was able to obtain the 2020 Hound
Running Permit “due to a technological error with the IDNR website’s permit payment portal.”
Doc. 13-1 at 3 (¶ 7). Defendants further contend that “no one at IDNR was aware” that IDNR
had issued the 2020 Hound Running Permit to Tranchita until she filed her motion because she
“did not submit any supporting paperwork or documentation” for the permit. Id. (¶ 8). At the
same time, there is no indication that the IDNR asks an individual who applies online for a
Hound Running Permit to submit any sort of “supporting paperwork or documentation.” Nor
does it appear that the IDNR asks an individual applying online for a Hound Running Permit for
any information that would shed light on the propriety of issuing the permit. See Doc. 1 ¶ 71
(allegation that Tranchita’s 2020 online application process for a Hound Running Permit
consisted of providing her IDNR customer number, driver license number, social security
number, date of birth, and payment); Oct. 19, 2020 Hr’g Tr. at 5:17–24 (assertion by Tranchita’s
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counsel that the online application process for a Hound Running Permit consists of giving a
name, driver’s license number, and payment).
Although Tranchita currently possesses a 2020 Breeder Permit and a 2020 Hound
Running Permit—both of which do not expire until March 31, 2021—she is afraid that if Luna is
returned to her, the state will revoke her Hound Running Permit again, prosecute her again, and
re-seize Luna. Tranchita’s fear is not unfounded; at the hearings on Tranchita’s motion,
Defendants asserted its intent to revoke Tranchita’s 2020 Hound Running Permit on the basis
that the IDNR erroneously issued the permit to Tranchita. 4
Tranchita’s State Court Litigation
While Tranchita was navigating the permit application process in 2019 and 2020, she was
also seeking relief in Illinois state court. On May 14, 2019, Tranchita filed a six-count complaint
against IDNR, Mooi, and Cook County in the Circuit Court of Cook County, asserting, among
other things, violations of her constitutional rights under the Fourth and Fourteenth
Amendments. Tranchita, 2020 IL App (1st) 191251, ¶ 9; Verified Compl., No. 2019 CH 05968,
2019 WL 10377774 (Ill. Cir. Ct. May 14, 2019). The same day, Tranchita “filed an emergency
motion for preliminary injunctive relief,” arguing that the lives of the coyotes seized by the
IDNR “were at risk if [the coyotes were] not returned” to her. Tranchita, 2020 IL App (1st)
191251, ¶ 9; Mem. in Support of Mot. for TRO, No. 2019 CH 05968, 2019 WL 10377772 (Ill.
Cir. Ct. May 14, 2019). Tranchita alleged a procedural due process claim; she argued that
because “she had a constitutionally protected property interest in the coyotes pursuant to her
federal exhibitor license[,] . . . she was entitled to notice and an opportunity for a hearing prior to
the seizure of the coyotes.” Tranchita, 2020 IL App (1st) 191251, ¶¶ 9, 12. She also “argued
The Court ordered Defendants not to revoke Tranchita’s 2020 Hound Running Permit pending the
Court’s resolution of Tranchita’s motion.
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that she had a likelihood of success on the merits because she had valid possession of the coyotes
under Illinois law” and that “she would suffer irreparable harm” if the coyotes were not returned
because they “were unique creatures with no market value and no amount of money could
compensate for their loss.” Id. ¶ 9.
Three days later, the state trial court denied Tranchita’s motion for preliminary injunctive
relief. Id. ¶¶ 3, 10. The trial court found that Tranchita failed to show a likelihood of success on
the merits of her complaint and that she “did not have a protected property interest in [Luna]
because she did not possess the proper Illinois permit at the time of the seizure.” Id. ¶¶ 8, 10.
Tranchita appealed, contending that she had “a property interest in her coyotes” when Mooi
seized them. Id. ¶ 1.
On May 1, 2020, the Illinois Appellate Court issued an opinion affirming the trial court’s
order. Id. ¶¶ 1, 24. The appellate court held that under Illinois law, a person must have a
Breeder Permit before she can legally possess or raise a coyote. Id. ¶ 16. The court further
found that because Tranchita did not have a Breeder Permit when the IDNR seized the coyotes in
April 2019, the coyotes were “contraband” in which she could not legally assert a right of
ownership or possession. Id. ¶¶ 6, 17. And “[w]ithout a legitimate claim of entitlement to the
[coyotes, Tranchita] had no right to a property interest protected by due process when her
coyotes were seized.” Id. ¶ 24.
In coming to its conclusion, the appellate court rejected Tranchita’s argument that section
48-10(b) of Illinois’ Criminal Code “recognizes a ‘right of property’ in her coyotes pursuant to”
her federal exhibitor’s license. Id. ¶¶ 18–20. The court, however, expressly declined to consider
whether Tranchita “could or should regain possession of Luna, based on the fact she now has a
valid [Breeder Permit], or on the merits of any pending claims in [the] proceedings below.” Id.
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¶ 23. The court also did not address whether an individual who wants to possess a coyote must
possess a Hound Running Permit or any other permit in addition to a Breeder Permit. In other
words, although the appellate court found that a Breeder Permit was necessary to possess a
coyote in Illinois, it did not consider whether a Breeder Permit was sufficient to possess a coyote.
Tranchita did not ask the Supreme Court of Illinois to review the appellate court’s
decision. Instead, she voluntarily dismissed her state court complaint without prejudice three
weeks after the appellate court issued its decision. See Order, No. 2019 CH 05968, 2020 WL
5584983 (Ill. Cir. Ct. May 22, 2020).
Tranchita’s Federal Court Litigation
More than four months after dismissing her state court litigation, Tranchita filed a six-
count verified complaint under 42 U.S.C. § 1983 in this Court. In her complaint, Tranchita
alleges that Defendants violated her constitutional rights by requiring her to hold a Hound
Running Permit before she can keep a coyote, and she asserts that the Animal Welfare Act
(“AWA”), 7 U.S.C. § 2131 et seq., preempts such a requirement. Tranchita does not seek
damages; she only seeks prospective declaratory and injunctive remedies that are all directed to
allowing her to keep Luna in Illinois without a Hound Running Permit. 5 On October 14, a week
after filing her complaint, Tranchita moved for a TRO and preliminary injunction enjoining
Defendants from (1) requiring her to hold a Hound Running Permit in order to keep Luna in
Illinois; and (2) seizing Luna so long as Tranchita holds a current Breeder Permit. Defendants
oppose the motion.
Tranchita expressly limits her claims against Defendants to those allowed by the Ex parte Young
doctrine, which provides an exception to a state’s sovereign immunity under the Eleventh Amendment by
permitting a private party to “sue a state officer in his or her official capacity to enjoin prospective action
that would violate federal law” or the Constitution. Ameritech Corp. v. McCann, 297 F.3d 582, 585–86
(7th Cir. 2002) (citation omitted).
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Temporary restraining orders and preliminary injunctions are extraordinary and drastic
remedies that “should not be granted unless the movant, by a clear showing, carries the burden of
persuasion.” See Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citation omitted). The party
seeking such relief must satisfy three threshold requirements: she must show (1) some likelihood
of success on the merits; (2) an inadequate remedy at law; and (3) that irreparable harm is likely
if the relief is not granted. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Mays v.
Dart, 974 F.3d 810, 818 (7th Cir. 2020). 6 If the moving party fails to satisfy any one of these
threshold requirements, the Court must deny the preliminary relief. Girl Scouts of Manitou
Council, Inc. v. Girl Scouts of the U.S.A., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If the
moving party makes this threshold showing, however, the Court must “proceed to a balancing
analysis, where the [C]ourt must weigh the harm the denial of the preliminary injunction would
cause the plaintiff against the harm to the defendant if the [C]ourt were to grant it.” Mays, 974
F.3d at 818. “This balancing process involves a ‘sliding scale’ approach: the more likely the
plaintiff is to win on the merits, the less the balance of harms needs to weigh in [her] favor, and
vice versa.” Id. Where appropriate, the Court’s balancing process should also consider the
public interest, that is, “any effects that granting or denying the preliminary injunction would
have on nonparties.” Girl Scouts, 549 F.3d at 1086. “[T]he moving party bears the burden of
showing that a preliminary injunction [or TRO] is warranted.” Courthouse News Serv. v. Brown,
908 F.3d 1063, 1068 (7th Cir. 2018).
Although Winter and Mays involved preliminary injunctions, “[t]he standards for granting a temporary
restraining order and preliminary injunction are the same.” USA-Halal Chamber of Com., Inc. v. Best
Choice Meats, Inc., 402 F. Supp. 3d 427, 433 n.5 (N.D. Ill. 2019) (citing cases).
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Likelihood of Success on the Merits
The Court begins with the likelihood of success requirement. To meet this requirement,
the “plaintiff must demonstrate that ‘its claim has some likelihood of success on the merits.’”
Mays, 974 F.3d at 822 (citation omitted). “What amounts to ‘some’ depends on the facts of the
case at hand because of [the Seventh Circuit’s] sliding scale approach,” id., but satisfying this
standard requires a “strong” showing that “normally includes a demonstration of how the
applicant proposes to prove the key elements of its case,” see Ill. Republican Party v. Pritzker,
973 F.3d 760, 762–63 (7th Cir. 2020). And it is clear that “a mere possibility of success” does
not meet this standard. Id. at 762. Moreover, “[i]f it is plain that the party seeking the
preliminary injunction has no case on the merits, the injunction should be refused regardless of
the balance of harms.” Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir. 2018)
(emphasis added) (citation omitted).
The Court first addresses Defendants’ contention that the Rooker-Feldman doctrine bars
Tranchita’s claims. Then, the Court turns to Tranchita’s assertion that she is likely to succeed on
her “class-of-one” equal protection claim, preemption claim, free exercise claim, procedural due
process claim, and substantive due process claim. 7 As discussed further, the Court concludes
that Tranchita is unlikely to succeed on the merits of any of these claims.
Defendants first argue that Tranchita “has little chance of success on the merits because
her claims are barred under the Rooker-Feldman doctrine.” Doc. 13 at 9. Specifically,
Defendants claim that Tranchita is essentially asking the Court “to overrule the Illinois appellate
Tranchita represents that she intends to amend her due process claim based on vagueness and, therefore,
she does not argue for injunctive relief based on this claim.
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court’s decision on her state court motion for a temporary restraining order/preliminary
injunction.” Id. Tranchita counters that none of her claims challenge the IDNR’s 2019 seizure
of coyotes and that she is not asking the Court to overrule the state appellate court’s decision.
The Rooker-Feldman doctrine bars federal courts from hearing “cases brought by statecourt losers complaining of injuries caused by state-court judgments rendered before the district
[court] proceedings commenced and inviting district court review and rejection of those
judgments.” Lennon v. City of Carmel, 865 F.3d 503, 506 (7th Cir. 2017) (citation omitted).
“Claims that directly seek to set aside a state-court judgment are de facto appeals that trigger the
doctrine[,] [b]ut even federal claims that were not raised in state court, or that do not on their
face require review of a state court’s decision, may be subject to Rooker-Feldman if those claims
are closely enough related to a state-court judgment.” Mains v. Citibank, N.A., 852 F.3d 669,
675 (7th Cir. 2017) (citation omitted). The question is “whether the federal plaintiff is alleging
that his injury was caused by the state-court judgment.” Id. If the plaintiff alleges such an injury
or she “seeks relief that is tantamount to vacating the state judgment,” Rooker-Feldman applies.
Bauer v. Koester, 951 F.3d 863, 866 (7th Cir. 2020); Mains, 852 F.3d at 675. On the other hand,
if the plaintiff’s suit “does not seek to vacate the judgment of the state court” and “alleges an
injury independent of the state-court judgment that the state court failed to remedy, RookerFeldman does not apply.” Mains, 852 F.3d at 675.
The Court first considers whether there is a state-court “judgment” that could trigger the
Rooker-Feldman bar in the first place. See 18B Edward H. Cooper, Fed. Prac. & Proc. Juris.
§ 4469.2 (2d ed. Oct. 2020 update) (“The starting point [for a Rooker-Feldman analysis] is clear.
If there is no state-court judgment, whatever injury is claimed cannot have been caused by a
judgment and Rooker-Feldman does not apply.”). In Bauer, the Seventh Circuit signaled that
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Rooker-Feldman’s judgment requirement does not require a final, appealable state-court order or
judgment; rather, the requirement is satisfied so long as the state-court case is “effectively final.”
See 951 F.3d at 867 (citing Malhan v. Sec’y U.S. Dep’t of State, 938 F.3d 453, 459 (3d Cir.
2019)). Under this “practical finality” approach, there is a judgment for Rooker-Feldman
purposes if “the state case has ended.” Malhan, 938 F.3d at 460; see also Bauer, 951 F.3d at 867
(“[I]nterlocutory orders entered prior to the final disposition of state court lawsuits are not
immune from the jurisdiction-stripping powers of Rooker-Feldman.” (citation omitted)). A state
proceeding ends when it “has reached a point where neither party seeks further action,” for
example, where the state court “does not issue a judgment but merely an interlocutory order . . .
and the parties then voluntarily terminate the litigation.” Malhan, 938 F.3d at 459 (citations
omitted). Here, the state trial court issued an interlocutory order denying Tranchita’s motion for
a preliminary injunction, see Heim v. Herrick, 344 Ill. App. 3d 810, 812–13 (2003), which the
state appellate court affirmed. Tranchita thereafter voluntarily dismissed her claims, thereby
ending the state-court litigation. See Order, 2020 WL 5584983. Therefore, under Bauer and
Malhan, there is a state-court “judgment” under Rooker-Feldman. See Bauer, 951 F.3d at 867;
Malhan, 938 F.3d at 459–60.
Next, the Court must determine whether Defendants have demonstrated that the RookerFeldman doctrine likely bars Tranchita’s claims in this lawsuit. In the state court litigation, the
appellate court only addressed a procedural due process claim based on Tranchita’s asserted
property right in the coyotes and a corresponding entitlement to notice and a pre-deprivation
hearing before the IDNR’s April 2019 seizure. Tranchita, 2020 IL App (1st) 191251, ¶¶ 12, 23.
The appellate court rejected this claim; it found that an individual must have a Breeder Permit to
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legally possess coyotes, and that because Tranchita did not possess this permit at the time of the
seizure, she did not have a protected property right in the coyotes at that time. Id. ¶¶ 16–20, 24.
Tranchita’s claims in this litigation do not appear to allege injuries that derive from the
appellate court’s findings about the Breeder Permit requirement, whether Tranchita satisfied this
requirement in April 2019, and whether Tranchita was entitled to procedural due process in April
2019. Instead, Tranchita’s federal claims all assert injuries stemming from Defendants’ postApril 2019 insistence that she possess a different permit, the Hound Running Permit, before she
can keep a coyote. See Mains, 852 F.3d at 675 (“If the claim alleges an injury independent of the
state-court judgment that the state court failed to remedy, Rooker-Feldman does not apply.”). At
this point, the Court does not see (and Defendants do not explain) how addressing these asserted
injuries would require the Court to evaluate any of the appellate court’s findings. See Bauer, 951
F.3d at 856 (Rooker-Feldman bars claims that require the court “to evaluate the state court
judgments” (citation omitted)). Even if the Court finds that Defendants are impermissibly
requiring Tranchita to hold a Hound Running Permit before possessing a coyote, such a finding
would not alter or contradict any of the appellate court’s findings because the appellate court did
not address, let alone make any findings about, this issue. See Milchtein v. Chisholm, 880 F.3d
895, 898 (7th Cir. 2018) (“The vital question [for the Rooker-Feldman inquiry] is whether the
federal plaintiff seeks the alteration of a state court’s judgment. The [plaintiffs] do not, so the
Rooker[-]Feldman doctrine does not block this suit.”); cf. Bauer, 951 F.3d at 866 (“This suit is
barred by the Rooker-Feldman doctrine, however, because any finding in favor of the [plaintiffs]
would require us to contradict the state court’s orders.”).
The Court concludes that Defendants have failed to demonstrate that the Rooker-Feldman
doctrine likely bars Tranchita’s claims in this lawsuit. Therefore, the Court declines to deny
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Tranchita’s motion on that basis and proceeds to consider her likelihood of success for each
“Class-of-One” Equal Protection Claim (Count I)
Tranchita first alleges a “class-of-one” claim under the Equal Protection Clause of the
Fourteenth Amendment. To succeed on her class-of-one equal protection claim, Tranchita “must
prove that (1) [she] has been ‘intentionally treated differently from others similarly situated,’ and
(2) ‘there is no rational basis for the difference in treatment.’” Chi. Studio Rental, Inc. v. Ill.
Dep’t of Com., 940 F.3d 971, 979–80 (7th Cir. 2019) (citation omitted). Tranchita contends that
Defendants are “intentionally treating her differently than others similarly situated” by requiring
her to hold a Hound Running Permit to possess a coyote, while, at the same time, not requiring
other individuals and entities that possess coyotes to hold the same permit. Doc. 6 at 6–7. She
also contends that there is no rational basis for this differential treatment. 8
Most of the parties’ briefing on Tranchita’s class-of-one claim focuses on the “similarly
situated” requirement. As “similarly situated” comparators, Tranchita identifies ten individuals
and entities that allegedly have possessed or currently possess, with IDNR’s knowledge, coyotes
without a Hound Running Permit. 9 Defendants counter with evidence that seven of these
comparators possess scientific and special purpose permits (commonly referred to as
rehabilitator permits), which appear to allow the possession of coyotes without a Hound Running
Tranchita further asserts that “there is no rational basis for Defendants to require anyone to hold a
Hound Running Area permit, unless those persons desire to run hounds after coyotes, which Tranchita
clearly does not desire.” Doc. 6 at 7. The Court addresses this assertion in connection with Tranchita’s
free exercise claim.
These alleged comparators are: (1) Flint Creek Wildlife Rehabilitation (“Flint Creek”); (2) Dawn Keller,
the founder and director of Flint Creek; (3) Forest Preserve District of DuPage County d/b/a Willowbrook
Wildlife Center (“Willowbrook”); (4) Big Run Wolf Ranch (“Big Run”); (5) John Basile, the founder and
president of Big Run; (6) Wheaton Park District d/b/a Cosley Zoo (“Cosley Zoo”); (7) Fox Valley
Wildlife Center (“Fox Valley”); (8) Treehouse Wildlife Center (“Treehouse”); (9) Hoo Haven Wildlife
and Education Center (“Hoo Haven”); and (10) Karen Herdklotz, the director of Hoo Haven.
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Permit. Doc. 13-2 at 2 (¶¶ 2, 3); see 520 Ill. Comp. Stat. 5/3.22 (authorizing the issuance of
scientific and special purpose permits to individuals handling or possessing wildlife in certain
circumstances). As for the three comparators that do not possess rehabilitator permits,
Defendants claim they are not similarly situated because two of them, Cosley Zoo and Big Run,
“are large educational facilities that cannot be compared to [Tranchita] keeping coyotes on her
residential property[,]” and the third comparator, John Basile, is the president of Big Run. Doc.
13 at 12 & n.2.
The Court does not need to resolve the parties’ various arguments on this issue, however,
because even if Tranchita could prove that she is similarly situated with at least one of the ten
purported comparators, she still is unlikely to succeed on her class-of-one claim. The essence of
Tranchita’s claim is that Defendants are selectively enforcing the Wildlife Code’s Hound
Running Permit requirement against her but not others. E.g., Doc. 1 ¶¶ 303, 310, 317
(“Tranchita alleges that Defendants have singled her out for selective enforcement for irrational
and improper reasons. . . . Defendants are selectively enforcing this dual permit requirement. . . .
Tranchita, compared with the comparators, is being selectively treated.”); Doc. 6 at 6 (“Despite
Defendants’ awareness of others[’] possession of coyotes without holding a Hound Running
Area permit, to date Tranchita is the only person who has been subject to enforcement.”). But
enforcement of a law, by its nature, is a prosecutorial decision that entails selectivity, Van Dyke
v. Vill. of Alsip, 819 F. App’x 431, 432 (7th Cir. 2020), and the government does not violate the
Equal Protection Clause simply by enforcing a law against only some of the law’s violators,
Hameetman v. City of Chicago, 776 F.2d 636, 641 (7th Cir. 1985) (“The Constitution does not
require states to enforce their laws (or cities their ordinances) with Prussian thoroughness as the
price of being allowed to enforce them at all.”); Smith v. Wolf, No. 13 cv 63, 2013 WL 3168753,
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at *4 (N.D. Ill. June 20, 2013) (allegations of “uneven law enforcement” did not state a class-ofone claim). “Selective, incomplete enforcement of the law is the norm in this country,”
Hameetman, 776 F.2d at 641, and selective prosecution in the form of a government’s failure “to
prosecute all known lawbreakers . . . has no standing in equal protection law,” even though “it
involves dramatically unequal legal treatment[,]” with some people “being punished and others
getting off scot-free,” Esmail v. Macrane, 53 F.3d 176, 178–79 (7th Cir. 1995); see also
Engquist v. Or. Dep’t of Agr., 553 U.S. 591, 603–04 (2008) (“[A]llowing an equal protection
claim on the ground that a [speeding] ticket was given to one person and not others, even if for
no discernible or articulable reason, would be incompatible with the discretion inherent in the
challenged action.” (emphasis added)). Accordingly, a defendant’s enforcement of a law or
ordinance against the plaintiff and not others “is not typically a basis for a class-of-one
challenge” unless the enforcement is “based on some invidious discrimination.” Van Dyke, 819
F. App’x at 431–33 (affirming the district court’s dismissal of a class-of-one claim based on the
defendant’s enforcement of a zoning ordinance against the plaintiff but not against others who
were violating the same ordinance).
Defendants’ enforcement of the Wildlife Code, and the Hound Running Permit
requirement in particular, is necessarily selective and discretionary—there is no indication that
the IDNR has the time, money, and resources to identify every single individual or entity in
Illinois that violates the Wildlife Code, including the Hound Running Permit requirement at
issue. Tranchita, therefore, must show that invidious discrimination motivated Defendants’
enforcement of the Hound Running Permit requirement against her but no other alleged
violators. Van Dyke, 819 F. App’x at 432–33. Yet Tranchita does not argue in her briefing that
she will be able to prove invidious discrimination; she only claims that Defendants’ selective
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enforcement lacks a rational basis. Doc. 6 at 7. This is not enough to support a class-of-one
claim based on selective enforcement. See United States v. Moore, 543 F.3d 891, 899–900 (7th
Cir. 2008) (finding that the plaintiff’s class-of-one challenge to the defendant’s prosecutorial
decision was foreclosed because the challenge was based on irrationality, as opposed to invidious
discrimination, and “a no-rational-basis challenge to the exercise of prosecutorial discretion is
doomed to failure”); CBS Outdoor, Inc. v. Vill. of Plainfield, 38 F. Supp. 3d 896, 906–08 (N.D.
Ill. 2014) (finding that the plaintiff failed to sufficiently allege a class-of-one claim where it
alleged “selective prosecution” without alleging that the distinction made between the plaintiff
and another was “retaliatory or inappropriately motivated in any way”); Stevo v. Frasor, No. 07
C 6647, 2011 WL 253963, at *12 (N.D. Ill. Jan. 3, 2011) (“Simply to assert that the City
enforced its Water Ordinance against one resident and not against others, without more, would
not make out a Constitutional claim.”).
Furthermore, Defendants appear to have a rational basis for enforcing the Hound
Running Permit requirement against Tranchita: the desire to enforce the Wildlife Code enacted
by Illinois’ legislature. See Murphy v. Vill. of Plainfield, 918 F. Supp. 2d 753, 757–58, 762–63
(N.D. Ill. 2013) (finding that the defendant’s enforcement of an ordinance against the plaintiffs
but not others who were violating the ordinance passed the rational basis test because it “served a
government interest by enforcing local law”). And there are conceivable rational bases for
Defendants’ failure to enforce the Hound Running Permit requirement against any other alleged
violator. See Chi. Studio Rental, 940 F.3d at 980 (a rational basis exists so long as the Court
identifies “a conceivable rational basis for the different treatment,” even if it is not “the actual
basis for [the] defendant’s actions”). Perhaps the IDNR does not currently have the manpower
or resources to sufficiently investigate whether others illegally possess coyotes without a Hound
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Running Permit. Or perhaps the IDNR is in the process of conducting these investigations.
Ultimately, Tranchita has not shown that she is likely to negate “any reasonably conceivable
state of facts that could provide a rational basis” for Defendants’ differential treatment, as she
must do to prevail on her class-of-one claim. Miller v. City of Monona, 784 F.3d 1113, 1121
(7th Cir. 2015) (citation omitted).
In sum, Tranchita’s displeasure and disagreement with Defendants’ failure to enforce the
Hound Running Permit requirement against other alleged violators likely does not give rise to a
class-of-one claim. See Storey v. City of Alton, 710 F. App’x 706, 707–08 (7th Cir. 2018)
(noting that the plaintiff, who alleged a class-of-one claim based on the City’s selective
enforcement of local ordinances, had “no right to insist that the City exercise its prosecutorial
discretion to cite other property owners”). Given the applicable law, Tranchita has not
demonstrated that she is likely to succeed on the merits of her equal protection claim.
AWA Preemption Claim (Count II)
Tranchita also brings a claim asserting that the AWA preempts the IDNR’s policy
requiring an individual who wants to possess a coyote to obtain a Hound Running Permit—a
requirement that is set forth in Section 3.25 of the Wildlife Code. “When the federal government
acts within its constitutional authority, it is empowered to preempt state or local laws to the
extent it believes such action to be necessary to achieve its purposes.” DeHart v. Town of Austin,
39 F.3d 718, 721 (7th Cir. 1994). The federal government preempts state or local laws in three
situations: (1) where Congress expressly defines “to what extent a federal statute preempts a state
or local law”; (2) where “a pervasive scheme of federal regulation makes it reasonable to
conclude that Congress intended exclusive federal regulation of the area”; and (3) “where state or
local law actually conflicts with federal law,” such that “‘compliance with both federal and state
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or local regulations is a physical impossibility,’ or when state or local law ‘stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of Congress.’” Id.
(citations omitted). The ultimate task in a preemption inquiry “is to ascertain the intent of
Congress.” Id. at 722.
Tranchita only argues that the third situation, conflict between federal and state law,
applies, so the Court limits its analysis to that situation. Tranchita contends that the Wildlife
Code’s Hound Running Permit requirement “conflicts with the AWA primarily because animal
fighting is a violation of the AWA, and [her] USDA License would be revoked and she could be
charged with animal cruelty if she engaged in hound running.” Doc. 6 at 8–9. Neither argument
First, hound running in Illinois does not constitute an “animal fighting venture” that the
AWA prohibits. An animal fighting venture requires fighting between at least two animals, 7
U.S.C. § 2156(f)(1), whereas hound running, as authorized in Illinois, is intended to prohibit any
violent contact between the animals, see 520 Ill. Comp. Stat. 5/3.26(b)(1) (“Authorized species
may be pursued with dogs in a hound running area, but not in a manner or with the intent to
capture or kill.” (emphasis added)). And even if hound running, in practice, involves capturing
or killing the pursued species, this amounts to the use of hounds to hunt the pursued species,
which the AWA expressly excludes from its definition of an animal fighting venture. 7 U.S.C.
§ 2156(f)(1) (“[T]he term ‘animal fighting venture’ shall not be deemed to include any activity
the primary purpose of which involves the use of one or more animals in hunting another
animal[.]”); see also Doc. 6-5 at 6 (assertion by Tranchita that “[t]he purpose of hound running is
the training of hunting dogs”). Tranchita appears to dispute the latter conclusion by asserting
that an individual does not need a separate hunting permit to possess coyotes in Illinois, but she
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makes no attempt to explain how this assertion, even if true, makes hound running an animal
fighting venture prohibited by the AWA.
To be sure, the Court does not doubt Tranchita’s (and others’) sincere belief that hound
running is no different than dog fighting or other animal fighting ventures prohibited by the
AWA. But Tranchita does not identify any legal authority holding or even suggesting that the
members of Congress felt the same way when they passed the AWA, i.e., that Congress intended
for the AWA’s animal fighting prohibition to extend to hound running as that activity is defined
and authorized in Illinois. See DeHart, 39 F.3d at 722 (“Our ultimate task [in a preemption
analysis] is to ascertain the intent of Congress.”). In fact, the Seventh Circuit in DeHart found it
clear that Congress did not intend for the AWA to preempt or ban state legislation, like the
Wildlife Code, that regulates wild animals. Id.
Second, Tranchita does not identify any case, law, or regulation to support her claim that
engaging in hound running would result in the revocation of her USDA license and a charge of
animal cruelty. What is more, even if Tranchita had done so, she still does not point to any
aspect of the Wildlife Code that requires an individual who obtains a Hound Running Permit to
actually engage in hound running. Instead, Section 3.25 requires an individual seeking to
possess coyotes to obtain a permit that allows her to engage in hound running, if she so chooses.
Tranchita’s own actions reflect this distinction; she currently has a Hound Running Permit, yet
she is not operating a hound run or otherwise engaging in hound running. Nor does Tranchita
point to anything indicating that the IDNR requires anybody to engage in hound running simply
because they possess a Hound Running Permit. Therefore, even if federal law prohibited hound
running, an individual seeking to raise coyotes in Illinois could comply with the Wildlife Code
without running afoul of the federal prohibition by doing exactly what Tranchita is doing. See
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DeHart, 39 F.3d at 722 (finding the actual conflict preemption theory inapplicable where the
plaintiff failed to show “that it is physically impossible to comply with both the federal and local
For these reasons, Tranchita is unlikely to succeed on her AWA preemption claim.
Free Exercise Claim (Count IV)
Tranchita next asserts that the Hound Running Permit requirement violates her rights
under the Free Exercise Clause of the First Amendment. Although the Free Exercise Clause
“gives special protection to the exercise of religion,” Thomas v. Review Bd. of Ind. Emp’t Sec.
Div., 450 U.S. 707, 713 (1981), the Supreme Court has explained that “the right of free exercise
does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general
applicability on the ground that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes),’” Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 879
(1990) (citation omitted); see Grayson v. Schuler, 666 F.3d 450, 452 (7th Cir. 2012)
(“Regulations of general applicability, not intended to discriminate against a religion or a
particular religious sect, were held in [Smith] not to violate the free exercise clause.”). “Under
Smith, a neutral law of general applicability is constitutional if it is supported by a rational
basis.” Ill. Bible Colls. Ass’n v. Anderson, 870 F.3d 631, 639 (7th Cir. 2017).
The “first part of a free exercise analysis” asks whether the plaintiff has “sincere religious
beliefs.” Young v. Lane, 922 F.2d 370, 374 n.11 (7th Cir. 1991). Tranchita contends that it is
her religious belief that she must “‘do unto others as [she] would have them do unto [her],’” that
this belief “extends to animals as well as humans,” and that running hounds after coyotes violates
this belief. Doc. 1 ¶¶ 242–245; Doc. 6-5 at 6. Defendants correctly point out that Tranchita has
not specified a particular religion underlying her belief, but the Supreme Court has “reject[ed]
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the notion that to claim the protection of the Free Exercise Clause, one must be responding to the
commands of a particular religious organization.” 10 Frazee v. Ill. Dep’t of Emp’t Sec., 489 U.S.
829, 834 (1989). Moreover, “[i]t is not within the judicial ken to question the centrality of
particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of
those creeds.” Hernandez v. Comm’r, 490 U.S. 680, 699 (1989). The Court has no reason to
doubt the sincerity of Tranchita’s assertions about her religious beliefs, so it proceeds to address
whether the Hound Running Permit requirement impermissibly impedes on her right to exercise
these beliefs. See Mack v. Chaplain, No. 18-cv-00507-DRH, 2018 WL 1532813, at *1, *3 (S.D.
Ill. Mar. 29, 2018) (declining to “question the sincerity of Plaintiff’s religious beliefs” in
screening the plaintiff’s First Amendment claim under 28 U.S.C. § 1915A); Pérez v. Frank, No.
06 C 248 C, 2007 WL 1101285, at *10 (W.D. Wis. Apr. 11, 2007) (“[I]ncreasingly[,] free
exercise jurisprudence has emphasized deference to individuals’ professed beliefs, so long as
there is no reason to doubt their sincerity.”).
Next, the Court considers whether the Wildlife Code’s Hound Running Permit
requirement is neutral and generally applicable. A law is neutral so long as the object of the law
does not “infringe upon or restrict practices because of their religious motivation.” St. John’s
United Church of Christ v. City of Chicago, 502 F.3d 616, 631 (7th Cir. 2007) (citation omitted).
Relatedly, a law is generally applicable so long as it does not selectively impose “burdens only
on conduct motivated by religious belief.” Id. (citation omitted). “[T]he neutrality and general
applicability requirements usually rise or fall together.” Cassell v. Snyders, 458 F. Supp. 3d 981,
995 (N.D. Ill. 2020).
That said, the Court notes that treating others as one would be treated is generally known as the Golden
Rule, and it is a recognized tenet of several religions. See Lua Kamál Yuille, Creating a Babel Fish for
Rights & Religion: Defining “Rights” Through Sacred Texts, 25 Transnat’l L. & Contemp. Probs. 309,
326 & n.85 (2016); Jonathan Granoff, Nuclear Weapons, Ethics, Morals, and Law, 2000 B.Y.U. L. Rev.
1413, 1421 & n.37 (2000).
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The Court concludes, and Tranchita does not dispute, that the Hound Running Permit
requirement is neutral and generally applicable. The text of Sections 3.25 and 3.26 does not
refer to, let alone target, any particular religion, and there is no indication that the object of the
Hound Running Permit requirement is to restrict or otherwise influence practices based on their
underlying religious motivation. See Ill. Bible Colls., 870 F.3d at 639 (statutes were neutral
where they did “not target religion or religious institutions[,] [t]here [was] no allegation of an
underlying religious animus,” and certification under the statutes was based on secular criteria).
The Hound Running Permit requirement also applies to “[a]ny individual who, within the State
of Illinois,” wishes to possess or raise a fur-bearing mammal, regardless of the individual’s
particular religious beliefs. 520 Ill. Comp. Stat. 5/3.25; see Ill. Bible Colls., 870 F.3d at 639
(statutes were generally applicable because they “appl[ied] equally to secular and religious postsecondary institutions”).
Because the Hound Running Permit requirement is neutral and generally applicable, the
Court must next ask whether the requirement “is rationally related to a legitimate government
interest.” Ill. Bible Colls., 870 F.3d at 639; Scariano v. Justs. of Sup. Ct. of State of Ind., 38 F.3d
920, 924 (7th Cir. 1994). And it is here that Tranchita fails to show a likelihood of success on
the merits. No matter how tame a coyote may seem, it is still a wild animal that could pose
danger to other animals (such as pets) and people if it were to escape from its enclosure in a
densely populated area. Illinois has a legitimate interest in trying to prevent such situations from
occurring, and it may do so through regulating who can possess coyotes and where. See Mayle v.
City of Chicago, 803 F. App’x 31, 33 (7th Cir. 2020) (“The government has a legitimate interest
in maintaining social order and public safety. It also may legitimately give the public
predictability about what animals they may encounter in urban spaces.” (citations omitted));
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DeHart, 39 F.3d at 722 (“The traditional police power of the States is defined as the authority to
provide for the public health, safety, and morals. The regulation of animals has long been
recognized as part of the historic police power of the States.” (citations omitted) (internal
quotation marks omitted)); Cortez v. Cty. of Alameda, No. C-11-03199-YGR, 2012 WL 822377,
at *4 (N.D. Cal. Mar. 9, 2012) (“Regulation of the keeping of animals is rationally related to the
legitimate governmental interest of promoting the safety and welfare of the general public.”).
The Hound Running Permit requirement is rationally related to the government’s interest in
regulating who can keep coyotes (and where) in that it requires an individual who wants to raise
a coyote to do so on at least ten contiguous acres of land, see Ill. Admin. Code tit. 17,
§ 970.40(d)(2), which is likely impossible for an individual who wants to keep coyotes in the city
or a suburban housing development. In fact, in denying Tranchita’s second application for a
Hound Running Permit in August 2019, the IDNR specifically referred to the fact that Tranchita
lived “in a developed urban area where the operation of [a hound running area] would not be
compatible or appropriate.” Doc. 13-1 at 8. It was permissible for Illinois’ legislature to
conclude that raising coyotes is an activity that should be restricted to more rural areas, and it
was rational for the legislature to implement this restriction by way of the Hound Running
Permit requirement, which requires an amount of land that would likely prevent an individual
living in an urban or developed area from keeping a coyote.
Tranchita, however, contends that the Hound Running Permit requirement has no rational
basis because the IDNR issued her a Breeder Permit on seven occasions when she did not hold a
Hound Running Permit. But the IDNR’s repeated failure to follow the Hound Running Permit
requirement has no bearing on whether the requirement, as set forth in the Wildlife Code, has a
rational basis. Tranchita also contends (albeit in connection with her class-of-one claim) that
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there is no rational basis for the state to require individuals who do not want to run hounds to
hold a Hound Running Permit so that they can keep a coyote. This contention fails as well.
Even if an individual has no desire to keep a coyote for purposes of hound running, like
Tranchita, the state still has a legitimate interest in ensuring that the individual does not possess
the coyote in an urban or otherwise developed area. The Hound Running Permit requirement
rationally relates to this interest by limiting who can possess coyotes, and where, based on
acreage requirements. And the fact that the requirement makes certain individuals who have no
intention of hound running obtain a permit that allows them to do so does not undermine this
rational relationship. See Scariano, 38 F.3d at 925 (“Rationality does not require that a rule be
the least restrictive means of achieving a permissible end. . . . Nor is it relevant that some
unfairness results from the application of the rule. . . . Under rational basis review, some
slippage is permissible.”).
In short, because the Hound Running Permit requirement appears to be supported by a
rational basis, Tranchita is not likely to succeed on her Free Exercise claim. 11
Tranchita also contends that hound running and the Hound Running Permit requirement significantly
burden the exercise of her religious beliefs. Because the Hound Running Permit requirement is neutral
and generally applicable, the Court questions whether the free exercise analysis takes into consideration
any alleged burden on Tranchita’s beliefs. See, e.g., Nat’l Inst. of Family and Life Advocates v.
Schneider, --- F. Supp. 3d ----, 2020 WL 5253855, at *19 n.27 (N.D. Ill. Sept. 3, 2020) (noting that recent
decisions from the Supreme Court, the Seventh Circuit, and this District have not asked whether neutral
and generally applicable laws unduly burden the plaintiff’s religious practice). But even if it did, the
Court’s conclusion would not change. The Hound Running Permit requirement does not require
Tranchita to actually run hounds; it merely requires her to obtain a permit that allows her to do so. As
already noted, Tranchita’s own actions reflect this distinction; she currently has a Hound Running Permit,
yet she is not operating a hound run or otherwise engaging in hound running. Moreover, Tranchita does
not explain how merely having a Hound Running Permit—with no mandate from the state to actually
engage in hound running—substantially pressures her to behave in a way that she believes will harm other
animals. See Neely-Bey Tarik-El v. Conley, 912 F.3d 989, 1003 (7th Cir. 2019) (a substantial burden on
an individual’s religious practice “is one that ‘put[s] substantial pressure on an adherent to modify his
behavior and to violate his beliefs’” (citation omitted)). Notably, Tranchita told the IDNR that she is
“willing to purchase any permit [it] request[s] of [her],” Doc. 6-5 at 5, and she already obtained a Hound
Running Permit for 2020–2021 and attempted to obtain the same permit for 2019–2020.
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Due Process Claims (Counts V and VI)
Finally, Tranchita brings claims for procedural and substantive due process violations.
For the Constitution’s procedural and substantive due process requirements to “apply in the first
place,” the plaintiff must establish an interest that is “within the Fourteenth Amendment’s
protection of liberty and property.” Proctor v. McNeil, 14 F. Supp. 3d 1108, 1112 (N.D. Ill.
2014) (citation omitted); see Citizens Health Corp. v. Sebelius, 725 F.3d 687, 694 (7th Cir. 2013)
(“[T]he threshold question in any due process challenge is whether a protected property or liberty
interest actually exists.”). Tranchita does not assert that Defendants have impeded on a protected
liberty interest, such as “bodily integrity, the right to marry, marital privacy, and the right to have
children,” so her due process claims must be grounded in a protected property interest. See
Proctor, 14 F. Supp. 3d at 1112. “A protected property interest is a legitimate claim of
entitlement—not defined by the Constitution—but ‘by existing rules or understandings that stem
from an independent source such as state law.’” Id. (citation omitted).
Tranchita’s identification of her property interests for each due process claim has been
less than clear. Nonetheless, the Court addresses all the purported property interests it has
discerned from Tranchita’s complaint, her briefing, and her representations at the court hearings.
To the extent Tranchita has identified a protected property interest, the Court then analyzes
whether she is likely to demonstrate a violation of procedural or substantive due process with
respect to that interest.
Tranchita first appears to contend that she has a property interest in Luna that is protected
by both procedural and substantive due process. See, e.g., Doc. 1 ¶ 384 (alleging as part of her
substantive due process claim that she “has a property interest in Luna”); Doc. 6 at 13 (arguing in
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the context of her procedural due process claim that “she has a legitimate claim of entitlement to
Luna [that] is protected by due process”); Doc. 16 at 14 (arguing that she has a property interest
in Luna); Oct. 16, 2020 Hr’g Tr. at 18:3–9 (asserting that the property interest for her substantive
due process claim is “ownership of the coyote”). When Tranchita’s 2015 Breeder Permit expired
in March 2016, however, she relinquished any property interest in Luna that she may have had.
See Tranchita, 2020 IL App (1st) 191251, ¶¶ 17, 24. Moreover, she did not possess any such
property interest when the IDNR seized Luna in April 2019. Id. ¶¶ 7, 17, 24. Thus, to succeed
on this contention, Tranchita must point to something that happened after April 2019 that could
arguably return her property interest in Luna (to the extent one existed in the first place) or
provide her with a new, independent property interest in Luna.
Tranchita has not done so. First, she contends that the state appellate court “explained
that a property interest in a coyote is created when a fur-bearing mammal breeder permit is
obtained.” Doc. 16 at 14. But the appellate court did no such thing. Instead, the court explained
that Tranchita did not have a property interest in Luna at the time of the seizure because she did
not have a Breeder Permit at that time. Tranchita cannot simply take a variation of the holding’s
inverse proposition—that an individual has a property interest in a coyote if she possesses a
Breeder Permit—and declare that to constitute the appellate court’s holding. See Capitol Recs.,
Inc. v. Naxos of Am., Inc., 372 F.3d 471, 480 (2d Cir. 2004) (“An inverse statement of a
proposition is possibly but not necessarily true. That a work protected by a foreign copyright can
have its United States copyright restored does not necessarily mean that a work unprotected by a
foreign copyright cannot receive any protection in the United States.” (citation omitted));
Courtney Taylor, What are the Converse, Contrapositive, and Inverse?,
https://www.thoughtco.com/converse-contrapositive-and-inverse-3126458 (last visited Nov. 9,
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2020) (explaining that a conditional statement and its inverse are not logically equivalent). Far
from setting forth Tranchita’s explantion as a holding, the appellate court explicitly disclaimed
the explanation by noting that it was not determining whether Tranchita’s possession of the 2020
Breeder Permit entitled her to “regain possession of Luna.” Tranchita, 2020 IL App (1st)
191251, ¶ 23 (“[W]e will not determine at this time whether plaintiff could or should regain
possession of Luna, based on the fact she now has a valid permit[.]”).
Second, Tranchita argues that “the Dangerous Animal Act gives [her] a ‘right of
property’” in Luna “because [she] holds a 2020–2021 USDA Class C Exhibitor license.” Doc.
16 at 14; see also Doc. 1 ¶ 384 (“Tranchita has a property interest in Luna because she is a
federally licensed Exhibitor.”). But Tranchita made the same argument before the state appellate
court—“Plaintiff  argues that at all times she possessed a federal Class C exhibitor’s license
and that section 48-10(b) of the Criminal Code of 2012 [720 Ill. Comp. Stat. 5/48-10(b)]
recognizes a ‘right of property’ in her coyotes pursuant to her federal license”—and the appellate
court squarely rejected this argument. 12 Tranchita, 2020 IL App (1st) 191251, ¶¶ 18–20. The
Court will not question this rejection, especially given Tranchita’s representation that she is not
asking the Court “to overrule the state [appellate] court decision.” 13 Doc. 16 at 12.
Because Tranchita has not demonstrated that she is likely to establish a protected
property interest in Luna, she has failed to show that she is likely to succeed on either due
process claim based on this interest. See New Burnham Prairie Homes, Inc. v. Vill. of Burnham,
Tranchita’s briefing purports to quote 720 Ill. Comp. Stat. 585/1, see Doc. 16 at 14–15, but the
legislature repealed this statutory provision in 2013. Prior to its repeal, the statute contained the same
language as section 48-10(b) from the Criminal Code, which Tranchita relied upon in the state court
appellate proceedings. Compare 720 Ill. Comp. Stat. 585/1(a) (eff. date Jan. 1, 2011 to Dec. 31, 2012),
with Tranchita, 2020 IL App (1st) 191251, ¶ 19 (quoting 720 Ill. Comp. Stat. 5/48-10(b)).
The Court cautions Tranchita that additional reliance on arguments contradicting the state appellate
court’s findings may bring Rooker-Feldman into play and deprive the Court of jurisdiction over her
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910 F.2d 1474, 1479 (7th Cir. 1990) (“Before a party may assert a due process argument—
procedural or substantive—it must establish that it has a ‘legitimate claim of entitlement’ to the
right being asserted.” (citations omitted)); Haney v. Winnebago Cty. Bd., No. 3:19-cv-50191,
2020 WL 1288881, at *6 (N.D. Ill. Mar. 18, 2020) (“Both substantive and procedural due
process claims require a plaintiff to identify a constitutionally protected right to property or
2020 Breeder Permit
Tranchita also asserts that procedural and substantive due process protect her property
interest in the benefits of her 2020 Breeder Permit. See, e.g., Doc. 1 ¶¶ 366, 376, 385, 388, 398,
399 (asserting, in connection with both due process claims, the right to enjoy the benefits of her
2020 Breeder Permit); Oct. 16, 2020 Hr’g Tr. at 18:3–15 (asserting that her substantive due
process property interest includes “the right to possess” a coyote given by the Breeder Permit).
These benefits, Tranchita continues, allow her to possess a coyote without also having a Hound
Running Permit. See Doc. 1 ¶¶ 375, 376, 398, 399; Doc. 6 at 13 (“IDNR has a long-standing
custom and practice of issuing the [Breeder Permit] to Tranchita, without requiring her to also
hold a Hound Running Area permit. . . . The banning of Tranchita from possessing a coyote
without a Hound Running Permit has deprived Tranchita of her protected property interest.”).
“[I]n some instances, permits and licenses, once granted, can constitute protected
property interests, at least for due process purposes.” Dyson v. City of Calumet City, 306 F.
Supp. 3d 1028, 1041 (N.D. Ill. 2018). “To maintain a claim of property over a . . . license or
permit, a plaintiff must show that she has ‘a legitimate claim of entitlement to it,’ rather than ‘a
unilateral expectation to it.’” Id. (citation omitted). Defendants do not argue that Tranchita lacks
a legitimate claim of entitlement to her 2020 Breeder Permit, and they have not expressed any
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intention to revoke this permit, as they have with Tranchita’s 2020 Hound Running Permit.
Thus, the Court assumes for purposes of Tranchita’s motion that she is legitimately entitled to
the 2020 Breeder Permit.
But that does not end the inquiry; the Court must also determine what rights are, or are
not, conferred by the 2020 Breeder Permit. Tranchita asserts that her 2020 Breeder Permit
entitles her to possess a coyote without also owning a Hound Running Permit, and she claims
that three reasons support this purported entitlement: (1) the state’s policy and custom of issuing
her Breeder Permits and allowing her to keep coyotes while only having that permit; (2) the state
appellate court’s decision; and (3) the plain language of the statute. Doc. 1 ¶¶ 366, 367, 388,
389; Doc. 6 at 12–13 (“A policy or custom can form the basis of a property interest. . . . IDNR
has a long-standing custom and practice of issuing the [Breeder Permit] to Tranchita, without
requiring her to also hold a [Hound Running Permit].”); Doc. 16 at 4–5 (arguing that in light of
the state appellate court’s decision, “as long as Tranchita holds [her 2020 Breeder Permit,] Luna
will not be contraband if she is reunited with Tranchita in Illinois”).
The Court begins with the plain language of the relevant statutory provision. Section
3.25 of the Wildlife Code states that “[b]efore any individual shall hold, possess or engage in the
breeding or raising of live fur-bearing mammals, he shall first procure a fur-bearing mammal
breeder permit.” 520 Ill. Comp. Stat. 5/3.25. Thus, an individual must first have a Breeder
Permit before she can possess any fur-bearing mammal, like a coyote, in Illinois. Id.; see also
520 Ill. Comp. Stat. 5/1.2g (identifying coyote as one of thirteen “fur-bearing mammals”).
However, this provision is subject to exceptions for striped skunks and coyotes, which are set
forth in the last paragraph of Section 3.25:
No fur-bearing mammal breeder permits will be issued to hold,
possess, or engage in the breeding and raising of striped skunks
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acquired after July 1, 1975, or coyotes acquired after July 1, 1978,
except for coyotes that are held or possessed by a person who
holds a hound running area permit under Section 3.26 of this Act.
520 Ill. Comp. Stat. 5/3.25. Pursuant to this paragraph, the IDNR will not issue a Breeder Permit
to an individual for keeping coyotes unless the individual also holds a Hound Running Permit.
As can be seen, nothing in Section 3.25 suggests that an individual can legally possess a coyote
in Illinois with only a Breeder Permit. Rather, the structure and language of Section 3.25
indicate that Illinois’ legislature intended for the possession of coyotes to be generally
prohibited, with one limited exception carved out for individuals who possess both a Breeder
Permit and a Hound Running Permit.
The state appellate court’s decision, which the Court considers next, is not to the
contrary. Tranchita asserts that because the appellate court held that “coyotes possessed without
[a Breeder Permit] are contraband,” Tranchita, 2020 IL App (1st) 191251, ¶ 24, individuals
“who possess coyotes with a [Breeder Permit] do not possess contraband,” Doc. 16 at 5. But
Tranchita’s argument relies upon the same logical fallacy that she used with her argument about
Luna. The inverse of the appellate court’s holding upon Tranchita seeks to rely—if an individual
has a Breeder Permit, then she does not possess contraband—is not necessarily true. For
instance, an individual who possesses a coyote while having a Breeder Permit but not a Hound
Running Permit does not comply with Section 3.25 and, therefore, possesses contraband.
Tranchita, 2020 IL App (1st) 191251, ¶ 17 (“Wildlife possessed ‘contrary to any of the
provisions [of the Wildlife Code]’ is contraband.” (quoting 520 Ill. Comp. Stat. 5/1.2c)). And
the appellate court did not address whether a Breeder Permit alone was sufficient to possess a
coyote; it only addressed whether a Breeder Permit was necessary to possess a coyote.
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Therefore, the state appellate court’s decision provides no support for Tranchita’s contention that
her 2020 Breeder Permit alone entitles her to possess a coyote.
That brings the Court to Tranchita’s last argument: that the IDNR’s custom and policy of
issuing her Breeder Permits and allowing her to keep coyotes without a Hound Running Permit
created an entitlement to possess a coyote based on a Breeder Permit alone. For this argument,
Tranchita points to the fact that the IDNR issued her a Breeder Permit on several separate
occasions without requiring her to first have a Hound Running Permit and at times (from 2011
through 2015) when she already possessed coyotes. She also claims that an IDNR officer told
her in 2011 that she only needed a Breeder Permit to keep her coyotes.
A protected property interest may “arise from mutually explicit understandings,” and “an
established custom or policy may be used as evidence that a mutually explicit understanding
exists.” Davis v. City of Chicago, 841 F.2d 186, 188 (7th Cir. 1988). The understanding must be
truly mutual, however; “a merely subjective and unilateral expectancy is not protected by due
process.” Id. A party using “evidence of custom or policy to establish a mutually explicit
understanding capable of giving rise to a legitimate claim of entitlement . . . must demonstrate an
expectation . . . that was legally enforceable, a mutually binding obligation.” Common v.
Williams, 859 F.2d 467, 470 (7th Cir. 1988) (citations omitted) (internal quotation marks
omitted). A “mutually explicit understanding” that constitutes a property interest, however,
“cannot be based on the representations of government officials who are not authorized to make
such representations.” Wolf v. City of Fitchburg, 870 F.2d 1327, 1334 (7th Cir. 1989); cf.
Williams v. Off. of Chief Judge of Cook Cty., 839 F.3d 617, 625 (7th Cir. 2016) (“[u]nauthorized
acts of ministerial officers or misinterpretations generally do not” bind a municipality under the
doctrine of equitable estoppel). The plaintiff bears the burden of demonstrating the existence of
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a mutually explicit understanding. See Crull v. Sunderman, 384 F.3d 453, 464–65 (7th Cir.
Tranchita is unlikely to demonstrate, based on custom, policy, or mutually explicit
understanding, that her 2020 Breeder Permit entitles her to possess a coyote without also owning
a Hound Running Permit. As an initial matter, the Court is skeptical that the IDNR’s interactions
with one person, Tranchita, are sufficient to demonstrate a department-wide custom or policy.
Cf. Daniel v. Cook Cty., 833 F.3d 728, 734 (7th Cir. 2016) (noting, in the context of a Monell
claim, that a plaintiff “must show more than the deficiencies specific to his own experience” to
“prove an official policy, custom, or practice”). The Court also questions whether the IDNR
officer’s apparently incorrect interpretation of the law in 2011 and the IDNR’s erroneous
issuances of Breeder Permits could be found to manifest the IDNR’s explicit understanding and
agreement that an individual could, contrary to the Wildlife Code, possess coyotes with only a
Breeder Permit. Cf. Wolf, 870 F.2d at 1334 (noting that a “mutually explicit understanding”
cannot be based on unauthorized representations). Rather, these actions simply seem to reflect
imperfect or lax enforcement of the Wildlife Code.
But regardless of any mutual understanding Tranchita and the IDNR may have had in the
past, the IDNR has made it known that it did not understand its issuance of the Breeder Permit in
March 2020 to allow Tranchita to possess coyotes. Ever since Tranchita filed the state court
litigation in May 2019, the IDNR has consistently taken the position that Tranchita needed both a
Breeder Permit and a Hound Running Permit to possess a coyote. See, e.g., Doc. 6-14 at 8–9
(May 16, 2019 court filing: “Illinois law clearly states that coyotes are considered contraband
unless the individual has both a fur-bearing mammal breeder permit and a hound running permit
under Section 3.26 of the Act.”); Doc. 6-17 at 16 (Dec. 31, 2019 court filing: “The only way to
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lawfully keep coyotes in Illinois is to have both a fur-bearing mammal breeder permit and a
hound running area permit.”); Doc. 6-16 at 4 (Jan. 16, 2020 court filing: “The plain language of
the Wildlife Code provides [that] the fur-bearing mammal permit does not allow for the
possession of coyotes. The only exception to this bar is if an individual possesses a hound-area
running permit.”); see also Doc. 1-7 (Oct. 24, 2019 correspondence from Fischer to Tranchita:
“The possession of a fur bearing breeder permit alone, or with a USDA Exhibitor’s license, does
not allow you to possess coyotes in the State of Illinois.”). In light of these assertions, it is
unlikely that Tranchita can show that both she and the IDNR understood that the issuance of the
Breeder Permit in March 2020 entitled her to own a coyote without a Hound Running Permit.
And that this may have been Tranchita’s unilateral understanding is not enough to establish the
requisite property right. Davis, 841 F.2d at 188 (“[A] merely subjective and unilateral
expectancy is not protected by due process.”).
For these reasons, Tranchita is unlikely to show that she has a protected property interest
in the right to possess a coyote based on her 2020 Breeder Permit alone. Therefore, she is
unlikely to succeed on the merits of either due process claim based on this interest. See New
Burnham, 910 F.2d at 1479; Haney, 2020 WL 1288881, at *6.
2020 Hound Running Permit
For the first time in her reply, Tranchita asserts that she has a protected interest in the
2020 Hound Running Permit “because she holds this permit, she has held this permit for seven
months, and IDNR issued her that permit.” Doc. 16 at 4. She also asserts that she has “a
protected interest in not having the permit revoked unlawfully.” 14 Id.
Although Defendants did not confirm their intention to revoke the 2020 Hound Running Permit until
the Court’s hearings on Tranchita’s motion, which took place after Tranchita filed her opening motion
and brief, Tranchita knew before the hearings that revocation was a possibility, as reflected in her
complaint and opening memorandum. See, e.g., Doc. 1 ¶ 267 (“Tranchita is fearful that IDNR will
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Tranchita is unlikely to succeed on either a procedural or substantive due process claim
based on this alleged property interest. “[T]o maintain a claim of property over a governmentissued benefit, such as a license or permit, a plaintiff must show she has ‘a legitimate claim of
entitlement to it.’” Dyson, 306 F. Supp. 3d at 1041 (emphasis added) (citations omitted). The
“legitimacy” requirement means that a plaintiff cannot have a property right in a permit that was
erroneously issued. See id. (building permits that were “invalid when issued” to the plaintiff
“could not have provided her with a [protected] property interest in proceeding with her
project”); Space Station 2001, Inc. v. Moses, 118 Ill. App. 3d 658, 663 (1983) (“A building
permit cannot be granted in violation of the terms of a zoning ordinance; an unauthorized permit
is a nullity and it confers no right on the permittee.”); see also New Burnham, 910 F.2d at 1479–
80 (noting holdings from other circuits that a due process claim does not exist unless the plaintiff
establishes a right to receive the permit being asserted as the protected property interest).
Here, Tranchita does not meaningfully dispute that the IDNR erroneously issued the 2020
Hound Running Permit. Notably, she does not argue that she meets all the necessary
requirements for a Hound Running Permit. Nor could she, as her property is only 1.125
contiguous acres, which is well below the minimum number of contiguous acres required for a
Hound Running Permit. See Ill. Admin. Code tit. 17, § 970.40(d)(2) (requiring at least ten
contiguous acres for coyote hound running areas “for inexperienced hounds one year or less in
age”). Thus, because Tranchita does not satisfy at least the acreage requirement for a Hound
revoke her 2020–2021 Hound Running Area permit.”); Doc. 6 at 5–6 (“[A]lthough IDNR issued [the
2020 Hound Running Permit], [Tranchita] fears this permit will be revoked.”). Thus, Tranchita arguably
lost her chance to argue that the 2020 Hound Running Permit constituted a protected property interest.
See O’Neal v. Reilly, 961 F.3d 973, 974 (7th Cir. 2020); Franklin v. Howard Brown Health Ctr., No. 17 C
8376, 2018 WL 4590010, at *2 (N.D. Ill. Sept. 25, 2018) (“[R]eply briefs are . . . not for raising and
developing points that ought to have been raised and developed in an opening brief.”). The Court has
nonetheless considered the merits of this argument.
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Running Permit, she likely does not have a legitimate claim to her 2020 Hound Running Permit
that entitles her to procedural or substantive due process. 15
Moreover, even if Tranchita had a protected property interest in her 2020 Hound Running
Permit, she still would be unlikely to succeed on either due process claim. With respect to
procedural due process, the IDNR’s current revocation process provides her a sufficient
opportunity to be meaningfully heard. See Carmody v. Bd. of Trs. of Univ. of Ill., 747 F.3d 470,
474 (7th Cir. 2014) (“The fundamental requirement of due process is the opportunity to be heard
at a meaningful time and in a meaningful manner.” (citation omitted) (internal quotation marks
omitted)). The Wildlife Code allows the IDNR to revoke a Hound Running Permit if, among
other reasons, the property or area is being “operated in violation of other provisions of this Act,
or in an unlawful or illegal manner.” 520 Ill. Comp. Stat. 5/3.33. But before the IDNR can
revoke the permit, it must give the licensee “at least 15 days notice, in writing, of the reasons for
the” revocation, as well as “an opportunity to appear before the [IDNR] or a representative
thereof” to oppose the revocation. Id. Indeed, when the IDNR notified Tranchita of the
revocation of her 2019 Hound Running Permit on May 22, 2019, it explained that it would be
revoking the permit more than a month later, on June 24, 2019. In the meantime, Tranchita had
the opportunity to request a hearing to appeal the revocation. See Doc. 13-1 at 5 (“In accordance
Tranchita also suggested at the second hearing that Defendants should be equitably estopped from
revoking her 2020 Hound Running Permit, see Oct. 19, 2020 Hr’g Tr. at 7:18–8:24, and Defendants
address this issue in their opposition, Doc. 13 at 19–20. But in her reply to Defendants’ opposition,
Tranchita does not even mention estoppel with respect to the 2020 Hound Running Permit, let alone
develop an argument to counter Defendants’ argument. Thus, Tranchita abandoned any such estoppel
argument for purposes of this motion. See Alioto v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir. 2011) (a
party waives an argument related to a discrete issue by failing to develop the argument); see also Econ.
Folding Box Corp. v. Anchor Frozen Foods Corp., 515 F.3d 718, 721 (7th Cir. 2008) (“It is not the
court’s responsibility to research the law and construct the parties’ arguments for them.”). In any event,
equitable estoppel is unlikely to apply because, among other things, Tranchita does not argue that she
substantially changed her position in reliance on the IDNR’s erroneous issuance of the 2020 Hound
Running Permit. See Williams, 839 F.3d at 625 (“Under Illinois law, to obtain equitable estoppel against
a municipality, a plaintiff must demonstrate that . . . the aggrieved party substantially changed its position
as a result of its justifiable reliance [on the municipality’s affirmative act.]”).
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with 520 ILCS 5/3.33, you may file a request for a hearing to appeal this revocation within 30
days of the date of this notice.”). Thus, the IDNR did not immediately revoke Tranchita’s 2019
Hound Running Permit, and Tranchita had a meaningful opportunity to challenge the revocation
before it actually took place. And if the IDNR revokes Tranchita’s 2020 Hound Running Permit,
she will have the same opportunity to challenge the revocation before it goes into effect. See 520
Ill. Comp. Stat. 5/3.33; Doc. 13-1 at 3 (¶ 9) (“If IDNR revokes Ms. Tranchita’s 2020–2021
hound running area permit she will receive notice of the revocation (similar to [the May 22, 2019
notice of revocation]) and will have an opportunity for a hearing to appeal the revocation.”).
This likely provides sufficient procedural due process to Tranchita. See Harper v. Va. Dep’t of
Taxation, 509 U.S. 86, 101 (1993) (if the state “‘offers a meaningful opportunity for taxpayers to
withhold contested tax assessments and to challenge their validity in a predeprivation hearing,’
the ‘availability of a predeprivation hearing constitutes a procedural safeguard . . . sufficient by
itself to satisfy the Due Process Clause’” (citation omitted)).
As for Tranchita’s substantive due process claim, “when a substantive-due-process
challenge involves only the deprivation of a property interest,” like the 2020 Hound Running
Permit, “a plaintiff must show ‘either the inadequacy of state law remedies or an independent
constitutional violation’ before the court will even engage in [the] deferential rational-basis
review.” Lee v. City of Chicago, 330 F.3d 456, 467 (7th Cir. 2003) (citation omitted).
Tranchita’s briefing makes no attempt to establish either of these threshold requirements, so she
has failed to show a likelihood of success on her substantive due process claim based on the
2020 Hound Running Permit for this reason as well. See GEFT Outdoors, LLC v. City of
Westfield, 922 F.3d 357, 368–69 (7th Cir. 2019).
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Because Tranchita has no likelihood of succeeding on the merits of the claims she
pursues in her motion, the Court does not need to further analyze “the ‘threshold phase’ for
preliminary injunctive relief, or to move to the ‘balancing phase.’” Id. at 367–68. The Seventh
Circuit, however, has encouraged district courts to “conduct at least a cursory examination” of all
the preliminary injunction considerations even where, as here, the plaintiff does not satisfy one
of the threshold requirements. Girl Scouts, 549 F.3d at 1087. The Court, therefore, briefly
addresses the remaining preliminary injunction factors.
Inadequate Remedy at Law
Tranchita argues that she has no adequate remedy at law because she brought this lawsuit
under the Ex parte Young doctrine and she “will be unable to recover damages” from
Defendants. Doc. 6 at 15; see Watson v. Bush, No. 09-cv-1871, 2010 WL 1582228, at *4 (N.D.
Ill. Apr. 20, 2010) (“The Eleventh Amendment bars official capacity claims against state
officials for money damages. However, under the Ex parte Young doctrine, a plaintiff may seek
prospective equitable relief for ongoing violations of federal law without running afoul of the
Eleventh Amendment.” (citations omitted)). Defendants, for their part, do not argue otherwise.
The Court agrees that Tranchita has no adequate remedy at law. Ind. Fine Wine & Spirits, LLC
v. Cook, 459 F. Supp. 3d 1157, 1170 (S.D. Ind. 2020) (“[The plaintiff] also has no adequate
remedy at law because it cannot pursue compensatory damages against the state actor
Defendants because of sovereign immunity.”); Doston v. Duffy, 732 F. Supp. 857, 873 (N.D. Ill.
1988) (“Plaintiffs have no adequate remedy at law since the Eleventh Amendment bars an award
of damages by the court.”).
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Tranchita argues that she will suffer irreparable harm absent injunctive relief because
“[t]he existence of a continuing constitutional violation constitutes proof of an irreparable harm.”
Doc. 6 at 14 (quoting Preston v. Thompson, 589 F.2d 300, 303 n.3 (7th Cir. 1978)). This
principle, however, does not apply because Tranchita has not demonstrated a likelihood that
Defendants are violating her constitutional rights in the first place.
Tranchita also asserts that she “will suffer irreparable harm absent an injunction because
Luna is ailing and needs to come home to live the rest of her days with Tranchita.” Id. The
Court interprets this as an assertion that Tranchita will be irreparably harmed if Luna dies while
being held at the ICRC. Defendants respond that such harm is speculative and that Tranchita
cannot show when this harm would occur.
Although neither side addresses the issue, the Court assumes that Tranchita would suffer
legally cognizable harm if Luna died in captivity even though Tranchita likely does not have a
recognized property interest in Luna. See, e.g., Idaho Rivers United v. U.S. Army Corps of
Eng’rs, 156 F. Supp. 3d 1252, 1263 (W.D. Wash. 2015) (“Courts have  found irreparable injury
from the deaths of individual animals where plaintiffs have established an affinity for or an
aesthetic interest in the particular, individual animals at issue.”); Humane Soc’y of U.S. v.
Bryson, No. 3:12-cv-00642-SI, 2012 WL 1952329, at *6–7 (D. Or. May 30, 2012) (finding that
the plaintiffs, who interacted with but did not own particular sea lions, would suffer irreparable
injury from knowing that those sea lions had been killed). Moreover, Luna is already fourteen
years old; she is very thin with little body fat or muscle mass and weighs ten to fifteen pounds
below her normal weight; and she has not grown a thick winter coat. On these facts, it is not
unreasonable for Tranchita to assert that Luna may not live through the winter.
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Even so, the irreparable harm must be “likely” in the absence of an injunction, not just
possible. Winter, 555 U.S. at 20, 22. Tranchita does not provide any evidence, such as an
affidavit or declaration from a veterinarian or expert, regarding the likelihood of Luna surviving
the winter. And although Tranchita asserts that Luna “may have only weeks or months to
live[,]” she likewise asserts that Luna “may have a year” or “a few years” left to live. Doc. 6-5
at 10. Furthermore, the Court questions why Tranchita waited until October 2020—more than
four months after she dismissed her state court case—to file this lawsuit and seek preliminary
injunctive relief. Luna’s health has not just suddenly taken a turn for the worse in the past month
or so. Tranchita asserted in state court filings filed in May 2019 that Luna is “particularly
susceptible to being injured or dying from stress and trauma, given [her] advanced age,” that she
would likely die if she was not immediately returned home, and that “[t]ime [was] running out
for” her. Verified Compl., 2019 WL 10377774, ¶ 110; Mem. in Support of Mot. for TRO, 2019
WL 10377772. True, some of the delay may be attributable to Tranchita’s attorneys’ attempts to
reach out to Defendants and resolve the issue after dismissing the state court litigation but before
filing this lawsuit. See Docs. 6-2, 6-3. But while the Court certainly encourages parties to
attempt to solve their differences without resorting to litigation, the timing of the attempts at
issue here—the first made in June 2020, seven weeks after the state appellate court’s decision,
and the second made in September 2020, almost three months after the first attempt—do not
reflect the type of urgency the Court would expect when Luna’s time has been “running out”
since May 2019. See Mem. in Support of Mot. for TRO, 2019 WL 10377772. Although not
dispositive on the issue, Tranchita’s delay in seeking preliminary injunctive relief in this Court
after her state court case ended undermines her irreparable harm argument. See Ty, Inc. v. Jones
Grp., Inc., 237 F.3d 891, 903 (7th Cir. 2001) (“Delay in pursuing a preliminary injunction may
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raise questions regarding the plaintiff’s claim that he or she will face irreparable harm if a
preliminary injunction is not entered.”); Arjo, Inc. v. Handicare USA, Inc., No. 18 C 2554, 2018
WL 5298527, at *9 (N.D. Ill. Oct. 25, 2018) (“[A] significant delay in filing a motion for
preliminary injunction undermines the moving party’s argument that it will suffer irreparable
harm without an injunction.”).
The Court is sympathetic to Tranchita’s concern for Luna’s health and well-being, and it
concludes that Luna’s death in captivity would constitute an irreparable harm to Tranchita. But
in the end, Tranchita has not done enough to persuade the Court that this death is likely to occur
without the issuance of a TRO or a preliminary injunction.
Balancing of Harms and Public Interest
If Tranchita were to meet all the threshold requirements, the Court would then “weigh the
harm the denial of the preliminary injunction would cause the plaintiff against the harm to the
defendant if the [C]ourt were to grant it.” Mays, 974 F.3d at 818. “This balancing process
involves a ‘sliding scale’ approach: the more likely the plaintiff is to win on the merits, the less
the balance of harms needs to weigh in [her] favor, and vice versa.” Id. Where appropriate, the
Court’s balancing process should also consider the public interest. Girl Scouts, 549 F.3d at
1086. Here, because Defendants are employees of the state government, their harm coincides
with the public interest. See Nken v. Holder, 556 U.S. 418, 435 (2009) (noting, in determining
whether to issue a stay, that “the harm to the opposing party and weighing the public interest . . .
factors merge when the Government is the opposing party”); Pursuing Am.’s Greatness v. Fed.
Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016) (“[T]he FEC’s harm and the public
interest are one and the same, because the government’s interest is the public interest.”).
Case: 1:20-cv-05956 Document #: 28 Filed: 01/05/21 Page 43 of 44 PageID #:688
Tranchita argues that the balance of harms weighs in her favor because Defendants are
violating her constitutional rights, which means (1) Defendants have suffered no harm, and
(2) the public interest would be served by an injunction. Doc. 6 at 15; see Joelner v. Vill. of
Wash. Park, 378 F.3d 613, 620 (7th Cir. 2004) (“[T]here can be no irreparable harm to a
municipality when it is prevented from enforcing an unconstitutional statute.”); Newsom ex rel.
Newsom v. Albemarle Cty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003) (“[U]pholding
constitutional rights serves the public interest.”). But this argument falls flat because, again,
Tranchita has not demonstrated a likelihood that Defendants are violating her constitutional
rights in the first place. The Court does, however, acknowledge the harm that would occur if
Luna died in captivity while this case played out in the normal course of litigation.
On the other side of the scale, the preliminary injunction sought by Tranchita would
prevent Defendants from enforcing the Wildlife Code enacted by Illinois’ legislature. “[A]ny
time a State is enjoined by a court from effectuating statutes enacted by representatives of its
people, it suffers a form of irreparable injury.” Proft v. Madigan, 340 F. Supp. 3d 683, 695
(N.D. Ill. 2018) (citation omitted). In the same vein, it is in the public interest for Defendants to
be allowed to enforce Section 3.25 and other sections of the Wildlife Code to regulate where and
how wild animals can be kept. See Prof’l Towing & Recovery Operators of Ill. v. Box, No. 08 c
4096, 2008 WL 5211192, at *14 (N.D. Ill. Dec. 11, 2008) (“[T]he public has an interest in the
enforcement of laws that promote safety or otherwise are valid.”).
The balance of these harms weighs in Defendants’ favor. At the very least, they do not
weigh decidedly in Tranchita’s favor, which would be necessary for Tranchita to obtain a
preliminary injunction given the low likelihood that she will succeed on the merits of her claims.
See Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 826 n.5 (7th Cir. 1998) (“[T]he
Case: 1:20-cv-05956 Document #: 28 Filed: 01/05/21 Page 44 of 44 PageID #:689
movant must compensate for the lesser likelihood of prevailing by showing the balance of harms
tips decidedly in favor of the movant.”).
For the foregoing reasons, the Court denies Tranchita’s motion for a TRO and
preliminary injunction .
Dated: January 5, 2021
SARA L. ELLIS
United States District Judge
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