PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. v. WILDLIFE IN NEED AND WILDLIFE IN DEED, INC. et al
ORDER granting 46 Motion for Preliminary Injunction. Signed by Judge Richard L. Young on 2/12/2018. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
PEOPLE FOR THE ETHICAL TREATMENT )
OF ANIMALS, INC.,
WILDLIFE IN NEED AND WILDLIFE IN
TIMOTHY L. STARK, and
MELISA D. STARK,
ENTRY ON PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
On September 29, 2017, Plaintiff, People for the Ethical Treatment of Animals,
Inc. (“PETA” or “Plaintiff”), filed a complaint for injunctive relief against Defendants,
Wildlife in Need, Wildlife in Deed, Inc. (“WIN”), Timothy L. Stark, and Melisa D. Stark
(collectively “Defendants”), alleging violations of the Endangered Species Act of 1973,
16 U.S.C. § 1531 et seq. (“ESA”). On October 4, 2017, the court issued a Temporary
Restraining Order restraining Defendants from declawing any of their captive lions,
tigers, and hybrids (“Big Cats”). PETA then filed the present Motion for Preliminary
Injunction on December 19, 2017. The court held a hearing on January 24, 2018, in
which the court heard evidence and argument. For the reasons stated below, the court
GRANTS Plaintiff’s motion for preliminary injunction.
Before going further, the court pauses to highlight the unusual posture of this case.
After the court granted Plaintiff’s TRO, Defendants produced very little during
discovery. Responding to a motion to compel, Defendants filed a motion to stay, which
the Magistrate Judge denied. After a second motion to compel was filed, the Magistrate
Judge ordered Defendants to supplement the limited discovery that had been produced.
The Defendants did not respond. They also did not respond to Plaintiff’s Motion for
Preliminary Injunction. It was not until the Magistrate Judge ordered Defendants to
respond that they actually responded—unsatisfactorily. Because Defendants constantly
spurned Plaintiff’s discovery requests and this court’s orders, the Magistrate Judge
sanctioned Defendants: they were not able to produce any evidence at the hearing
including testimony that was not produced in discovery. The court highlights this
background because in deciding this motion, the court had very little, if any, evidence to
consider on behalf of Defendants. Though it is not their burden to prove a negative (that
no violation of the ESA occurred), their unwillingness to produce any discovery
(including sit for depositions) leaves the court with only Plaintiff’s evidence to consider.
With those comments out of the way, the court proceeds to the case.
WIN is an Indiana corporation located in Charlestown, Indiana. (Filing No. 1,
Verified Complaint at 3, ¶ 13). 1 WIN owns and exhibits the Big Cats that are the subject
All of the facts cited in this paragraph and alleged in the Complaint were admitted to by
Defendants in their Answer. (See Filing No. 23, Answer at 1, ¶ 1).
of this litigation. (Id.) WIN is operated and overseen by its manager, Mr. Stark, and his
wife, Ms. Stark (Id. ¶¶ 13 – 15). Specifically, Mr. Stark oversees the day-to-day
operations, manages the animal care, acts as the primary care giver for the animals,
supervises volunteers, and participates in USDA inspections. (Id. ¶ 14). Ms. Stark
assists Mr. Stark with all of the tasks. (Id. at 3 – 4, ¶ 15). Both Mr. and Ms. Stark reside
on the premises of WIN. (Id. ¶¶ 14-15).
Plaintiff is a non-stock corporation and animal protection charity incorporated and
headquartered in Virginia. (Id. at 3, ¶ 12). Plaintiff is dedicated to protecting animals,
used in entertainment from abuse, neglect, cruelty, and dangerous public encounters. (Id.
at 19, ¶ 73; Filing No. 76-1, Declaration of Delcianna Winders at 2, ¶ 4). To achieve its
objectives of ending abuse and neglect, Plaintiff pursues several programs, including
educating the public about the serious harms that animals suffer when used in public
encounters. (Winders Dec. at 2, ¶ 5).
WIN, among other things, exhibits to the public numerous Big Cats on the
premises and charges the public a fee to directly interact with Big Cat Cubs, whose ages
range from infancy up to approximately twenty weeks. (Complaint at 5-6, ¶ 25). These
encounters are called “Baby Tiger Playtimes” or “Tiger Baby Playtimes.” (Filing No.
46-1, Transcript of the October 19, 2017 TRO hearing at 6:6-10, 52:6-7).
Tiger Baby Playtimes are held typically on Fridays, Saturdays, or Sundays. (Id. at
52:13-16). Defendants derive a significant amount of operating capital from Tiger Baby
Playtime events as they are WIN’s single busiest and most lucrative fundraising event.
(Id. at 100:18-23). Members of the public are asked to donate a fee of $25 per person.
(See Plaintiff’s PI Ex. 8K, USDA Inspection Report January 17, 2014 at 1). This fee
allows them to enter a caged room approximately fifteen feet by twenty feet where one to
three Big Cat Cubs will be released and allowed to play. (Id.). On average, there are
about thirty to thirty five people per session. (Id.). Defendants’ tax records from 2016
indicate that WIN “conduct[s] events and present[s] programs to educate the public about
the importance of preservation and conservation of all wildlife and habitats. These
programs reached 32,546 individuals during 2016.” (Plaintiff’s Preliminary Injunction
Ex. 14G, Defendants’ Tax Records at 3) (emphasis added). Big Cat Cubs are exhibited in
Tiger Baby Playtimes frequently. (See Plaintiff’s PI Ex. 8H, USDA Report September
13, 2015 at 2). For example, on September 12 (presumably 2015), Big Cat Cubs were
exhibited in eleven thirty-minute sessions with a one-hour break, and some were used for
individual photo opportunities outside of the session. (Id.).
As an exhibitor of animals, Mr. Stark is required to be, and currently is, licensed
by the USDA under the Animal Welfare Act. (See Complaint at 6-7, ¶¶ 28-30; see TRO
Transcript at 32:9-22); (see also Filing No. 41-1, License Renewal at 3). However, over
the past five years, Mr. Stark has been cited more than fifty (50) times for failing to meet
minimum requirements under the AWA. (Complaint at 6, ¶ 28). By way of example,
Mr. Stark has been cited for inadequate enclosures (see Plaintiff’s PI Ex. 35, USDA
Inspection Report, February 29, 2012), inadequate feeding, (see Plaintiff PI Ex. 34,
USDA Report July 27, 2015), and improper handling of animals (see Plaintiff’s PI Ex.
33, USDA Report September, 13, 2015). In an inspection on March 31, 2017, Mr. Stark
was cited for refusing to allow USDA inspectors to inspect the property. (Plaintiffs PI
Ex. 14L, USDA Report March 31, 3017). Twice Mr. Stark’s license has been suspended,
once in 2015, and again in 2017. (Complaint at 7, ¶ 29).
Defendants routinely declaw the Big Cats in their possession. (See TRO
Transcript at 35:2-6, 93:18-23). In 2016 alone, Mr. Stark declawed “about a dozen
cubs.” (Id. at 85:1-2). Mr. Stark admitted that he declaws tigers because it makes them
easier to handle, (TRO Transcript at 84:23-25), and because he “has money,” (see
Plaintiff’s PI Ex. 8F, USDA Report March 17, 2017 at 2). Defendants do not declaw Big
Cats out of medical necessity. (TRO Transcript at 86:10-13). In its inspection reports,
the USDA has noted a number of concerns with Defendants’ declawing practice. (See
Plaintiff PI Ex. 8F, USDA Report March 17, 2017 at 1-2). One USDA report read:
According to [Mr. Stark] the attending veterinarian completes the declaw
surgeries at the facility and not at a dedicated surgical site. The attending
veterinarian has a mobile practice. [Mr. Stark] stated that no animal that is
declawed receives medication for pain because he doesn’t think they are in
pain. No record of any pain management or antibiotics were provided by [Mr.
Stark]. No written post-operative care was provided to [Mr. Stark]. . . .
(Plaintiff’s PI Ex. 8E at 3 ¶ 3). The two Big Cat Cubs, discussed in the report, who had
complications from declawing died two months later. (See id. at 2-3; Plaintiff’s PI Ex.
14A, WIN’s Records of Animals on Hand, at 5, lines 4, 5 (identifying two tigers born at
WIN on 2/10/17 as deceased on 5/8/17 and 5/9/17, respectively)). Mr. Stark testified at
the TRO hearing that the cub did not die from the declawing procedure, 2 (TRO Transcript
At the TRO hearing, Plaintiff had not yet been presented with Defendants’ Records and thus
apparently did not know of the other cub’s death.
at 79:13-15), but no necropsies were produced to Plaintiff during discovery, (see Plaintiff
PI Ex. 14, Interrogatories at 7). Moreover, Defendants’ attending veterinarian explained
in the March 17, 2017 USDA report that he believed one of the cubs had a 50 percent
chance of living due to the complications. (See Plaintiff’s PI Ex. 8F at 2).
Defendants have been directed to cease declawing from the USDA. (Plaintiff’s PI
Ex. 8F at 2 (“Declawing wild/exotic carnivores must no longer be performed.”)). However,
Dr. James William McDonald, Jr. testified that he declawed five tigers for Defendants in
July of 2017. 3 Mr. Stark also testified that if he got authorization to declaw in the future,
he would do so. (TRO Transcript at 82:10-11).
Plaintiff’s Expert Witnesses
Jennifer Conrad, D.V.M.
Jennifer Conrad, D.V.M. is a doctor of veterinary medicine practicing in Los
Angeles, California. She holds a Doctorate of Veterinary Medicine from the University
of California, Davis, School of Veterinary Medicine. Based on her credentials as
outlined in her Declaration (Filing No. 7, Dec. of Jennifer Conrad) and over objection by
Defendants at the hearing, the court found Dr. Conrad was qualified as an expert on
declawing and the treatment of Big Cats.
Dr. Conrad explained that “declawing” is a surgical procedure, also called
onychectomy, in which the animal’s distal interphalangeal joints are amputated. (Filing
Dr. McDonald also testified that Defendants did not tell him that they had been cited by the
USDA and told not to declaw tigers and lions. He further testified that he has no intention or
plan to declaw tigers in the future.
No. 7, Dec. of Jenifer Conrad at 3, ¶ 9). It is an irreversible procedure that permanently
removes the distal phalanx and severs nerves, ligaments, tendons, and blood vessels. (Id.
at 12, ¶ 16). When Big Cats are declawed, the last bone of the digit is surgically removed
or partially removed so that the claw cannot regrow. (Id. at 4, ¶ 9). Dr. Conrad testified
that in order to declaw a cat, the bone must actually be removed because cats’ claws grow
from bone as opposed to human nails which grow from skin. Declawing is ordinarily
done by the use of a scalpel blade or laser, but Dr. Conrad explained that both have the
same problems because the bone is amputated. Additionally, the use of a laser risks
fourth-degree burns to the second phalanx, which not only causes acute pain but may
result in osteomyelitis or necrotic bone tissue. (Filing No. 56, Second Declaration of Dr.
Conrad, at 4 ¶ 10). She does not know of any literature that supports the proposition that
laser declawing is pain or disability free. Dr. Conrad admitted that there is very little
difference between declawing a Big Cat and declawing a house cat.
With respect to the effects of declawing, Dr. Conrad testified that animals that
have been declawed are in jeopardy of suffering a lifetime of pain. Declawing likely will
result in permanent lameness, arthritis, abnormal standing conformation, and other longterm complications. (Conrad Dec. at 5, ¶ 10). Dr. Conrad explained that declawing
“robs” animals of comfort and their natural behaviors. She also opined that routine
declawing violates acceptable veterinary medical standards, generally accepted
husbandry practices, and the medical guidance as developed by the USDA.
Dr. Conrad also explained that in her review of WIN’s Medical Treatment Logs,
she observed that several of the Big Cats suffer from ringworm, noting that at least four
Big Cats had died from ringworm or from being given an improper does of medicine to
treat ringworm. (Conrad Second Dec. at 4, ¶ 11). She testified that ringworm is a fungus
and can spread very easily. She described it as an “opportunistic infection.” Ringworm
is transmitted through open wounds or anomalies in the skin barrier. (Id. at 5, ¶ 12). As
such, Dr. Conrad testified that declawing could possibly exacerbate the risk of
contracting ringworm. She also explained that ringworm, and likewise Big Cats infected
with ringworm, could pose health threats to the public during Baby Tiger Playtimes.
Jay Pratte, M.S.
Jay Pratte, M.S. is the behavioral husbandry and welfare manager at Omaha’s
Henry Doorly Zoo and Aquarium in Omaha, Nebraska. He has a Bachelors in zoology
from the University of Alberta in Canada and a Masters of Interdisciplinary Studies from
George Mason University. Based on his 25 years of experience, education, and
knowledge, the court found Mr. Pratte was qualified as an expert in animal husbandry
Mr. Pratte submitted two declarations and testified regarding the harms Big Cats
may suffer from declawing and being exposed during Baby Tiger Playtimes. With
respect to declawing, Mr. Pratte explained that Big Cats are born with a set of behaviors,
predispositions, and expectations. When they are declawed, the Big Cats experience
trauma that causes different stress responses. Over time, the stress responses cause
irreparable changes to the animal’s physiology, brain, and hormone system, which affects
the Big Cats’ behaviors. Mr. Pratte opined that Big Cats that have been declawed could
have the following behaviors impaired or even eliminated: walking, running, jumping,
climbing, and scratching. (Filing No. 8, Declaration of Jay Pratte at 5, ¶ 12). Declawed
Big Cats are also limited in defending themselves in social situations or confrontations
because they no longer have a natural defense mechanism. (See id.).
Mr. Pratte testified and opined on the effects of separating Big Cat Cubs from their
mothers. He explained that ordinarily Big Cat Cubs stay with their mothers for at least
two years following birth. In these two years, they are nursing, learning, and developing
life skills. When the Big Cat Cubs are separated from their mothers, there is an initial
trauma followed by the inability to develop appropriate life skills. Mr. Pratte also
testified that Big Cat Cubs separated from their mothers can develop more aggressive
responses to what would otherwise be normal stimuli. Based on these opinions, Dr.
Pratte ultimately concluded that separating Big Cats Cubs from their mothers is not a
generally accepted husbandry practice and violates industry standards. (Filing No. 55,
Second Declaration of Jay Pratte at 8-9, ¶¶ 20, 23).
Lastly, Mr. Pratte testified and explained in his declaration that Baby Tiger
Playtimes adversely affect the behavior of Big Cat Cubs. (Id. at 8-18). According to Mr.
Pratte, when Big Cat Cubs are subjected to Baby Tiger Playtime, they are subjected to
abnormal external stressors of extreme frequency, intensity, and duration. (Id. at 9, ¶ 22).
Based on his review of the videos taken during Tiger Baby Playtimes, Mr. Pratte
observed that the Big Cat Cubs were physically abused and restrained for engaging in
completely normal behaviors. (Id. at 10, ¶ 24). Mr. Pratte testified that the Big Cat Cubs
were clearly distressed, unable to remove themselves from an unnatural situation, and
inexpertly and inappropriately handled by Mr. Stark and his staff. (See id. at 11). Based
on his observations, Mr. Pratte opined that these practices are both long-term and
repeated. (Id. at 13). He ultimately concluded that Mr. Stark and his staff demonstrate a
lack of knowledge of appropriate care and handle the animals inconsistently with
generally accepted husbandry practices. (Id. at 14-15, ¶¶ 27-29).
“A preliminary injunction is an extraordinary remedy.” Whitaker By Whitaker v.
Kenosha Unified School District No. 1 Board of Educ., 858 F.3d 1034, 1044 (7th Cir.
2017) (citation omitted). In order to obtain a preliminary injunction, the plaintiff must
show that (1) there is a reasonable likelihood of success on the merits; (2) there are no
adequate remedies at law; and (3) irreparable harm will result absent the issuance of a
preliminary injunction. See id. If the plaintiff is able to carry the burden of the first three
elements, then the court will engage in a balancing analysis to determine the harm faced
by either party. Id.
Likelihood of Success on the Merits
There is no requirement that the plaintiff show absolute success on the merits, but
there must be a showing that the chances at success are “better than neglible.” Whitaker,
858 F.3d at 1046 (quoting Cooper v. Salazar, 196 F.3d 809, 813 (7th Cir. 1999)). This is
a relatively low standard to meet. Id.; see also Curtis v. Thompson, 840 F.2d. 1291, 1296
(7th Cir. 1988).
Section 9 of the ESA makes it unlawful for any person “to take” any endangered
species within the United States. 16 U.S.C. § 1538 (a)(1)(B); People for the Ethical
Treatment of Animals, Inc. v. Tri-State Zoological Park of Western Maryland, Inc., No.
17-2148, 2018 WL 434229, at *3 (D. Md. Jan. 16, 2018). “Take” under the ESA means
“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to
engage in any such conduct.” 16 U.S.C. § 1532(19) (emphasis added). The allegations
in the present case focus on whether Defendants harass, harm, or wound the Big Cats.
Regulations promulgated by the U.S. Fish and Wildlife Service (“FWS”) 4 further
define the terms “harm” and “harass.” “Harm” means “an act which actually kills or
injures wildlife.” 50 C.F.R. § 17.3. “Harm” also includes “significant habitat
modification or degradation where it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breeding, feeding or sheltering.” Id.
“Harass” is defined as:
an intentional or negligent act or omission which creates the likelihood of
injury to wildlife by annoying it to such an extent as to significantly disrupt
normal behavioral patterns which include, but are not limited to, breeding,
feeding, or sheltering. This definition, when applied to captive wildlife, does
not include generally accepted:
(1) Animal husbandry practices that meet or exceed the minimum
standards for facilities and care under the Animal Welfare Act,
(2) Breeding Procedures, or
(3) Provisions of veterinary care for confining, tranquilizing, or
anesthetizing, when such practices, procedures, or provisions are not
likely to result in injury to the wildlife.
The FWS and the National Marine Fisheries Service (“NMFS”) share responsibility in
administering the ESA. See National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 651 (2007). The parties agree that since the Big Cats at issue are subject to the jurisdiction
of the Secretary of Interior, the regulations promulgated by the FWS apply. See People for the
Ethical Treatment of Animals, Inc. v. Miami Seaquarium, 189 F.Supp.3d 1327, 1344 (S.D. Fla.
Id. (emphasis added).
Plaintiff alleges two separate “takes” under the ESA: 1) Defendants violate the
ESA when they declaw the Big Cats, and 2) Defendants violate the ESA when they use
Big Cat Cubs in public encounters, including but not limited to, Tiger Baby Playtime
a) Defendants’ Declawing of the Big Cats
Plaintiff has a better than negligible chance to succeed on showing that Defendants
harm, harass, and wound the Big Cats by declawing them.
Dr. Conrad explained that declawing permanently removes the distal phalanx and
severs nerves, ligaments, tendons, and blood vessels, and she testified that animals that
have been declawed are in jeopardy of suffering a lifetime of pain. There is evidence that
declawing likely will result in permanent lameness, arthritis, abnormal standing
conformation, and other long-term complications. Moreover, Mr. Pratte explained that
declawing alters the normal behavior of Big Cats. He explained that declawed Big Cats
are not able to climb normally and are also limited in defending themselves in social
situations or confrontations because they no longer have a natural defense mechanism.
All of this shows that, at least on this record, declawing “harms” the Big Cats
because it actually injures wildlife. See Kuehl v. Sellner, 161 F.Supp.3d 678, 716, 718
(N.D. Iowa 2016) (finding the failure to provide timely and appropriate veterinary care to
tigers constitutes a “harm” under the ESA); Graham v. San Antonio Zoological Society,
261 F.Supp.3d 711, 751 (W.D. Tex. 2017) (finding issue of fact as to whether zoo
harmed elephant by providing enclosure with inadequate shade and shelter from the sun).
Moreover, declawing “harasses” the Big Cats because it creates the likelihood of an
injury that sufficiently disrupts normal behavioral patterns. See Kuehl, 161 F.Supp.3d at
718 (finding social isolation, lack of environmental enrichment, and inadequate sanitation
constitutes harassment); Graham, 261 F.Supp.3d at 751 (finding issue of fact as to
whether zoo harassed elephant by providing enclosure with inadequate shade and shelter
from the sun). 5 While “wound” is not defined in the act, it would include the piercing or
laceration of skin. Graham, 261 F.Supp.3d at 741 n.15. The evidence before the court
shows that declawing, at the very least, wounds the Big Cats insofar as declawing
lacerates nerves, ligaments, and tendons. 6 Accordingly, because Plaintiff has shown
declawing harms, harasses, and wounds the Big Cats, the court finds that Defendants
have committed a “take” within the meaning of the ESA.
b) Defendants’ Public Encounters and Tiger Baby
In People for the Ethical Treatment of Animals, Inc. v. Miami Seaquarium, 879 F.3d 1142,
1149-50 (11th Cir. 2018), the Eleventh Circuit applied a somewhat heightened standard to
“harm” and “harass.” Specifically, the court held that under the ESA, harm or harassment “is
only actionable if it poses a threat of serious harm.” Id. at 1150. Without deciding if that is the
proper standard, the court finds that the evidence presented meets that standard as well especially
considering declawing contributed, at least in part, to the deaths of two Big Cat cubs.
Although Defendants did not respond or present evidence at the hearing, Mr. Stark testified at
the TRO hearing that he abides by his “Blue Book” (the Animal Welfare Act) and nowhere in
the book prohibits declawing. (TRO Transcript at 97:3-25, 98:1). However, the USDA Animal
Care Policy Manual, which is publically available, denounces declawing. (See id. at 89-90).
Moreover, USDA inspection reports direct Mr. Stark to cease declawing and state that
“[o]ngoing pain, discomfort, or other pathological conditions may further result from declawing.
. . .” (Plaintiff’s PI Ex. 8f at 2).
Plaintiff is likewise likely to succeed in showing the Defendants’ Tiger Baby
Playtimes “harass” the Big Cat cubs within the definition of take in violation of the ESA.
Mr. Pratte testified that when the Big Cat Cubs are separated from their mothers,
such as in Baby Tiger Playtimes, they can develop more aggressive responses to what
would otherwise be normal stimuli. Based on his review of the videos taken at WIN, Mr.
Pratte observed that the Big Cat Cubs were physically abused and restrained for engaging
in completely normal behaviors. There is evidence that the Big Cat Cubs were clearly
distressed, unable to remove themselves from an unnatural situation, and inexpertly and
inappropriately handled by Mr. Stark and his staff. Mr. Pratte ultimately concluded that
Mr. Stark and his staff demonstrate a lack of knowledge of appropriate care and handle
the animals inconsistently with generally accepted husbandry practices.
The USDA reports indicate that the Big Cat Cubs were physically abused during
Tiger Baby Playtimes. (Plaintiff’s PI Ex. 33, USDA Report September 14, 2015 at 2).
The USDA reports show that Big Cat Cubs were subjected to Tiger Baby Playtimes
without adequate rest. As a result, Big Cat Cubs were dragged around because they were
too tired. (See id.). The reports are evidence that Defendants do not meet generally
acceptable husbandry practices when handling or subjecting the animals to Tiger Baby
The evidence shows, again, at least on this record, that Defendants significantly
disrupt the Big Cat Cubs’ normal behavioral patterns by subjecting them to Tiger Baby
Playtimes. See Kuehl, 161 F.Supp.3d at 713 (social isolation, lack of environmental
enrichment, and inadequate sanitation constitutes “harassment” with the taking provision
in violation of the ESA); see also In re Stearns Zoological Rescue & Rehab Center, Inc.,
AWA Docket No. 15-0146, 2017 WL 1330877, at *3 (Feb. 15, 2017) (USDA Decision)
(ordering “baby tiger swim” program to cease and desist because it is not consistent with
regulations that provide young or immature animals shall not be exposed to rough or
excessive public handling). Accordingly, Plaintiff has shown a likelihood of success in
proving Defendants’ “take” the Big Cat Cubs by subjecting them to Tiger Baby
No Adequate Remedies at Law
A plaintiff is further required to show that there are no adequate remedies at law,
which can be satisfied by showing that any award would be deficient in light of the harm
that will be suffered. Whitaker, 858 F.3d at 1046.
Here, Plaintiff does not seek damages, and in fact, as Plaintiff points out, there is
no damages remedy available under the ESA for a prevailing plaintiff. Moreover, the
court believes that no other adequate remedy at law exists since any other award would
be deficient in light of the harm caused by declawing and Tiger Baby Playtimes. See
Whitaker, 858 F.3d at 1046.
Irreparable harm requires more than just a mere possibility of harm. Whitaker,
858 F.3d at 1045. Harms that are difficult or impossible to reverse meet the definition of
irreparable. Michigan v. United States Army Corps of Engineers, 667 F.3d 765, 788 (7th
Cir. 2011). At least one court has held that “[i]n light of the stated purposes of the ESA
in conserving endangered and threatened species and the ecosystems that support them,
establishing irreparable injury should not be an onerous task for plaintiffs.” Cottonwood
Environmental Law Center v. United States Forest Service, 789 F.3d 1075, 1091 (9th Cir.
Plaintiff has shown that absent an injunction, irreparable harm will occur. As
explained by Dr. Conrad, declawing is an irreversible procedure that permanently
removes the distal phalanx and severs nerves, ligaments, tendons, and blood vessels.
There is no way to “undo” the surgery once it has been completed. She also testified that
declawed animals suffer a lifetime of pain and “robs” them of their natural behaviors.
Mr. Pratte testified that declawing impairs normal behaviors such as walking, running,
and jumping. The USDA cited Defendants for declawing and directed them to cease
declawing, but those directions have gone unanswered. In fact, from what limited
medical records were provided, it appears that two Big Cat Cubs died in 2017, and
declawing, at least, contributed to their deaths. Despite Defendants’ contentions
otherwise, and at least on the present record before the court, Plaintiff has made a
sufficient showing of irreparable harm.
Balance of Harms
Ordinarily, a court must balance the harms between the parties at the fourth step of
the preliminary injunction analysis. However, in Tennessee Valley Authority v. Hill, 437
U.S. 153, 173 (1978), the Supreme Court held that the ESA foreclosed the usual
discretion of the district court in deciding the balance of harms. See also Weinberger v.
Romero-Barcelo, 456 U.S. 305, 313 (1982); Cottonwood, 789 F.3d at 1090 (quoting Hill)
(“Hill held that courts do not have discretion to balance the parties’ competing interests in
ESA cases because Congress ‘afforded first priority to the declared national policy of
saving endangered species.’”); State of Wisconsin v. Weinberger, 745 F.2d 412, 425-26
(7th Cir. 1984).
Even if that were not the case, Plaintiff has demonstrated significant harms should
the injunction not issue. For fear of repeating itself, the court notes that declawing cannot
be reversed, and there is evidence that Tiger Baby Playtimes adversely affect the Big
Cats’ behaviors. With respect to Defendants, at this point, it is difficult to say exactly
what the harm is to Defendants because they simply did not present any evidence. Even
if there is some harm to the Defendants, at this point, there is plentiful evidence that such
harm is outweighed by the harm that would be suffered by Plaintiff, should the court
decline Plaintiff’s request.
Accordingly, Plaintiff’s Motion for Preliminary Injunction (Filing No. 46) is
Defendants are preliminarily ENJOINED from declawing any Big Cats during the
pendency of this action. For purposes of this Entry, “declawing” means a procedure,
surgical or otherwise, also called onychectomy, in which an animal’s toe is amputated at
the distal interphalangeal joint. Defendants may petition the court for an order permitting
the declawing of a specific digit of a Big Cat provided there is a medical necessity for the
declawing. In the event that Defendants file such a petition, they must supply the court
with a written competent opinion of a veterinary medical doctor attesting to the medical
necessity of the declawing.
Defendants are preliminarily ENJOINED from using any Big Cat Cubs in public
encounters or from prematurely separating Big Cat Cubs from their mothers without
medical necessity. In the event of a medical necessity, Defendants must notify the court
of the premature maternal separation and must supply the court with a written competent
opinion of a veterinary medical doctor attesting to the medical necessity for the
separation which may be prepared after the fact in case of an emergency. Defendants,
including their employees and volunteers, shall not (a) conduct any “Tiger Baby
Playtime” events or (b) otherwise publicly display any Big Cat cub under eighteen
months of age in their custody, possession, or control. For purposes of this Entry,
“publicly display” includes (a) permitting a person who is not a Defendant or employee
to have any physical contact with a Big Cat Cub or (b) a Defendant or employee
presenting or handling a Big Cat Cub in any demonstration or presentation.
SO ORDERED this 12th day of February 2018.
Distributed Electronically to Registered Counsel of Record.
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