The license issued to Charles E. Polarek to possess a female cougar (felis concolor) at his realty near Westville in LaPorte County, Indiana is affirmed. The affirmation is made with the understanding that Polarek will maintain the enclosure, and will provide the cougar with proper care, as described in the foregoing findings. As an additional condition of the license, Polarek shall, by June 1, 1994, cause the fangs of the cougar to be removed and capped under appropriate veterinary supervision.
FINDINGS
1. The department of natural resources (the "Department") is an "agency" of the state of Indiana as defined by IC 4-21.5-1-3.
2. The natural resources commission (the "Commission") is the "ultimate authority" for the Department under IC 4-21.5-1-15. See IC 14-3-3-21.
3. On July 21, 1993, the "Department" made an initial determination to grant, under IC 14-2-7-21 and 310 IAC 3.1-10-11, a License[FOOTNOTE1] (the "license") in favor of Charles E. Polarek ("Polarek") to possess cougar (felis concolor) at a site near Westville in LaPorte County, Indiana.
4. As applicable when the initial determination was made to issue the license, IC 14-2-7-21(a)(2).
5. Species of wild animals, for which a license is required under IC 14-2-7-21, have been established by rule to include all "wild cats". 310 IAC 3.1-10-11(b)(19).
6. A cougar is a wild cat for which a license is required under IC 14-2-7-21 and 310 IAC 3.1-10-11. DNR, Concerned Citizens v. Wright, 5 Caddnar 32A (1989).
7. An initial determination to issue a license under IC 14-2-7-21 and 310 IAC 3.1-10-11 is subject to administrative review under IC 4-21.5 (sometimes called the "Administrative Orders and Procedures Act" or "AOPA"). Most notably, IC 4-21.5-3-5 controls.
8. Several persons wrote to take administrative review under AOPA of the initial determination by the Department to issue the license. Although some of these persons later determined not to continue with administrative review, Lynn Cody, Chester Matuszak, Winifred Matuszak, Casmere Petrowski, Susan M. Lewis, the Northern Indiana Public Service Company (a subsidiary of NIPSCO, Inc.), and Imogene Schlagel (collectively the "Claimants") filed objections and have actively pursued those objections. The various objections of the Claimant's were, with the consent of the parties, consolidated into this proceeding by the Administrative Law Judge.
9. In addition to the Claimants and the Department, as the license applicant, Polarek was added as a party.
10. The parties to this proceeding are the Claimants, the Department, and Polarek. The Commission has jurisdiction over the parties under the AOPA. The Commission also has jurisdiction over the subject matter of the cougar, as well as the license sought under IC 14-2-7-21 and 310 IAC 3.1-10-11 for its possession.
11. Where the Department has made an initial determination to issue a license, the burden rests with the person or persons seeking to set aside the license. Brown v. Dept. Of Natural Resources and Peabody Coal Company, 6 Caddnar 136 (1993).
12. The Claimants have the burden of proving by a preponderance of the evidence that the license in favor of Polarek should be set aside.
13. In determining whether to issue a license under IC 14-2-7-21, the Department must consider both the safety of the public and the health of the wild animal. Illustrative is IC 14-2-7-12(I).
14. In determining whether to affirm the initial determination by the Department to issue the license in favor of Polarek, the Commission must consider both the safety of the public and the health of the cougar. In order to set aside the initial determination, the Claimants have the burden of proving by a preponderance of the evidence that issuance of the license constitutes an unreasonable safety hazard or is likely to jeopardize the health of the cougar.
15. Cougars are wild animals, and ordinarily wild animal do not make good pets. Testimony of Barry Miller, Conservation Officer.
16. Cougars are large carnivores. They are capable of a vertical leap of ten feet from a
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standstill and can leap as far as 25 feet during a run. Cougars have a hunting instinct which is part of the innate nature of the species. Although attacks by cougars on humans are rare, they present some danger to public safety. Testimony primarily of Susan Lewis.
17. The cougar which is the subject of this proceeding is a young female named "Kaota". Kaota was born in captivity in Brown County, Indiana. She was purchased initially by Kevin DeYoung of DeMotte, Indiana from a breeder, when Kaota was about four months old. Kaota will be two years old in the spring of 1994. Testimony primarily of Charles Polarek.
18. Cougars born in the wild typically avoid human contact. Because cougars raised in captivity are accustomed to human contact, they may pose a greater potential threat to public safety than do those from wild environments. In any event, a cougar raised in captivity is not caused to become domesticated. A cougar raised in captivity remains a wild animal. Testimony primarily of Susan Lewis.
19. Polarek lawfully purchased Kaota from DeYoung and brought her in June 1993 to the site near Westville where she is now maintained. Testimony of Polarek.
20. The site is on realty owned by Polarek in an unincorporated area of Laporte County. Polarek owns and also maintains his family residence on the realty where the cougar is kept. Although the general character of the neighborhood might best be described as rural, the area is in transition to a more urban or suburban setting. There are other residences from which the cougar's enclosure may be viewed, including those of several of the Claimants.
21. Kaota has had her claws removed. Polarek has also expressed an intention to have Kaota's fangs removed, filled, and capped, if the license is affirmed.
22. When she reaches maturity, Kaota will weigh approximately 85 pounds.
23. Kaota is a wild animal whose innate nature is that of a hunter and carnivore. If brought into contact with humans, she could pose a serious threat to safety. This potential for harm may be heightened because she was raised in captivity. Removal of her claws may mitigate the potential for harm. Removal and capping of Kaota's fangs could additionally mitigate this potential.
24. There is some evidence that Kaota was malnourished and physically abused prior to her acquisition by Polarek. Since being purchased by Polarek, the cougar has received proper nutrition, regular veterinary care, and appropriate physical treatment. Testimony of Polarek, Miller, and Peggy Swain, veterinary technician.
25. Kaota is held in a pen with a 30-foot diameter outer fence. The other fence, which is designed primarily to keep humans and pets away from the cougar, is constructed with chain links, angled bars, and barbs. The gate to the outer fence is padlocked.
26. Surrounding the outer fence is a motion detection device to help alert Polarek or his family if an unauthorized person or animal approaches the cougar.
27. Kaota is confined within an inner structure which is constructed with nine-gauge corn crib wire. This wire is at least 1/4 inch thick and is held in place by concrete. The confinement is covered with heavy gauge steel, and the floor is covered entirely with concrete. Access to the inner structure is obtained through a door, and a "cut-proof" padlock controls the door. Polarek testimony.
28. Attached to the inner structure is housing which provides shelter to Kaota. The housing is "completely enclosed in steel" and is insulated. Polarek regularly provides fresh bales of hay for bedding, and housing includes a tarp to provide the cougar with additional protection from the elements.
29. Typically, Polarek cleans the cougar's enclosure every two or three days. At most, four days pass between cleanings. He enters the enclosure to perform cleanings while the cougar is being fed, at which time the cougar is collared and chained. The collar is a variety which is made for "larger-type dogs". During feedings, the cougar remains in the enclosure. Polarek testimony.
30. The enclosure was inspected by Barry Miller, Conservation Officer, and found in all respects to comply with the requirements of 310 IAC 3.1-10-11. He concluded that Polarek is providing proper care to the cougar and that escape from the enclosure is "unlikely". Subsection 11(e) establishes the requirement that enclosures for wild animals be determined by the Department to make "escape unlikely".[FOOTNOTE 2]
31. On his initial inspection, Miller was accompanied by the Director of the Michigan City Zoo, Sandy Stewart. Mostly to support good sanitation, Stewart suggested that the floor of the
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enclosure be covered with concrete.[FOOTNOTE 3] In other respects, Stewart found the enclosure to be appropriate. Polarek has complied with Stewart's suggestion and with all directives by Miller.
32. The Claimants have not sustained their burden of proving that the Department improperly made an initial determination to issue a license to Polarek to possess a cougar on his realty near Westville. Polarek has met all license conditions and has provided a reasonable environment from which the cougar is unlikely to escape. In contrast to what may have occurred prior to his acquisition, Polarek has provided appropriately for the health of the cougar.
33. The license application by Polarek appears to comply with the legal requirements contained in IC 14-2-7-21 and 310 IAC 3.1-10-11. However, public safety would be enhanced if the cougar's fangs were removed and capped under appropriate veterinary supervision. To promote public safety, this process should be required to be performed by June 1, 1994. With this additional term, the license should be affirmed.
FOOTNOTES
1. Both IC 14-2-7-21 and 310 IAC 3.1-10-11 refer to the authorization required to possess a wild animal as a "permit". The term "license" is used here as an inclusive term which includes both "permit" and "license". See IC 4-21.5-1-8 and IC 14-3-18-6.
2. The Claimants offer two points, directly or by implication, which speak to the possibility the cougar might escape and cause harm. First, they question the wisdom of allowing any private citizen to maintain a pet cougar in the first place. This question is reasonable but must be directed to the legislature. IC 14-2-7-21 authorizes this activity, subject only to reasonable regulation by the Department. The Indiana General Assembly could enact legislation which would outlaw private ownership of wild animals, or of designated species of potentially dangerous species (examples, bears and large cats), but has chosen not to do so.
Second, the Claimants seek assurances or guarantees that no harm will result. Imogene Schlagel even testified that no precautions Polarek might take would put her at east with respect to the cougar. While these feelings are understandable, their net result would be effectively to ban private pet ownership of cougars. Once again, this prerogative would appear to rest primarily with the legislature. The rule provides in 310 IAC 3.1-10-11(e) that the Department must conclude escape is "unlikely". This standard has not been shown by the Claimants to be unreasonable and would appear to be in keeping with the legislative intent in enacting IC 14-2-7-21.
3. At the time of the initial inspection by Stewart and Miller, at least a portion of the floor of the enclosure was earthen.