CADDNAR


[CITE: Winterrowd v. Hill and DNR, 10 CADDNAR 371 (2006)

 

[VOLUME 10, PAGE 371]

 

Cause #:06-029D

Caption: Winterrowd v. Hill and DNR
Administrative Law Judge: Lucas
Attorneys: Stephenson; White
December 8, 2006

 

FINAL ORDER

 

The issuances by the Department of Natural Resources to Dennis Hill of Indiana Wild Animal Possession Permit 2694 for an adult female Bengal tiger, Indiana Wild Animal Possession Permit 2695 for a juvenile female Bengal tiger and Indiana Wild Animal Possession Permit 2696 for a juvenile male Bengal tiger are reversed for the deficiencies set forth in the Findings and particularly in Finding 47 through Finding 49.  Action on the permits is remanded to the Department of Natural Resources with an opportunity to Dennis Hill to correct these deficiencies.  If the Department determines the deficiencies are corrected, new permits may be issued upon notice to affected persons.  If the Department does not determine the deficiencies are corrected by December 1, 2006, Hill shall remove the tigers from the compound and provide for their lawful disposition.

 

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 

1. On February 9, 2006, Thomas S. Winterrowd (“Winterrowd”) filed administrative review with the Natural Resources Commission (the “Commission”) seeking to reverse Indiana Wild Animal Possession Permit 2694 for an adult female Bengal tiger [Stipulated Exhibit III], Indiana Wild Animal Possession Permit 2695 for a juvenile female Bengal tiger [Stipulated Exhibit IV] and Indiana Wild Animal Possession Permit 2696 (Stipulated Exhibit II) for a juvenile male Bengal tiger [Stipulated Exhibit II] (collectively, the “subject permits”) issued by the Department of Natural Resources (the “DNR”) to Dennis Hill (“Hill”).

 

2. From February 7, 2006 through February 6, 2007, the subject permits authorize Hill to possess the tigers at 3050 West Willow Road near Flat Rock in Shelby County, Indiana under the following conditions:

 

1. All activities authorized herein must be carried out in accord with and for the purposes described in the application submitted.  Continued validity, or validity, of this permit is subject to complete and timely compliance with all applicable conditions, including the filing of all required information and reports.

2. The validity of this permit is also conditioned upon strict observance of all applicable foreign, state, local or other federal authority.

3. Valid for use by [Hill].

 

 

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4. The animal possessed under this permit must be handled, housed, and transported in a sanitary and humane manner.  [Hill] must not possess an animal in a condition that is any of the following: unsafe, unsanitary, constitutes maltreatment or neglect of the animal, or allows the escape of the animal.

5. [Hill] must not maintain or display an animal in a manner that does any of the following: Poses a hazard to public safety, poses a hazard to property of a person other than [Hill], harms the health of the animal, or violates this article or the permit under which the animal is possessed.

6. The animal may not be sold or used for any commercial purpose.  The animal may not be used or exhibited in any type of public display, including, but not limited to, educational programs, music videos, and TV commercials.  No tours of the facility may be given, with or without charge.  The animal shall not be used for a sporting purpose.

7. The animal shall not be taken outside the perimeter fence except to a veterinary clinic (for medical treatment only).  When transported, the animal must be housed in a transport cage that is in compliance with 312 IAC 9-11-10(h).  A copy of this permit must be in the possession of [Hill] when transporting the animal.

8. The animal shall not be used for breeding purposes or attempted breeding purposes consistent with this requirement….

9. The cages or enclosures will be inspected monthly and will be subject to random, surprise inspections at any reasonable hour, with or without notice, by the [DNR].

10. The animal must be examined by a licensed veterinarian and given appropriate immunizations and medications necessary for the prevention of disease, such as heartworm, within ninety (90) days of the date of issuance of this permit.

11. An application to renew this permit must be received by the [DNR’s] Division of Fish and Wildlife no later than February 7, 2006 and include a written verification by a veterinarian and an inspection by a conservation officer.  There is no fee if the permit is renewed by February 7, 2006.

12. The [DNR] may revoke a permit issued under this section if [Hill] fails to comply with IC 14-22, 312 IAC 9, or a condition of the permit.  A proceeding under this subsection is subject to IC 4-21.5-3-8.

13. [Hill] may not apply for any additional wild animal possession permits until twelve (12) months after the date of issuance of [the subject permits].  The DNR will consider such applications at that time.

 

The subject permits state they provide the authorizations that are required under IC 14-22-26 and 312 IAC 9-11.

 

3. This proceeding is governed by IC 4-21.5 (sometimes referred to as the “Administrative Orders and Procedures Act” or “AOPA”) and rules adopted by the Commission at 312 IAC 3-1 to assist with implementation of AOPA.

 

4. The Commission is the “ultimate authority” for the DNR under IC 4-21.5-1-15 and IC 14-10-2-3.

 

5. Hill and the DNR were notified of the proceeding in a “Notice of Prehearing Conference” entered by the Commission’s administrative law judge on February 10, 2006.  An attorney for Hill entered an appearance on February 28, and an attorney for the DNR entered an appearance on March 1, 2006.

 

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6. The Commission has jurisdiction over the subject matter and over the persons of the parties.

 

7. In adopting rules to govern the possession of wild animals, the Commission must provide for (1) the safety of the public; and, (2) the health of the animals.  IC 14-22-26-6 and IC 14-10-2-4.

 

8. 312 IAC 9-11-1 provides in pertinent part:

 

Sec. 1. (a) … [A] person must have a permit issued by the [DNR] under this rule to possess a wild animal if the wild animal is either of the following:

(1) Referenced in this rule.

….

(b) A separate permit is required for each individual wild animal and applies only to the location stated in the permit.

(c) A permit issued under this rule expires one (1) year from the date of issuance. If a timely and sufficient application is made for a permit renewal under section 3 of this rule, however, the permit does not expire until the department has entered a final determination with respect to the renewal application.

….

 (f) A person who possesses a wild animal is responsible for complying with all applicable requirements of this rule, including those which govern permit renewals and permit site relocations.

….

 

9. 312 IAC 9-11-8 provides in pertinent part:

 

Sec. 8. A permit is required under this rule for the following Class III wild animals:

….

(3) Wild cats (all species), except feral cats.

….

 

10. Tigers are among the wild cats specifically identified in the rules.  Illustrative is 312 IAC 9-11-13(o)(1).  Bengal tigers (Panthera tigris tigris) are native to the Indian subcontinent.  Adult males may weigh up to 420 pounds. Their coat color is variable, ranging from light yellow to reddish yellow, or even white. The tiger’s stripes can be brown or black.  A white tiger is not an albino but rather a rare color phase of the Bengal tiger.  Nashville Zoo online.

 

11. 312 IAC 9-11-2(e) provides:

 

(e) An application must present a plan for the quick and safe recapture of the wild animal if the animal escapes or, if recapture is impracticable, for the destruction of the animal. After notification by the [DNR] of an intention to issue a permit, but before the permit is issued, the applicant must obtain the equipment needed to carry out the recapture and destruction plan. The nature and extent of the recapture plan and the equipment needed are dependent on the danger the escaped animal poses to persons, domestic animals, livestock, and other wildlife in the vicinity of the escape.

 

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12. A prehearing conference was conducted as scheduled on May 26, 2006 during which the parties were present in person or by their attorney.  During the conference, Winterrowd presented a series of contentions that form the issues for disposition in this proceeding:

 

Winterrowd directed attention to 312 IAC 9-11-1 and 312 IAC 9-11-2(e).  He contends the response plans required in the [subject permits] are inadequate if a tiger were to escape.  Winterrowd owns real estate neighboring the permitted site.  He said the approved methodologies are too slow to adequately protect his family and him, his domesticated animals, and other persons similarly situated.  He expressed concerns for the permitted use of hallucinogenic drugs to be administered by a syringe delivered by a bow and arrow.  Winterrowd asserted that because [Hill] is a convicted felon, Hill is unable to possess a firearm that could provide for the destruction of a tiger, if necessary.  Winterrowd’s issues might be summarized as contentions that the permitting requirements for recapture or destruction of a tiger, in the event of an escape, are inadequate.

 

13. A hearing was conducted at Edinburgh, Indiana as scheduled on August 31, 2006.  The hearing was completed on the same day.  The parties were provided until October 3, 2006 to file simultaneous briefs; proposed findings of fact and conclusions of law; or both.  Each of the parties have availed this opportunity.  The proceeding is ripe for disposition by the Commission.

 

14. Linnea Petercheff, Operations Staff Specialist for DNR’s Division of Fish and Wildlife, testified that Bengal tigers are wild animals and are not domesticated.  The statutes and rules under which the DNR derives its authority for the subject permits and similar permits are for the possession of wild animals.

 

15. A large wild cat that is raised in captivity does not become a domesticated animal.  In some respects, a wild cat raised in captivity can pose a greater potential for harm because its natural fear of humans is lost.  Cody, et al. v. DNR and Polarek, 7 Caddnar 74 (1994).  The three Bengal tigers possessed under the subject permits must properly be treated as wild animals and not as domesticated animals.

 

16. The first phase of an effective recapture plan is to minimize the likelihood of escape through a well-designed and well-maintained system of locking inner and outer cages or enclosures and a perimeter fence.  Although Hill has previously been cited for inadequate facilities, he recently reconstructed the compound in which the three Bengal tigers are caged.  Periodic and unannounced inspections by the DNR during the past year demonstrate Hill’s cages are now well-designed and well-maintained.  The preponderance of the evidence is that Hill’s compound meets and sometimes exceeds the requirements of the statute and the rules. 

 

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17. Because escape is always a possibility, whether due to human error, vandalism, or natural causes such as a storm, a recapture and destruction plan is also required by prudence and by rule.  Particularly for large wild cats, including Bengal tigers, the plan must provide an effective strategy for the use of lethal force where an unreasonable threat is posed to humans or to domestic animals.  312 IAC 9-11-2(e) specifies that the plan must provide for “quick” recapture or destruction.  The balance of these Findings is directed primarily to the adequacy of the capture and destruction plan, if an escape were to occur.

 

18. The parties entered into evidence as Stipulated Exhibit I, Hill’s “Recapture Plan” for the Bengal tigers.  (Upper case letters are provided at the beginning of sentences to assist grammatical continuity.)

 

Basically and simply all felines have certain behaviors in perspective to actions and reactions.  An escaped feline must be dealt with rationally and carefully, and utilizing good strategy to benefit both you and the escaped feline.  Moving slowly, quietly, and patiencely [sic.] forward with the best action.  Try not to force the feline into an irrational situation by poor recapture attempt.

 

My exact recapture will consist of funneling the animal back into its enclosure.  That is, using herding panels to theoredically [sic.[ squeeze the path of the feline down to the opening of its enclosure.  And behaviorily [sic.] speaking, the feline recognizes its enclosure as its security and will go right in.  Again, using stratigy [sic.] and not rushing the feline but being consistant [sic.] about keeping the feline moving forward down the squeeze path.  Another form of “building” a squeeze path for the feline that also works well is the orange construction site plastic fence.  This idea will work well if there is a distance to shuffle the feline.  Also some other things that can be used to help in moving felines in certain situations is the water hose.  Felines can sometimes be directed by spraying them with water.  Another device could be the fire extinguisher, but this could border line as irrational, only used in certain situations.

 

And if necessary, a pole syringe loaded with ketamine/rompom [sic.], and or rompom [sic.]alone can easily render the animal helpless.  Also doperene works very well.  Ketamine/rompom [sic.] can be reversed with yobine.  This recapture method would most likely involve Angela Lennox, my veterinarian or an available veterinarian.  My vet is readily available to issue rompom [sic.]at any time.

 

Also as a plan for destruction of the animal, I possess a hunting bow and arrows.  Also as part of the plan is to call 911, whereas, an officer with a gun would also be available.

 

This document is subsequently referred to as the “Recapture Plan”.

 

19. The Recapture Plan forms a portion of Hill’s applications for the subject permits.  The DNR approved the provisions contained in the Recapture Plan, incorporating these provisions into the subject permits, but the DNR did not consider the Recapture Plan to

 

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be sufficient as written.  Linnea Petercheff testified the Recapture Plan “indicated a pole syringe would be used and different methods would be used to attempt to recapture the animal, but it did not clearly indicate that he had those drugs in his possession or that he had what would be needed to actually kill the animal if immediate danger was occurring.”A.  When Hill had enough drugs to kill an animal when injected, the “Recapture Plan” was sufficient.  Petercheff also stated a dart rifle has been shown to be effective for the administration of drugs.  “If enough of a drug can be administered in a very quick amount of time, it could kill the animal.”  Petercheff testified neither the applicable statutes nor rules require the use of firearms to kill an animal.  Either Ketamine or RompunB. could be used to kill a tiger.  She has issued only one permit for the DNR, other than the subject permits, for the possession of a Bengal tiger.  L. Petercheff Testimony.

 

20. Ronald John Hamilton is a lifelong farmer who lives in rural Flat Rock, Shelby County.  His residence is approximately ¼ mile east of the compound that includes the three Bengal tigers possessed under the subject permits.  Hamilton tills the cropland immediately east and immediately north of the Hill property.  The area he cultivates is within ten to twelve feet of Hill’s tiger compound.  Hamilton is frequently in the cropland during the spring and early summer, as well as at least once in the fall to harvest the crop.  During other seasons, he is in the fields less frequently.  R. Hamilton Testimony.

 

21. Hamilton testified that in August 2006 the fields had corn plants which he estimated to be twelve feet tall.  He testified if the tigers escaped into the field in August 2006, they would not be visible.  The tigers would also have “cover” on Winterrowd’s property if they escaped.  Hamilton said he would be vulnerable to a tiger attack if he had a mechanical breakdown with a tractor or when removing items from a field, including tiger bones discarded from Hill’s property without Hamilton’s permission.  He said he was “leery” that he might be attacked by an escaped tiger.  Hamilton added, “When it comes to my family, I do fear” a tiger attack.  He said he did not allow his 20-year old daughter, who is a runner, to go west of his home and toward the Hill property because of the tiger compound.  R. Hamilton Testimony.

 

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22. Melissa Ann Butler testified she, her husband and their three sons live in a residence rented from Winterrowd and located adjacent to corn fields.  The residence is located in proximity to Hill’s tiger compound.  She testified, “It’s scary, just knowing they could just jump out of the field at any time.”  M. Butler Testimony.

 

23. A point emphasized by the DNR in the cross-examination of Ronald John Hamilton and of Melissa Ann Butler is that, if they feared being attacked by an escaped tiger, they could move to another location.  The DNR suggested Hamilton need not cultivate corn fields adjacent to the Hill tiger compound, and Butler need not raise her family at a rented residence in proximity to the compound.  That the area surrounding the compound is sparsely populated was also suggested as being relevant.  A similar point was presented in the DNR’s proposed “Findings of Fact and Conclusions of Law” in which the agency suggested a recapture and destruction plan should achieve a higher standard at a facility, which is open to the public, than the Hill’s compound, which is not.  Although there may be issues that are unique to public entry in a facility, any suggestion is rejected that a lesser standard should apply to a recapture and destruction plan.  A citizen of rural Shelby County is entitled under IC 14-22-26-6 to the same level of consideration for public safety as is an urban resident adjacent to a zoo.

 

24. Joe Taft is the Director of the Exotic Feline Rescue Center in Center Point, Indiana.  The Center provides a permanent home for wild animals, including large cats, which have been abused or otherwise confiscated.  The Center houses almost 200 large wild cats, including African lions, leopards, cougars and 99 tigers.  J. Taft Testimony.

 

25. Taft testified he has moved several tigers for the U.S. Fish and Wildlife Service.  “While they were not running loose, they were running in extremely large pens, and they were extremely stressed.  So I am familiar with drugging procedures and effectiveness.”  In this kind of situation, Taft stated he would have “a variety of equipment when we are trying to immobilize tigers or any big cats.  If they are not in a cage, then our first preference is a .22-powered dart rifle.”  Another explosive charge in the dart is used to inject drugs into the tiger.”  J. Taft Testimony.

 

26. Taft testified he also had available a dart pistol, an automatic 12-guage shotgun with three-inch rifle bore deer slugs, a .300 Weatherby magnum, a .44 magnum and a .38 special.  For “a large number of the tigers and lions that we have,” the use of these firearms would be the primary recapture or destruction strategy “if they were out of their cages.  There would be no option except to destroy them because of the time delays with darting.  …[I]f you have a tiger with a six-cc dart out of a .22 caliber projectile…, it’s a very painful experience.  The chances are that tiger is going to be up and aggressive.  He’ll be running at you or running away from you.  And you’ve got a fairly long timeframe there between the time he’s hit with that dart, and it takes effect, if the adrenalin doesn’t burn that drug off, which is often the case.  Even when you full syringe an animal in a fairly tight cage, it’s not too uncommon to see it shake off the effects of the first dosage of the drugs.”  J. Taft Testimony.

 

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27. Taft testified he used Ketamine frequently, including a cocktail mixture of Ketamine and Dormitore (medetomide).  “It’s moderately slow acting.  It will take 15 to 20 minutes to knock a tiger down with the drug.  If the tiger is stressed, you cannot count on a normal dosage of the drug knocking it down at all.”  He said when recently assisting the U.S. Fish and Wildlife Service, “in order to immobilize five tigers, we used 20 vials of Ketamine, ten vials of Dormitore and a 50 cc vial of Zylazine.”  On cross-examination, he testified Rompun (Zylazine) “is a drug that we use only in emergency.  And the veterinary manual advises it should never be used on large predators because of the ability to come up through the drug.”  J. Taft Testimony.

 

28. Taft testified the Recapture Plan was appropriate if a tiger escaped from the primary cage and remained inside the perimeter fence.  “Hill would have a reasonably good chance of recovering that tiger and seeing it replaced in its pen.  …[O]nce that tiger would breach his perimeter fence, I think this plan is completely non-feasible in terms of recapturing a tiger that is running loose.  It’s particularly non-feasible in terms of capturing a tiger that is under stress.”  J. Taft Testimony.

 

29. On cross-examination, Taft reflected that tigers are potentially “large, dangerous animals here that are tough and resilient and aggressive.  I hope I never have one get out, but I can’t guarantee that.  If I have one get out, I hope I can get it back, but I can’t guarantee that.  If I have one get out, and it’s going to hurt somebody, I hope I can kill it, but I can’t guarantee that.  All I can do is make the best effort I can in those directions.” J. Taft Testimony.

 

30. On cross-examination, Taft was asked if “an overdose of Ketamine or Ketamine-Rompun kill a tiger?”  He answered, “I’ve seen lions die from complications from a minor amount of Ketamine-Rompun, and I have seen animals that have had massive amounts of Ketamine-Rompun come through them with virtually no effect.  I would not count on Ketamine-Rompun as being lethal.  There are other drugs that would probably be more lethal than Ketamine-Rompun if your goal was to kill a tiger.  There are probably better drugs to use.  I don’t think planning to kill…a loose tiger, a tiger that is posing risk, with drugs is an effective solution.  First of all, there’s too much time lapse from the time you hit that tiger with the drugs until the time the drugs take effect.  And you have no way of knowing what that tiger is going to do, or controlling what that tiger is doing, between the time you have administered the drugs and the time they take effect, if they take effect.”  J. Taft Testimony.

 

31. Stephen Spencer is the Indiana State Chairman for the National Bowhunter Education Foundation” and administers the International Bowhunting Program.  He is also a 4-H archery instructor and a DNR voluntary instructor.  He testified a hunting bow and arrows equipped with a broadhead are lethal equipment for most vertebrate.  “They are used widely.  They have been used to harvest all 27 species of big game in North America—everything from Kodiak bear to turkeys and cougar—in the hands of someone proficient in their use.  The keys to successfully using a hunting bow and arrow are sharp broadheads and shot placement….  Whereas a bullet fired from a firearm kills by hydrostatic shock (or knockdown power, if you will), a broadhead-equipped arrow kills by hemoragic shock.  What that means is it causes a blood loss in the circulatory system. 

 

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It causes a drop in blood pressure and a disruption in oxygen and blood supply to the brain.  Death results anywhere from ten seconds to several hours, depending upon shot placement.”  An arrow will not go through bone structure.  Unless struck in the spinal cord, an animal shot with an arrow will not immediately stop.  “Spinal shots are a very low percentage shot.”  S. Spencer Testimony.

 

32. Spencer testified that to be successful with an effort to kill an animal in a mature cornfield “against the rows, you would have to be terribly close.  With the rows, it would depend on the cornfield, but I would say probably less than ten yards due to the way the leaves hang.  An arrow is much closer to a thrown rock than it is to a bullet, and it doesn’t take much to disrupt its flight.”  He said he recommended to his classes that “even experienced, expert archers limit their shots to inside 30 yards in the state of Indiana.”  S. Spencer Testimony.

33. Captain Terry Hyndman is the South Regional Commander for the Indiana Conservation Officers and oversees the southern half of Indiana.  In this capacity, he has had extensive experience with the recapture or destruction of both domesticated animals and wild animals.  “…I have been involved in everything from assisting with the capture of livestock or somebody’s dog that has gotten loose to [destroying] a Himalayan bear that got out of another enclosure.”  He testified he was generally familiar with the items described by Hill in the Recapture Plan.  “I don’t have any expertise in, for instance, the Ketamine or the different drugs.  I’m not familiar in how effective they are or how well they are used, but I do know about them.”  He testified there have been instances “where people have had wild animals that are not native to Indiana that have escaped from enclosures which [the DNR’s Division of Law Enforcement has] been brought in on.  That could range from bears to mountain lions to hybrid wolves, as far as wild animals that would not be native to Indiana that I have either personally or my officers, under my command, have been involved with.”  On cross-examination, he testified he has been involved with cage inspections for wild animal possession permits in excess of 20 years.  T. Hyndman Testimony.

 

34. On cross-examination, Capt. Hyndman was asked about the response if a 911 call was directed to his office as a result of a tiger escaping from Hill’s compound.  He testified that upon receipt by emergency services of a 911 call, “More than likely, they will either contact the local officer, or they’ll contact my office, which is in Bloomington, that oversees the southern half of Indiana.  But we have direct radio contact with all those officers in that area.”  Capt. Hyndman indicated conservation officers carry firearms, including shotguns, high-powered rifles and .45 caliber handguns.  These are sufficient to cause the destruction of a Bengal tiger.  T. Hyndman Testimony.

 

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35. On cross-examination, Capt. Hyndman testified there are 103 conservation officers in the 48 counties which constitute the South Region.  In Shelby County, there is one conservation officer.  “If he’s on a day off or if he’s assigned to, for instance, Lake Monroe or some other area, we will get officers there as rapidly as we could, but it would not be unreasonable for that response to be an hour or in excess of an hour.”  Because “of the severity of the concern” that would be caused by escaped Bengal tiger, efforts would be made to contact an available officer from an adjoining county or from the officer’s home, but “an hour to an hour-and-a-half” would be the reasonable expectation for a response.  He would similarly expect the Indiana State Police and the Shelby County Sheriff would treat a 911 alarm for an escaped tiger to be a high priority.  A county such as Shelby County may only have one or two officers on duty at a time, “so, for instance, if they’re involved with a vehicle accident with personal injuries or a domestic dispute, where somebody is being battered, they’re not going to be able to just drop what they’re doing and run” to the Hill tiger compound.  On redirect, Capt. Hyndman said the conservation officers have extensive training in firearms use and safety but no training in how to track down wild animals that have escaped from enclosures.  T. Hyndman Testimony.

 

36. Since 1982, Kevin Chambers has raised exotic wild cats and other wildlife.  He testified he is a breeder, an importer-exporter and has transported these animals.  “I have dealt with over 130 different species of wildlife, including 19 different species of wild cats and have had over 200 individual cats of those species.”  He is Vice President of the Feline Conservation Federation and is the Chairman of the Feline Conservation Federation Exotic Feline Accredidation Program.  Chambers testified there are “basically three avenues for recapture.”  These are (1) “soft recapture” where the effort is to guide an escaped animal back to a cage, (2) “tranquilization, which is a good way…in the right situation because it does take ten to 15 minutes, if it’s properly administered, for that to take effect.”  Avenue (3) “is the use of lethal force in cases or a situation when someone is in danger or the other methods just can’t work.”  He said he believes the use of the 911-emergency contact could be helpful, although “I personally think that a lot of work needs to be done with your local law enforcement agencies, because if you get fellows coming in with their sirens blaring, they can exacerbate a situation.”  Local law enforcement officials could be helpful “for backup to keep people away for the application of lethal force, if it’s necessary.”  K. Chambers Testimony.

 

37. Chambers testified that entities which possess wild animals, such as zoos, sometimes would not include lethal force in their recapture plans.  “They will have a SWAT team or the local police department to be in charge of that stuff.”  The strategy would be to call 911 and then have the law enforcement agency apply any lethal force.  K. Chambers Testimony.

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38. Dennis Hill is the holder of the three subject permits.  He testified he has possessed tigers and other big cats for more than 21 years.  He has displayed them, bred them, sold them and is currently writing two books about them.  Hill said the three subject permits do not allow him to breed tigers, but he formerly focused on Bengal tigers “with the solid white gene” because “they were the big money cats, and big money cats support a lot of other things in my life.”  He said he has owned as many as 40 tigers at one time and that he had 24 tigers when he “had the problem with DNR”.  Hill testified the three tigers that are possessed under the subject permits were all raised by him from birth in captivity.  D. Hill Testimony.

 

39. Hill testified the Recapture Plan focuses on tiger behavior in the context of how his tigers have been raised.  If a tiger were to escape within the compound, “I have tried to cover all rational moves and situations in regarding an escape.”  Included is an orange fence used to help funnel an animal back to a cage which “is its security.”  Another option is to “spray water” to move a tiger.  The use of a fire extinguisher is also anticipated as a possibility.  He testified, “Everyone in the industry uses fire extinguishers against a cat in a certain respect at a certain time.”  The pole syringe “works very well”.  For a tiger that is on the outside of the compound, Hill testified he had recently acquired “a new dart tranquilizer gun, and I have all these darts.  I have Ketamine and Rompun.”  He indicated the drugs would render a cat helpless.  Additionally, Hill said he had “a cocktail that’s going to going to be ready to go if a tiger gets out, and this is you take Ketamine and evaporate it, and then you mix it in with more Ketamine, and it’s like a double dose.”  He said another element of his Recapture Plan was to call 911.  Hill testified he also anticipated use of bow and arrows to kill an escaped tiger, and he has successfully used a bow and arrow to kill opossum.  D. Hill Testimony.

 

40. The “Affidavit of Tenea Pennington” indicated she was the co-owner and operator of the Wildlife Rescue and Rehabilitation in Seminole and the secretary-treasurer and a partner in Preservation Station-Zooville in Thonotassa, Florida.  She has assisted the U.S.D.A. in writing protocols for feeding animals and the Florida Wildlife Commission in developing a recapture dosage chart for the Florida Wildlife Commission during “last year’s hurricane season and assisting in tranquilizing of tigers.”  She has written a recapture protocol for Preservation Station-Zooville and found the Recapture Plan was “more than adequate for the recapture of pen raised tigers.”  Respondents Exhibit 3.

 

41. Hill offered into evidence an email from Gloria Johnson of Cougar Ridge Educational Center in Florida that offers a favorable critique of the Recapture Plan.  Respondents Exhibit 4.  Over objection by Winterrowd, the email was admitted under IC 4-21.5-3-26(a).  This subsection provides, “The administrative law judge may admit hearsay evidence.  If not objected to, the hearsay evidence may form the basis for an order.  However, if the evidence is properly objected to and does not fall within a recognized exception to the hearsay rule, the resulting order may not be based solely upon the hearsay evidence.”  The email suffers the limitation of similar documents in that there is no opportunity for cross-examination.  Fatally, a review of the email subsequent to hearing fails to establish that Johnson is qualified as an expert concerning recapture plans or that she is sufficiently informed concerning the factual context of the subject permits.  As a consequence, no weight is accorded to the email, and it will not be further considered in these Findings.

 

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42. On cross-examination, Hill was asked whether he requested another individual to provide a statement of support for his Recapture Plan, but the request was rejected.  He denied knowing the individual then testified, “I know many, many, many people across the USA with tigers and leopards, and when someone gets in trouble, someone always comes to their side.  We stick together.  At least, most of us do.”  D. Hill Testimony.

 

43. Hill testified he is on probation for a felony he committed.  As a consequence of the prohibition, he is currently prohibited from owning a gun, but the probation is scheduled to terminate on May 2, 2007.  Although Hill did not identify the nature of the felony conviction, he testified it was not an offense which would characterize him as a “serious violent felon”, under IC 35-47-4-5, so as to permanently prohibit him from possessing a firearm.  Hill also testified as to what he believed would occur with respect to his felony conviction after May 2, 2007, but this testimony is found to be speculative and accorded no weight.  D. Hill Testimony.

 

44. Hill testified he is employed as a singer-songwriter, a writer and a union employee at the Indianapolis International Airport.  D. Hill Testimony.

 

45. In determining the sufficiency under 312 IAC 9-11-2(e) of a recapture and destruction plan for an escaped wild animal, the totality of the circumstances must be considered. 

 

46. The Recapture Plan includes an appropriate range of options to address a tiger that escapes from its primary cage but remains within the perimeter fence.  While some danger to the public is posed, the level of danger within a sparsely populated community has not been shown to be unreasonable.  For an escape which does not breach the perimeter fence, the Recapture Plan is found to be adequate.

 

47. The Recapture Plan is inadequate for a tiger that escapes the perimeter fence.  The options offered do not provide a reasonable expectation there would be quick recapture or destruction.

 

48. The primary deficiency is with a response time that may be anything but “quick”.  Hill is employed at a significant distance from the compound.  For Hill to respond to a tiger escape from his workplace, he would need to receive notice of the escape then drive from western Marion County to southern Shelby County.  The preponderance of the evidence is that making a 911 alarm call could reasonably result in a response time of between one and one-and-one half hours.  Having the responding person or persons reach the compound one hour or later, after notification of a Bengal tiger escape, does not provide a recapture or destruction plan that conforms to 312 IAC 9-11-2(e).

 

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49. A secondary deficiency is a consequence of Hill being prohibited from possessing a firearm.  Although there may be occasions when an escaped tiger might be persuaded through fencing, water spray or another method described in the Recapture Plan to return to an enclosure, the testimony by Joe Taft is persuasive that these options are non-feasible, or at least undependable, for a tiger that has escaped the perimeter fence.  Dependence upon a dart gun or a bow to administer an effective dosage of Ketamine or another drug is problematical at best.  Dependence upon bow and arrows to administer a lethal shot that is quickly effective through hemoragic shock, particularly when the shot may have to be made through a field with mature corn, is overly optimistic.

 

50. Hill need not personally apply lethal force against an escaped Bengal tiger, if the need arises, but a responsible entity must have this ability.  Kevin Chambers testified that a zoo will sometimes make advance arrangements with a local police department or SWAT team to provide lethal force when needed.  The zoo is then removed from performing a function which may not be consistent with the zoo’s mission or expertise.  Properly developed and executed, this approach is also appropriate under the Indiana rules.  Dependence on a 911 call for response by sorely-stretched law enforcement agencies is misplaced, however, unless advance arrangements are entered with a law enforcement agency to provide the specialized services that Hill requires.



A. The record is unclear concerning what quantities of the requisite drugs Hill possesses.  Winterrowd has the burden of demonstrating the quantities would be insufficient, however, and he has not made this demonstration.  The sufficiency of drug quantities is seemingly not a central element of his grievance and the theory of his case, but to the extent it may be an issue, the finding is that Winterrowd has not shown the quantity to be insufficient.

 

The court reporter has not been requested to prepare a transcript of testimony at hearing.  If a witness is shown as being quoted in these findings, the statement is as nearly verbatim as could be determined by the administrative law judge.  If a transcript is subsequently prepared that indicates different wording, the transcript shall be considered the official record and a quotation as paraphrasing of witness testimony.

 

B.  Joe Taft subsequently testified that Zylazine is the technical name for Rompun.  “Rompun is a brand name.”