[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
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].
[VOLUME 10, PAGE 372]
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.
[VOLUME 10, PAGE 373]
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).
“
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.
[VOLUME 10, PAGE 374]
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
14. Linnea Petercheff, Operations Staff Specialist for DNR’s Division of Fish
and Wildlife, testified that
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
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
[VOLUME 10, PAGE 375]
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
18. The parties entered into
evidence as Stipulated Exhibit I, Hill’s “Recapture Plan” for the
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
[VOLUME 10, PAGE 376]
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
20. Ronald John Hamilton is a
lifelong farmer who lives in rural Flat Rock,
21.
[VOLUME 10, PAGE 377]
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
24. Joe Taft is the Director
of the
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.
[VOLUME 10, PAGE 378]
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
[VOLUME 10, PAGE 379]
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
33. Captain Terry Hyndman is
the South Regional Commander for the Indiana Conservation Officers and oversees
the southern half of
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
[VOLUME 10, PAGE 380]
35. On cross-examination,
Capt. Hyndman testified there are 103 conservation officers in the 48 counties
which constitute the South Region. In
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.
[VOLUME 10, PAGE 381]
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
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
41. Hill offered into
evidence an email from Gloria Johnson of
[VOLUME 10, PAGE 382]
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
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
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
[VOLUME 10, PAGE 383]
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
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.”