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‘Tiger King’ Fallout Unites PETA, Feds to Fight Cub Petting (1)

April 12, 2021, 10:00 AMUpdated: April 14, 2021, 3:29 PM

Netflix’s “Tiger King” burst into a new world of pandemic streaming and gave viewers exotic animals, personal and professional drama, and a man with a mullet’s attempt to launch a political career in Oklahoma.

But years before the theatrics, a legal showdown was brewing between zoo owners featured in the show and animal activist groups that seek to shut down the cub-petting industry with the help of the federal government.

Jeffrey Lowe and Timothy Stark separated endangered tiger cubs from their mothers at too early an age to create photo opportunities with a paying public, according to such groups as People for the Ethical Treatment of Animals and the Animal Legal Defense Fund.

Big cats at Stark’s zoo, Wildlife In Need, were confined in “woefully inadequate enclosures” and declawed in “medically unnecessary procedures,” PETA told the U.S. District Court for the Southern District of Indiana in 2017. Stark instructed employees to “hit cubs with riding crops,” and told customers to hit the animals if they reacted negatively to public handling, according to the complaint.

Through this and similar lawsuits, animal groups are working to establish precedent under the Endangered Species Act. They hope to prove that the act applies to individual animals held in captivity, meaning exhibitors who allegedly mistreat protected species will face federal consequences.

The federal government is now taking a similar position, which may pose a new threat to the cub-petting industry.

“It’s understandable that people would want to hold and play with a tiger cub,” said Brittany Peet, deputy general counsel for Captive Animal Law Enforcement at PETA. “What these people don’t understand is their few minutes of play is sentencing that animal to a lifetime of abuse and neglect.”

Endangered Species

The lawsuits against Lowe, Stark, and others lean on two aspects of the Endangered Species Act.

First, the law prohibits the harming, harassing, or killing of an animal listed as threatened or endangered, acts that are known as “taking.”

Second, the law allows anyone who can establish standing—including a member of the public—to bring a lawsuit against an alleged violator.

The court said in August that it had “little difficulty concluding” the cub separations and declawing procedures are takings that violate the law. Stark transferred several big cats to Lowe a year before the ruling, according to court filings. Stark didn’t respond to a request for comment, and, last week in a separate case, he was barred by an Indiana state judge from owning any animals.

“Now that their nightmare is over, PETA is looking to the state to see that they end up in qualified facilities that can give them the care that they deserve,” said Peet in a statement released after the ruling.

‘Tiger King Park’

The Justice Department scored a win in January against Jeffrey and Lauren Lowe in its case brought under the ESA and the Animal Welfare Act.

The Lowes have been building a facility in Thackerville, Okla., called “Tiger King Park” where they were exhibiting their animals to film crews as recently as October 2020, according to the complaint. They don’t have “adequate financial resources to provide proper care, including veterinary care, to the animals” without “exhibiting them for compensation,” the lawsuit said.

The animals have suffered from “easily preventable or treatable conditions, which frequently have caused their untimely death,” according to the complaint filed in November in the U.S. District Court for the Eastern District of Oklahoma.

The Lowes’ attorney, Daniel Card of Oklahoma City, told the court they are building a zoo, not operating one as the government “disingenuously” states.

“Defendants are no more ‘operating’ a zoo than Ford Motor Company is ‘operating’ a car with no tires or doors while still on the assembly line,” the Lowes’ brief countered. The lawyer also argued the ESA didn’t apply because all of their cats are hybrids.

The court ordered the Lowes to surrender all big cat cubs and their mothers Jan. 15 pending a decision in the lawsuit and banned them from exhibiting animals without a valid U.S. Department of Agriculture license.

Card declined to respond to requests for comment.

‘Troublesome Pattern’

“Although long authorized by statute, this case marks the first time that the government sought civil judicial injunctive relief under the Animal Welfare Act,” the Justice Department said in a statement Jan. 19 announcing the win.

Judge John F. Heil III wrote in the January ruling granting motions for a preliminary injunction and temporary restraining order that the federal government can likely show the Lowes “harmed or harassed numerous ESA protected animals.”

The Lowes’ “troublesome pattern of placing the animals at risk” undermined their claim that they can safeguard the health and safety of the big cats, according to the ruling. The lawsuit is ongoing.

The DOJ also prosecuted “Tiger King” star Joseph Allen Maldonado-Passage, also known as “Joe Exotic,” under the ESA for killing tigers. He was convicted of murder-for-hire and violating the act, and sentenced to 22 years in prison in January.

One of the 39 tigers rescued in 2017 from Joe Exotic’s G.W. Exotic Animal Park yawns while relaxing at the Wild Animal Sanctuary on April 5, 2020, in Keenesburg, Colo.
Photographer: Marc Piscotty/Getty Images

But the government’s lawsuit against Lowe and his associates is the first time that PETA has seen the DOJ go after an animal exhibitor in civil court for violating the ESA and the AWA, according to Peet, the PETA lawyer.

The case against the Lowes is a “breakthrough moment,” said Katherine Meyer, visiting assistant clinical professor of law and director of the Animal Law and Policy Clinic at Harvard Law.

Endangered Orangutans

Meyer was involved in one of the first lawsuits brought under the act to protect animals in captivity. PETA alleged in 1993 that Bobby Berosini had abused endangered orangutans for an act at his Las Vegas nightclub.

The U.S. Fish and Wildlife Service eventually revoked the facility’s captive-bred wildlife permit.

Environmental groups have brought several cases throughout the past decade using the same theory that the ESA can protect individual, captive animals, according to Meyer.

The U.S. Department of Agriculture in theory can take legal action against licensed or registered facilities that mistreat animals under the Animal Welfare Act. But the act doesn’t have a private right of action, and the USDA rarely decides to bring an action, Meyer said.

There were 2,178 exhibitors with active licenses as of March 19, and the USDA Animal and Plan Health Inspection Service has taken only 47 enforcement actions since 2019.

The APHIS website cites multiple actions against the Lowes and Stark in 2020. One action was an order affirming a $340,000 civil penalty against Stark for AWA violations between 2012 and 2016.

“As the USDA active licensee list shows, there is an overwhelming number of exhibitors,” said Daniel Waltz, senior staff attorney at the Animal Legal Defense Fund. “The enforcement action list is far too short.”

Time Consuming, Expensive

Michelle Pardo, a partner at Duane Morris LLP who has represented businesses involved in animal-related lawsuits, said many ESA cases target a small or large exhibitor who has a very good compliance record with the USDA.

Most of the time the exhibitor wins, Pardo said. Some of the losses are “not hard decisions to be made where animals need better standards of care,” she said.

If the case makes it past the standing stage, it can be time-consuming and expensive for exhibitors to defend, according to Pardo.

“It’s an extraordinary diverter of funds for animal care and conservation, which is what most of these exhibitors are trying to do,” she said.

The federal government’s lawsuit against the Lowes is ongoing. PETA scored recent wins against Stark in Florida and Indiana, and the group submitted notices of intent to sue Lowe and his associates under the ESA for similar issues.

The federal government has strong laws already across animal law, the problem is they’re “massively under-enforced,” Waltz said.

Not Getting Those ‘Likes’

PETA has tried to end big cat petting for years, Peet said, because the industry uses a large number of animals and it creates a “cycle of cruelty” when they’re taken away from their mothers so young.

Since “Tiger King” aired, Peet says she’s seen fewer people posting photos of themselves with cubs on social media. When they do, others are speaking up and saying why they don’t support it, she said.

“This activity is not socially acceptable, it’s cruel, and it’s not going to get them likes on social media,” Peet said. “And it’s preventing these roadside zoos from free advertisement.”

Peet said the easiest way to end the cub-petting industry is for people to stop buying tickets. If that happened, “we could end this cruelty tomorrow,” she said.

(Updates April 12 story to add comment from PETA in paragraph 12. Previous update corrected number of exhibitors with active licenses.)

To contact the reporter on this story: Maya Earls in Washington at mearls@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com

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