The Migratory Bird Treaty Act: On the Wings of an Executive Branch ReinterpretationNovember 4, 2018
Florida’s Toxic Algae CrisisMarch 14, 2019
As the values of our society have changed over time, often very slowly over decades, our laws have naturally followed suit. During the last two decades in this country we have seen an accelerating awareness of animals’ sentience and intelligence as well as an increased understanding of how they suffer when exploited or mistreated. We have seen circus attendance decline to the point of Ringling Bros. Circus closing. We have seen Sea World have to change its practices after the documentary Blackfish revealed the suffering that orca whales endure in captivity. And we have become more aware of the plight of big cats held in captivity. A recent essay by Howard Baskin, Advisory Board Chairman of Big Cat Rescue in Tampa, explores
this subject in detail and posits that “we are not far away from becoming a society in which the vast majority of people believe that . . . animals [such as big cats] should not be exploited and mistreated in ways that were viewed as acceptable in the past.” See Howard Baskin, “How is the Struggle for Women’s Suffrage 100 Years Ago like the Battle to Stop Abuse of Big Cats?” Encyclopedia Britannica: Advocacy, Oct. 22, 2018, available at http://advocacy.britannica.com/blog/advocacy/2018/10/how-is-the-struggle-for-womens-suffrage-100-years-ago-like-the-battle-to-stop-abuse-of-big-cats/.
But today, captive big cats are still often held in woefully inadequate conditions. Big cats are intelligent creatures that require large areas to run and play. They need large logs to sharpen their claws, structures to climb, and multiple perches or platforms to use. The enclosures should have floors of soft earth, grass, or mulch for them to walk on. They need frequent environmental enrichment such as whole carcasses or toys to prevent them from getting bored and to encourage them to exercise. They require a high quality commercially-prepared diet, whole carcasses, or a variety of meats that include bones. Even though these are the minimum humane requirements for keeping big cats in captivity, captive big cats rarely receive this type of treatment. Instead, they are often kept in small cages with concrete floors and no stimulation at all. They are fed a nutritionally deficient diet. Some big cats are declawed, and cubs are separated from their mothers so that people can pet them. These poor conditions lead to a host of health problems for the cats, including foot, joint, muscle, and circulatory problems. Because they cannot meet their instinctual needs, the cats develop neurotic behaviors like excessive grooming, tail-chewing, and pacing. See The Humane Society of the United States, “Factsheet: Captive Big Cat Welfare Issues,” available at https://www.humanesociety.org/sites/default/files/docs/captive-big-cat-welfare-factsheet.pdf; see also Jason G. Goldman, “Lions are the Brainiest of the Big Cats,” Scientific American, Dec. 1, 2016, available at https://www.scientificamerican.com/article/lions-are-the-brainiest-of-the-big-cats/ (discussing big cat intelligence); Andy Henion, Sharleen Sakai, Michigan State University, “Wild Cat Brains: An Evolutionary Curveball,” PHYS.org, Oct. 31, 2016, available at https://phys.org/news/2016-10-wild-cat-brains-evolutionary-curveball.html (same).
Sadly, Florida is no exception, and many captive big cats in the state are subject to these poor conditions. Florida has long been known to tourists for its “roadside zoos” featuring big cats. This article explains the unfortunate treatment experienced by big cats under our current statutory and regulatory framework, clarifies misconceptions about what powers the Florida Legislature has under the Florida constitutional and statutory mandates given to the Florida Fish & Wildlife Conservation Commission (FWC), discusses actions other states have taken, and outlines proposed measures that might be undertaken to end this mistreatment.
THE CURRENT REGULATORY SCHEME DOES NOT PREVENT INHUMANE TREATMENT
Although there are laws and regulations in place meant to insure that big cats are treated humanely in the State of Florida, in reality there are massive loopholes that allow for the widespread mistreatment of these beautiful animals. Under Florida law, in order to own an exotic animal the owner must apply for a license from the FWC. The regulations divide species into “Classes” based primarily on how dangerous they are, which naturally correlates strongly to size. Large exotic cats like tigers, lions, and cougars are Class I animals, while smaller cats like bobcats are Class II. Rule 68-A-6.002, F.A.C. Florida law prohibits ownership of dangerous big cats (and other dangerous “Class I” animals) as “personal pets.” § 379.3762(2)(a), Fla. Stat. The alternative to being a pet owner is to be an “exhibitor,” i.e. someone who makes a business out of displaying the animals to the public. So, in theory, everyone in Florida who owns a big cat should be an exhibitor.
Anyone who is an exhibitor of big cats also falls under federal regulation. The United States Department of Agriculture (USDA) is charged with promulgating regulations to implement the Animal Welfare Act (7 U.S.C. § 2131-2159) (AWA) and enforcing those regulations. Within USDA is the Animal and Plant Health Inspection Service (APHIS). Anyone wanting to exhibit big cats, i.e. charge the public to view them, must obtain a USDA “Class C” license (in this case referring to the kind of license, i.e. exhibitor license, not the kind of animal) from APHIS. 9 CFR 1.1 & 2.3.
Despite Florida law’s prohibition on owning big cats as pets, many “exhibitors” are actually pet owners. The Office of the Inspector General (OIG) audits APHIS about every five years. In 2010 they performed a sampling of people who held USDA Class C exhibitor licenses who owned four or fewer big cats. OIG found that seventy percent of the “exhibitors” were actually pet owners who obtained a USDA Class C exhibitor license only in order to evade state laws that prohibit owning big cats generally but exempt owners with USDA licenses.
A USDA license is obtained by filling out a one-page application with eleven questions, paying a fee of $40 to $310 depending on the number of animals, and being subject to an initial inspection of the enclosure the animal will live in. Neither USDA nor FWC has any process to verify that the license holder has a credible plan to exhibit to the public at the time of application, or any process to follow up and verify that the license holder actually does exhibit to the public.
With exhibitors both (a) subject to rules promulgated by FWC and USDA to supposedly insure humane treatment of the animals and (b) periodically visited by trained inspectors from these agencies, one would expect that these magnificent big cats are treated humanely. But, often they are not. The regulatory scheme simple does not, and in reality cannot, work.
The first problem is the rules themselves. Most are decades old, from a time when there was far less understanding of how intelligent and sentient these animals are and the degree to which they suffer emotionally when kept in small cages instead of roaming large territories as nature intended. The rules are also often so vague that they are unenforceable. For instance, the federal rule for how much living space an owner has to give a tiger is that the animal must be able to “make normal postural and social adjustments with adequate freedom of movement.” 9 CFR 3.128. No exhibitor or any inspector knows what that means. Does it mean be able to stand up and turn around? In Florida, the regulations at least clearly define the minimum cage size in feet. An owner can keep two 500 pound tigers—animals that nose to tail can be 12 feet long—on a 10’ x 24’ concrete slab enclosed in chain link. Rule 68-A-6.004(4)(a)1a, F.A.C. This would be the equivalent of confining two domestic cats in a large dog carrier for their entire lives. No one would consider this a humane way to treat domestic cats, and yet Florida law allows tigers to be treated this way.
Even if the regulations were improved, from a practical standpoint, the system of inspecting to enforce the rules simply cannot work because there are not enough inspectors and the inspectors have very limited authority to gain compliance. USDA and FWC have enough inspectors to visit each exhibitor a little more than once a year on average. If an exhibitor has failed to comply with the very weak rules, the inspector may only “warn” them if there is a noncompliant item. If the inspector issues a citation, there typically is no penalty, merely a supposed requirement to correct the deficiency. If the deficiency is not corrected when the inspector visits next, the inspector simply issues a “repeat citation.”
In practice, people who may be keeping the cats in filthy conditions or not providing safe caging or proper veterinary care are cited year after year, often for six or more years, with no penalty before any fine is imposed. After years of citations, sometimes literally hundreds of citations, the typical next step is that USDA sends a “stipulation letter,” which is basically an offer to settle the case by paying a fine. An OIG audit in 2014 showed the fines were discounted on average 86% from what Congress authorized USDA to charge, despite Congress having specifically raised the fine per violation from $3750 to $10,000 “to strengthen fines for violations of AWA.” So the fine simply becomes a modest “cost of doing business,” cheaper to pay than the cost of cage improvements or other compliance. The USDA takes some of the worst exhibitors to court, filing a complaint with the Office of Administrative Law Judges (OALJ) where such cases are heard. Of those exhibitors who are taken to court, only a very few of the worst of the worst actually lose their license. And even that does not stop them. In many cases they simply continue to operate under someone else’s license. In the meantime, the animals suffer for years while this process drags on.
The issue is that even though the agencies are trying to do their jobs, their jobs are simply financially impractical to perform. Millions of taxpayer dollars are being wasted sending credentialed individuals, many of whom are veterinarians, to ineffectively inspect tigers in back yards. Taking any of these violators to court is enormously expensive and stresses the staff, resources, and budgets of the agencies. Having a full-time inspector in residence on site (as the USDA often does in its work monitoring meat-packing plants) would be the only way to know what really goes on at these roadside zoos. But the cost would be astronomical. In the meantime, faced with limited investigative and legal resources, the agencies have enormous practical incentives to settle for nominal fines or not enforce at all.
TIGER CUB PETTING AND SELFIES ARE A MAJOR SOURCE OF MISERY
The single biggest driver of breeding is the “cub petting” trade, i.e. charging the public to handle, take photos or selfies with, or even swim with tiger cubs or other big cat cubs. The cubs are torn from their mothers at birth so they bond to people instead of the mother in order to make them more “manageable.” This is a torment to any mammal mother and offspring and deprives the cub of the natural antibodies in the mother’s milk that protect it from disease and are not contained in the bottle formula they are fed instead. The cubs are physically punished to diminish their natural behaviors and deprived of needed sleep, which further weakens their immune systems, in order to be available for customers. There is no tracking of how many die. If they survive, after a few months they are too big for safe petting and either end up in tiny cages for life or disappear. There is no tracking of how many of these cubs are destroyed to supply the illegal trade in their parts and fur.
Just one example of the difficulty of oversight is found at Dade City Wild Things (DCWT), a Florida roadside zoo well known for charging visitors to handle or swim with tiger cubs. One volunteer reported that “training” the cubs involved shoving their faces into the dirt when they exhibited their natural but undesired behaviors. According to reports and a USDA complaint, cubs were forced into a swimming pool against their will.
DCWT’s USDA records show citations for violating the AWA going back at least to 2008. In 2011, APHIS announced that because it had an unmanageable backlog of over 2000 cases and could not possibly pursue them in a timely manner, its Investigative and Enforcement Services (IES) unit would reduce the backlog by sending “warning letters” to many violators instead of completing ongoing investigations. DCWT received a warning letter in July 2012 naming seven violations including failure to provide veterinary care. This ended the investigation and let DCWT continue to operate with no penalty for past violations. For an extensive review of the ineffectiveness of USDA warnings, see Delcianna J. Winders’ recent article, “Administrative Law Enforcement, Warnings, and Transparency,” published in the Ohio State Law Journal and available here: http://www.ohiostatelawjournal.org/wpcontent/uploads/2018/08/79-3-Winders.pdf.
DCWT continued to defy the law by racking up more serious violations. Reportedly, in 2015 USDA took its typical next step in enforcement by sending a “stipulation” letter offering to settle for a mere $1500. Normally violators accept these nominal fines, which clearly are no deterrent and contrary to Congress’ intent in raising the fines. Based on 20 violations, USDA was entitled to maximum fines of $200,000. But DCWT declined the $1500 offer. So USDA took the next step and filed a complaint with the OALJ. The complaint listed 20 violations incurred from July 2011 to November 2013. Because of the backlog and the time and effort it takes to investigate, it is common that the violations listed in the complaints that are filed are all two or more years old at the time of the filing. Meanwhile, more violations that may not have been part of the investigation may have been incurred.
The Administrative Law Judge ruled largely in USDA’s favor. In re: Stearns Zoological Rescue & Rehab Center, Inc., 76 Agric. Dec. 45 (USDA Feb. 15, 2017). However, DCWT appealed the Administrative Law Judge’s rulings. So, after a decade of animals suffering as documented by USDA citations, and despite USDA allocating enforcement resources in this case, at this writing DCWT continues to offer cub petting and has paid no fines for its violations. Regulation does not work because the animals suffer for years during the enforcement process even when regulators do apply their limited resources to a case. For more on the DCWT case, see www.tigercubabuse2.com.
DOES THE FLORIDA LEGISLATURE HAVE THE POWER TO STOP THE MISTREATMENT?
The predecessor to the FWC (the agency name has changed over the years) was established in 1942 by an amendment to the Florida Constitution which became current Article 4, Section 9. It originally gave the Commission power over “birds, game, fur bearing animals, and fresh water fish of the State of Florida.” In later amendments to the Constitution, this phrase was changed to “wild animal life and fresh water aquatic life.”
The FWC originally interpreted the 1942 language to give the agency power over captive wildlife in addition to Florida’s native free wildlife. In 1960, the FWC’s attempt to regulate captive animals ended up in the Florida Supreme court in the case of Barrow v. Holland, 125 So. 2d 749, 751 (Fla. 1960). The Court ruled that the amendment did not give FWC power over captive animals. As a result, the Legislature stepped in and passed currently numbered Florida Statutes §§ 379.303, 379.304, 379.3761, and 379.3762 to add regulatory authority over captive wildlife to the agency’s powers.
In 2007, in-house counsel for FWC produced a memorandum arguing that FWC’s powers over captive animals comes from both the statutes and the Constitution. To the extent the power comes from the Constitution, the argument is that the agency’s powers cannot be altered by the legislature except in the very limited way provided for in the Amendment, which states “The legislature may enact laws in aid of the Commission, not inconsistent with this section.” The basis for this FWC position in the memo is that changes to the Amendment language since 1942 have rendered Barrow no longer applicable law and that references to the Constitutional powers in certain subsequent cases support this interpretation.
An analysis of those changes in the language of the amendments to the Constitution and cases interpreting those changes was undertaken by attorneys at Johnson, Pope, Bokor, Ruppel & Burns, LLP, who concluded that the FWC argument is flawed and that FWC’s power over captive animals comes entirely from the statute, not at all from the Constitution. See Frank R. Jakes & Sarah Manthey Smith, “The Constitutional Authority of the Florida Legislature to Ban Private Ownership of Exotic Animals,” Johnson Pope News, November 2018, available at https://www.jpfirm.com/news-resources/constitutional-authority-florida-legislature-ban-private-ownership-exotic-animals/. What the Legislature giveth, the Legislature can taketh away. Therefore, they concluded, it is clear that the Florida Legislature has the authority to ban private ownership of big cats as other state legislatures have done.
WHAT CAN FLORIDA LEARN FROM OTHER STATES AND
WHAT STEPS CAN BE TAKEN TO ADDRESS THIS PROBLEM?
Most states have laws regulating ownership of big cats. Only four do not. Until 2011, Ohio was one of the states known for having a very large population of unregulated exotic animals. Then, in a horrible incident known as “the Zanesville massacre” that made national news, an exotic animal owner named Terry Thompson intentionally released 56 dangerous animals, including 18 tigers and 17 lions, before committing suicide. As night approached, law enforcement officials were forced to shoot and kill 49 of those animals. Subsequently, Zanesville’s Sheriff Lutz has become a strong advocate of national legislation to limit private possession of big cats (see his moving video at https://vimeo.com/222234998/4991058dae) and the National Sheriffs’ Association has endorsed a federal bill severely limiting ownership of big cats, see Big Cat Public Safety Act, H.R 1818/S.2990.
What renders almost all of the state laws covering exotic animals largely ineffective is that they operate much like the Florida law that only prohibits owning the animals as pets and exempts anyone who has a USDA license. This includes all of the roadside zoos which continue to keep these animals in cruel conditions. The animals endure these conditions because, as described above, trying to enforce regulations intended to protect the animals is simply not practical given the cost limitations associated with inspecting, investigating, and prosecuting violators.
Fortunately, the trend in state law has been not to exempt USDA licensees, but instead to recognize that both animal welfare concerns and public safety concerns dictate banning ownership of big cats. The only exceptions in these improved laws are (1) the major zoos accredited by the Association of Zoos and Aquariums (AZA), who operate under much higher animal welfare standards than the FWC or USDA standards, and (2) sanctuaries that are needed to care for the discarded or seized animals and do not add to the problem by breeding more cats. States which have adopted such laws are Washington State, Ohio, Kentucky, and West Virginia (although the latter grandfathered in past USDA license holders who keep their licenses in force).
One logical provision common in these laws is a grandfather clause allowing current owners to keep their cats but prohibiting them from breeding or acquiring more. As a practical matter, sanctuaries have very limited capacity and there would be no place for confiscated cats to go if they were taken from all of the private owners. The lifespan of these cats is 10-20 years, depending on the conditions in which they are kept. Given the average age of the current big cat population, a law prohibiting further breeding outside the Species Survival Plans managed by the AZA zoos would result in most of the privately owned cats having passed on within a decade after the passage of a law.
Awareness is rapidly growing that animals are more than inanimate objects and should not be completely subject to our whims, used for entertainment, or exploited for gain without concern for their natural needs. We have responsibility for them. And in the case of big cats in Florida, taking responsibility for these animals means changing the law. Trying to regulate a large number of private owners is simply not practical. Florida should ban the private ownership and breeding of big cats altogether.
It is time for Florida, once a bastion of inhumane roadside zoos, to catch up to the growing understanding in our society that big cats do not belong in tiny cages for people to exploit by charging the public to gawk at them, handle them, or swim with them. Florida should follow the lead of the more forward-thinking states that have banned private ownership and breeding.
*Marcia S. Cohen is a labor and employment attorney based in St. Petersburg, Florida. She serves as Legal Counsel for the National Organization for Women in Washington, DC. Ms. Cohen has been practicing for over 30 years and handles employment discrimination cases, family and medical leave issues, unemployment compensation appeals, wage disputes, whistleblower claims, employment contract disputes, and retaliation claims. Selected in 2018 as a Super Lawyer in Labor and Employment, she has been a guest lecturer on wide-ranging topics such as U.S. civil rights, women’s legal rights, and U.S. equal pay law. She is also a member of the Labor and Employment Law Section as well as the Animal Law Section of the Florida Bar.