Something is Rotten in the State of Ohio and its Name is HSUS

HSUSOn November 27, 2012, the Humane Society of the United States (“HSUS”) filed its Motion to Intervene in Wilkins et al. v. Daniels et al., Case No. 2:12-CV-01010-GC., seeking to have the Ohio Dangerous Wild Animals Act (“DWA”) declared unconstitutional.  Normally, a lawsuit involves the plaintiffs (who bring the suit), and the defendants (whom the suit is brought against).  Sometimes, an entity who is not party to a lawsuit in progress seeks to become a party.  Such a party must file a Motion to Intervene.  Generally, to be admitted into the lawsuit, the intervenor must have an interest in the subject matter of the original suit.  The Motion to Intervene was granted on December 3, 2012.  This case is set to begin trial on Monday, December 10, 2012.

In its Motion to Intervene, HSUS has revealed its true intent with uncharacteristic candor.  The message is simple:

  • HSUS needs to prevail in Ohio in order to ensure its flow of private donations;
  • HSUS plans to bring similar legislation in other states;
  • If HSUS loses in Ohio, its ability to impose similar burdensome legislation in other states will be lessened; and
  • HSUS spent significant organizational funds to push the DWA through.

(See HSUS Motion to Intervene, excerpts included at the end of this post.)

All members of the reptile community, as well as the exotics community, as well as anyone who is interested in a government that is not empowered to take private property from citizens without compensation and without due process of law, should join together in opposing the DWA in Ohio.  HSUS has announced that it is poised to take this legislation to other states.  If the State of Ohio upholds legislation that allows the DOA to take exotic pets from its residents without due process, it will set precedent for the taking of dogs, cats, and farm animals.

Please support the plaintiffs in Ohio.  If they lose this case, they will need funding to appeal.  If they win, they will need funding to address whatever modifications the legislature proposes in its stead.  Polly Briton and the Ohio Association of Animal Owners (OAAO) need funding to keep this fight going.

Key Excerpts from HSUS’s Motion to Intervene:

“The Humane Society is funded in part by private donations, and its ability to generate continued donor support depends heavily on the success of its efforts . . . It follows that if the legislative achievements of the Humane Society —like the DWA
Act—are overturned, the organization will lose . . . financial support.”  

“This case marks the first constitutional challenge to a state dangerous wild animal law, and many states are currently considering adopting similar laws to address the problem of private possession of dangerous wild animals. The Humane Society is expending resources to support passage of those laws and, therefore, the precedential nature of this lawsuit could have an impact on the organization’s other legislative efforts and future possible litigation concerning those legislative efforts.”

“[A] ruling striking down the [DWA] could have a significant impact on the Humane Society’s pecuniary and reputational interests.”

“[T]he DWA Act provides a concrete and substantial benefit to the Humane Society.”

“The Humane Society undeniably has an interest in upholding the DWA Act because the Humane Society was an active proponent of the legislation, directly participating in policy discussions to develop a legislative framework, analyzing proposed legislative language, and promoting passage of the bill.”

“The Humane Society . . . expended significant resources in order to ensure the law’s passage.”

 

Wilkins et al. v. David Daniels and the Ohio Department of Agriculture

© 2012 Erika N. Chen-Walsh

From April of this year until I resigned on October 12, 2012, I was formally involved with USARK and engaged heavily in Ohio against Troy Balderson’s balderdash bill, SB 310.  I have blogged extensively on this over reaching, unconstitutional, unfunded mandate of a legislative disaster.  (See SB 310:  Kasich’s Big Expensive Blunder Poised to Kill Small Business in Ohio.”)  In June 2012, the Ohio legislature enacted and Governor Kasich signed the Ohio Dangerous Animals Act (“DAA”).

On November 2, 2012, a group of Ohio residents filed a suit in federal court captioned as Wilkins et al. v. Daniels et al., Case No. 2:12-CV-01010-GC.  In the underlying suit, plaintiffs seek declaratory judgment, temporary restraining order, preliminary and permanent injunction and nominal damages for violations of the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution.

I will explain the legal nomenclature in lay terms for ease of understanding.

A declaratory judgment is an adjudication of the rights and status of litigants.  Here, the plaintiffs are seeking to have the Court declare that the imposition of the burdens of (1) joining and funding the objectionable views of a private organization; (2) having one’s private property seized; or (3) obtaining and maintaining a license under Chapter 935 of the Ohio Revised Code are unconstitutional on their face and as applied to Plaintiffs because they violate the rights to freedom of speech, private property, and due process of law guaranteed under the First, Fifth, and Fourteenth Amendments to the Constitution.

temporary restraining order is a court order of limited duration. It commands a defendant in a case to maintain a certain status until the court can hear further evidence and decide whether to issue a preliminary injunction.

preliminary injunction is a temporary court order that prevents the other party from pursuing a particular course of conduct until the conclusion of a trial on the merits.  A permanent injunction is a permanent order that precludes the other party from engaging in a particular course of conduct.

Nominal damages are nominal money damages.

Temporary restraining orders and preliminary injunctions are considered extraordinary relief.  In order to prevail on a preliminary injunction, the moving party must show (1)  a strong likelihood of success on the merits; (2) that the movant would otherwise suffer irreparable injury; (3) whether the issuance of a temporary restraining order or preliminary injunction would cause substantial harm to the non moving party; and (4) whether the public interest would be served by the issuance of a temporary restraining order or preliminary injunction.

In this case, the Plaintiffs have petitioned for a Temporary Restraining Order and Preliminary Injunction.  Although no order has been entered, sources close to the lawsuit have stated that the attorneys in the case have a “gentlemen’s agreement” that the Ohio Department of Agriculture (“ODA”) will not enforce the DAA on a temporary basis.  This should be a matter of grave concern to all exotic animal owners in Ohio because the deadline to register exotic animals restricted by the DAA has passed.  Those who did not register face repercussions.  On the other hand, registering exotic animals under the current law strengthens the position of ODA in the lawsuit.  It is a very slippery slope with significant risk.  Plaintiffs should push hard for a court order granting the preliminary injunction to protect their property rights.

The allegations of unconstitutionality are as follows:

First Amendment – freedom of association.  Plaintiffs claim that the DAA abrogates their right to freedom of association by forcing their involvement with the American Zoological Association and the Zoological Association of America.

The Fourth Amendment guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause.  The allegations are vague as to the Fourth Amendment implications, but ostensibly, the objection is to the ability of ODA to inspect private property without a warrant.

The Fifth Amendment, inter alia, sets out rules for eminent domain and protects the right to due process.  Eminent domain is a governmental takings without compensation argument.  Plaintiffs make a claim that the DAA is tantamount to the Ohio government depriving them of their animals without procedural due process, and that their animals are property as a matter of law.

The Fourteenth Amendment contains the Due Process and Equal Protection clauses.  In very short terms, Due Process requires the government to give a party due process of law before depriving the party of property.  The Equal Protection clause says that, “no state shall … deny to any person within its jurisdiction the equal protection of the laws.”  Here, it means that Ohio exotic animal owners who are not members of AZA or ZAA are not receiving equal protection under the law.

When I was part of USARK, I summarized constitutional issues that I saw in SB 310 for Andrew Wyatt with an eye on a potential lawsuit, and Wyatt agreed.  However,  certain members of the USARK board are risk averse and have an organizational aversion to lawsuits, so those issues never came to fruition.

With respect to the allegations in the case at bar, some of the constitutional challenges are, in my opinion, very strong.  Some are not as strong.  I am not going to publicly criticize any of them because that is how lawsuits work, and I will endeavor not to write a single word that could lessen the chances of the Ohio plaintiffs from prevailing.  The doctrine of res judicata precludes litigants from later raising legal challenges in court that could have been brought in a prior lawsuit, unless new facts come to light.  In lay terms, this means that the Ohio plaintiffs need to bring every possible claim they have in one lawsuit or they will be barred from bringing them later.

On November 27, 2012, the Humane Society of the United States (“HSUS”) filed a Motion to Intervene in the Ohio lawsuit.  That request was granted in an order by United States District Court Judge George C. Smith on December 3, 2012. (See December 3, 2012 Order Granting HSUS Leave to Intervene.)

This is a very important development for the Ohio plaintiffs and the entire reptile community should pay very close attention.  Goliath has just entered the arena.  The HSUS legislative machine is fueled by hundreds of millions of dollars in donations.  The Ohio plaintiffs are operating on a very frugal budget.  The reason that HSUS is entering this case, with all of its clout and all of its money, is set forth explicitly in its Motion to Intervene:

“This case marks the first constitutional challenge to a state dangerous wild animal law, and many states are currently considering adopting similar laws to address the problem of private possession of dangerous wild animals. The Humane Society is expending resources to support passage of those laws and, therefore, the precedential nature of this lawsuit could have an impact on the organization’s other legislative efforts and future possible litigation concerning those legislative efforts.”

(HSUS Motion to Intervene at p. 13.)

It is extremely important to the rights of reptile keepers and all exotic animal keepers to prevail in Ohio.  HSUS could win this fight just by grinding this case into the ground financially.  Polly Briton and the Ohio Association of Animal Owners (OAAO) need funding to keep this fight going.  If they lose, we all lose.

There are many divisions within the reptile community, both organizationally and personally. Now is not the time for infighting among ourselves.  If reptile keepers and owners cannot come together for this common cause, the entire community is going to face an unprecedented onslaught of anti-reptile keeping legislation in the coming years.

Andrew Wyatt is a close personal friend of mine and a trusted colleague.  However, I would encourage any reptile or exotic animal keeper who has money to donate at this time to send it to the OAAO via Polly Briton and nowhere else.  The in-community fighting and rhetoric must stop or we fuel HSUS’s fight against us.  There will be another lawsuit coming down the pike shortly at the federal level, and that one is also going to need funding, but the pressing need right now is in Ohio.

 

HSUS: The Pacelle Propaganda Machine Hampers Progress For Animals

By Erika N. Chen-Walsh

Wayne Pacelle, CEO and president of the Humane Society of the United States (HSUS) blogged today, lambasting Andrew Wyatt andU.S. Rep. Steve Southerland (R-FL) for opposing  U.S. Rep. Tom Rooney’s (R-FL) animal rights driven House Resolution 511.  HR 511 seeks to amend title 18, United States Code (the “Lacey Act”), to prohibit the importation of nine species of constrictor snakes as injurious species.  These include the Burmese python, the reticulated python, the North African rock python, the South African rock python, the Boa constrictor, and three species of anaconda.

Andrew Wyatt preparing to testify before the House Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs

Andrew Wyatt preparing to testify before the House Subcommittee on Fisheries, Wildlife, Oceans, and Insular Affairs

Apparently, the reptile community, led by Andrew Wyatt, has struck a nerve with the $200 million plus per year animal rights legal behemoth, HSUS.  Pacelle’s angst at Wyatt is not particularly surprising.  Since co-founding the United States Association of Reptile Keepers in 2008, Wyatt has emerged victorious in more than two dozen state engagements defending the rights of herptile owners as well as multiple federal entanglements.  These victories have come on a shoestring budget and against HSUS’s powerhouse millions.  Wyatt is most certainly a bothersome thorn in Pacelle’s manicured paw, and one that will not go away.

Pacelle said today, “But the reptile lobby—yes, there is such a thing—has been thrashing its collective tail and saying how benign these snakes are and that cold weather will prevent the snakes from going much farther than the Everglades (I guess it’s no matter to these supposed snake “lovers” that the snakes will freeze to death).”

Pacelle’s comment is interesting for two reasons.  First, using HSUS’s own statistics, 17 people have been killed by large constrictors in the US since 1978.  HSUS further claims that there have been 1,111,768 large constrictors imported since 1977.  Using those figures alone, without factoring in the millions of large constrictors bred in captivity this country since 1978, it makes the risk of death from a large constrictor less than 0.01%.  Large constrictors may not be “benign,” but the risk of being killed by a vending machine, a clothes dryer, a sand hole, a shark attack, a dog or a bee are significantly higher than the statistical risk of being killed by a large constrictor.

Second, Pacelle seems to concede that the snakes will freeze to death if they travel north of the most southern tip of Florida.  HSUSclaims on its own web site about reptiles, “Wild animals are best left in the wild where they belong.”  As great a shock as it may come to HSUS, animals in the wild are not frolicking about making daisy chains and counting stars as they do in Disney movies.  Wild animals die of disease, injury, predation, starvation, and yes, from the elements of nature.

Clearly, Pacelle’s remark is intended only to inure sympathy from animal lovers who don’t truly understand the issue. HSUS has used similar rhetoric about dog breeders, showing a decided recalcitrance to distinguish between responsible breeders and puppy mills.  Responsible reptile owners and breeders do not want to see the suffering of any herptile, and they certainly don’t advocate releasing any captive reptiles into the wild.

Wayne Pacelle and convicted dog fighting felon, Michael Vick, following the Atlanta Falcon’s $50,000 donation to a cause related to HSUS.

Pacelle’s tantrum continues, “Somehow the snake lobby, in the form of the U.S. Association of Reptile Keepers, has hoodwinked a number of Republican House members and apparently convinced them that this is a matter of “economic freedom.”

This is about economic freedom. HSUS does not have the right to deprive American citizens of their property interests and their livelihoods simply because Pacelle doesn’t agree with reptile ownership.  It must be incredibly empowering for one person to believe that his ideology should translate into law for every American citizen, but it is the duty of lawmakers to protect the interests of their constituents, no matter how much it upsets Mr. Pacelle.  The majority of people involved in true herpetoculture, the breeding and ownership of captive bred reptiles, care immensely about the health and welfare of the animals they keep.  (If Pacelle is truly concerned about the welfare of animals, perhaps he should revisit his endorsement of convicted dog fighting felon, Michael Vick, who, for a monetary donation, now receives Pacelle’s endorsement.)

Pacelle speciously condemns U.S. Rep. Southerland for condoning the import of  “dangerous invasive species into the country for use as pets, even if they are creating ecological havoc, injuring and killing private citizens, and costing the nation millions of dollars in terms of containment activities.”  (When he hasn’t got facts, he embellishes.)  Notably, Pacelle provides no back up for his inflammatory and false rhetoric.  HSUS’s fall back plan is to continue to terrify the public about non existent threats in order to feather HSUS’s own legal nest.  (HSUS has conceded in its Motion to Intervene in Ohio that it has an economic interest in winning legislative engagements because doing so attracts more monetary donations.  I will be writing on that topic next.)  If Pacelle needs to succeed in state and federal legislatures in order to attract the hundreds of millions of dollars that pay his six figure salary, perhaps he should set his sights on those more dangerous predators, such as vending machines, clothes dryers and sand holes.

U.S. Representatives Fleming and Southerland, Dr. Brady Barr, Shawn Heflick, Colette Sutherland and Andrew Wyatt should be commended for bringing facts to the table regarding the threat of pythons in the Everglades and the economic impact of arbitrary and capricious government action.  The role of our representatives in Congress is to protect our rights from unnecessary and harmful legislation, not to ensure that Pacelle has enough “wins” to fund HSUS into perpetuity.

SB 310: Kasich’s Big, Expensive Blunder Poised to Kill Small Business in Ohio

By Erika N. Chen-Walsh

“There is poison in the fang of the serpent, in the mouth of the fly and in the sting of a scorpion; but the wicked man is saturated with it.”    ~ Chanakya

May 22, 2012, Ohio’s Senate Bill 310, which went through 16 revisions in the Senate and one, big Omnibus Amendment in the House, passed the Ohio House of Representatives by a vote of 89-9. It was rushed through the Senate regarding the House amendments on the same day and passed by a vote of 30-1. SB 310 awaits only Governor Kasich’s signature before becoming Ohio law. There is no chance of veto.

SB 310 has sweeping implications for all exotic animals. In terms of reptiles, it imposes a prohibitive permitting scheme for all species of venomous snakes and certain constrictors over 12′ in length. It imposes enormous and specific liability insurance or surety bond requirements on owners of venomous snakes, the likes of which are not available. SB 310 requires owners of all restricted snakes to meet certain standards of care that have not been defined and will be set by administrative rule at some later date by group of people unqualified to define best management practices for reptiles. By administrative rule, the director of agriculture can require any information he chooses on the application to own restricted snakes and breeding restricted snakes requires a separate permit. Additional species may be added to the dangerous wild animals list or the list of restricted snakes by either legislative process or a simple concurrent resolution without full legislative process. The impact on reptile hobbyists, owners, breeders and small businesses will be enormous.

How did Ohio go from being one of the few completely unregulated states with respect to exotic reptiles, to one of the most restrictive in less than three months?

The genesis of SB 310 goes back to 2010 and Kasich’s predecessor, Governor Ted Strickland. Strickland was under tremendous
pressure from the Humane Society of the United States (HSUS) to regulate standards of care for Ohio farm animals. HSUS had threatened to file petitions for HSUS’s proposed constitutional amendment on animal care and housing. (FN1.) Strickland, caving to the pressure of HSUS’s threats, made a deal to draft an executive order. In exchange for this agreement, HSUS agreed to drop their ballot initiative for 2010 and committed to instigating no future initiatives for at least ten years. (FN2.)

On January 6, 2011, the deal brokered between Strickland and HSUS resulted in Strickland issuing an emergency executive order banning exotic pets in Ohio. (FN3.) The executive order would have authorized the Ohio Department of Natural Resources (ODNR) Division of Wildlife to adopt new rules that prevented new private ownership of wild animals, required existing private owners of dangerous wild animals to register the animals with the state, and defined the type of facilities that could own and rehabilitate dangerous wild animals. The emergency rules would be in place for 90 days. (FN4.)

Four days later, Kasich was sworn in as Ohio’s governor, having defeated Strickland in November 2010 by a narrow margin. (FN5.) By this time, Andrew Wyatt had become aware of the terms of Strickland’s well publicized deal with HSUS. In January 2011, he began contacting Kasich’s office.

By the spring of 2011, Kasich had decided not to sign Strickland’s exotic animal ban because he felt that it exceeded the authority of ODNR and because he felt that it would damage Ohio small businesses. (FN6.) Kasich blocked Strickland’s executive order until its expiry.

Then Zanesville happened. On October 18, 2011, Zanesville, Ohio police began receiving 911 calls of lions, bears, tigers, and other large, dangerous animals wandering loose. The animals, 56 in all, belonged to a man named Terry Thompson, who had kept them on a private game preserve and who chose to turn them loose just prior to killing himself. No humans were harmed by the loosed animals, but unfortunately, the animals were not so lucky. Forty-nine lions, tigers, bears, wolves, mountain lions and a baboon were slaughtered. Most of these were shot and killed by law enforcement officers within 1500 feet of their pens. One was hit by a car. No reptiles were involved in the Zanesville incident.

The public criticism against Kasich from the Zanesville tragedy was swift and condemning. Kasich, of course, refused to accept any culpability, but it turned into an enormous political embarrassment for Kasich, so much so that he sent his friend, Jungle Jack Hanna to the media to defend him. Hanna (television celebrity and Director Emeritus of the Columbus Zoo and Aquarium), a strong Kasich ally who personally donated $7500 to Kasich’s gubernatorial campaign, made the rounds on national TV claiming it was not Kasich’s fault and further stating that even if Strickland’s original ban had been left in place, there wasn’t anyone to enforce it and no place to put the animals if they had to be taken away. (FN7.)

Politicians achieve their status in life by renegotiating every promise they ever make. The most successful ones make the largest reversals. Kasich may become very successful.

Before Zanesville, Kasich claimed to be protecting Ohio’s small businesses. After Zanesville, he claimed that he blocked Strickland’s executive order because of deficiencies in that order. He became hell bent on passing prohibitive legislation against exotic animal owners as political damage control.

In December 2011, Wyatt met with Senator Troy Balderson, the senator representing the district in which Zanesville lies, and the same senator who sponsored SB 310. Wyatt also met with the director of ODA, the director of ODNR, both of their staffs, and multiple other legislators regarding the inclusion of reptiles (which have never posed a public safety threat in Ohio) in what was already taking form as a huge, restrictive legislative thundercloud for exotic animals and to educate the administration on the impact to Ohio residents and businesses. Other organizations also became interested in and around this time and they, too, began trying to influence the governor.

Senator Balderson made multiple promises to Wyatt during these meetings. Balderson assured Wyatt that only crocodilians and venomous snakes would would fall under his permit system (no constrictors), and that the system would be favorable to industry and it would be “business as usual.” He reversed on those promises.

On March 8, 2012, Balderson introduced SB 310, seeking to enact a sweeping law to establish requirements governing the possession of multiple species of animals, which would be designated as “dangerous wild animals” as well as multiple species of snakes which would be designated under the law as “restricted snakes.” He reversed on his promise to omit constrictors. He reversed on his promise to maintain “business as usual” for the reptile industry. SB 310′s provisions with respect to snakes were so onerous and expensive that they would have served to be a de facto ban on the ownership of multiple species of constrictor snakes as well as venomous snakes.

Rumors in the Statehouse circulated that Balderson, who was not elected but appointed to his senate seat by Kasich, was buckling under the pressure of the governor, who was in a frantic scramble to avoid looking bad over Zanesville. Wyatt made the strategic decision (with which I agreed whole heartedly) to discontinue discussions with Balderson because at best, he lacked the political authority to negotiate, or, at worst, he was negotiating in extremely bad faith.

Wyatt appeared on March 27, 2012 at the first opponents hearing on SB 310 before the Senate Agriculture, Environment and Natural Resources Committee. Wyatt gave compelling testimony to a standing room only crowd, amid a sea of NO SB 310 buttons provided by Wyatt, that the reptile industry generates approximately $30 million annually in the state of Ohio; that thousands make their livings or supplement their incomes by farming reptiles as a non-traditional agricultural pursuit; that a rational argument could not be made that working with any reptiles presented public safety risks, and that 90% of the impact of SB310 was directed at the reptile industry, hobbyists and pet owners. He requested that all reptiles be removed from SB 310 and that administrative rule making authority to add new species be removed as well.

Wyatt and I both appeared on April 17th, and on April 24th, each time presenting testimony that not only would SB 310 create a huge burden on Ohio commerce and small businesses, but that reptiles have statistically never posed a public safety risk in Ohio or elsewhere in the U.S.

By April 17th it was clear to us that the Senate intended to listen to virtually unending testimony on SB 310, but had every intention of passing SB 310 out of committee. During that week, Wyatt began executing its strategy to try to ameliorate the damaging provisions of SB 310 in the Ohio House of Representatives. Wyatt felt, and I agreed, that progress in the Senate was futile and further efforts there were going to be fruitless under the circumstances.

Balderson made and reneged on more promises regarding SB 310 during this time period. For example, he promised that administrative rule making authority to add new species would be removed. In fact, he put that promise into writing. But he reneged.

By April 24th, SB 310 was in its 16th version. Some opponents spoke out in favor of the sixteenth version because Balderson removed Boa constrictor , removed constricting snakes less than 12′ long, and allowed surety bonds in certain cases instead of liability insurance for venomous snakes. The inclusion of constrictors, later “bargained” back, was not a victory. Balderson took pains to agree to “concessions” that the legislature could reclaim because of his failure to remove administrative rule as promised. It was a shell game played by Balderson and Kasich against the stakeholders and their representatives who were inexperienced at the carnival.

Wyatt and I  began meeting with House representatives on April 24, 2012 and voicing our objections to SB 310. These objections were resoundingly well received in the House and we were assured that the House would not buckle to the whims of a tyrannical governor as the Senate had.

Beginning in April, several aides also intimated to us that somehow, some of the opponents of SB 310 were leveraging it against another pending piece of legislation, Ohio SB 130. In other words, if opposition to SB 310 were quelled, SB 130 might not be scheduled for committee hearing. SB 130 is a puppy mill bill and puppy production in Ohio is a much larger industry that reptile keeping. Another layer of intrigue had been added. Although we could not verify for certain this had happened, we received enough comments from enough offices, that it seemed likely. As of May 23, 2012, SB 130 still has not been scheduled for further committee hearings and the session is about to end. It was assigned to the House Agriculture and Natural Resources Committee on February 2, 2012, more than a month before SB 310 was even introduced.

On April 25, 2012, SB 310 passed out of the Ohio Senate on a vote of 30-1 and moved to the House. The same day, Wyatt was on the phone with Chairman David Hall’s office addressing the issue of administrative rule as well as other problematic features that persisted in SB 310. By this time, Wyatt and I already had appointments scheduled for the following week with more than half of the representatives on the House and Natural Resources Committee to discuss SB 310 and had contacted Kasich’s office multiple times regarding meeting with the governor to discuss SB 310. After two weeks of such attempts, Kasich’s aide admitted that Kasich would not meet with us regarding SB 310 and told us that, through her, Kasich made a personal request to the director of agriculture, Director Daniels, to meet with Wyatt and me. Unfortunately, the director’s schedule did not allow that to happen.

By May 1, 2012, we had submitted a proposed substitute bill to Representative David Hall, the Chairman of the House Agriculture and Natural Resources Committee. We were in Ohio on May 8th and 9th for continued meetings with legislators in the House, to discuss the particulars of our sub bill (which was distributed to the House Committee on May 8th) and to testify in the House Committee hearings.

Throughout hearings, we continued to hammer home the points that SB 310 represented an unfunded mandate that would fall squarely on the shoulders of Ohio taxpayers, that reptile owners continued to be disproportionately affected, that reptiles posed no safety risk in Ohio, that administrative rule to add new species violated due process rights, that the insurance requirements of SB 310 were impossible to meet because such policies did not exist, and that ideologues and imported animal rights experts were the only proponents, proponents that would drive Ohio residents out of business.

Attendance by committee members at the House committee hearings was outstanding. Members asked pointed and excellent questions and paid close attention to the testimony that was given. On two nights, these public hearings went until approximately midnight. Andrew and I appeared on behalf of the Ohio reptile community, and multitudinous Ohio residents appeared and testified as well, many in the herpetoculture community as well as owners of exotic mammals. At most hearings, opponents outnumbered proponents by more than 20 to one. Proponents were HSUS, PETA, a handful of local zoo representatives (always at least one of Hanna’s cronies from the Columbus Zoo) and imported animal rights advocates from other states.

Early on, Representative Jim Buchy (R) developed a pointed interest in support of our positions and our sub bill. Buchy sent our sub bill to drafting and through him it was proposed to the House committee. Other representatives were also opposed to the Senate version of SB 310 and it was clear to them that Wyatt’s criticisms of specific provisions were accurate.

In our May 8, 2012 meeting with Chairman Hall, he explained to us that when the House received SB 310 from the Senate, the House committee members felt that SB 310 was so problematic that there were not enough votes to pass it out of committee. Hall indicated that he would not call for a vote if they could not pass it. However, if the changes were made in the House necessary to pass SB 310 out of committee, he felt certain that the Senate would not approve it. In that case, the two chambers were required to “conference” the issue, with the governor, which would delay the session.

After May 10, 2012, no further testimony was taken on SB 310. On May 14th, seven committee members caucused SB 310 with Balderson and Kasich. We learned after that caucus that the majority of the House committee was also caving under Kasich’s will. All of the House committee members were up for reelection in November. They were anxious to get back to their districts to campaign. Balderson threatened that substantive changes would not pass in the Senate. Kasich promised that he would veto SB 310 if it arrived on his desk with substantive changes. As a result, the only changes that the House committee proposed in its Omnibus Amendment were those that both Balderson and Kasich had pre-approved.

The Omibus Amendment did not restore legislative process to SB 310. Instead, it allows the director of agriculture to add species to the restricted snakes list or to the dangerous wild animals list (or between those two lists) with approval of the General Assembly. This could be through the introduction of an amendment in the form of a bill. However, it can also be through a concurrent resolution, for which hearings, multiple readings, committees and public input are not required. A concurrent resolution only needs a simple majority vote in each chamber and may occur quite silently. This is not full legislative process.

The insurance provisions in SB 310 are either not obtainable or may be so onerous that the cost will preclude nearly all breeders from meeting the requirements. The standards of care are not defined and administrative rules could impose standards of care that are so impossible as to represent a ban on all permits. Moreover, the director of agriculture can, by administrative rule, define what information and requirements are necessary to keep restricted snakes. SB 310 is a defacto ban on keeping venomous snakes and possibly constrictor snakes over 12′ of certain species.

On May 16, 2012 , SB 310 passed the House Agriculture & Natural Resources Committee late in the evening by a vote of 17 to 4. The four Representatives who opposed the bill were Buchy, Boose, Damschroder and Hagan.

On May 22, 2012, SB 310 was read on the House floor for its third consideration. Chairman Hall testified that there had been over 15 hours of testimony taken by the House committee, more than 80 witnesses had appeared to give oral testimony and additional written testimony was submitted. He thanked Kasich, Balderson, and Balderson’s legislative aide. He said, “We made the bill stronger,” and, “I feel that we did get it right.”

Representative Terry Boose testified against SB 310. Boose asked more questions in committee than any other representative. He stated that when the House received SB 310, “I was 100% for the bill. I thought it was a good bill before listening to the 80 plus witnesses who testified.” Boose went on to list the litany of problems with SB 310. He said it created a false sense of security. He correctly noted that even if SB 310 passes, it is powerless to prevent another Zanesville, that a person could still own all those animals and still release them. He testified that SB 310 “takes away property rights, not just your neighbor next door, but businesses, valuable businesses in Ohio.”

Boose talked about the $30M to $100M annual revenues generated by the exotic animal business and said that SB 310 will “regulate them out of business.” He testified about the “out of state animal rights groups” that want to impose SB 310 on Ohio. He compared SB 310 to Ohio’s Jarod’s Law (referring to a environmental school safety law in Ohio that went into effect in March of 2006 and was repealed entirely in 2009 because the extraordinary costs of the regulations). (FN8.)

Boose noted that none of the proponents nor the committee had been able to find insurance or surety bonds with the language and terms SB 310 will require. He noted that SB 310 will force this businesses underground. He testified that the bill was devoid of any of the rules that it seeks to enforce. He said, “I cannot vote for this bill.”

Wyatt and I applaud Boose for testifying that, “When we pass laws that people cannot obey, then we destroy the Rule of Law and create a lawless society.”

SB 310 passed in the Ohio House of Representatives by a vote of 89-9. Those that voted against it were: Representatives Boose, Buchy, Conditt, Damschroder, Goodwin, Christina Hagan, Martin, Newbold, and Uecker. It immediately moved to the Senate the same day, where it passed by a vote of 30-1. The sole senator voting against it was Senator Jordan.

This is a sad day for reptile keepers in Ohio. We applaud the Ohio legislators that held to their promises and had the courage, the integrity and the intelligence to stand up for Ohio businesses and commerce in light of the pressure and hysteria of the ideologues to which Kasich and Balderson succumbed.

FN1 http://ohioansforlivestockcare.com/

FN2
http://industry.ohiopork.org/PageResources/Agreement_reached_between_Ohio_agriculture_and_HSUS.pdf

FN3
http://ocj.com/2011/01/strickland-issued-executive-order-completing-agreement-between-ohio%E2%80%99s-agricultural-leaders-and-hsus/

FN4 Id.

FN5 http://www.washingtonpost.com/wp-dyn/content/article/2010/11/02/AR2010110206305.html

FN6 http://www.plunderbund.com/2011/10/21/kasich-refusing-to-take-responsibility-for-blocking-dangerous-animal-ban/

FN7 Id.