United States District Court, S.D. Indiana, New Albany Division
ENTRY ON PLAINTIFF'S MOTIONS RELATED TO EVIDENCE
RICHARD L. YOUNG, JUDGE
case concerns the treatment of certain animals under the
Endangered Species Act of 1973, 16 U.S.C. § 1531, et
seq. (“ESA”). People for the Ethical
Treatment of Animals, Inc. (“PETA”) allege Melisa
Stark, Tim Stark, and Wildlife in Need and Wildlife in Deed,
Inc. (“Defendants”) have violated the ESA's
prohibition against harassing, harming, and wounding
Entry addresses several recent motions related to the
preservation of tigers, lions, and hybrids (“Big
Cats”) within Defendants' possession. In these
motions, PETA argues Defendants have violated the court's
preliminary injunction and the agreed upon preservation order
by transferring title of the Big Cats to Jeff Lowe, a
nonparty. Defendants argue neither order prevents them from
transferring ownership and possession of the animals. As will
be explained below, the preservation order requires
Defendants to keep the Big Cats at WIN; the preliminary
injunction forbids declawing and using the Big Cat Cubs in
public encounters; and Mr. Lowe is subject to both orders.
However, the court will deny PETA's request for sanctions
and contempt at this time.
in Need and Wildlife in Deed, Inc. (“WIN”) owns
and exhibits exotic animals at its facility in Charlestown,
Indiana. (See Filing No. 89, Order Granting
Preliminary Injunction at 2 - 3). The Starks operate WIN
together, though Mr. Stark does most of the heavy lifting: he
oversees the day-to-day operations, manages the animal care,
acts as the primary caregiver for the animals, and supervises
volunteers. (Id. at 3). Mrs. Stark assists Mr. Stark
with all of those tasks. (Id.). According to the
Starks, WIN is a nonprofit organization dedicated to the
rehabilitation and release of endangered species. (Filing No.
205-10, WIN Webpage). PETA sees things differently. According
to PETA, WIN is an unaccredited roadside zoo that exhibits
exotic animals for financial gain. (See Filing No.
1, Complaint ¶ 25). This lawsuit seeks to end
Defendants' purported unlawful practices under the ESA.
court entered two separate orders early in the case to
preserve the status quo throughout this litigation. First, on
September 18, 2017, the court issued an agreed-upon
preservation order (the “Preservation Order”).
That order required Defendants to “preserve all
tangible and documentary evidence relating to (and including)
the tigers, lions, and hybrids thereof in [Defendants']
possession, custody, and control.” See People for
the Ethical Treatment of Animals, Inc. v. Wildlife in Need
and Wildlife in Deed, Inc. et. al, No.
4:17-mc-00003-RLY-DML (S.D. Ind. 2017) (Filing No. 27).
Second, on February 12, 2018, the court issued a preliminary
injunction. (See Preliminary Injunction Order). The
injunction restrained Defendants from declawing any Big Cats,
using Big Cat Cubs in public encounters, and prematurely
separating Big Cat Cubs from their mother during the pendency
of this action. (Id. at 17 - 18).
events have led to a dispute over those two orders. In
February of 2019, a news station in Oklahoma revealed that
Mr. Stark and Jeff Lowe planned to open a new zoo in
Thackerville, Oklahoma called Red River Safari. (Filing No.
204-4, News Article). Mr. Lowe is the principal owner of
Greater Wynnewood Exotic Animal Park, LLC, another zoo
facility in Oklahoma. (Filing No. 204-5, Deposition of Jeff Lowe
at 101:5 - 8); see also Big Cat Rescue Corp. v. G.W.
Exotic Animal Memorial Foundation, No. 14-377-M, 2017 WL
3944291 at *4 (W.D. Okla. Sep. 7, 2017). Red River Safari
confirmed this collaboration in a Facebook post:
Okay folks, its [sic] time to announce the collaboration of
the decade. Tim Stark and the Lowe family have joined forces!
This multi-state partnership will own and operate two of the
largest private zoos in the United States.
This collaboration will combine not only the largest animal
inventories in private hands, but also joins two of the most
proactive zookeepers in the county to defend private animal
(Filing No. 204-1, February 19, 2019 Facebook Post). Red
River Safari also advertised several employment positions
available to begin during the summer. (Filing No. 204-6,
Instagram post seeking an attorney); (Filing No. 204-7,
Instagram post seeking a “Veterinary
Stark initially deflected questions related to Red River
Safari in his deposition. (E.g. Filing No. 203-1,
Deposition of Tim Stark at 22:12 - 17 (“So I'll
tell you straight up right now, Red River Safari, I'm not
going to ask -- answer questions about it. It's none of
your damn business, and it's just that simple. It does
not exist. . . .”). However, he admitted that he has
already transferred some of his animals to Oklahoma to help
Mr. Lowe, (Id. at 24:22 - 25:6), he has traveled to
Oklahoma to help excavate the Red River Safari property,
(Id. at 28:1 - 11), and he has discussed
transferring the Big Cats with Mr. Lowe. (Id. at
34:11 - 17). Mrs. Stark denied knowing any information
concerning Red River Safari. (Filing No. 203-2, Deposition of
Melissa Stark at 53:7 - 15).
on the social media posts and the Starks' responses, PETA
filed a Motion to Clarify the Preliminary Injunction and
Evidence Preservation Orders on April 30, 2019. (Filing No.
201). Soon after PETA filed that motion, Mr. Stark
transferred ownership of the Big Cats to Mr. Lowe. (Filing
No. 229-1, Transfer Documents). This prompted PETA to file an
Emergency Motion for a Preservation Order (Filing No. 216), a
Motion for Sanctions (Filing No. 218), a Motion for Contempt
(Filing No. 219), a Motion for Order Regarding Ownership of
Big Cats (Filing No. 220), and a Motion for Order to Show
Cause as to Jeff Lowe (Filing No. 221)-all on May 22, 2019.
PETA filed a supplemental motion, designating more evidence,
on June 12, 2019. (Filing No. 235).
crux of PETA's motions are that Defendants and Mr. Lowe
conspired to transfer the Big Cats to Oklahoma in violation
of the Preservation Order and Preliminary Injunction. PETA
seeks emergency injunctive relief as well as contempt and
sanctions for Defendants' actions. They also seek an
order prohibiting Mr. Lowe from disposing of the Big Cats
during this litigation. Defendants argue that neither order
prevents them from transferring the Big Cats.
The Preservation Order Prevents Defendants from Transferring
the Big Cats
court's Preservation Order requires Defendants to
“preserve all tangible and documentary evidence
relating to (and including) the
tigers, lions, and hybrids thereof in [their] possession,
custody, and control.” (Preservation Order at 1)
plain language within the parenthesis brings the Big Cats
within the scope of the order, and so Defendants are required
to preserve the Big Cats throughout this litigation. See
Black's Law Dictionary (11th ed. 2019) (defining
“include” as “[t]o contain as a part of
something”). This means that Defendants must protect
and maintain the Big Cats in their current state absent a
court order that says otherwise. See
Merriam-Webster's Collegiate Dictionary (11th ed.
2006) (defining “preserve” as
“protect” and “maintain”). This also
means that Defendants or any party acting in concert with
Defendants must not transfer, move, or relocate any Big Cat
before this litigation comes to an end. See Trask-Morton
v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir.
2008) (noting courts can issue sanctions when a party
violates the duty to preserve evidence where it knows
litigation was imminent).
argue that the Big Cats are not “tangible”
evidence. But they are “tangible” because they
are capable of being touched. Merriam-Webster's
Collegiate Dictionary (11th ed. 2006) (defining
“tangible” as “capable of being perceived
especially by sense of touch”). Moreover, the purpose
of the preservation order was to preserve the
animals-themselves. It makes little sense to conclude
otherwise especially since this case is about the alleged
harm suffered by the Big Cats. Accordingly, Defendants shall
abide by the Preservation Order.
The Preliminary Injunction Prevents Defendants from Declawing
and Using any ...