throbber
6:20-cv-00423-JFH Document 114 Filed in ED/OK on 07/26/21 Page 1 of 13
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF OKLAHOMA
`
`UNITED STATES OF AMERICA,
`
`
`Plaintiff,
`
`
`v.
`
`
`JEFFREY LOWE, LAUREN LOWE,
`GREATER WYNNEWOOD EXOTIC
`ANIMAL PARK, LLC, and TIGER KING,
`LLC,
`
`
`Defendants.
`
`
`
`
`
`
`Case No. 20-cv-423-JFH
`
`
`OPINION AND ORDER
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`This matter is before the Court on the Corrected Partial Motion to Dismiss (“Dismissal
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`Motion”) filed by Defendants Jeffrey Lowe a/k/a Jeff Lowe (“Jeff Lowe”), Lauren Lowe, Greater
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`Wynnewood Exotic Animal Park, LLC (“GWEAP, LLC”) and Tiger King, LLC (collectively
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`referred to as “Defendants”). Dkt. No. 73. For the reasons set forth below, the motion is denied.
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`I.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`This case arises from alleged violations by Defendants of the Endangered Species Act, 16
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`U.S.C. §§ 1531-44, (“ESA”) and the Animal Welfare Act, 7 U.S.C. §§ 2131-59, (“AWA”) in
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`connection with an unlicensed exhibition facility known as Tiger King Park, in Thackerville,
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`Oklahoma, which, at the time the Complaint was filed, housed approximately 100 to 200 ESA
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`protected animals for the purpose of exhibiting their animals to the public (“Thackerville
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`Facility”). See generally Dkt. No. 2. The United States filed its complaint on November 19, 2020,
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`seeking declaratory and injunctive relief. Id. Specifically, the United States seeks an order: (1)
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`declaring that Defendants have violated the ESA and the AWA; (2) enjoining Defendants from
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`interfering with United States Department of Agriculture (“USDA”) inspections of their
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`properties, exhibiting animals without a license and placing the animals’ health and safety at risk;
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`and (3) requiring Defendants to relinquish possession of all ESA protected animals. Id. at 46-47.
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`On November 25, 2020, the United States filed its first motion for preliminary injunction
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`requesting that the Court: (1) require Defendants to provide a complete and accurate inventory of
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`the animals in their custody or control; (2) prohibit Defendants from acquiring or disposing of any
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`animals without notice to the United States and consent of the Court; (3) require Defendants to
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`submit complete and accurate veterinary records; and (4) authorize inspectors from the USDA’s
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`Animal and Plant Health Inspection Services (“APHIS”) to conduct inspections of the Thackerville
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`Facility. Dkt. No. 9; Dkt. No. 10 at 31-32. Subsequently, the United States filed a second motion
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`for preliminary injunction and moved for a temporary restraining order based on a December 15,
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`2020 APHIS inspection. Dkt. No. 27; Dkt. No. 28 at 13-14; Dkt. No. 32.
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`On January 12, 2021, the Court held an evidentiary hearing on the United States’ requests
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`for a preliminary injunction and a temporary restraining order. Dkt. No. 35. Based on the
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`arguments and evidence presented at the hearing, the Court concluded that the United States was
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`entitled to preliminary injunctive relief. Dkt. No. 65 at 32. On January 15, 2021, the Court entered
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`an Order requiring that Defendants (including anyone acting, directly or indirectly, through them
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`or on their behalf): (1) immediately cease exhibiting animals protected by the ESA and the AWA
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`without a valid USDA exhibitor’s license; (2) retain a qualified attending veterinarian under formal
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`arrangements consistent with the requirements of 9 C.F.R. §§ 1.1, 2.40, no later than January 29,
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`2021; (3) provide acquisition and disposition records for any and all animals added to or missing
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`from their inventories since June 22, 2020, no later than January 22, 2021; (4) submit complete
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`and accurate veterinary records to counsel for the United States within 7 days of any animal being
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`treated by a veterinarian; (5) submit acquisition and disposition records to counsel for the United
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`States within 7 days of any change to the animal inventory; (6) immediately relinquish all Big Cats
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`one year old or younger, along with their respective mothers, to the United States; (7) not acquire
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`or dispose of any ESA or AWA protected animal without first conferring with the United States
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`and obtaining leave of Court; and (8) permit APHIS to conduct routine inspections of the
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`Thackerville Facility up to every three weeks, at the USDA’s discretion. Dkt. No. 65 at 33-34.
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`On February 12, 2021, the United States filed a motion to enforce the Court’s January 15,
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`2021 Order. Dkt. No. 72. The United States claimed that Defendants failed to comply with the
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`Order by: (1) failing to provide complete and accurate acquisition and disposition records; (2)
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`failing to retain a qualified attending veterinarian under formal arrangements consistent with the
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`requirements of 9 C.F.R. §§ 1.1, 2.40; and (3) breeding animals without conferring with the United
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`States and without leave of Court. Dkt. No. 72 at 3-10. Defendants did not file a response to the
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`United States’ motion. On March 8, 2021, the United States requested that the motion to enforce
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`be deemed confessed due to Defendants’ failure to respond. Dkt. No. 76. On March 22, 2021, the
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`Court entered an Order granting the United States’ motion to enforce and setting a show cause
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`hearing for May 12, 2021 for Defendants to show why they should not be found in contempt for
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`violating the Court’s January 15, 2021 Order. Dkt. No. 78; Dkt. No. 80.
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`During the May 12, 2021 show cause hearing, the Court found by clear and convincing
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`evidence that the Defendants violated the Court’s Orders and civil contempt sanctions were
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`warranted. See Dkt. No. 101. The Court ordered Defendants to be fined $1,000 per day, beginning
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`May 12, 2021, until they came into full compliance with the requirements set forth in the Court’s
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`January 15, 2021 and March 22, 2021 Orders. Dkt. No. 97 at 8. The Court also invited the United
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`States to submit an accounting of actual damages it incurred as a result of Defendants’
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`noncompliance and noted it would consider further sanctions if Defendants did not become fully
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`compliant with the Orders by June 11, 2021. Id. On May 28, 2021, the United States filed a
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`Motion for Costs. Dkt. No. 100. On June 18, 2021, the United States filed a Notice of Defendants’
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`Continued Noncompliance describing the Defendants’ failure to cure numerous deficiencies as
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`well as additional violations of the Court’s orders. Dkt. No. 106. The Court has set another show
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`cause hearing for September 16, 2021 on the United States’ Motion for Costs and Notice of
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`Defendants’ Continued Noncompliance. Dkt. No. 111.
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`On February 15, 2021, Defendants filed their Dismissal Motion. The majority of the
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`Dismissal Motion reiterates arguments from Defendants’ responses to the United States’ injunction
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`briefing. Defendants claim that: (1) the United States’ AWA claim must be dismissed because
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`the United States uses an impermissibly broad definitions of “exhibit;”1 (2) the United States’
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`claim that Defendants “exhibit” animals violates the First Amendment; and (3) the United States
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`fails to state a claim against Tiger King, LLC. Dkt. No. 73. The United States responded on
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`March 1, 2021. Dkt. No. 75.
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`II.
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`LEGAL STANDARD
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`“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
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`accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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`662, 678 (2009) (internal quotation marks omitted). In reviewing a motion to dismiss, the Court
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`disregards conclusory allegations, but accepts all well-pleaded facts as true, viewing them in the
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`light most favorable to the plaintiff, and drawing all reasonable inferences in the plaintiff’s favor.
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`Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021). The Court’s duty is to
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`“determine whether the complaint sufficiently alleges facts supporting all the elements necessary
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`1 Although Defendants claim that the United States’ definition of “exhibit” takes improperly broad
`liberties with the statutory definition, they also argue the statute itself is void for vagueness under
`the Fifth Amendment. The Court will address both arguments together.
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`to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v.
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`Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007). Under the plausibility standard, dismissal for
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`failure to state a claim is “proper only where it is obvious that the plaintiff cannot prevail on the
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`facts he has alleged.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (internal quotation
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`marks omitted).
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`III. DISCUSSION
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`A. The Government Sufficiently States a Claim for Violation of the AWA
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`Defendants argue that the United States’ AWA claim should be dismissed because its
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`“definition of ‘exhibitor’ and ‘public’ is so broad it strains credulity” and “completely take[s] it
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`out of the realm of what Congress intended.” Dkt. No. 73 at 3, 10. Defendants’ arguments fail
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`for the same reasons discussed in the Court’s January 15, 2021 order.
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`Under the AWA, the term “exhibitor” means “any person (public or private) exhibiting any
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`animals, which were purchased in commerce or the intended distribution of which affects
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`commerce, or will affect commerce, to the public for compensation, as determined by the
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`Secretary.” 7 U.S.C. § 2132(h). The term includes “carnivals, circuses, and zoos exhibiting such
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`animals whether operated for profit or not.” Id. Here, Defendants argue that they do not fall within
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`the statutory definition of “exhibitor” because they have not operated “a public or private brick-
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`and-mortar location which intentionally invites the general public in to view animals” since August
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`2020. Dkt. No. 73 at 8. Defendants also argue that certain of their activities—including allowing
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`the animals to be filmed for a Netflix® documentary series, posting videos of the animals through
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`the paid subscription services Cameo and OnlyFans, advertising a zoo currently under
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`construction, and allowing friends to visit and play with the animals—do not constitute
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`“exhibiting” for purposes of the AWA. Id. at 4-6. The Court does not agree.
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`Under the AWA, “exhibitor” means “any person (public or private) exhibiting any animals,
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`which were purchased in commerce or the intended distribution of which affects commerce, or
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`will affect commerce, to the public for compensation, as determined by the Secretary.” 7 U.S.C.
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`§ 2132(h). The term includes: “carnivals, circuses, and zoos exhibiting such animals whether
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`operated for profit or not.” Id. In interpreting the term “exhibitor” as set forth in the AWA, the
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`Court will look to the USDA’s construction of the term absent compelling indications that it is
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`incorrect. See N.L.R.B. v. Hendricks Cty. Rural Elec. Membership Corp., 454 U.S. 170, 177 (1981)
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`(“[T]he construction of a statute by those charged with its execution should be followed unless
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`there are compelling indications that it is wrong, especially where Congress has refused to alter
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`the administrative construction.”); Webb v. Hodel, 878 F.2d 1252, 1255 (10th Cir. 1989) (“The
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`court is required to give substantial weight to the interpretation made by the agency which is
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`charged with the statute’s administration. We are obligated to regard as controlling a reasonable,
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`consistently applied interpretation of the government.”).
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`The USDA has determined that a person acts as an exhibitor “simply by making animals
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`available to the public.” In re Lloyd A. Good, Jr., 49 Agric. Dec. 156, 174 (1990). For over three
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`decades, the USDA has relied upon this interpretation to apply the AWA to fixed-site, intra-state
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`exhibitors like Tiger King Park. See 907 Whitehead St., Inc. v. Sec’y of U.S. Dep’t of Agric., 701
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`F.3d 1345, 1350 (11th Cir. 2012); see, e.g., In re Peter Gronbeck, AWA Docket No. 05-0018.
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`This Court has no indication that this interpretation is unreasonable or incorrect and will therefore
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`afford it deference.2
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`2 Defendants also claim the AWA’s definition of “exhibit” is void for vagueness. Dkt. No. 73 at
`12-14. The Court first notes that Defendants’ argument that “no reasonable person in the Lowes[’]
`shoes could have realistically assumed [their] actions . . . constitute[d] ‘exhibiting’ to the ‘public’”
`[id. at 13] while admitting they allowed, among other things, filming of animals for the sequel of
`a miniseries “watched by some 34 million people” [id. at 4] defies both logic and common sense.
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`Defendants’ own briefing highlights multiple occasions where Defendants have made
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`animals available to the public. Defendants admit that: (1) they have allowed filming of the
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`animals for the Netflix® documentary series Tiger King 2 [Dkt. No. 73 at 4]; (2) they have
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`performed “shout out” videos which show animals through the video platform Cameo [Dkt. No.
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`73 at 4]; (3) Defendant Lauren Lowe has posted photographs or videos of herself with animals on
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`the paid subscription service OnlyFans, including a photograph with a tiger cub taken in 2015 but
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`posted after Defendant Jeff Lowe terminated his AWA license [Dkt. No. 73 at 5]; they operate a
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`website promoting the opening of Tiger King Park sometime in 2021 [Dkt. No. 73 at 5-6]; and
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`they have allowed individuals who do not reside on the premises to view animals residing on
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`Defendants’ property [Dkt. No. 73 at 6]. Defendants attempt to minimize these activities, claiming
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`variously that animals were “shown on camera for context” in Tiger King 2; that the animals are
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`“tangential at best even when they can briefly be seen” in Mrs. Lowe’s OnlyFans content; that
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`their zoo is equivalent to a car chassis on an assembly line without wheels or engine; and that
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`members of the public viewed animals only as part of a Christmas party. Dkt. No. 73 at 4-6. The
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`Court rejects these characterizations and instead agrees with the United States that “the animals in
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`[Defendants’] possession[,] . . . as illustrated by Defendants’ own statements, continue to be
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`intended for exhibition purposes.” Dkt. No. 75 at 16. Each instance described by Defendants
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`involves them making animals available to the public. The Court concludes that these undisputed
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`activities—along with the rest of the allegations in the United States’ Complaint—more than meet
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`the plausibility standard required at the motion to dismiss stage regarding “exhibition” as
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`contemplated by the AWA and applied by the Secretary.
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`In any case, a regulation is vague if “it is unclear as to what fact must be proved.” F.C.C. v. Fox
`Tele. Stations, Inc., 567 U.S. 239, 253 (2012). The definition of exhibition as “making animals
`available to the public” is not unclear, as the USDA’s decades-long reliance on it bears out.
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`Additionally, to the extent that Defendants argue that Tiger King Park is not a “zoo”
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`because it is not yet open to the public, the Court disagrees. The AWA defines a “zoo” as “any
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`park, building, cage, enclosure, or other structure or premise in which a live animal or animals are
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`kept for public exhibition or viewing, regardless of compensation.” 9 C.F.R. § 1.1. There is no
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`dispute, based on the Lowes’ public representations that they intend to open Tiger King Park to
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`the public in 2021, that the animals currently housed at the facility are kept for the purpose of
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`public exhibition, regardless of whether such exhibition is currently taking place or to take place
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`in the near future. Thus, even though Tiger King Park may not yet be completely open to the
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`public, it is a “zoo” for purposes of the AWA and Defendants are therefore exhibitors, subject to
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`the AWA’s provisions. This conclusion reflects Congress’ stated intent in promulgating the AWA,
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`which was to “insure that animals intended … for exhibition purposes … are provided humane
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`care and treatment”. 7 U.S.C. § 2131. See Gallegos v. Lyng, 891 F.2d 788, 797 (10th Cir. 1989)
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`(“A statute must be interpreted to effect its evident purpose, and to be consistent with evidenced
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`congressional intent.” (internal quotation marks and citations omitted)). The Court is not
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`persuaded that Defendants have ceased their zoo operation merely because they have not operated
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`“a public or private brick-and-mortar location which intentionally invites the general public in to
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`view animals” since August 2020. Dkt. No. 73 at 8. Again, the plausibility standard is more than
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`satisfied.
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`B. The Government’s AWA Claim Does Not Violate the First Amendment
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`Defendants next claim that their exhibition activities are protected by the First Amendment
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`and that any curtailing of these activities under the AWA infringes on their constitutional right to
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`free speech. Dkt. No. 73 at 10-12. The Court disagrees.
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`1. The AWA is Content-Neutral
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`To determine the proper level of scrutiny to apply to Defendants’ constitutional challenge,
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`the Court must determine whether the AWA is content-based or content-neutral.3 “The primary
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`inquiry ‘is whether the government has adopted a regulation of speech because of disagreement
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`with the message it conveys.’” Golan v. Holder, 609 F.3d 1076, 1083 (10th Cir. 2010) (quoting
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`Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). If a “regulation serves purposes
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`unrelated to the content of expression it is considered neutral, even if it has an incidental effect on
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`some speakers or messages but not others.” Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683,
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`686 (10th Cir. 1998). Conversely, “[g]overnment regulation of speech is content[-]based if a law
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`applies to particular speech because of the topic discussed or the idea or message expressed.” Reed
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`v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015). Content-based regulation includes two types
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`of laws: those that are facially content-specific and those that, while facially content-neutral,
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`“cannot be justified without reference to the content of the regulated speech, or that were adopted
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`by the government because of disagreement with the message the speech conveys.” Id. (quotations
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`and citation omitted). “In determining whether a regulation is content-neutral or content-based,
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`the government’s purpose in enacting the regulation is the controlling consideration.” Golan, 609
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`F.3d at 1083 (quotation omitted).
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`Congress’s stated purpose in enacting the AWA was, in pertinent part, to “insure that
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`animals intended . . . for exhibition purposes . . . are provided humane care and treatment.” 7
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`U.S.C. § 2131(1). “[T]he AWA is sharply focused on the ‘humane treatment’ of captive animals
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`3 Defendants argue that their speech is commercial speech. Assuming without deciding it is, the
`Court notes that commercial speech is reviewed under the same intermediate level of scrutiny as
`content-neutral speech. Mainstream Mktg. Servs., Inc. v. F.T.C., 358 F.3d 1228, 1237 (10th Cir.
`2004) (citations omitted).
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`used for exhibition . . . . Indeed, the terminology ‘humane treatment’ is employed repeatedly in no
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`fewer than five different sections in the statutory scheme, and it is the overriding concern reflected
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`in the implementing regulations.” People for the Ethical Treatment of Animals, Inc. v. Miami
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`Seaquarium, 189 F. Supp. 3d 1327, 1352 (S.D. Fla. 2016) (citing 7 U.S.C. §§ 2131 et seq.; 9 C.F.R.
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`Ch. 1, Subch. A., Pt. 3, Subprt. E) (emphasis added). Because the AWA is sharply focused on
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`animal welfare and treatment, it serves purposes unrelated to the content of Defendants’
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`expression. The AWA is content-neutral.
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`2. The AWA Withstands Intermediate Scrutiny
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`A content-neutral regulation of speech receives intermediate scrutiny. Golan, 609 F.3d at
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`1083. Under this test, “a content-neutral statute ‘will be sustained under the First Amendment if
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`it advances important governmental interests unrelated to the suppression of free speech and does
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`not burden substantially more speech than necessary to further those interests.” Id. (quoting
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`Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 189 (1997) (“Turner II”)).4
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`First, the AWA advances a substantial or important government interest unrelated to the
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`suppression of free speech. Defendants concede that the United States’ “interest in protecting
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`4 As mentioned supra n.3, commercial speech is also reviewed under intermediate scrutiny,
`although the phrasing of its test is slightly different:
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`First, the government must assert a substantial interest to be
`achieved by the regulation. Second, the regulation must directly
`advance that governmental interest, meaning that it must do more
`than provide “only
`ineffective or remote support for
`the
`government's purpose.” Third, although the regulation need not be
`the least restrictive measure available, it must be narrowly tailored
`not to restrict more speech than necessary. Together, these final two
`factors require that there be a reasonable fit between the
`government's objectives and the means it chooses to accomplish
`those ends.
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`Mainstream Mktg., 358 F.3d at 1237.
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`animals [] is ‘substantial.’” Dkt. No. 73 at 11. As discussed supra, the AWA is sharply focused
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`on the humane treatment of captive animals. “[T]he prohibition of animal cruelty itself has a long
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`history in American law, starting with the early settlement of the Colonies.” United States v.
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`Stevens, 559 U.S. 460, 469 (2010). When it amended the AWA to include exhibitors, the
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`Legislature stated that the amendments represented “a continuing commitment by Congress to the
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`ethic of kindness to [] animals.” H.R. Rep. No. 91-1651 (1970). The AWA itself contains
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`language that Congress “finds that it is essential to regulate . . . the transportation, purchase, sale,
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`housing, care, handling, and treatment of animals . . . by persons or organizations engaged in using
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`them . . . for exhibition purposes.” 7 U.S.C. § 2131 (emphasis added). This is a substantial
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`government interest unrelated to the exercise of free speech.
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`Next, the AWA has a reasonable fit of objectives and means which does not burden
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`substantially more speech than necessary. The AWA’s objectives include standards for “humane
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`handling, care, treatment, and transportation of animals.” 7 U.S.C. § 2143. The means it employs,
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`including licensure standards for exhibitors, are narrowly tailored to directly advance these goals
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`of humane handling. Any incidental burdens imposed on speech are congruent with or outweighed
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`by the benefits afforded.
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`The First Circuit recently affirmed rejection of a similar argument that the AWA’s
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`prohibition against cockfighting was unconstitutional where plaintiffs “failed to identify any
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`expressive element in the cockfighting activities,” Hernández-Gotay v. United States, 985 F.3d
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`71, 80 (1st Cir. 2021). The court noted that even if plaintiffs had shown “some expressive element,
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`[the AWA] is plainly permissible as an incidental restraint on such speech.” Id. So too here.
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`Defendants have wholly failed to identify any expressive element in their exhibition of animals.
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`The limits Defendants protest regarding the circumstances where they may show their animals are
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`at most an incidental burden resulting from the AWA’s licensure requirement, which is designed
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`to ensure animals meant for exhibition purposes are treated humanely. The AWA survives
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`intermediate scrutiny. The United States’ AWA claim does not infringe on Defendants’ First
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`Amendment rights.
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`C. The Government Sufficiently States a Claim against Tiger King LLC
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`Defendants argue the United States’ Complaint “barely mention[s]” Defendant Tiger King,
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`LLC. Dkt. No. 73 at 15. As the United States notes in its response [Dkt. No. 75 at 24], the
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`Complaint collectively refers to all four Defendants: Jeff Lowe; Lauren Lowe; GWEAP, LLC;
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`and Tiger King, LLC. Dkt. No. 2. at ¶ 1.5 Allegations brought collectively against all four
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`Defendants include, for illustration and without limitation:
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`• To avoid federal investigation and inspection, Defendants have
`unlawfully established an unlicensed exhibition facility on an
`approximately 33-acre parcel of land in Thackerville, Oklahoma.
`Dkt. No. 2 at ¶ 3.
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`• Neither Jeffrey Lowe nor the other Defendants currently have a
`valid USDA Class C exhibitor license. Nevertheless, Defendants
`continue to exhibit animals to members of the public without a
`USDA exhibitor license in violation of the AWA. Id. at ¶ 23.
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`• Defendants’ actions placed and are continuing to place the health of
`numerous animals in serious danger . . . . Id. at ¶ 24.
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`• Defendants continue to exhibit animals to members of the public
`without a USDA exhibitor license. Id. at ¶ 88.
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`• Upon information and belief, Defendants have been exhibiting their
`animals to a film crew as recently as October 2020. Id. at ¶ 89.
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`• Upon information and belief, Defendants have exhibited at least one
`tiger—Thor—to members of the public through an online platform
`called Cameo for compensation. Id. at ¶ 93.
`
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`5 As the United States also notes, Defendants failed to comply with LCvR 7.1(o) requiring all
`motions to dismiss to include a section explaining why amendment would be futile.
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`• Upon information and belief, Defendants do not have adequate
`financial resources to provide proper care, including veterinary care,
`to the animals in their possession without exhibiting them for
`compensation. Id. at ¶ 94.
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`• Defendants’ animals have suffered from easily preventable or
`treatable conditions, which frequently have caused their untimely
`death. Many of Defendants’ other animals have not been seen by a
`veterinarian at all in the last two years. Id. at ¶ 96.
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`• Defendants have placed the health of their animals in “serious
`danger” by failing to employ an attending veterinarian and by
`providing their animals with substandard care. Id. at ¶ 170.
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`Additionally, the Complaint alleges that signage for Tiger King Park is posted at Tiger King,
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`LLC’s principal place of business and that Tiger King, LLC uses the trade name “Tiger King
`
`Park.” Id. at ¶¶ 34, 35. These allegations, taken as true for purposes of this motion, are plausible
`
`and sufficiently allege facts supporting all the elements necessary to establish an entitlement to
`
`relief under the legal theories proposed by the United States.
`
`CONCLUSION
`
`IT IS HEREBY ORDERED that Defendants’ Corrected Partial Motion to Dismiss [Dkt.
`
`No. 73] is DENIED.
`
`Dated this 26th day of July 2021.
`
`
`
`____________________________________
`JOHN F. HEIL, III
`UNITED STATES DISTRICT JUDGE
`
`13
`
`

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