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`6:20-cv-00423-JFH Document 72 Filed in ED/OK on 02/12/21 Page 1 of 10
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF
`OKLAHOMA
`
`UNITED STATES OF AMERICA,
`
`
`Plaintiff,
`
`v.
`
`
`JEFFREY LOWE,
`
`LAUREN LOWE,
`
`
`
`
`
`
`
`
`Case No. 6:20-cv-00423-JFH
`
`
`
`GREATER WYNNEWOOD EXOTIC ANIMAL
`PARK, LLC, and
`
`TIGER KING, LLC,
`
`
`Defendants.
`
`
`
`
`UNITED STATES’ MOTION TO ENFORCE THE COURT’S
`JANUARY 15, 2021 ORDER & THE PARTIES’ STIPULATION
`
`The United States moves to enforce the Court’s January 15, 2021 order granting the
`
`motion for preliminary injunction and motion for temporary restraining order filed by the United
`States. Dkt. 65. Per the Court’s order, Defendants were required to “provide acquisition and
`disposition records for any and all animals added to or missing from their inventories since June
`22, 2020, no later than January 22, 2021.” Id. at 33 ¶ 4. Despite the government’s attempts over
`two weeks to assist Defendants in getting into compliance with the Court’s order, the
`government has received only a few of the records it was entitled to. The government requests
`that Defendants be ordered to immediately provide the required records accounting for the
`additional and missing animals consistent with the Animal Welfare Act (“AWA”) and its
`implementing regulations. See 9 C.F.R. § 2.75(b)(1).
`
`The Court also ordered Defendants to “retain a qualified attending veterinarian under
`formal arrangements consistent with the requirements of 9 C.F.R. §§ 1.1, 2.40, no later than
`January 29, 2021.” Despite several requests between January 29, 2021, and February 9, 2021,
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`6:20-cv-00423-JFH Document 72 Filed in ED/OK on 02/12/21 Page 2 of 10
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`by the United States to both Defendants and the veterinarian they hired as their attending
`veterinarian, the U.S. Department of Agriculture (“USDA”) still has not received
`documentation necessary to determine whether the veterinarian meets the requirements of 9
`C.F.R. § 1.1. Moreover, the formal arrangements presented in the written program of veterinary
`care and subsequent emails from the veterinarian do not currently comply with 9 C.F.R. § 2.40.
`See Exh. DDD (Defendants’ & Dr. Fryer’s Program of Veterinary Care). Accordingly, the
`United States requests that the Court order Defendants to provide the documentation
`demonstrating that the veterinarian has “received training and/or experience in the care and
`management of the species being attended” to ensure that she qualifies as an attending
`veterinarian. 9 C.F.R. § 1.1 (emphasis added). The government also requests that Defendants
`be ordered to immediately make formal arrangements consistent with 9 C.F.R. § 2.40.
`
`Additionally, pursuant to the Parties’ December 14, 2020 stipulation, approved by the
`Court on December 15, 2020, Defendants agreed not to acquire any animal covered by the
`Endangered Species Act or any animal covered by the AWA absent leave of court. Dkt. 23 ¶ 2;
`Dkt. 25. Nevertheless, during the January 20, 2021 inspection, inspectors from USDA’s Animal
`and Plant Health Inspection Service (“APHIS”) observed three dozen female animals housed
`with male animals. The government has twice requested confirmation that the animals are
`spayed and neutered or otherwise will be separated to prevent breeding, but have not received
`a response from Defendants. The government requests an order from the Court requiring
`Defendants to separate unaltered male and female animals to avoid violating the terms of the
`Parties’ court-approved stipulation by acquiring animals through birth.1
`LEGAL STANDARD
`I.
`“Courts have the power to enforce their lawful orders.” In re Unioil, 948 F.2d 678, 682
`(10th Cir. 1991) (citation omitted). “That authority is grounded in ‘the interest of the judicial
`branch in seeing that an unambiguous mandate is not blatantly disregarded by parties to a court
`proceeding.’” Anglers Conservation Network v. Ross, 387 F. Supp. 3d 87, 93 (D.D.C. 2019)
`(quoting Int’l Ladies’ Garment Workers’ Union v. Donovan, 733 F.2d 920, 922 (D.C. Cir. 1984)
`(per curiam)). A motion to enforce should be granted if a “prevailing plaintiff demonstrates that a
`
`
`1 Counsel for the government conferred with counsel for Defendants consistent with LCvR 7.1(f)
`on Thursday, February 4, 2021, but were unable to reach agreement on the issues raised in this
`motion.
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`6:20-cv-00423-JFH Document 72 Filed in ED/OK on 02/12/21 Page 3 of 10
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`defendant has not complied with a judgment entered against it.” Heartland Hosp. v. Thompson,
`328 F. Supp. 2d 8, 11 (D.D.C. 2004) (citation omitted).
`ARGUMENT
`II.
`A. Defendants have failed to comply with the Court’s January 15, 2021 order to
`provide acquisition and disposition records.
`
`Pursuant to the Court’s January 15, 2021 order, Defendants were required by January 22,
`2021, to provide “acquisition and disposition records for any and all animals added to or missing
`from their inventories since June 22, 2020.” Dkt. 65 at 33. “Acquisition and disposition records
`are necessary to be able to accurately track animals being used in regulated activities to ensure
`their legal acquisition, proper care, and humane transportation.” Dkt. 28, Exh. P at 3. Defendants
`have failed to comply with the Court’s order in several ways. First, Defendants have failed to
`provide records accounting for a number of the animals missing from or added to the June 22,
`2020, August 21, 2020, and December 16, 2020 inventories. Second, of the few records provided
`by Defendants, many of them fail to comply with the AWA regulations. Third, Defendants
`provided records that are inconsistent with other evidence that the government has regarding these
`animals, thereby calling into question the accuracy of the records provided in response to the
`Court’s order.
`1. Defendants have failed to provide records accounting for “any and all” animals
`added to or missing from the June, August and December 2020 inventories.
`
`The government twice brought to Defendants’ attention a number of missing records;
`however, many records remain outstanding. First, the government has not received the 34
`acquisition and disposition records that Defendants failed to present to APHIS inspectors on July
`8, 2020. See Dkt. 28, Exh. P at 3-4. Second, the government has not received disposition records
`for three Big Cats Defendants transferred in August 2020. Defendants provided a record for three
`Big Cats transferred to Tiger Haven in August 2020. However, the government has information
`that, in fact, Defendants transferred six Big Cats to that facility in August 2020. Third, the
`government has not received accurate records for Defendants’ wolves. On the August 21, 2020
`inventory, there are 12 wolves listed. Dkt. 28, Exh. V at 7-8. Defendants provided a disposition
`record for 11 wolves that were transferred to the Wild Animal Sanctuary in October 2020.
`However, on the December 16, 2020 inventory, there are four wolves listed. Dkt. 28, Exh. DD at
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`8. Thus, Defendants must have acquired wolves between August and December 2020 and must
`provide an acquisition records for those animals.
`Additionally, the government has not received acquisition and disposition records for the
`following animals. Defendants listed a De Brazza’s monkey on the June 22, 2020 inventory, who
`no longer appeared on the August 21, 2020 inventory. Compare Dkt. 28, Exh. J at 8, with Dkt. 28,
`Exh. V. Defendants listed two Bare-tailed wooly opossums on the August, 21, 2020 inventory, but
`only one was listed on the December 16, 2020 inventory. Compare Dkt. 28, Exh. V at 24, with
`Dkt. 28, Exh. DD at 16. There are also a handful of animals who appear for the first time on the
`December 16, 2020 inventory, including Gladys (tiger), Cersi (tiger), Chuckles (tiger) and Tierian
`(tiger).
`
`Defendants have also failed to provide any acquisition records for births. See 9 C.F.R. §
`2.75(b)(1) (“The [acquisition] records shall include any offspring born of any animal while in his
`or her possession or under his or her control.”). These records must accurately identify the parents
`and any other littermates. See 9 C.F.R. § 2.75(b)(1). The December 16, 2020 inventory lists
`Daniel, for example, as the only cub for the August 21, 2020 litter. It would be rare for there to be
`one cub in a litter unless the “mother is bred too young, overbred, or malnourished.” Exh. AAA ¶
`3 (Fourth Declaration of Dr. Laurie Gage). A healthy tiger should produce two to seven cubs per
`litter with the typical litter having three to four cubs. Id. Defendants have previously made
`statements implying that Tiki, a tiger cub transferred to Tiger Haven in September 2020, was
`Daniel’s littermate. Dkt. 56 at 4 & Exh. 8 ¶ 12. They also provided a record stating that Tiki was
`a month old at the time of transfer. Exh. FFF at 6 (Acquisition & Disposition Records sent by Dan
`Card). However, based on the information provided by Tiger Haven, this was false. Tiki was two
`weeks old at the time of transfer and was in fact the littermate of Shadow and Chanel who were
`born September 5, 2020. Exh. ZZ ¶ 4 (Decl. of Mary Lynn Haven); see also Dkt. 28, Exh. DD at
`14. Thus, Tiki is not Daniel’s littermate. Defendants must accurately identify the parents of Daniel
`and any littermates that he had and their whereabouts. They must also produce acquisition records
`for all other births during the relevant timeframe.
`The Court has already ordered Defendants to produce these records. Dkt. 65. The
`government respectfully requests that the Court order Defendants to immediately provide these
`records with complete and accurate information to undersigned counsel, which are already 21 days
`late.
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`•
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`•
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`2. Defendants’ records do not comply with AWA regulations.
`Under 9 C.F.R. § 2.75(b)(1), an exhibitor “shall make, keep, and maintain records or forms
`which fully and correctly disclose [certain] information concerning animals other than dogs and
`cats, purchased or otherwise acquired, owned, held, leased, or otherwise in his or her possession
`or under his or her control, or which is transported, sold euthanized, or otherwise disposed of by”
`that exhibitor. The records must include the following information:
`the name and address of the person from whom the animals were purchased or
`•
`otherwise acquired or to whom an animal was sold or given;
`the USDA license or registration number of the person if she or he is licensed or
`registered under the AWA;
`If the person is not licensed or registered under the AWA, the record must include
`the vehicle license number and State, and the driver’s license number (or
`photographic identification card for nondrivers issued by a State);
`• The date of purchase, acquisition, sale or disposal of the animal and;
`• The species of the animal.
`Id. § 2.75(b)(1)(i)-(vi)
`
`On January 20, 2021, Defendants presented five disposition records covering 34 animals
`to APHIS inspectors. Exh. EEE. Only one of those records complied with the AWA regulations.
`On January 22, 2021, the government alerted Defendants to the fact that the few records APHIS
`received did not comply with AWA regulations. The government again raised the issue of non-
`compliance with the AWA regulations on January 25, 2021, and on January 29, 2021. Defendants
`have not corrected the records for the skunks, the sloth, or the animals that were transferred to
`Tiger Haven in Tennessee to provide the information required by the AWA regulations and should
`be ordered to do so immediately.
`3. Defendants’ records are so inconsistent that they call into question whether they
`“fully and correctly” disclose information required under the AWA regulations.
`
`The AWA regulations require that the records “fully and correctly” disclose information
`
`about the animals referenced. 9 C.F.R. § 2.75(b)(1). However, the few records provided call into
`question whether Defendants have complied with this provision. For example, the travel certificate
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`6:20-cv-00423-JFH Document 72 Filed in ED/OK on 02/12/21 Page 6 of 10
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`for the Big Cats sent to the Wild Animal Sanctuary in October 2020 list the following cats: Diesel,
`Forest, and Nala. Exh. GGG (October 2020 Travel Certificates for the Wild Animal Sanctuary).
`When the government asked about the whereabouts of Boo Boo the tiger who was the subject of
`the Court’s January 15, 2021 order as the mother of cats under the age of one, Defendants stated
`that Nala was in fact Boo Boo, though they had no evidence establishing that the tigers were the
`same animal. See Exh. FFF at 5. As another example, Defendants provided a record for the tiger,
`Bubbles, stating that Bubbles in fact died on December 17, 2020. Id. at 3. This date is consistent
`with the account provided by Lauren Lowe to the APHIS inspectors during the January 20, 2021
`inspection. See Exh. CCC at 4 (January 20, 2021 Inspection Report & Letter). However, the record
`is inconsistent with the Parties’ stipulated facts filed on January 11, 2021. Dkt. 54 ¶ 7. A third
`example is that Defendants stated in their records that 11 pigs were transferred to the Wild Animal
`Sanctuary; however, no pigs were transferred to that facility. See Exh. GGG. As a fourth example,
`Defendants provided a record stating that Pat Craig “killed [their liger, Unicara] overdosing with
`his own drugs!” Exh. EEE at 3. That is also false. The veterinarian hired by Defendants to help
`them transfer animals from Wynnewood to Thackerville states that only he and Jeff Lowe were
`darting animals that day with drugs provided by another Oklahoma veterinarian and that he
`recalled giving the final dose to the liger. Exh. BBB at ¶¶ 8-15 (Decl. IES investigator
`McLaughlin). Finally, Defendants provided a record stating that a lion named Kahari died on
`September 11, 2020. Exh. FFF at 3. However, the Lowes filed a notice with another court stating
`that the lion died on August 31, 2020. People for the Ethical Treatment of Animals v. Wildlife In
`Need & Wildlife In Deed, Case No. 4:17-cv-00186, Dkt. 420, ¶ 3 (S.D. Ind. Sept. 16, 2020).
`
`Regarding the records of the animals transferred to Tiger Haven, Defendants provided
`Mary Lynn Haven with the name, sex, and age of each animal being transferred to her facility. See
`Exh. ZZ at 3 & Attachment. The information provided to Ms. Haven is inconsistent with the
`records provided to the government to such an extent as to call into question whether the records
`are even referring to the same animals, as this chart illustrates:
`Name of Cat
`Age of Cat
`Age of Cat
`(Tiger Haven
`(Tiger Haven
`(Defendants’
`Record)
`Record)
`Record)
`Elizabeth
`8 months
`1 year
`(born at zoo)
`Isabella
`
`8 months
`
`1 year
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`(born at zoo)
`Farrah
`(born at zoo)
`Nero
`Chibs
`Safari
`Tiki
`Otta
`Inkandaya
`
`8 months
`
`2 years
`2 years
`2 years
`2 weeks
`10 years
`10 years
`
`
`1 year
`
`6 years
`6 years
`6 years
`1 month
`15 years
`15 years
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`
`
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`Compare id., with Exh. FFF at 6-7. Defendants should be required to establish that the animals
`transferred to Tiger Haven are in fact those animals listed in their disposition records despite the
`significant difference in ages listed in the records compared with the information provided to the
`facility that would be caring for Defendants’ animals.
`B. Defendants have failed to establish that they have met the requirements for
`retaining a qualified attending veterinarian under formal arrangements
`consistent with AWA regulations.
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`The Court has ordered Defendants to “retain a qualified attending veterinarian under formal
`arrangements consistent with the requirements of 9 C.F.R. §§ 1.1, 2.40, no later than January 29,
`2021.” Dkt 65 at 33 ¶ 3. Under 9 C.F.R. § 1.1, a qualified attending veterinarian must, among other
`things, have “received training and/or experience in the care and management of the species being
`attended.” 9 C.F.R. § 1.1 (emphasis added). Larger facilities, such as the Thackerville facility,
`which have a variety of species, may need to make arrangements with a number of veterinarians
`to ensure that this requirement is met. On January 31, 2021, Defendants provided the name of a
`veterinarian they have retained to be the attending veterinarian for the animals at the Thackerville
`facility. But despite numerous requests, to date the government has not received documentation
`establishing Defendants’ proposed attending veterinarian’s training and/or experience in the
`species at the Thackerville facility. Without such documentation, Defendants have failed to
`establish that the veterinarian they have retained is in fact qualified to be the attending veterinarian
`for the Thackerville facility.
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`Under 9 C.F.R. § 2.40, “[i]n the case of a part-time attending veterinarian…the formal
`arrangements shall include a written program of veterinary care and regularly scheduled visits” to
`the facility. 9 C.F.R. § 2.40(a)(1). Relevant here, the program of veterinary care (“PVC”) must
`include the following components:
`(1) The availability of appropriate facilities, personnel, equipment, and services to comply
`with the provisions of this subchapter; and
`(2) The use of appropriate methods to prevent, control, diagnose, and treat diseases and
`injuries, and the availability of emergency, weekend, and holiday care.
`Id. § 2.40(b)(1)-(2). The PVC provided to the government on February 5, 2021, does not comply
`with these requirements.
`Among the formal arrangements, Defendants must identify another qualified veterinarian
`who will serve as a backup to their attending veterinarian when she is unavailable. See 9 C.F.R. §
`2.40(b)(2). This requirement is particularly important in this case because, to date, Defendants
`have not provided documentation establishing that the veterinarian they have employed has made
`formal arrangements with a veterinary hospital or clinic that has the capacity and willingness to
`treat Defendants’ animals, in particular, adult Big Cats. Absent formal arrangements with a
`veterinary hospital or clinic, Defendants cannot establish the “availability of appropriate facilities,
`personnel, equipment, and services” to ensure that their animals will receive adequate care. 9
`C.F.R. § 2.40(b)(1).
`An attending veterinarian must also be able to use “appropriate methods to prevent, control,
`diagnose, and treat diseases and injuries.” 9 C.F.R. § 2.40(b)(2). The veterinarian employed by
`Defendants does not currently have a Drug Enforcement Agency (“DEA”) license to acquire the
`controlled substances necessary to safely and adequately sedate, examine, and treat the dangerous
`animals at Defendants’ facility. The veterinarian has not explained how she will acquire these
`medications without a DEA license. Instead the veterinarian has stated that Xylazine, a
`tranquilizer, will be used at the facility in case of emergency. Using Xylazine alone to immobilize
`Big Cats, for example, is inappropriate because Big Cats sedated with the tranquilizer alone have
`been known to spontaneously bite or scratch people despite appearing sedated. Thus, the current
`plan for immobilizing Big Cats at the Thackerville facility fails to comply with the AWA
`regulations and creates a significant safety risk for both the people working with the animals as
`well as the animals, themselves.
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`Finally, the PVC must address the “appropriate methods to prevent, control, [and]
`diagnose” diseases. 9 C.F.R. § 2.40(b)(2). Despite the fact that a number of Big Cats at the
`Thackerville facility have recently been diagnosed with conditions related to malnutrition, there is
`no nutritional plan in the PVC. The PVC should address issues commonly observed at the facility,
`such as metabolic bone disease, to ensure that “appropriate methods” are in place to prevent future
`cases of the disease and other conditions related to poor nutrition.
`In sum, the PVC provided by Defendants does not comply with the AWA regulations. The
`United States respectfully requests that the Court direct Defendants to immediately take the
`necessary steps to ensure compliance with 9 C.F.R. §§ 1.1 and 2.40.
`C. Defendants continue to breed their animals in violation of the Parties’ December
`14, 2020 Court-approved stipulation.
`
`
`On December 14, 2020, the Parties entered into a stipulation, approved by the Court, which
`
`states:
`
`Pending resolution of the merits of the United States’ claims in the Complaint, Defendants
`will not acquire or dispose of any animal covered by the ESA or any animal covered by
`the AWA, excluding common dogs, cats, hamsters, or rabbits, absent leave of court sought
`by duly-noticed motion. Prior to seeking leave of court to acquire or dispose of any animal
`covered by this agreement, Defendants will meet and confer with the United States
`pursuant to the Local Rules of the Eastern District of Oklahoma.
`
`
`Dkt. 23 at 2 ¶ 2. Defendants are well aware that “acquisition” includes by birth. See Dkt. 28, Exh.
`P at 4 (citing Defendants for failure to present acquisition and disposition records, including for
`“any offspring born of any animal while in his or her possession or under his or her control”); see
`also 9 C.F.R. § 2.75(b)(1) (acquisition includes by birth). Nevertheless, they continue to house
`male and female animals in the same enclosures.
`
`Government counsel reminded Defendants’ counsel of the fact that “acquisition” includes
`breeding during a meet and confer on January 13, 2021. Nevertheless, on January 20, 2021, APHIS
`inspectors observed over two dozen female Big Cats being housed with male Big Cats. A number
`of other female animals, including lemurs, bobcats, and foxes, are being housed with males as
`well. Defendants have not provided documentation that establishes that all of these animals are
`spayed and neutered. In fact, on January 24, 2021, Defendants asked APHIS officials what would
`happen to the cubs if any of the four adult females who were seized by USDA pursuant to the
`Court’s January 15, 2021 order are pregnant. Defendants’ question suggests that, not only are their
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`animals not spayed and neutered, but also that Defendants are knowingly housing their animals to
`produce additional animals despite their stipulation not to do so. Defendants have not conferred
`with the United States nor have they filed a motion for leave of court for relief from this
`requirement. Accordingly, the United States requests that the Court order Defendants to comply
`with the December 14, 2020 stipulation by either spaying and/or neutering animals, or separating
`male and female animals who are not spayed or neutered.
`III. CONCLUSION
`The United States has demonstrated Defendants have failed to comply with this
`
`Court’s January 15, 2021 Order and the Parties’ stipulation, which the Court approved on
`December 15, 2020. Therefore, the United States requests that the Court grant its request for
`relief.
`
`
`DATED: February 12, 2021
`BRIAN J. KUESTER
`United States Attorney
`SUSAN BRANDON, Civil Chief
`Division United States Attorney’s Office
`Eastern District of Oklahoma
`
`520 Denison Ave
`Muskogee OK 74401
`
`Respectfully Submitted,
`JEAN E. WILLIAMS
`Acting Assistant Attorney General
`Environment
`and Natural Resources
`
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`
`
`
`
`
` /s/ Mary Hollingsworth
`MARY HOLLINGSWORTH
`Senior Trial Attorney
`AZ Bar # 027080
`BRIENA STRIPPOLI
`Trial Attorney
`
`United States Department of Justice
`Environment & Natural Resources
`Division Wildlife & Marine Resources
`Section
`P.O. Box 7611, Ben Franklin Station
`Washington, D.C. 20044-7611
`Mary.hollingsworth@usdoj.gov | 202-598-
`1043
`Briena.Strippoli@usdoj.gov | 202-598-0412
`Fax: 202-305-0275
`
`Attorneys for the United States of America
`
`
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`10
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