Tiger preserve's lawsuit filed too late, Idaho SC says

Jessica M. Karmasek Oct. 14, 2010, 12:13pm


BOISE, Idaho (Legal Newsline) - The Idaho Supreme Court ruled last week that a tiger preserve's tort claim against a state agency was untimely.

The Court, in its opinion filed Oct. 5, upheld a Bingham County district court's finding that the S.A.B.R.E. Foundation's notice of tort claim was "untimely" and thus affirmed a grant of summary judgment in favor of the state's Department of Agriculture.

The lawsuit stems from an attempt by Peter Renzo, who was working on behalf of S.A.B.R.E. to bring Siberian tigers and other big cats into Idaho. The Foundation says it's dedicated to repopulating Siberian tigers and educating the general public about them.

In 2007, Renzo sought to bring the tigers into Idaho.

S.A.B.R.E. had a facility in Nevada, but needed to find a new location because their premises were being sold. Renzo allegedly had obtained investors and sought to construct a 50-acre tiger habitat, a residence, a restaurant, a veterinary hospital and a 60-room hotel. The project was expected to cost $8 million.

According to Court documents, there were two separate permits at issue in this case, a possession permit and a propagation permit.

Renzo applied for the former, a deleterious exotic animal possession permit, with the state Department of Agriculture on Oct. 9, 2007. While Renzo requested the issuance of a propagation permit, no application for a propagation permit was ever filed.

In an Oct. 17, 2007 letter from Dr. Greg Ledbetter, the administrator of the state's Division of Animal Industries, to Renzo regarding the possession permit, he stated that all tigers had to be spayed or neutered before the possession application could be approved.

The letter was not a denial of the possession permit but a conditional grant, the Court said. It contained conditions that had to be satisfied for the permit to be issued -- in this case, that the tigers be spayed and neutered.

On Nov. 2, 2007, Renzo's attorney, Nick Nielson, sent a letter to Ledbetter acknowledging the Oct. 17 letter's requirement that the tigers be spayed or neutered. The letter also acknowledged that Becky Harris, Renzo's administrative assistant, had engaged in a conversation with Ledbetter some time before the letter was written in which the doctor "indicated that breeding permits were only given to zoos."

Two weeks later, Ledbetter sent a letter to Nielson that acknowledged "(t)he State of Idaho will not issue a Propagation Permit to your client."

However, a propagation permit was never correctly applied for by Renzo, and therefore there was never an actual denial of a propagation permit application but rather only a statement of intent to deny any such permit, the Court noted.

On Dec. 14, 2007, Renzo filed a petition for judicial review challenging the agriculture department's decision to require sterilization of the tigers and its refusal to issue a propagation permit.

In April 2008, the district court issued an order and judgment that the decision of the department be set aside in its entirety and that it "shall, within a reasonable amount of time, adopt criteria and/or rules for which possession and propagation permits are issued and apply these rules and criteria fairly to Petitioner's application."

The court based its ruling upon the finding that the department's "decision was made in the absence of any specific criteria promulgated by the Department for awarding propagation permits."

The court also found that the department's decision exceeded statutory authority, was made upon unlawful procedure, was arbitrary and capricious, and prejudiced Renzo's substantial rights.

Renzo subsequently filed a notice of tort claim on May 14, 2008, and a complaint on Oct. 6, 2008.

In his complaint, Renzo asked for monetary damages claiming that the department "breached its duty to exercise ordinary care by refusing to grant possession and propagation permits without a basis in law or fact." Renzo also claimed that the department acted "maliciously and/or recklessly, willfully and wantonly, and/or with gross negligence." Lastly, he claimed the department intentionally interfered with his "prospective economic advantage."

For their part, the department filed a motion to dismiss on Jan. 6, 2009, which the court converted into a motion for summary judgment.

On May 27, 2009, the district court entered an order granting summary judgment in favor of the department. The court entered a final judgment that same day. Renzo then filed a notice of appeal with the state Supreme Court in July 2009.

The Court agreed that Renzo's notice of tort claim was untimely under Idaho law.

According to state code, "All claims against the state arising under the provisions of this act and all claims against an employee of the state for any act or omission of the employee within the course or scope of his employment shall be presented to and filed with the secretary of state within one hundred eighty (180) days from the date the claim arose or reasonably should have been discovered, whichever is later."

The district court found-- and the state's high court agreed -- that Renzo had been put on notice on Oct. 17, 2007, when he received a letter indicating that the tigers must be spayed or neutered before a permit would be granted.

The district court took note of a second letter sent on Nov. 16, 2007, but found that letter to "simply reiterate" the department's original position made clear in the Oct. 17 letter.

Justice Jim Jones, who authored the Court's 7-page opinion, wrote, "Renzo had knowledge of facts by October 17, 2007 that would put a reasonably prudent person on notice that a possession permit for the tigers would not be granted without satisfaction of the conditions stated in the October 17, 2007 letter, including that the tigers be spayed and neutered."

The Court said Renzo "clearly had knowledge" by Oct. 17, 2007, or at the latest by Nov. 2, 2007, that he would not get a propagation permit. Since he did not filed the notice of tort claim until May 14, 2008 -- at least 194 days later -- the Court found that his notice was "clearly not timely."

In its ruling, the Court also declined to award attorney fees on appeal to the state department.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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