People for the Ethical Treatment of Animals, Inc. v. Myers , 246 N.C. App. 571 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-366
Filed: 5 April 2016
Wake County, No. 14-CVS-10671
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., JACOB
MATTHEW NORRIS, and JULIE COVELESKI, Plaintiffs/Petitioners
v.
GORDON S. MYERS, EXECUTIVE DIRECTOR of the NORTH CAROLINA
WILDLIFE RESOURCES COMMISSION in his official capacity,
Defendant/Respondent.
Appeal by defendant/respondent from order entered 10 December 2014 by
Judge G. Bryan Collins in Superior Court, Wake County. Heard in the Court of
Appeals 21 October 2015.
Ellis & Winters LLP, by Jonathan D. Sasser and Kelly Margolis Dagger and
Gerber Animal Law Center, by Calley Gerber, for plaintiffs/petitioners-
appellees.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Susannah
P. Holloway and Tamara S. Zmuda, for defendant/respondent-appellant.
STROUD, Judge.
PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. V. MYERS
Opinion of the Court
The Lorax speaks for the trees,1 but the question presented by this case is
whether anyone may speak for the opossums, particularly those Virginia opossums2
(“opossum(s)”) found in Clay County, North Carolina, during late December through
early January each year, who may end up in captivity as the main attraction at the
annual New Year’s Eve Possum Drop event. Both plaintiff/petitioners and
defendants/respondents3 claim the right to speak for the opossums, but the General
Assembly has passed a law which says, in effect, that no one may speak for Virginia
opossums during the relevant time period. For this reason, we must dismiss this
appeal as moot.
Defendant-respondent Gordon Myers appeals a trial court order denying his
petition for judicial review of the final decision of the administrative law judge. The
administrative law judge, in part, granted summary judgment in favor of petitioners
because respondent North Carolina Wildlife Resources Commission (“WRC”) had
1
See Dr. Seuss, The Lorax (1971), reprinted in Your Favorite Seuss 305-36 (complied by Janet
Schulman and Cathy Goldsmith, Random House) (2004).
2 The Virginia opossum (Didelphis virginiana) despite bearing the name of another state, is
actually the “official marsupial of the State of North Carolina.” N.C. Gen. Stat. § 145-44 (2013).
3 We first note that the order being appealed from notes the parties as “Plaintiffs/Petitioners”
and “Defendant/Respondent[.]” For ease of reading we refer to the parties hereafter as simply
petitioners and respondent(s). We further note that our appeal is from respondents “North Carolina
Wildlife Resources Commission and Gordon S. Myers, as Executive Director, North Carolina Wildlife
Resources Commission[.]” However, the order on appeal only addresses respondent Myers as he is the
only party who petitioned the trial court for judicial review. While at times it may be necessary to
refer to respondents, only Mr. Myers is a respondent party on appeal. However, none of these issues
have any effect on the dismissal of this appeal.
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PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. V. MYERS
Opinion of the Court
“acted erroneously and failed to follow proper procedure when granting two captivity
licenses to Clay Logan[.]” Because there is now a statute directly addressing the
substance of this entire case in such a way that no ruling by this Court can have any
practical effect on the existing controversy, we dismiss this appeal as moot.
I. Background
In February of 2014, petitioners People for the Ethical Treatment of Animals,
Inc., Jacob Matthew Norris, and Julie Coveleski filed petitions against WRC and
Gordon Myers as Executive Director of WRC for a contested case hearing, challenging
the WRC’s issuance of certain captivity licenses to Mr. Clay Logan for 2013 and 2014
and its failure to revoke these licenses, arguing in part that
Respondents exceeded their statutory authority and acted
unlawfully by issuing Captivity Licenses (Permit Number
13CP-159) to Clay Logan for 2013 and 2014, to possess and
exhibit a live opossum. The mandatory requirements for
issuing a Captivity License, set forth in N.C.G.S. 113[-
]272.5 and related regulations, were not met, since
Respondents did not make the required determination –
and could not have made the required determination,
based on the evidence before the Respondents at the time
the licenses were issued -- that (a) issuing the licenses was
in the interests of the humane treatment of the animal; (b)
Logan was qualified to keep an opossum; and (c) issuing
the licenses was appropriate under the objectives of
wildlife resources conservation. In addition, WRC issued
the Captivity Licenses upon improper procedure, by failing
to comply with inspection and verification requirements
that must be met before the Captivity Licenses were
issued.
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PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. V. MYERS
Opinion of the Court
In essence, petitioners argued that respondent WRC erred in issuing opossum
licenses to Clay Logan because in violation of the captivity license Mr. Logan was
treating the animals inhumanely by “dropping” an opossum in a box on New Year’s
Eve in a rural replication of the dropping of the crystal-festooned ball in New York
City’s famous Times Square New Year’s Eve celebration. North Carolina General
Statute § 113-272.5 governs captivity licenses and requires the “humane treatment
of wild animals.” N.C. Gen. Stat. § 113-272.5(a) (2013).
In August of 2014, after considering various pending motions, the
administrative law judge (“ALJ”) determined that summary judgment should be
granted in favor of respondents as to the issue of revocation because (1) Mr. Clay’s
2013 license had already expired and (2) Mr. Clay had surrendered the 2014 license
which he no longer needed because the General Assembly ratified a law which
“eradicated the effects of any violations at issue[.]” Yet the ALJ also ruled that, as to
the propriety of the issuance of the licenses for 2013 and 2014, summary judgment
should be granted in favor of petitioners as “the agency acted erroneously and failed
to follow proper procedure when granting two captivity licenses to Clay Logan[.]”4
In August of 2014, respondent Myers requested judicial review of the ALJ’s
decision. On 10 December 2014, the trial court denied respondent Myers’ petition for
4It is unclear why the ALJ did not consider the claims regarding issuance of the licenses moot
based upon the newly enacted law, but the substance of the ALJ opinion is not before us on appeal.
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PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. V. MYERS
Opinion of the Court
judicial review. Respondent Myers appeals the denial of his petition for judicial
review.
II. Appeal
Respondent Myers argues that “the relief sought in the petitions is barred by
sovereign immunity” and “petitioners are not a ‘person aggrieved’” in order to avail
them of the limited waiver of the sovereign immunity doctrine[.]” (Original in all
caps.) Petitioners argue that respondent Myers is collaterally estopped from
challenging whether they “are persons aggrieved[,]” and in the alternative, they
indeed “are persons aggrieved[.]” (Original in all caps.) Both sides raise passionate
and interesting legal arguments, particularly regarding standing, or who has the
right to challenge the issuance of a wildlife captivity permit in this situation. But
all of the issues raised in this appeal have been rendered moot.
The legislature enacted Session Laws 2014-7 which provides:
AN ACT TO EXEMPT CLAY COUNTY FROM STATE
WILDLIFE LAWS WITH RESPECT TO OPOSSUMS
BETWEEN THE DATES OF DECEMBER 26 AND
JANUARY 2.
The General Assembly of North Carolina enacts:
SECTION 1: No State statutes, rules, or regulations
related to the capture, captivity, treatment, or release of
wildlife shall apply to the Virginia opossum (Didelphis
virginiana) between the dates of December 26 each year
and January 2 of each subsequent year.
SECTION 2: This act applies only to Clay County.
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PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. V. MYERS
Opinion of the Court
SECTION 3: This act is effective on and after
December 30, 2013.
In the General Assembly read three times and
ratified this the 12th day of June, 2014.
N.C. Sess. Laws 2014-7.
Session Laws 2014-7 was the law in effect when the ALJ made its August 2014
final decision and also when the trial court denied respondent Myers’s petition for
judicial review.5 See id. This case arises from the 2013 and 2014 licenses, and Session
Laws 2014-7 exempts Virginia opossums from the “rules[] or regulations” which
would include captivity licenses and treatment of opossums for those years during
the relevant dates in Clay County, so any questions as to licenses for those years are
moot. See Roberts v. Madison County Realtors Assn., 344 N.C. 394, 398–99, 474
S.E.2d 783, 787 (1996) (“A case is ‘moot’ when a determination is sought on a matter
which, when rendered, cannot have any practical effect on the existing controversy.”)
In summary, Mr. Logan did not need to have a captivity license at all for the 2013 or
2014 Possum Drop events, and any defect or irregularity in the issuance of those
captivity licenses is now irrelevant.
Of course, New Year’s Eve comes every year, and with it comes the annual
Possum Drop celebration and the specter of the capture of more opossums to star as
5 Session Laws 2015-155 repealed Session Laws 2014-7 as of 20 July 2015; as of 11 June 2015,
a similar exemption to Virginia opossums applies to the whole state and not just Clay County. See
N.C. Gen. Stat. § 113-291.13, Editor’s Note (2015).
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PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. V. MYERS
Opinion of the Court
the main attraction. But the issues presented are still moot because the North
Carolina law continues to exempt opossums during this time period from the
protections of any “rules[] or regulation[.]” N.C. Gen. Stat. § 113-291.13 (2015). This
issue is not “capable of repetition yet evading review[,]” Ballard v. Weast, 121 N.C.
App. 391, 394, 465 S.E.2d 565, 568 (citation and quotation marks omitted), disc.
review denied and appeal dismissed, 343 N.C. 304, 471 S.E.2d 66 (1996), because a
captivity license is no longer required statewide for the Virginia opossum “between
the dates of December 29 of each year and January 2 of each subsequent year.” N.C.
Gen. Stat. § 113-291.13. North Carolina General Statute § 113-291.13 provides: “No
State statutes, rules, or regulations related to the capture, captivity, treatment, or
release of wildlife shall apply to the Virginia opossum (Didelphis virginiana) between
the dates of December 29 each year and January 2 of each subsequent year.” Id.
At oral argument, respondents contended that this case is not moot because
the ALJ ruling in a similar dispute between these same parties regarding the 2012
captivity license would have precedential value in future cases, so this Court should
address the issue now to ensure that the law is not misapplied in the future. Yet the
ALJ’s ruling in the 2012 case is not before us in this appeal, and the particular issue
of a captivity license for an opossum for the New Year’s Possum Drop event will not
recur due to North Carolina General Statute § 113-291.13. See id. Respondents
would like for us to issue a broad pronouncement that PETA does not have standing
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PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. V. MYERS
Opinion of the Court
to address questions of the treatment of North Carolina’s wildlife when proceeding in
cases of this type under a theory of public trust rights, but we cannot decide this issue
in this case because it is moot.
Furthermore, at oral argument, petitioners argued that this issue is not moot
since someone may seek a captivity license for some other type of animal which is not
exempted from the laws protecting wildlife for a similar “drop” event on New Year’s
Eve somewhere in North Carolina in the future, so this situation could then be
repeated, and thus we should address it, lest it evade review. But there is no
indication in our record of any prospect of similar issues arising with other animals
which are still protected by North Carolina’s wildlife laws and regulations, and we
find this possibility entirely too speculative. During this time period each year,
Virginia opossums are simply not covered by any of the “statutes, rules, or
regulations” of North Carolina “related to the capture, captivity, treatment, or release
of wildlife[,]” id. so this particular controversy is over, so long as North Carolina
General Statute § 113-291.13 remains in effect.
III. Conclusion
Since our ruling could not have any practical effect upon the existing
controversy, it is moot, and we dismiss this appeal.
DISMISSED.
Judges DAVIS and DIETZ concur.
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