Terry Wilkins v. David Daniels

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0043p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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X
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TERRY WILKINS; SEAN TRIMBACH; MIKE
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STAPLETON; CINDY HUNTSMAN; CYRIL
VIERSTRA, ROBERT SAWMILLER; STEVE -
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No. 13-3112
FRANTZ,
Plaintiffs-Appellants, ,>
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v.
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DAVID T. DANIELS, in his official capacity as
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Director of the Ohio Department of
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Agriculture; THE OHIO DEPARTMENT OF
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AGRICULTURE,
Defendants-Appellees, -
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THE HUMANE SOCIETY OF THE UNITED
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STATES,
Intervenor. N
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:12-cv-01010—George C. Smith, District Judge.
Argued: November 22, 2013
Decided and Filed: March 4, 2014
Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.
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COUNSEL
ARGUED: Robert M. Owens, OWENS LAW OFFICE, Delaware, Ohio, for Appellants.
Eric E. Murphy, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio,
for Appellees. Anna Frostic, THE HUMANE SOCIETY OF THE UNITED STATES,
Washington, D.C., for Intervenor. ON BRIEF: Robert M. Owens, OWENS LAW
OFFICE, Delaware, Ohio, for Appellants. Alexandra Schimmer, Michael J. Hendershot,
James R. Patterson, Pearl M. Chin, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellees. Anna Frostic, THE HUMANE SOCIETY OF THE
UNITED STATES, Washington, D.C., Donald J. McTigue, Corey Colombo, Mark
McGinnis, McTIGUE & McGINNIS LLC, Columbus, Ohio, for Intervenor.
1
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 2
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OPINION
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JULIA SMITH GIBBONS, Circuit Judge. This case involves constitutional
challenges to the Ohio Dangerous Wild Animals and Restricted Snakes Act, Ohio
Revised Code §§ 935.01–935.99. Plaintiffs-appellants are seven owners of animals
regulated by the Act. Defendants-appellees are the Director of the Ohio Department of
Agriculture, named in his official capacity, and the Ohio Department of Agriculture.
After January 1, 2014, no person may possess a dangerous wild animal or restricted
snake as defined by the Act without obtaining a permit. As part of the permitting
process, individuals are required to implant a microchip under the skin of their animals;
yet individuals are not reimbursed for this expense. There are exemptions from the Act’s
permitting requirements, including an exemption for individuals accredited by the
Association of Zoos and Aquariums (AZA) or the Zoological Association of America
(ZAA).
Appellants contend that the Act violates their First Amendment rights to freedom
of association and speech because the Act’s permitting requirements are so onerously
expensive as to constitute a non-option—the only viable means to comply with the Act,
appellants assert, is to join the AZA or ZAA. Thus, appellants contend that they are
compelled to associate with those organizations and to subsidize the organizations’
speech. Appellants also argue that the Act’s microchipping requirement constitutes a
physical taking in violation of the Fifth Amendment.
We affirm the district court’s denial of injunctive relief. Appellants’ First
Amendment claim fails because appellants have not demonstrated that they are
compelled to join the AZA or ZAA. Appellants’ Taking Clause claim fails because the
Act does not effect a physical taking.
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 3
I.
A.
In 2011, an Ohio man released over fifty exotic animals before committing
suicide. Partially in response, the Ohio General Assembly passed the Ohio Dangerous
Wild Animals and Restricted Snakes Act. Ohio Rev. Code §§ 935.01–935.99. The Act
is designed to regulate prospectively the acquisition, purchase, sale and transfer of
“dangerous wild animals” and “restricted snakes” as defined in sections 935.01(C) and
(L). The Act went into effect on September 5, 2012.
All persons in possession of dangerous wild animals prior to September 5, 2012,
were required to register with the Ohio Department of Agriculture, which administers
the Act, by November 5, 2012. Id. § 935.04(A). In order to record and track these
animals, the Act requires microchipping each registered dangerous wild animal at the
time of registration. Id. § 935.04(D). This is a commonly used technique to track and
identify animals. The microchips must contain unique identification numbers and
passive integrated transponders (“PIT tags”). Id. The microchip, about the size of a
grain of rice, is implanted under the skin of the animal to provide a permanent form of
identification. Once applied, the microchip may not be removed except “for purposes
of a medical emergency by a veterinarian that is qualified to provide veterinary care to
dangerous wild animals.” Id. § 935.18(B).
As noted above, the Act took full effect on January 1, 2014, prohibiting the
possession of a dangerous wild animal following that date. Id. § 935.02(A). A person
already in possession of a dangerous wild animal and who wishes to continue to possess
the animal after that date may obtain a wildlife shelter permit or a wildlife propagation
permit. Id. § 935.04(E). An applicant for a wildlife shelter permit must provide
identifying information as well as information demonstrating his or her ability to possess
responsibly a dangerous wild animal. Id. § 935.05(B). In particular, an applicant must
provide proof that he or she has at least two years of experience in the care of that
species of dangerous wild animal or, in the alternative, the applicant must pass a written
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 4
examination regarding the care of dangerous wild animals. Id. § 935.05(B)(6). The
applicant must also provide “[a] plan of action to be undertaken if a dangerous wild
animal escapes.” Id. § 935.05(B)(7). Not only is microchipping required for registration
under the Act, it is also required prior to the issuance of a permit. Id. § 935.06(A)(2).
There is no express exception to the microchipping requirement for permit applicants.1
Final issuance of a wildlife shelter permit is contingent upon sterilization of each
male dangerous wild animal, unless a qualified veterinarian determines that sterilization
is medically contraindicated. Id. § 935.06(A)(4). An applicant must sign an affidavit
attesting that he or she will not allow members of the public to be in physical contact
with the dangerous wild animal. Id. § 935.06(A)(5). Finally, an applicant must comply
with the Department’s standards of care and housing adopted by rule. Id.
§ 935.06(A)(3). The requirements for a wildlife propagation permit are substantially
similar. See id. § 935.07(B).
Appellants’ claims focus in large part on Ohio’s caging regulations. Section
935.17 directs the Director of Agriculture to establish caging requirements for dangerous
wild animals. Polly Britton, legislative agent for the Ohio Association of Animal
owners, was on a task force assigned to discuss possible caging regulations. Britton
testified that the emergency caging regulations adopted by the state were significantly
more burdensome than ZAA or AZA requirements. For example, she testified that under
the emergency regulations, there was a five-thousand square foot requirement for hyenas
as opposed to a ZAA standard of six-hundred square feet. She explained: “The
comments that were made during the task force meetings—and these were by Ohio
Department of Agriculture officials—was that, when it comes time to write the rules,
they would be so strict that owners could not, or would not, be able to keep their
animals.” And that, Britton testified, was “exactly what happened.” Appellants point to
these caging requirements as a major factor in their inability to comply with the Act’s
1
Counsel for the Humane Society testified that if microchipping is too risky for a particular
animal, this issue could be raised as an equitable defense at an enforcement proceeding.
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 5
permitting requirements. Subsequent to the district court’s order, the Department
promulgated final regulations that were less stringent than originally proposed.
As a general matter, the permitting requirements for restricted snakes are
substantially similar. However, neither registration nor microchipping is required. See
Ohio Rev. Code §§ 935.04, 935.08–935.10. An animal owner is entitled to appeal the
denial or revocation of a permit. Id. § 935.06(E)-(F) (dangerous wild animals); id.
§ 935.09(E)-(F) (restricted snakes).
The Act’s general prohibition on possession of dangerous wild animals and
restricted snakes is subject to fourteen exemptions, including: facilities accredited by the
AZA or the ZAA;2 research facilities as defined in the federal animal welfare act;
research facilities accredited by the association for the assessment and accreditation of
laboratory animal care international; circuses; wildlife rehabilitation facilities permitted
by the Ohio Department of Natural Resources (“ODNR”); veterinarians providing
temporary veterinary care; wildlife sanctuaries; individuals transporting such an animal,
subject to various requirements; educational institutions that display a single dangerous
wild animal as a sports mascot, subject to various requirements; persons issued permits
for scientific or educational use; persons issued permits for native threatened species;
mobility impaired persons possessing certain primate species; deaf persons possessing
certain primate species; and blind persons possessing certain primate species. Id.
§ 935.03(B). An animal owner is not required to microchip his or her animal if he or she
meets one of these exemptions. Id.
The Act provides that if an owner is not able to obtain a permit or meet an
exemption, the owner must transfer, within thirty days, all animals that the person
possesses to a humane society, wildlife sanctuary, rescue facility, facility that is an
accredited member of either the AZA or ZAA, or facility that is located in another state
and complies with that state’s applicable laws. Id. § 935.06(F) (dangerous wild
animals); id. § 935.09(F) (restricted snakes). Such a person must pay all costs associated
2
Some appellants are associate members with either the AZA or ZAA, but the costs of
accreditation that would trigger this exemption are significantly greater than membership costs.
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 6
with the transfer. Id. § 935.06(F) (dangerous wild animals); id. § 935.09(F) (restricted
snakes). The Director may also assess a civil penalty against any person not in
compliance with Chapter 935 or the promulgated rules. Id. § 935.24(B)(1). Any person
assessed a civil penalty has the opportunity for an administrative hearing. Id.
§ 935.24(B)(2). The Act also prescribes criminal penalties for noncompliance with
certain provisions. Id. § 935.99.
Appellants Terry John Wilkins, Cynthia Huntsman, Mike Stapleton, Cyril
Vierstra, Robert Sawmiller, Steve Frantz, and Sean Trimbach are a group of self-
described exotic animal enthusiasts. Each owns animals regulated by the Act and each
believes that he or she cannot comply with the Act’s permitting requirements and does
not otherwise fit within an exemption. Appellants testified that they would not be
willing to join either the AZA or ZAA, whose views they abhor, because those
organizations “are at opposite ends of the spectrum.” Some appellants own elderly
animals, for example, African servals and lions, whose lives would be endangered,
appellants claim, if they were subject to anesthesia in order to microchip them.
B.
Appellants brought suit in the United States District Court for the Southern
District of Ohio under 42 U.S.C. § 1983 challenging the constitutionality of the Act.
Appellants contended that the Act violated their First Amendment rights to freedom of
speech and association, effected a deprivation of property without due process of law in
violation of the Fourteenth Amendment and the Ohio Constitution, and that the Act
effected either a physical or regulatory taking without just compensation in violation of
the Fifth Amendment. Appellants sought injunctive relief, declaratory relief, and
nominal damages.
The Humane Society filed a motion to intervene, which the district court granted.
In November 2012, appellants moved for a temporary restraining order and a preliminary
injunction. The district court consolidated the evidentiary hearing on appellants’ motion
with a full trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil
Procedure. The district court took testimony on appellants’ claims from December
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 7
10–12, 2012. The district court then denied appellants’ motions for a temporary
restraining order, preliminary and permanent injunction in their entirety. Appellants
timely appealed.3
II.
A.
Appellants’ motion for a preliminary injunction was converted to a trial on the
merits. Ordinarily, this court reviews a challenge to the grant or denial of a request for
a permanent injunction for abuse of discretion. See Parks v. City of Columbus, 395 F.3d
643, 647 (6th Cir. 2005). However, we review the district court’s legal conclusions de
novo. Id.4
B.
Appellants bring two distinct but interrelated First Amendment claims. First,
appellants assert that the Act violates their First Amendment freedom of association
rights because they believe it forces them to join either the AZA or ZAA. Second,
appellants assert that the Act violates their First Amendment freedom of speech rights
“by compelling Appellants to subsidize the speech of their purely private political and
ideological rivals,” the AZA or ZAA.
The Supreme Court “has recognized a right to associate for the purpose of
engaging in those activities protected by the First Amendment—speech, assembly,
petition for the redress of grievances, and the exercise of religion.” Roberts v. U.S.
Jaycees, 468 U.S. 609, 618 (1984). The Constitution guarantees this freedom of
association because it is “an indispensable means of preserving other individual
3
Appellants do not appeal the district court’s judgment with respect to their federal and state
procedural due process claims and their regulatory takings claim.
4
There are no factual disputes present in this appeal.
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 8
liberties.” Id. A corollary to this right is the right not to associate. Cal. Democratic
Party v. Jones, 530 U.S. 567, 574 (2000).5
As the First Amendment protects freedom of association and the corollary right
not to associate, so too does it protect freedom of speech and the corollary right not to
speak. “Closely related to compelled speech and compelled association is compelled
funding of the speech of other private speakers or groups.” Knox v. Serv. Emps. Int’l
Union, Local 1000, 132 S. Ct. 2277, 2288 (2012). “[C]ompulsory subsidies for private
speech are subject to exacting First Amendment scrutiny . . . .” Id. at 2289.
The threshold inquiry in a compelled subsidy case is whether the State has
“mandated association.” United States v. U.S. Foods, Inc., 533 U.S. 405, 414 (2001);
see also Knox, 132 S. Ct. at 2289. If the association is not compelled, neither are the
subsidies for the organization’s speech. Thus, to prevail on either of appellants’ First
Amendment claims, they must establish that joining the AZA or ZAA is mandatory;
what is fatal to the compelled association claim is fatal to the compelled subsidy claim.
See, e.g., Boy Scouts of Am. v. Dale, 530 U.S. 640, 647–54 (2000); Roberts, 468 U.S. at622–29; Knox, 32 U.S. at 2289; Keller v. State Bar of Cal., 496 U.S. 1, 7–17 (1990).
Accordingly, we consider both claims together.
There are fifteen ways appellants can comply with the Act: the permitting
requirement and fourteen exemptions. Appellants’ argument hinges on the proposition
that only one of these options is actually available—joining the AZA or ZAA. See Ohio
Rev. Code § 935.03(B)(1). Appellants assert that “the Act provides a textbook Hobson’s
choice”: the permitting requirements are too expensive and no exemption other than the
5
Supreme Court case law on compelled association has either considered whether an organization
can be forced to accept members or whether individuals compelled to associate with an organization can
be forced to subsidize that organization’s speech. We assume, arguendo, that appellants can state
compelled association claims on the basis of being compelled to join an organization. Cf. Elrod v. Burns,
427 U.S. 347 (1976) (plurality opinion) (holding county sheriff’s office could not fire or threaten dismissal
of employees for failure to affiliate with a political party); Menkes v. St. Lawrence Seaway Pilots’ Ass’n,
269 F. App’x 54, 56 (2d Cir. 2008) (“Without violating the Constitution, the government can compel an
individual to join a professional association as a condition of employment.” (citing Keller v. State Bar of
Cal., 496 U.S. 1, 8 (1990)).
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 9
AZA or ZAA exemption applies, therefore appellants’ only feasible option is to join the
AZA or ZAA.
State compulsion has been defined largely in the context of compelled speech.
A “general principle of compelled speech jurisprudence . . . is that a violation of the First
Amendment right against compelled speech occurs only in the context of actual
compulsion.” C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 189 (3d Cir. 2005). “In
order to compel the exercise or suppression of speech, the governmental measure must
punish, or threaten to punish, protected speech by governmental action that is
‘regulatory, proscriptive, or compulsory in nature.’” Phelan v. Laramie Cnty. Cmty.
Coll. Bd. of Trs., 235 F.3d 1243, 1247 (10th Cir. 2000) (quoting Laird v. Tatum, 408
U.S. 1, 11 (1972)); see also Axson-Flynn v. Johnson, 356 F.3d 1277, 1290 (10th Cir.
2004). The consequence need not be direct; imprisonment, fines, injunctions, or taxes
may suffice. Axson-Flynn, 356 F.3d at 1290; see also C.N., 430 F.3d at 189. “A
discouragement that is ‘minimal’ and ‘wholly subjective’ does not, however,
impermissibly deter the exercise of free speech rights.” Phelan, 235 F.3d at 1247–48
(quoting United States v. Ramsey, 431 U.S. 606, 623–624 (1977)).
A brief comparison of cases in which state compulsion has been found and where
state compulsion has been found lacking demonstrates that the State of Ohio has not
compelled appellants to join the AZA or ZAA. In the compelled association cases, the
compulsion has generally operated by force of law: accept these members or be in
violation of a public accommodation law. See Dale, 530 U.S. at 645–46; Roberts,
468 U.S. at 615–16. In compelled subsidy cases, plaintiffs have generally been
presented with a binary choice between subsidizing speech or quitting their jobs. See
Keller, 496 U.S. at 5–6; Abood v. Detroit Bd. of Educ., 431 U.S. 209, 211 (1977). In the
compelled speech arena, the Supreme Court has struck down a state statute requiring
schoolchildren to recite the Pledge of Allegiance and to salute the American flag, W. Va.
State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), as well as a state statute
requiring residents to display the state’s motto on their license plates, Wooley v.
Maynard, 430 U.S. 705, 717 (1977). In contrast, in the absence of state mandated
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 10
penalties coercing an individual to choose a course of conduct, state compulsion has not
been found. See Phelan, 235 F.3d at 1248; C.N., 430 F.3d at 189.
In the instant case, appellants do not contend that they will be penalized if they
do not join the AZA or ZAA. Rather, they contend that they are unwilling or unable to
meet fourteen other options available to them. This is not the type of compulsion that
qualifies them for First Amendment protection. We need look no further than the Act’s
permitting requirements to see why this is the case. Appellants contend that the costs
of complying with the permitting requirements are “so exorbitantly high” as to present
an illusory option. Appellants’ objections stem primarily from the caging requirements
promulgated under the Act.
Since the district court’s order, Ohio has promulgated final regulations for caging
requirements. Ohio Admin. Code § 901:1–4. Appellants are correct that this court
should not unduly speculate about the cost of compliance with the final regulations.
Nevertheless, it is sufficient to note that the final regulations are substantially less
onerous than originally proposed. The cost of compliance with the final regulations does
not make this a sham option.
Nor is obtaining a permit the only option available to appellants under the Act.
Of the fourteen exemptions to the permitting requirement, the ODNR educational use
permit would appear a strong candidate for many of the appellants. See Ohio Rev. Code
§ 935.03(B)(10); id. § 1533.08. A permittee under that section need only pay an annual
fee of twenty-five dollars and is not required to microchip his or her animals. Id.
§ 1533.08; id. § 935.03(B). And Sawmiller and Trimbach actually have native wildlife
permits under Ohio Revised Code section 1531.25, which exempt those animals covered
by the permits from the Act’s requirements. Id. § 935.03(B)(11).
Finally, appellants have not even established that joining the AZA or ZAA is an
available option. Sawmiller testified that he could not sustain his business if he joined
the AZA or ZAA because he would have to limit his exhibition of wild animals to
schools only. Likewise, Huntsman testified that joining the AZA and ZAA was “not
feasible.” Wilkins testified that he could meet neither the AZA or ZAA’s “physical
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 11
requirements for their facilities” nor Ohio’s requirements. Trimbach testified that he
could not continue his business profitably if he joined either the AZA or ZAA. And
Vierstra testified that he would not be able to afford becoming a member of the ZAA and
doubted whether he would qualify for membership. Appellants clearly are not required
to join the AZA or ZAA if they are incapable of joining those organizations.
On the most general level, the plain language of the Act and its practical
application demonstrate that appellants do have options. Mere unwillingness to conform
their conduct to the permitting requirements or the other thirteen exemptions does not
mean that the Act compels appellants to join the AZA or ZAA. The Act imposes a
choice on appellants, even though it is not a choice they welcome. Appellants “wholly
subjective” belief that the Act compels them to join the AZA or ZAA is insufficient to
trigger either compelled association or compelled subsidy protection under the First
Amendment. See Phelan, 235 F.3d at 1247. The burden of regulation may,
unfortunately, fall heavier on some than on others, but that, without more, is not enough
to render this Act unconstitutional.
C.
Appellants contend that the Act’s microchipping requirement effects a physical
taking without compensation in violation of the Takings Clause of the Fifth Amendment.
Before turning to the merits of that claim, we must consider whether it is ripe.
1.
Applicable to the States through the Fourteenth Amendment, the Takings Clause
of the Fifth Amendment “provides that private property shall not ‘be taken for public
use, without just compensation.’” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536
(2005) (quoting U.S. Const. amend. V). It is important at the outset to distinguish two
different types of Takings Clause challenges: challenges to the public-use requirement
and challenges to the just-compensation requirement. Public-use challenges assert that
in effecting the taking, the government exceeded its permissible scope of authority under
the Constitution; the action is invalid regardless of whether compensation is provided.
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 12
Just-compensation challenges concede that the government acted within the scope of its
authority and assert that the government must provide the affected party with “just
compensation.”
Appellants bring a just-compensation challenge. With regard to this type of
challenge, the Supreme Court has clarified:
As its text makes plain, the Takings Clause “does not prohibit the taking
of private property, but instead places a condition on the exercise of that
power.” In other words, “it is designed not to limit the governmental
interference with property rights per se, but rather to secure
compensation in the event of otherwise proper interference amounting to
a taking.”
Id. at 536–37 (internal citations omitted) (quoting First English Evangelical Lutheran
Church of Glendale v. Cnty. of L.A., 482 U.S. 304, 314–15 (1987)). “Nor does the Fifth
Amendment require that just compensation be paid in advance of, or contemporaneously
with, the taking; all that is required is that a reasonable, certain and adequate provision
for obtaining compensation exist the time of the taking.” Williamson Cnty. Reg’l
Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985) (internal
quotation marks omitted). Generally, then, a State does not violate the Takings Clause
“until it refuses to compensate the owner.” Hensley v. City of Columbus, 557 F.3d 693,
695–96 (6th Cir. 2009); see also Williamson Cnty., 473 U.S. at 195 (“[T]he State’s
action is not ‘complete’ in the sense of causing a constitutional injury ‘unless or until the
State fails to provide an adequate postdeprivation remedy for the property loss.’”
(quoting Hudson v. Palmer, 468 U.S. 517, 532 n.12 (1984))).
Williamson County elaborates a two-part ripeness test. A federal court may hear
a takings claim only after: (1) the plaintiff has received a “final decision” from the
relevant government actor; and (2) the plaintiff has sought “compensation through the
procedures the State has provided for doing so.” Williamson Cnty., 473 U.S. at 186,
194–95. We apply this test to both regulatory and physical takings claims. See Hensley,
557 F.3d at 696 n.2; River City Capital, L.P. v. Bd. of Cnty. Comm’rs, 491 F.3d 301, 307
(6th Cir. 2007); Arnett v. Myers, 281 F.3d 552, 563 (6th Cir. 2002).
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 13
Appellants contend that Williamson County is inapplicable to facial challenges.
Their argument oversimplifies Takings Clause jurisprudence. With respect to just-
compensation challenges, while Williamson County’s first requirement may not apply
to facial challenges, its second requirement—that plaintiffs must seek just compensation
through state procedures—does. See Alto Eldorado P’ship v. Cnty. of Santa Fe, 634
F.3d 1170, 1177 (10th Cir. 2011) (“Courts considering claims alleging a . . . taking
without just compensation, even when characterized as facial claims, have applied the
second Williamson County requirement . . . .” (citing Equity Lifestyle Props., Inc. v.
Cnty. of San Louis Obispo, 548 F.3d 1184, 1190 n.13 (9th Cir. 2008); Cnty. Concrete
Corp. v. Twp. of Roxbury, 442 F.3d 159, 168 (3d Cir. 2006); Holliday Amusement Co.
of Charleston, Inc. v. South Carolina, 493 F.3d 404, 407 (4th Cir. 2007))).6
Appellants do not contend that they sought compensation in state court or that
Ohio does not provide an adequate remedy. See Williamson Cnty., 473 U.S. at 194(explaining “all that is required is that a reasonable, certain and adequate provision for
obtaining compensation exist at the time of the taking” (internal quotation marks
omitted)). Ordinarily this would end our inquiry. However, Williamson County ripeness
is a prudential doctrine. See Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725,
733–34 (1997).
The requirement to seek compensation prior to bringing suit will often serve
important federalism interests. In regulatory takings cases involving sensitive issues of
state policy, or cases that turn on whether the plaintiff has a property interest as defined
by state law, ripeness concerns will prevent a federal court from reaching the merits
prematurely. But where it is clear that there has been no “taking,” an issue of federal
6
Not subject to Williamson County’s second requirement, and for a very good reason, are public-
use challenges. See, e.g., San Remo Hotel, L.P. v. City & Cnty. of San Fransisco, 545 U.S. 323, 345-46
(2005). Because compensation is irrelevant to a public-use challenge—the state action either did or did
not exceed the scope of the government’s constitutional authority—Williamson County’s state procedures
requirement makes little sense in the context of a public-use challenge. See Alto Eldorado, 634 F.3d at
1176.
Much of the confusion surrounding this issue stems from Yee v. City of Escondido, 503 U.S. 519,
533–34 (1992), and its progeny, on which appellants rely. There, the Supreme Court stated that where
petitioners brought a facial challenge asserting that the ordinance at issue did not substantially advance a
legitimate state interest, Williamson County was inapplicable. Id. at 534. The “substantially advance”
theory, now defunct, see Lingle, 544 U.S. at 548, is best thought of as a species of public-use challenge
that has no application here. See Alto Eldorado, 634 F.3d at 1176 n.3.
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 14
constitutional law, no jurisprudential purpose is served by delaying consideration of the
issue. If anything, dismissing the case on ripeness grounds does a disservice to the
federalism principles embodied in this doctrine as it would require the state courts to
adjudicate a claim, already before the federal court, that clearly has no merit. We
therefore turn to whether the Act effects a taking.
2.
Appellants raise only a physical takings claim. “[P]hysical takings require
compensation because of the unique burden they impose: A permanent physical
invasion, however minimal the economic cost it entails, eviscerates the owner’s right to
exclude others from entering and using her property—perhaps the most fundamental of
all property interests.” Lingle, 544 U.S. at 539. Appellants argue that any law that
effects a physical invasion of an individual’s property effects a taking. Yet Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435 (1982), the seminal case on
physical takings, made clear that not every permanent physical invasion rises to the level
of a taking. Only “[w]hen the government physically takes possession of an interest in
property,” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S.
302, 322 (2002), or authorizes a “physical occupation . . . by a third party,” Loretto,
458 U.S. at 440, does state action rise to the level of a taking.
For this reason, Loretto explained that the Takings Clause does not impinge on
a state’s ability to pass regulations for the general welfare in most cases. The Court
emphasized: “our holding today in no way alters the analysis governing the State’s
power to require landlords to comply with building codes and provide utility
connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common
area of a building.” Id. Those types of regulations are not constitutionally suspect
because they do not involve government occupation or a government-authorized
occupation by a third party. Id.Here, neither the government nor a third party has occupied appellants’ property.
If appellants do not qualify for an exemption from the Act’s permitting requirements,
they are required to implant microchips in animals classified as “dangerous wild
No. 13-3112 Wilkins, et al. v. Daniels, et al. Page 15
animals.” See Ohio Rev. Code § 935.04(D).7 But even after appellants implant the
microchips, they retain the ability to use and possess their animals and the implanted
microchips. Indeed, the Act is close kin to the general welfare regulations that the
Supreme Court ensured were not constitutionally suspect. There is little difference
between a law requiring a microchip in an animal and a law requiring handrails in
apartment buildings. Both are regulations of individuals property properly challenged
as regulatory takings, Loretto, 458 U.S. at 440, and neither law effects a government
occupation of property or a government-authorized occupation of property by a third
party. As appellees point out, were the Act’s microchipping requirement to be ruled a
taking, “laws requiring license plates on cars, warning labels on packaging, lighting on
boats, handrails in apartment buildings, and ramps leading to restaurants” would be
suspect. This is to say nothing of the implications for the myriad state laws regarding
the microchipping of exotic and domesticated animals as well as the ear-tagging of
agricultural animals. Loretto established a “narrow” rule applicable to “[]possessory
governmental activity.” 458 U.S. at 440–41. The Act’s microchipping requirement does
not fit within this narrow rule.
III.
Appellants’ constitutional claims lack merit. We therefore affirm the district
court’s final judgment denying injunctive relief.
7
There is a tension between appellants’ First Amendment and Fifth Amendment claims. If the
Act requires appellants to join the AZA or ZAA, appellants would not be required to microchip their
animals. See Ohio Rev. Code § 935.03(B) (exempting owners who qualify for an exemption from all but
submitting a registration form). It is only if appellants are not required to join the AZA or ZAA and do
not qualify for another exemption that the microchipping requirement would be applicable.