Animal shelter owner, Fish & Game in protracted legal dispute

The price tag: around a million dollars between the state and a San Diego-area litigant.

The prize: nine elderly birds.

After five years, three lawsuits, and two appeals, that’s where the Department of Fish & Game finds itself in its dispute with animal dvocate Lindy O’Leary. What started out as a seemingly routine visit to shut down O’Leary’s wild animal shelter near San Diego for various violations has led to a state legal bill of nearly $600,000.

“We’re defending ourselves from her,” said Fish & Game spokeswoman Jordan Traverso. “She’s the one who filed these suits. She had animals that were very sick, that were neglected, and weren’t taken care of well.”

O’Leary said the lawsuits came because the “vengeful” Dept. has a vendetta against her.

“Their settlement offer is that I can give them the birds and they can kill them, and I can’t own animal for 15 years,” she said. “That’s not a settlement offer.”

The dispute centers around O’Leary’s acre-and-a-quarter property in Poway, which she has dubbed the Wildlife Center of San Diego County. Since 1994, O’Leary has kept a menagerie of animals there, including the birds now in dispute: two red-tailed hawks, two crows and five seagulls. In 2001, her license to keep these animals expired. In 2004, Fish & Game began efforts to seize the animals over the permit issue and, they say, the poor care O’Leary was giving them.

But the dispute may also highlight differing views on the role of government in people’s lives—and how emotionally involved some people get when the government tries to intervene in their ownership of animals. Some have compared the Wildlife Center case with the spay-neuter bill by former Assemblyman Lloyd Levine, a bill which brought armies of advocates on both sides to the Capitol and led to an email/phone call/fax barrage that many Capitol staffers said was more than all other bills of 2007-2008 combined. Traverso’s husband Alex Traverso was Levine’s media spokesman during that time.

“There is an incredible amount of passion among the animal advocates,” Traverso noted.

Department of Justice has billed $562,000 to Fish & Game for acting as their attorney in these cases: $246,000 for the original civil rights action case O’Leary brought in late 2004, $54,000 for O’Leary’s unsuccessful appeal, $93,000 for the preliminary injunction sought in relation to a restricted species permit, $122,000 for an administrative mandate action O’Leary sought, and another $47,000 for another appeal.

This does not include other expenses to the state, such as Fish & Game staff time, veterinary exams the state paid for as part of their effort to show O’Leary wasn’t taking care of the animals, and a DNA test for a now-deceased coyote that O’Leary had kept.

O’Leary has racked up some serious bills herself. As an occupational physician at Kaiser, she makes a good salary. But she’s also paid over $200,000 in legal bills, about $55,000 to lobbyist Catherine Barankin, and most recently another $20,000 to the public relations/political consulting firm Acosta Salazar to help publicize her case.

This is in addition to what she said is a cost that can run to $5,000 a month in veterinary bills alone. Her menagerie also includes six dogs, two horses, two emus, three Barbados sheep, some chickens, one indoor cat and “a few outdoor cats.” She said she has no donors, pays all these bills herself, and has taken out a second mortgage on her house in order to deal with the legal expenses.

The case is due back in San Diego Superior Court on Jan. 15. In the meantime, Barankin has taken the lead in trying to negotiate a settlement that would allow O’Leary to keep her birds, but has found herself at an impasse with Fish & Game officials.

She’s also worked to get legislators involved, focusing on members in O’Leary’s area. In April, Assemblyman Nathan Fletcher, R-San Diego, introduced a bill, AB 1526, that would require the agency to issue O’Leary a permit to operate “for at least five years.” But he cancelled a hearing in the Assembly Agriculture Committee while Barankin began settlement negotiations.

On Oct. 26, Senate Minority leader Dennis Hollingsworth, R-Murrieta, sent a letter to Fish & Game director Donald Koch urging him to reach a settlement that allowed O’Leary to keep her birds. He also cited that amount O’Leary has spent and added “I can only imagine what kind of state resources have been spent on this battle.”

Barankin has also urged Fish & Game to turn over permitting authority for O’Leary’s property to the state Department of Agriculture. This past spring, she had a meeting with Agriculture Secretary A.G. Kawamura, who she said was receptive to the idea. But again, Fish & Game wouldn’t budge, she said, citing the precedent the move would set for other animal facilities.

“Then how badly are you treating everybody that they all want to bail?” Barankin asked.

She said her next step might be to “go after them in the budget cycle,” saying: “Obviously you have money to burn. I’m trying to give them a little grief back for all the grief they have caused Lindy.”

Fish & Game is no stranger to litigation. The Department currently had 22 in-house lawyers, whose main job is to fend off litigation before it gets to court—at which point the AG’s office takes over, as it does for most state departments. Traverso said the agency is sued or named as party in a suit against another agency about every two weeks, usually by environmentalists, but sometimes by animal shelter operators as well. As of September, the Department was involved in 86 active cases.

“It’s no secret that we get sued all the time,” she said.

One irony is that the entire situation came about largely by chance. O’Leary’s nine birds are the survivors of a group of 27 disabled birds she inherited from Diana Sieberns, who founded the original Wildlife Center in 1967. It became a non-profit in 1987, and was moved to O’Leary’s property in 1994. O’Leary operated the facility without coming to the attention of the agency for years, inviting school groups to visit and rehabilitating injured animals including raccoons, possums, and caring for and releasing “hundreds of owls, ravens, hawks, coyotes, and a possum” that had been found injured.

Then someone reported O’Leary for allegedly keeping a coyote as a pet. This led to a fateful Sept. 13, 2004, visit from Fish & Game warden Zeke Aubrey. After coming to the property, Aubrey saw the bird cages and asked O’Leary if she had permits. She had inherited a wild animal permit from Sieberns, but this had expired in 2001 and due to a miscommunication with Fish & Game about what she needed to do next, she said.

The situation quickly escalated into a confrontation where O’Leary admits “I got in his face.” Aubrey entered the property—without a search warrant or permission, she said—and seized the 19 birds that were still alive at the time. The animal Aubrey had originally came to check one, called Cotie, died of a lifelong seizure disorder soon after, but not before Fish & Game did a DNA test they said showed it was full coyote, not part-dog, as O’Leary had claimed.

A Sept. 24 veterinary report showed several of the birds were underweight, aggressive, and had overgrown beaks—a sign they were not being fed a proper diet, Fish &amp
; Game’s Traverso said. That report, from Adobe Animal Hospital in Ramona, said two birds were in such bad shape that they should be euthanized, and five others were sick enough it should be considered.

This may be part of why O’Leary has continued to fight so hard—she claims the “vengeful” agency is out to kill her birds.

“It’s just outrageous to think that’s what we do,” Traverso said. “That’s absurd and contrary to our goals and mission.”

Traverso said one bird was euthanized by a staffer at a shelter run by the Fund for Animals, which was holding the birds, without knowing they needed legal permission to do so. Five other died of natural causes, possibly from West Nile virus or their poor condition. The birds were returned at the end of 2004, pending the outcome of litigation.

The Department is legally required to euthanize wild animals that cannot be released into the wild or used for breeding or educational purposes—or legally left with a competent owner. That’s exactly what O’Leary is, Ranke, her attorney, claimed. In most cases, if an owner is “substantially in compliance,” Fish & Game allows them to make upgrades and then renew their licenses.

“The only motivating factor I can see after five years is just a personal vendetta,” Ranke said. She added, “You know how these people are. They’re wanna-be cops who never made it.”

Ranke went on to claim that in at least one hearing deputy attorney general William Cunningham acted in two roles, advising the court on animal issues and representing Fish & Game. She also said judges have ignored evidence.

She went on to say that they’re trying to make an example of O’Leary. No one questions that there are many other people out there keeping similar collections of animals on rural properties. In recent years, improperly licensed animals have made headlines, including multiple fatal or near fatal attacks involving chimpanzees and big cats kept on private property.

One thing that everyone agrees on is that a million dollars could have been better spent on food and vet bills—or covering agency budget shortfalls.

“Do you know what we could do with a million dollars in this time of budget cuts?” Traverso said.

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