STATE OF MINNESOTA COUNTY OF DAKOTA
DISTRICT COURT FIRST JUDICIAL DISTRICT File No. 19HA-CV-15-2725
Eureka Township, a political subdivision of the State of Minnesota, Plaintiff,
v.
FINDINGS OF FACT, CONLUSIONS OF LAW, ORDER FOR JUDGMENT
Teresa Lynn Petter, Daniel Robert Storlie, Wolves, Woods & Wildlife, a Minnesota non-profit corporation and Fur-Ever Wild, LTD, a Minnesota Corporation, Defendants. The above-entitled matter came on for Court Trial before the Honorable Karen J. Asphaug, Judge of District Court, on June 14, 15, and 16, 2016, at Dakota County Judicial Center, Hastings, Minnesota. At trial, the Court received Plaintiff's Exhibits Al-3 and 84-14;16-27 and Defendant's Exhibits Cl-6;9-10 and Dll-51;53-54. The record was held open until July 15 to allow for simultaneous post-trial submission of proposed findings of fact, conclusions of law, and order for judgment, along with trial memorandums. Chad Lemmons, Esq., and Julie La Fleur, Esq., appeared on behalf of Plaintiff. Erik Hansen, Esq., and Martin Melang, Esq., appeared on behalf of Defendants. Based upon the proceedings, this Court makes the following:
FINDINGS OF FACT: The Parties 1. Eureka Township is a political subdivision of the State of Minnesota. 2. Teresa Lynn Petter (hereinafter "Petter'') owns property located at 24005 Dodd Boulevard in Lakeville, Minnesota (hereinafter "Dodd Property"), and 10132 235th Street West, Lakeville, Minnesota (hereinafter "235th Street Property". Both of these properties are located in Eureka Township and zoned agricultural. 3. Daniel Robert Storlie (hereinafter "Storlie'') is Petter's significant other. He resided at the Dodd Property with Petter and moved to the 235th Street Property with her in 2001. 4. Wolves, Woods & Wildlife (hereinafter "WWW'') is a non-profit corporation registered in the State of Minnesota with an office located at the 235th Street Property. Petter is the president of WWW. 5. Fur-Ever Wild LTD (hereinafter "Wild") is an assumed name for Petter's animal exhibition business. Procedural History 6. Petter, Storlie, WWW, and Wild initiated a lawsuit against Eureka Township in January 2012 to restore the agricultural exemption the town previously granted them for the construction of an agricultural building. They sought a writ of mandamus, declaratory judgment, and injunctive relief. 7. The matter was eventually placed on inactive status. The matter was closed due to inactivity.
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8. Shortly after that matter was placed on inactive status, two individuals who reside in Eureka Township, Ralph Fredlund and William Funk, filed a lawsuit against the township seeking enforcement of the exotic animal ordinance against Petter, Storlie, WWW, and Wild. 9. Fredlund and Funk filed a motion for summary judgment. Judgement was granted in favor of the township. 10.0n appeal, the matter was reversed and remanded. However, the parties resolved the case and the matter was dismissed. 11. Eureka Township initiated this matter by filing a complaint against Petter, Storlie, WWW, and Wild in July 2015. The complaint seeks a permanent injunction prohibiting Defendants from operating an animal exhibit, possessing exotic animals, and operating a pelting business. 12. The parties filed cross motions for summary judgment. After a hearing, both parties' motions were denied. 13. The matter proceeded to trial before the undersigned judge.
Factual Background 14. The Eureka Township Zoning Ordinance was passed in 1978 and sets forth permitted uses in an agricultural district. Permitted uses including commercial agriculture and horticulture, farm buildings and accessory structures, one single family dwelling, and private stables. Conditional uses include feedlots, poultry operations, boarding animals, breeding animals, and the sale of animals. Exhibition of animals is not a permitted or conditional use.
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15. Petter purchased the Dodd Property in 1995. She lived on that property with one wolf she had owned since approximately 1994. She purchased the 235th Street Property in 2001. She moved to the 235th Street Property at that time. Petter currently lives at the 235th Street Property. 16. Petter first acquired a wolf in 1994. She first acquired a lynx approximately 16 years ago, but no longer possesses one. She acquired her first cougar in 2007 or 2008. 17. Petter did not provide evidence as to each specific animal in her possession as of June 7, 2005. 18. She began exhibiting animals at the 235th Street Property as early as 2003. 19.Storlie is employed by the United States Department of Agriculture (USDA) as a Wildlife Specialist since 2012. As part of his duties, he removes animals from the Airlake Airport for the Metropolitan Airport Commission (MAC). This includes trapping animals such as fox, coyotes, and raccoons, as well as removing birds. Airlake Airport is in Eureka Township. 20.Airlake Airport is owned by the MAC. Eureka Township's only oversight of the property is to provide building inspections for hangars that are permitted on site. Eureka Township does not provide animal control services to the airport. 21.Animal control issues in Eureka Township were delegated to the Dakota County animal control division pursuant to a contract. 22. Currently, the 235th Street Property includes several buildings, including structures to house animals and a retail sale building.
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23. Both Petter and Storlie possess animals at the 235th Street Property. Storlie's animals are not on display to the public.
24. The Eureka Township Board has a "complaint-driven" system. As a result, inspections occur only as the result of a citizen complaint. Two board members are assigned to determine if a complaint is valid. Usually, the board members would send a letter to the individual whom the complaint was made against and possibly follow up with the building inspector. Otherwise, conditional use permits (CUPs) are reviewed on an annual basis.
25. Carrie Jennings, a former and current member of the Eureka Township Board and former member of the planning commission, credibly testified that there was a time on the board when it seemed like complaints were not being thoroughly reviewed and ordinances were not being strictly followed. In her opinion, political or personal views were determinative.
26. Petter applied for a CUP for the Dodd Property and the 235th Street Property in 2003. The Dodd Property CUP was for a dog kennel and horse boarding. The 235th Street Property CUP was for boarding, breeding, and the sale of cattle. The Eureka Town Board approved the CUPs at a public meeting in April 2003. Both CUPs were subsequently issued.
27. In September 2004, Petter applied for a zoning permit for the 235th Street Property for the construction of a pole shed. The application was approved by the Eureka Township Board on September 13, 2004.
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28. Eureka Township adopted ordinances effective June 7, 2005. As a part of its ordinances, the town enacted an exotic animal ordinance in Ordinance 3, Chapter 7, Section 3. According to the ordinance, the purpose is to "protect the public against the health and safety risks that exotic animals pose to the community and to protect the welfare of individual animals that are held in private possession." The ordinance provides the following: "It shall be unlawful for any person to own, possess, keep, harbor, bring or have in one's possession an exotic animal within Township limits." 29. The town code adopted in 2007 does not alter this section of the exotic animal ordinance. 30. The most recent town code provides the following exceptions to the prohibition against the possession of exotic animals. Certain individuals are exempt from this ordinance, including: animal control officers, licensed veterinary hospitals or clinics, licensed wildlife rehabilitators, and those who possess exotic animals prior to the effective date of the ordinance. 31. Exotic animals are defined by ordinance as follows: Any animal that is not normally domesticated in the United States or is wild by nature. Exotic animals include, but are not limited to, any of the follow orders and families, whether bred in the wild or captivity, and also any of their hybrids and domestic species. The animals listed in parentheses are intended to act as examples and are not to be construed as an exhaustive list or limit the generality of each group of animals, unless otherwise specified: a. Non-human primates and prosimians (monkeys, chimpanzees, baboons) b. Felidae (lions, tigers, bobcats, cougars, leopards, jaguars, not domesticated cats) c. Canidae (wolves, coyotes, foxes, jackals, not domesticated dogs) d. Ursidae (all bears)
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e. Repitilia (all venomous snakes, all constricting snakes, iguanas, turtles, lizards) f. Crocodilia (alligators, crocodiles) g. Proboscidae (elephants) h. Hyanenidae (hyenas) i. Artiodactyla (hippopotamuses, giraffes, camels, not cattle or swine or sheep or goats) j. Procyonidae (raccoons, coatis) k. Marsupialia (kangeroos or possums) I. Perissodactylea (rhinoceroses, tapirs, not horses or donkeys or mules) m. Edentata (anteaters, sloths, armadillos) n. Viverridae (mongooses, civets, genets) 32. Agricultural operations were defined in the 2005 ordinance as "operations operating for a profit which include ... the raising of livestock, fur bearing animals, fish or poultry. The ordinances do not define "fur bearing animals." Livestock is defined as "any animal commonly used by persons for use, draft or pleasure purposes. The definition includes poultry, cattle, swine, sheep, goats and horses, and specifically excludes exotic animals. This definition was modified by resolution in 2007. The current definition defines livestock as any animal commonly used by persons for draft or pleasure purposes. The definition continues to exclude exotic animals. 33. Minutes from the Town Board meeting on December 11, 2006, reflect a request by Petter for a building permit for the 23Sth Street Property to house exotic animals. A discussion occurred regarding the permissibility of possessing exotic animals, given a prohibition on the possession of exotic animals in the town ordinances. A decision was made to contact the township attorney to have the attorney submit a letter to Petter requesting the number of exotic animals that she was in possession of and had prior to adoption of the exotic animal
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ordinance. 34.At a January 8, 2007, board meeting, the discussion of Petter's building permit was continued. Attorney Kristen Kingsbury appeared on Petter's behalf. According to the minutes, the basement level of the barn was to be used to house horses. The board raised concerns about ventilation and access issues for the houses. The minutes notes, "The design of the building looks like a building being used for people rather than animals." Attorney Kingsbury represented that the main floor would be used for storage and the upper floor would have offices, a washer and dryer, sinks, and a refrigerator. The minutes reflect a concern that the building may be used for commercial purposes. A motion was made to approve the permit request and the motion was seconded. 35. Nevertheless, the minutes also note that a motion was made for continued discussion about the permit should occur since "the applicant chooses not to complete the application requirements as the Town Board has laid out." That motion was seconded. 36.A CUP review was held at the April 9, 2007, board meeting. Attorney Jerrie Hayes appeared on Petter's behalf. Attorney Hayes represented that Petter was keeping the same animals on the property and had not received any complaints. A nuisance complaint, which had been resolved, was referenced without detail. 37.A motion was seconded at a December 10, 2007, board meeting to take an inventory of all animals on the Petter property to determine which conform to township ordinance and which do not.
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38. Further discussion occurred at February 11, 2008, board meeting regarding an inventory of Petter's animals. The board preferred to have an agreement from Petter to enter the property and take an inventory, rather than obtaining an administrative warrant for entrance on the property. 39.A CUP review was held at the town board meeting on April 14, 2008, regarding both of Petter's properties. The matter was opened for public comment, but none was made. Having received no comments or complaints, the board acknowledged review of the CUPs. 40. The board also discussed a complaint received against Petter's possession of exotic animals. The board discussed whether there is a conflict between the exotic animal ordinance and the commercial agricultural ordinances. Despite the desire by the board for permission to enter the Petter property for an inventory, Petter declined, indicating that she is already subject to inspection by the USDA and Minnesota Department of Natural Resources (DNR). After further discussion, Petter acquiesced and agreed to submit an inventory of "what they have and the approximate ranges of what they can produce." 41. Petter submitted a list of animals to the board as noted in the minutes from the May 12, 2008, board meeting. The list provided the following:
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Animals
No.
Animals
No.
Wolves (and dogs)
10-20
Beavers
4-20
Fox (all colors and names)
90-1200
Coyotes
4-20
Raccoons
6-20
Wood chucks
3-10
Lynx
6-20
Mink
2-100
Bobcats
6-20
Badger
3-20
Skunks
4-10
Wolverine
2-10
Fishers
3-10
Otter
2-10
Porcupines
3-10
42. On her list, Petter noted that the numbers fluctuate due to breeding and pelting seasons. 43. The board discussed the inventory received from Petter at the July 14, 2008, board meeting. The board was concerned about the "huge" ranges of numbers provided and the discrepancies with the DNR report. The board expressed that porcupines, woodchucks, skunks, and coyotes are not furbearing animals. The board discussed possible enforcement options, including a citation or a civil lawsuit. 44. Board minutes from an August 11, 2008, meeting indicate that the township's attorney received Petter's animal list. The town asked Petter for a contingency plan or emergency management plan and "further explanation of the actual end use of the animals." According to the minutes, the only way Petter's operation would be excepted from the exotic animal ordinance is for the production of fur 10
since this would not qualify as a livestock operation. The board noted that misdemeanor citations may be appropriate. 45. Minutes from the Town Board meeting on September 8, 2008, show that Petter and Storlie were in attendance. The minutes reflect that township attorney Trevor Oliver sent a letter to Petter's former counsel. Petter was no longer represented by counsel. The minutes state, "The viable exception under the zoning code is the use of these types of animals under agricultural products. They do not qualify as livestock. There were a large number of animals on the inventory for taxidermy." Storlie clarified, however, that the operation is a fur farm, and the furs are pelts sold at auction to make garments, which is not taxidermy. Petter explained her emergency procedure for loose animals to the board. 46. A discussion also ensued about whether the fur farm operation is an agricultural operation, such that that grandfathering of exotic animals was a moot point. The board agreed "that the operation is commercial agriculture, that there is truly a market for the furs produced, that it is agriculture production, fur bearing." 47.According to the minutes from a November 10, 2008, meeting, the board followed up with the DNR and Minnesota Department of Agriculture (MNDA) to verify license compliance and seek additional records. A request was made under the data practices act to obtain additional information. Sandra Dunn from the MNDA indicated that the license was compliant.
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48. In May 2010, Petter applied for a CUP for the 235th Street Property for the
following use: "fur farming activities - breed-raise-pelt & process fur bearing animals for a fee - People come to the farm & see the animals (tours - for a fee we've always done it) watch raising - pelting - proper nutrition etc. - for producing top quality fur-trapping" Petter indicated in the application that she was making this request pursuant to Ordinance 3, Chapter 1, Section C(2), agricultural services on a fee basis. The CUP request was later withdrawn pursuant to an email from Petter to Nanett Sandstrom, then Eureka Township Clerk. 49. Petter applied for an agricultural building exemption in June 2010 for a building
to be used as a fox shelter. The intended use was noted by Petter as "welping & raising pens." 50. Petter and Storlie were present at board meeting on June 14, 2010, to discuss a
building application for a fox shelter and a building for food storage, processing, breeding, container storage and drying racks for furbearing animals. The minutes reflect that board viewed the building application for the fox shelter as a as a commercial agricultural use for furbearing animals. A motion to approve the permit was made and carried by unanimous vote. With regard to the second building for storage, the board also believed that this was an appropriate agricultural use at is related to furbearing animals. A motion was made to approve the permit, and it was carried by unanimous vote.
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Sl.At the June 14, 2010, board meeting, there was also a discussion about a CUP application made by Petter concerning the exhibition of animals and tours on the property. The board minutes state, "Activities or use directly relating to the production of animals for pelting are a permitted use of the property. It is Commercial Ag., a use by right." However, there were also comments that other uses, such as workshops, open houses, and tours, could not be the primary use of the property. Such uses would require a different permit. The board was trying to determine whether these uses could be an "accessory use." Petter raised the issue of whether her retail uses were grandfathered in since she had lived on the property since 1992 and had been selling retail and giving tours for many years. No resolution was reached on this issue at the June 14 meeting. S2. Minutes from a July 12, 2010, board meeting indicate that an email was received from Petter withdrawing her CUP request, but a signed withdrawal was required. S3. After a barned burned down on November lS, 2010, Petter sought a permit to rebuild the barn. Initially, there was dispute between and the board about the intended use of the barn and whether such use constituted an agricultural use. A stop work order was served on Petter at a board meeting. Eventually, the issue was resolved and the stop work order was lifted. S4. Petter filed an application for an agricultural building exemption on April 4, 2011, to rebuild a horse barn that was destroyed in a fire on the 23Sth Street Property. SS. CUPs were reviewed for the Dodd Property and the 23Sth Street Property at an April 11, 2011, board meeting. The CUP review was approved for both
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properties. There was also a discussion about expedited approval for an agricultural building due to a barn that burned down on Petter's property. The building was to include a building that was approved at the June 14, 2010, meeting, in addition to the horse barn that burned down. Given the need for horse boarding in the area, the board discussed expedited approval, despite the need for a soil erosion plan. The permit was approved "with the contingency that all requirements of the VRWJPO are met." 56. Petter was issued a "zoning compliance permit" on April 28, 2011, for the 235th
Street Property to replace the horse barn that burned down. A permit issued on June 14, 2010, was voided. 57. Petter filed an application for an agricultural building exemption at the 235th
Street Property in October 2011. The intended uses were noted as follows: raising and housing of furbearing animals, storage of ag products, skinning, food preparation shelter, quarantine room, and office space. 58. The board discussed the use of an "ag-permitted building" on the Petter property
at the October 11, 2011, board meeting. The board expressed concern that the building was being used for public tours, which are not an ag use. Attorney Carol Cooper appeared on Petter's behalf and indicated that the building would have an ag use for food storage, skinning, housing of young animals and quarantined animals, and freezer space. Attorney Cooper indicated that the building code does not state that the building must be used for strictly ag purposes. The township attorney agreed, but noted that third party and public
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use of the building "is no longer exempt from the Building Code." The installation of gender-specific, handicap accessible bathrooms suggests the use was public. If a substantial purpose of the building is public use, it is no longer an ag building. The township attorney suggested that Petter move forward by submitting a building permit without claiming the ag exemption. Although the building may be permitted through the ordinary course, the board continued to question the use of the building for public purposes or tours. 59.A citizen complaint was made against Petter and discussed at the November 14, 2011, board meeting. Petter stated that exemptions in state law permit the keeping of exotic animals. She reiterated that she is licensed by the DNR and USDA. Petter told the board she would submit copies of her licenses to show they are current. 60. In addition to the citizen complaint, the board discussed permitting issues, including the need for a plumbing permit for the ag building. The building inspector, Scott Qualle, set a letter by certified mail indicating that work should immediately cease until the matter is resolved. The town clerk received the letter back marked "refused." It was noted that the building was significantly different from the plans submitted for approval. Qualle presented Petter with a letter indicating that she would comply with the ag exemption requirement. Petter refused to sign the letter. Qualle indicated that he would be satisfied if she signed the letter. He felt the refusal to sign, however, indicated that she would not comply with the terms of the letter, thus requiring a building permit.
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Petter asked for time to speak with her attorney before signing the letter. She was given a deadline to return a signed copy of the letter or a stop work order would be issued. 61.At a December 12, 2011, board meeting, it was noted that Petter refused to sign the letter from Qualle. The minutes note that the property has a game farm license from the DNR, and "[g]ame laws are going to preempt Township Ordinances." The minutes noted that the town attorney also had copies of game farm licenses from the State Department of Agriculture Fur Farm Registration and USDA Class E Exhibitor's License. The minutes state, "As far as the Township is concerned, there are no illegally kept animals because of the game and fish laws." 62. In addition to the complaint, a separate discussion was held about animal exhibition on Petter's property at the December 2011 meeting. Questions were raised again about whether this is an accessory use, given the fact that Petter advertised exhibition on her website, through road signs and in the newspaper. The board expressed concern that advertisement crossed the line of accessory use. Moreover, the board questioned whether the primary purpose was truly pelting because the licenses did not show an adequate a volume of animals acquired and later pelted to establish that as the primary purpose. 63. Petter told the board that when she attempted to register as a nonconforming use, she was told that it was unnecessary since her use was an agricultural use. She further told them that she had possessed animals prior to the enactment of
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the exotic animal ordinance, and she provided an advertisement from 2006 regarding her exhibition of animals. Despite this representation, the town attorney noted that the first game farm license was issued in August 2006 and showed animals purchased between June and October 2006. Therefore, there was nothing before the board to show fur farming of animals prior to 2004. 64.The advertisement seeks donations for admission in the amount of $7.50 for adults and $5.00 for kids and seniors. Petter represented that fewer than 1/6th of her animals are on exhibit. 65.At an April 10, 2012, board meeting, a citizen complaint regarding the Petter property was discussed. The board decided to send a letter to the complainant indicating the following: "The animals are legal to have. The wolves are agricultural. The building permit issue has been resolved, the Building Inspector has signed off on it. The signs have been resolved. Terri commented that no wolves have been missing. The traffic is speculation; there are other homes and businesses in the area. Other issues are included in the lawsuit." 66. Petter submitted an application for a building she moved onto the 235th Street Property the previous year. This application was discussed at a board meeting on June 11, 2012. Qualle inspected the building and determined its suitability. A motion to approve the permit application was carried by unanimous vote. 67.0n January 24, 2013, Petter applied for a zoning ordinance text amendment to add an "agri-tourism" definition to the agricultural operations ordinance and to clarify that fur farms are excluded from the exotic animal ordinance. Although
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Petter later withdrew her request for a text amendment, the board proceeded to appoint an agri-tourism task force to get input from citizens and review agritourism in other townships. A proposed ordinance appeared before the board in several forms, but it was voted down. 68. On May 2, 2013, Petter applied for a building permit for the 235th Street Property for the construction of an ag building. The permit was denied by the town board on April 8, 2013. Petter also submitted an agricultural building exemption application dated the same day for the stated purpose of housing hogs. The exemption was approved. 69.A discussion occurred at the May 13, 2013, town board meeting to set a date for a closed meeting to further discuss Petter's possession of exotic animals given that litigation was ongoing. 70. Further discussion was heard on the exotic animal complaint at the August 12, 2013, board meeting. Citizens asked the board to forward the complaint to
township attorneys for criminal or civil enforcement. The board reviewed past board discussions. The following motion was made by a board member: "The animals Terri Petter has are within line with the exotic animal ordinance of the Township." The motion was seconded and carried by a 3-2 vote. 71. Petter repeatedly relied upon the representations of the town board that her operation was not in violation of an ordinance. She built new buildings, repaired old buildings, and spent money based upon these representations.
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Licenses & Activity Reports
72. Licensure of game farms and fur farms is required by Minn. Stat. § 97A.105. 73.Anthony Salzer, conservation officer with the DNR since 2007, conducted inspections on the 235th Street and Dodd Properties pursuant to his job duties. He first inspected the 235th Street Property in the spring of 2008. He annually inspected the property from 2008 to 2012, and not again until 2016. As part of his inspections, Salzer reviewed records to ensure animals were purchased or acquired legally. He also received sales records. Finally, he inspected the animals themselves to ensure that the animals had adequate spaces and appeared well-fed and watered. 74. The inspections were conducted as a result of Petter's and Storlie's game farm licenses. Salzer defined "game farm" as any business that purchases and sells either protected game species from Minnesota or protected, non-game species in Minnesota. 75. Salzer testified that game farming is considered an agricultural activity by the DNR. 76.According to Salzer, the DNR defines furbearing animals as all mammals except for big game animals, including fox, bobcat, lynx, raccoon, wolf, and fisher. Not included in this definition under state law are badgers, cougars, skunks, opossums, and prairie dogs. Salzer also described other designations under state law, such as "non-game animals", "protected animals," "non-game protected animals," and "small game." The DNR defines some animals exotic;
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typically, animals which are non-native like special breeds of swine. According to Salzer, badgers, skunks, opossums, and prairie dogs are not considered exotic by the DNR. 77. Pursuant to Minn. Stat. § 97A.015, subd. 22, fur bearing animals are defined as "mammals that are protected wild animals, except big game." Big game is defined as "deer, moose, elk, bear, antelope, and caribou." Minn. Stat. § 97A.015, subd. 3. 78.Moreover, Minn. Stat. §17.352 provides the following, according to the MNDA, "Fur-bearing animals are domestic animals and products of fur-bearing animals are agricultural products. A fur farmer is engaged in an agricultural pursuit." 79. Protected wild animals is defined as big game, small game, game fish, etc. Minn. Stat. § 97A.015, subd. 39. Small game is defined as game birds, gray squirrel, fox squirrel, cottontail rabbit, snowshoe hare, jack rabbit, raccoon, lynx, bobcat, wolf, red fox and gray fox, fisher, pine marten, opossum, badger, cougar, wolverine, muskrat, mink, otter, and beaver. Minn. Stat. § 97A.015, subd. 45. 80. Unprotected wild animals includes weasel, coyote, gopher, porcupine, striped skunk, and unprotected birds. Minn. Stat. § 97A.015, subd. 53. 81. Unprotected mammals and unprotected birds may be possessed, bought, sold, or transported in any quantity. Minn. Stat. § 978.651. 82. Certain animals are exempt from DNR licensing. In other words, not all animals in an individual's possession must be reported. For example, wolf-dog hybrids
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prairie dogs, and artic fox are not required to be listed on the game farm activity report. Ranch-colored fox, which are a subset of the red fox, contain a genetic mutation that does not occur in the wild. Such foxes are not required to be reported on the game farm activity report.
83. Porcupine, prairie dogs and skunks may be possessed without a DNR license and are not required to be listed on the activity report. As a result, the number of animals on a game farm may not coincide with the number of animals reported.
84. The following animals must be reported on the game farm activity report: bobwhite quail, bobcat, cougar, ducks, geese, pheasants, raccoon, red/grey fox, swans, and turkeys. Nonetheless, Petter frequently reported the possession of other animals at Salzer's recommendation.
85. Animals such as porcupines, coyotes, opossum, wood chucks, and skunks are considered unprotected wild animals.
86. During an inspection in 2011, Salzer issued Petter a warning for failure to keep records only to note that such records were destroyed in a barn fire in 2010. 87. Petter and Storlie have never been in violation of DNR regulations for failing to report or underreporting animals in their possession.
88. Ronald Kullman, Project Admnistrator for the DNR, testified that Petter first received a game farm license on August 2, 2006.
89. Wild has been registered by the MNDA as a Fur Farm from February 24, 2011, to December 31, 2011, at the 235th Street address.
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90. WWW was licensed by the USDA as a "Class C Exhibitor" pursuant to the Animal Welfare Act. The license expired September 28, 2012. 91. The DNR issued a permit to exhibit captive wildlife to WWW at the 235th Street Property. The permit expired March 1, 2012.
92. Petter applied for a commercial game farm license in February 2007. The permit lists a Farmington address as the location where the animals were kept. That application listed the following animals in her possession: Species
No. in Possession 3/1/06 0
No. purchased
No. born
No. of deaths
Total as of 2/28/07
1
0
0
1
Red, Grey Fox Wolves
0
2
4
1
5
1
5
0
0
6
Lynx
0
2
0
1
1
Raccoon
93. Pursuant to a Department of Natural Resources (DNR) game farm activities record for the year 2006, Petter possessed the following animals at a Farmington address:
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Date Purchased
Species
No. purchased
No. of deaths
Total
6/4/06
Wolf Hybrid
1
0
1
7/31/06
Arctic Fox
1
0
1
9/26/06
Raccoon
1
0
1
9/27/06
Lynx
2
1
1
10/17/06
Red Fox
2
1
1
10/17/06
Wolf Hybrid
2
0
2
94. Petter had a valid game farm license for the period of March 1, 2008, to February 28, 2009. According to the game farm activity report, Petter possessed the following animals as of March 1, 2007: Species
No. purchased
No. Sold
No. born
No. of deaths
Total as of 2/28/08
Bobcat
No. in Possession 3/1/07 0
2
0
0
0
2
Raccoon
1
1
0
1
0
3
Red, Grey Fox Lynx
5
0
0
4
0
9
1
2
0
0
0
3
Porcupine
0
2
0
0
0
2
Fisher
0
1
0
0
0
1
Wolves
5
5
0
0
0
10
Mink
0
3
0
0
3
0
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95. Petter had a valid game farm license with the DNR for the period of March 1, 2011, to February 29, 2012. The activity report listed the following animals in her possession: No. purchased
No. Sold
No. born
No. of deaths
Total as of 2/28/11
Bobcat
No. in Possession 3/1/10 3
1
0
0
0
4
Cougar
5
0
0
0
0
5
Raccoon
5
0
0
2
0
7
Wolves
14
0
0
10
0
24
Fisher
6
2
0
0
0
8
Badger
2
0
0
0
0
2
Otter
0
2
0
0
0
2
Beaver
0
3
0
0
0
3
Opossum
2
0
0
0
0
2
Skunks
3
0
0
0
0
3
Lynx
2
0
0
0
0
2
Prairie Dogs 4
0
0
6
0
10
Pine Marten
0
2
0
0
0
2
Porcupine
4
0
0
0
0
4
Woodchuck
4
0
0
0
0
4
Species
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96. Petter had a valid game farm license for the period of March 1, 2012, to February 28, 2013. According to the activity report, Petter possessed the following animals during the 2011-2012 reporting period. Species
No. purchased
No. Sold
No. born
No. of deaths
Total as of 2/28/12
Otter
No. in Possession 3/1/11 2
0
0
0
0
2
Raccoon
7
5
0
19
12
19
Beaver
3
0
3
0
1
2
Red, Grey Fox Bobcat
17
0
0
12
6
23
4
4
0
2
2
8
Lynx
2
0
0
0
0
2
Fisher
8
0
0
0
1
7
Pine Marten
2
0
0
0
0
2
Badger
2
0
0
0
0
2
Cougar
5
1
0
0
2
4
Opossum
2
0
0
0
0
2
Wolf/Coyote 24
0
0
15
8
31
Porcupine
4
6
0
3
3
10
Flying Squirrels
0
2
0
0
0
2
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97.Petter had a valid game farm license for the period of March 1, 2013, to February 28, 2014. Petter amended the activity report on March 21, 2013. According to the amended activity report, she possessed the following animals: No. purchased
No. Sold
No. born
No. of deaths
Total as of 2/28/13
Bobcat
No. in Possession 3/1/12 8
0
0
0
0
8
Cougar
4
2
0
0
0
6
Fisher
7
0
3
0
0
4
Raccoon
19
0
4
0
0
15
Red, Grey Fox Wolves
23
0
6
0
0
17
31
36
22
7
0
38
Lynx
2
0
1
0
0
1
Badger
2
0
2
0
0
0
Beaver
2
0
2
0
0
0
Opossum
2
0
0
1
0
31
Otter
2
0
2
0
0
0
Species
1
The total incorrectly indicates one opossum despite the fact that she initially possessed 2 and another was born.
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98.According to an Annual Game Farm Activity Report dated February 20, 2015, Petter possessed the following animals for the Wolves, Woods & Wildlife business on the 235th Street Property as of February 28, 2014: Species
No. purchased
No. born
No. of deaths
Total as of 2/28/14
Bobcat
No. in Possession 3/1/13 8
0
0
1
7
Cougar
6
0
3
0
9
Fisher
4
0
0
1
3
Raccoon
15
0
0
4
11
Red, Grey Fox Wolves
17
0
0
6
112
38
0
24
0
62
Porcupines
5
0
2
2
5
Skunks
7
0
0
0
7
Dogs
15
0
0
1
14
Opossum
1
0
0
0
1
2
The application completed by Petter lists the total number ofred and grey foxes as of2/28/14 as 23, despite the fact that she started with 17 and 6 died. Petter added the deaths to the total, rather than subtracting the animals.
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99. Storlie also had an active game farm license for that period. He possessed the following animals: No. purchased
No. born
No. of deaths
Total as of 2/28/14
Bobcat
No. in Possession 3/1/13 8
0
0
1
7
Cougar
6
0
3
0
9
Fisher
4
0
0
1
3
Raccoon
15
0
0
4
11
Red, Grey Fox Porcupines
17
0
0
4
11
5
0
2
2
5
Skunks
7
0
0
0
7
Dogs
15
0
0
1
14
Wolves
38
0
24
6
62
Species
28
100.
Petter had a game farm license for the period of March 1, 2014, to
February 28, 2015. She possessed the following animals during that time: Species
No. purchased
No. born
No. of deaths
Total as of 2/28/15
Bobcat
No. in Possession 3/1/143 8
0
0
2
6
Cougar
6
0
2
0
8
Fisher
4
0
0
1
3
Raccoon
15
0
1
0
16
Red, Grey Fox Lynx
17
0
30
24
23
1
0
0
1
0
Wolves
38
0
19
19
38
Opossum
1
0
0
1
0
Prairie dogs
17
0
0
0
17
3
The activity report indicates number in possession as of March 1, 2013, and as of February 28, 2014, despite the fact that the valid period is for the next year. It appears that Petter may have filled out a prior version of the report.
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101.
Petter has a current game farm license with the DNR valid from March 1,
2016 to February 28, 2017. The activity report lists the following animals: Species
No. purchased
No. born
No. of deaths
Total as of 2/28/16
Bobcat
No. in Possession 3/1/15 7
0
0
1
6
Cougar
9
0
0
0
9
Fisher
3
0
0
1
2
Raccoon
11
0
0
0
11
Red, Grey Fox Wolves
1
0
0
0
1
38
0
24
0
62
Porcupines
4
0
0
0
4
Skunks
6
0
0
0
4
Fox4
23
0
6
3
26
Hybrids
38
0
6
4
36
4
The information regarding "fox" and "hybrids" was contained on a handwritten portion, presumably written by the applicant.
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102.
Storlie also has a current game farm license with the DNR valid from
March 1, 2016, to February 28, 2017. The game farm activity report lists the following animals: No. purchased
No. born
No. of deaths
Total as of 2/28/16
Bobcat
No. in Possession 3/1/15 7
0
0
1
7
Cougar
9
0
0
0
9
Fisher
3
0
0
1
2
Raccoon
11
0
0
0
11
Red, Grey Fox Porcupines
1
0
0
0
1
4
0
1
1
4
Skunks
6
0
0
2
4
Fox5
23
0
18
26
15
Hybrid
24
0
3
6
21
Species
103.
For the most recent activity reports, Petter and Storlie reported the same
number of animals except for "hybrids" and fox. Storlie testified that there are only 7 bobcats and 9 cougars total. He testified that the number of fox and hybrids are different because he breeds and sells his foxes at times. 104.
Petter currently has approximately 65 wolves on her property. She does
not know if they are purebred or hybrid wolves. Petter currently has 8 cougars,
5
The information regarding "fox" and "hybrids" was contained on a handwritten portion, presumably written by the applicant.
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50-55 red foxes, 6 bobcats, 7-8 raccoons, 2 fishers, 5 cattle, 11 horses, 2 dogs, and 2 prairie dogs. She does not possess an opossum, lynx, or coyote at this time. 105.
Petter exhibits animals to the public on Saturdays and Sundays. She asks
for a donation of $7.50 for adults and $5.00 for children. 106.
Petter maintains a store on the property. In the store, members of the
public can purchase rabbit pelts, coyote pelts, rabbit feet, coyote and fox faces, t-shirts, stuffed animals made from real fur, and rocks.
Other Eureka Township Businesses 107.
Charles Hansen was a member of the planning commission from 2002-
2005 and 2011-2015. During his tenure on the planning commission, he attended all board meetings. He was also a member of the agri-tourism board. 108.
Complaints were made against various operations in the township,
including an elk farm, the apple orchard, a pottery business and Bachmann's. In his opinion, those complaints were not investigated by the board. He believed the only complaint investigated was the complaint against Petter regarding the fence around her property. 109.
According to Hansen, the following complaints were made but not
investigated: a. Retail sales by Bachmann's b. Retail sales by the apple orchard c. Sale of elk meat from an elk farm
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d. Retail sale of pottery 110.
Hansen testified that the board quickly determined the elk meat sold was
from the farm's elk, which as considered an ag product. 111.
The board also approved a building permit for the pottery business after
the planning commission recommended denial if the structure for sales was connected to the residence. 112.
Bachmann's filed a zoning compliance permit in 2005, regarding a sign on
it's premises. The permit application notes approval by the planning commission and town board in June 2005. 113.
The 2005 Eureka Township Ordinances provided for the registration of
nonconforming uses in existence as of September 7, 2004. Nonconforming uses in existence could be a grandfathered use provided that the use was not expanded, discontinued for one year or more, or replaced by another use. Only those registered uses were entitled to protection under this ordinance. 114.
In August 2006, a public hearing was held on a request for expansion of
nonconforming use. The meeting was held at the request of two citizens seeking clarification about the nonconforming use registration as it related to their property. According to Hansen, Petter and Storlie were told by the board that they did not need to register as a nonconforming use because the board considered the use to be a legal use. 115.
A complaint was received by the town board regarding an apple orchard
in the township. The complaint was withdrawn after it was determined that the
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orchard was in compliance. According to Hansen, the orchard also sells t-shirts, pizzas, and soft serve ice cream, in addition to apples grown on the property. 116.
Minutes from a board meeting note that retail business by the orchard is
permitted to the extent its sells products it produces. The orchard was granted a permit to build a pole shed for its seasonal retail business, which was approved by the board. CONCLUSIONS OF LAW:
1. Exhibition of animals is not and has not been a permitted, conditional or interim use pursuant to the Eureka Township Zoning Ordinance since the time Petter began exhibiting animals. 2. Petter, Storlie, WWW, and Wild, therefore, are permanently enjoined and prohibited from operating an animal exhibition and conducting activities related to animal exhibition in Eureka Township. 3. Retail sales, except for horticultural products, is not a permitted, conditional or interim use pursuant to the Eureka Township Zoning ordinance since the time Petter began retail sales on the 235th Street Property. 4. Petter, Storlie, WWW, and Wild, therefore, are permanently enjoined and prohibited from conducting retail sales in Eureka Township. 5. As of February 28, 2016, Petter possessed bobcats, cougars, fishers, raccoons, foxes, wolves, porcupines, and fox. These animals are exotic animals as defined by Eureka Township Ordinance 3, Chapter 7, Section 3.
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6. As of February 28, 2016, Storlie reported possessing bobcats, cougars, fishers, raccoons, foxes, porcupines, and skunks. These animals are exotic animals as defined by Eureka Township Ordinance 3, Chapter 7, Section 3. 7. Although agricultural operations includes the raising of furbearing animals, the definition of livestock specifically excludes exotic animals. The prohibition of exotic animals as livestock precludes a determination that the Defendants' operations are agricultural operations under the zoning ordinance. 8. Because the animals are exotic animals and the raising of exotic animals is not a permitted agricultural operation, possession of exotic animals is only permissible if Defendants are a legal, nonconforming use or subject to an exception to the exotic animal ordinance. 9. "A residential zoning ordinance may constitutionally prohibit the creation of uses which are nonconforming, but existing nonconforming uses must either be permitted to remain or be eliminated by use of eminent domain." Freeborn Cty. v. Claussen, 203 N.W.2d 323, 325 (Minn. 1972). A nonconforming use may not be expanded or enlarged pursuant to township ordinance. Therefore, the specific number of type of animals in Petter and Storlie's possession as of June 7, 2005, is determinative. Moreover, in order to a legal, nonconforming use, "any person who owned, possess, kept or harbored exotic animal(s) on or before the effective date of [the exotic animal ordinance]," must comply with all licensing requirements. Eureka Township Ordinance 3, Chapter 7, Section (C)(5). 10. Petter possessed at least one wolf and a lynx prior to the enactment of the exotic
35
animal ordinance. However, because she has not possessed a lynx for over one year, future possession of a lynx is not a grandfathered use. No further evidence was presented as to the number of type of animals in Petter's possession as of June 7, 2005. Therefore, current possession of animals other than a wolf cannot be a legal, nonconforming use since there has been no showing that Petter legally possessed those animals prior to the enactment of the exotic animal ordinance. 11. Moreover, no evidence was presented as to what animals Storlie possessed as of June 7, 2005. Therefore, possession of any exotic animals by Storlie is not a legal, nonconforming use. 12. The question then becomes whether Petter complied with any licensing requirements in order to be a legal, nonconforming use. 13.A person may breed and propagate fur-bearing animals, game birds, bear, or mute swans only on privately owned or leased land and after obtaining a license. Minn. Stat. Ann. § 97A.105 (2016). "Fur-bearing animals" includes raccoon, lynx, bobcat, wolf, red fox and gray fox, fisher, pine marten, opossum, badger, cougar, mink, otter, and beaver, among other animals. Minn. Stat. § 97A.015, subds. 22 & 45 (2016). Although Petter and Storlie possess furbearing animals as defined by Minnesota statute, possession alone does not require a license according to game and fish laws. 11 Op. Att'y. Gen. 36 (1942)(Where wolves are harbored in enclosure for exhibition purposes and not breeding purposes, license requirements and other conditions imposed on those engaged in
36
propagating wild animals are inapplicable so long as wolves fail to breed). 14.Similarly, wolves are not a regulated animal requiring compliance with USDA regulations. See Minn. Stat. § 346.155, subds. l(e) & 2(b). Therefore, Petter was not required to possess a license with the DNR or USDA to merely possess one wolf. Petter's possession of one wolf prior to the enactment of the exotic animal ordinance is a legal, nonconforming use that must be allowed to continue. 15. The prohibition against the possession of exotic animals is subject to several exceptions, including an exception for animal control officers. Storlie provides animal control duties in the course of his federal employment. Eureka Township Ordinances do not define "animal control officer." 16. Zoning ordinances must be consistent with statutes. Wedemeyer v. City of Minneapolis, 540 N.W.2d 539, 541 (Minn. Ct. App. 1995). The interpretation of a statute or ordinance is a question of law. Altenburg v. Bd. ofSup'rs of Pleasant Mound Twp., 615 N.W.2d 874, 878 (Minn. Ct. App. 2000), citing Hibbing Educ. Assn v. Public Employment Relations Bel., 369 N.W.2d 527, 529 (Minn. 1985). Words and phrases are given their common meaning. Minn. Stat. § 645.08(1). When a word is statutorily defined, the word is construed according to its definition. Id 17. "Animal control officer" is defined by Minnesota statute as "an officer employed by or under contract with an agency of the state, county, municipality or other governmental subdivision of the state which responsible for animal control operations in its jurisdiction." Minn. Stat. § 343.20, subd. 5 (2016).
37
18. Storlie is not under contract with Eureka Township or "other governmental subdivision of the state" responsible for animal control operations in the jurisdiction. This animal control duty is performed in connection with his federal employment. Therefore, the animal control officer exception does not apply. 19. Even if Storlie were an animal control officer for the purposes of the exotic animal ordinance, that exception would not allow for the possession of exotic animals by Petter. 20. Defendants assert that the township is estopped from enforcing the exotic animal ordinance. As an initial matter, estoppel is an available defense against the government. See Ridgewood Dev. Co. v. State, 294 N.W.2d 288, 293 (Minn. 1980). However, estoppel should be used sparingly against the government. Id. at 293-4. To prevail on a claim of equitable estoppel, Defendants must demonstrate that the township induced Defendants to rely, in good faith, on the township's actions to their injury. Id. at 292. When applied against the government, there must also be a showing of wrongful conduct. Stillwater Tp.
V. Rivard, 547 N.W.2d 906, 910 (Minn. Ct. App.), citing Ridgewood, 294 N.W.2d at 293. 21. There is no doubt that Defendants have relied upon the township's representations that such use was a permitted use. However, simple reliance is not enough. The party seeking estoppel must show some loss through his reliance before the Court will examine the conduct of the party to be estopped. Ridgewood, 294 N.W.2d at 292. "Before [Defendants] can be said to have made
38
a significant investment deserving of judicial protection in a land use case, he must demonstrate expenditures that are unique to the proposed project and would not otherwise be usable. Id. citing Hawkinson v. County of Itasca, 231 N.W.2d 279, 282 (Minn. 1975). 22. Moreover, the Minnesota Supreme Court has held that a municipality cannot be estopped from correctly enforcing an ordinance even if the property owner relied to his detriment on prior city action. Frank's Nursery Sales, Inc. v. City of Roseville, 295 N.W.2d 604, 607 (Minn. 1980).
23. Eureka Township is correctly enforcing the ordinance. Petter was engaged in the possession of these animals prior to the enactment of the exotic animal ordinance. Therefore, her possession cannot merely be as a result of reliance on any conduct of the township. It is true that some buildings were constructed and permitted, in part, on her reliance on the board's representations about their use. However, those buildings continue to have use on an agricultural property even if Defendants are not permitted to possess exotic animals. Therefore, this court cannot find significant investment or detriment on the part of Defendant's to justify such an extraordinary remedy. 24. Defendants assert that the Eureka Township exotic animal ordinance is in conflict with or preempted by state law. The Minnesota Supreme Court has held that the doctrines of conflict and preemption are distinct legal concepts. Mangold Midwest Co. v. Viii. of Richfield, 143 N.W.2d 813, 819 (Minn. 1966).
39
25. Courts must consider the following when determining whether an ordinance conflicts with a statute: a. Conflicts which would render an ordinance invalid exist only when both the ordinance and the statute contain express or implied terms that are irreconcilable with each other. b. Conflict exists where the ordinance permits what the statute forbids. c. Conflict exists where the ordinance forbids what the statute expressly permits. d. No conflict exists where the ordinance, though different, is merely complementary to or in furtherance of the statute.
Northern States Power Co. v. City of Granite Falls, 463 N. W. 2d 541, 544-45 (Minn. Ct. App. 1990), citing Mangold, 143 N.W.2d at 816-17. 26. Generally, "municipalities have no inherent powers and possess only such powers as are expressly conferred by statute or implied as necessary in aid of those powers which have been expressly conferred." Mangold, 143 N.W.2d at 820. Among other powers, statutory cities have the power to enact and enforce ordinances to promote "health, safety, order, convenience, and the general welfare." Minn.Stat. § 412.221, subd. 32 (2016). 27. The following principles of construction apply to the interpretation of zoning ordinances: (1) words are given the plain and ordinary meaning; (2) ordinances are construed strictly against the city and in favor of the property owner; and (3) a zoning ordinance must be considered in light of underlying police goals.
40
Frank's Nursery Sales, 295 N.W.2d at 608-9. Ordinances passed in the exercise of a police power conferred upon the municipality will generally be upheld if not inconsistent with state law. See Mangold, 143 N.W.2d at 815 (Minn. 1966),
citing Power v. Nordstrom, 184 N.W.2d 967. 28. Minnesota statutes define furbearing animals as fox, mink, fitch, chinchilla, karakul, marten, nutria, or fisher that is the second or later generation raised in captivity. Minn. Stat. § 17.351, subd. 3. Pursuant to Minn. Stat. § 17.352, furbearing animals are domestic animals, products of furbearing animals are agricultural products, and a fur farmer is engaged in an agricultural pursuit. The application of these statutes is limited, however. The definition of furbearing animal is limited in application to Minn. Stat. Sections 17.352 to 17.354. In addition, Sections 17.351 and 17.352 do not apply to provisions of law relating to wild animals. Minn. Stat. § 17.354. "Fur-bearing animals" as defined by Minn. Stat. § 97A.015 means protected wild animals. Therefore, the definition of furbearing animals in Section 17.351 cannot extend to Section 97A.015, since those are wild animals. Protected wild animals include raccoon, lynx, bobcat, wolf, red fox and gray fox, fisher, pine marten, opossum, badger, cougar, mink, otter, and beaver, among other animals. Minn. Stat. § 97A.015, subd. 45 (2016). Therefore, Minnesota statutes draw a distinction between second generation animals or later born in captivity and wild caught. 29. The Eureka Township exotic animal ordinance is much broader than state statutes and does not draw a distinction between animals bred in the wild or
41
captivity. The ordinance prohibits all animals that are specifically allowed for the purposes of fur farming or a game farm under state law. Moreover, the ordinance specifically excludes what the township defines as exotic animals from agricultural operations. 30. Agricultural operations were defined in the 2005 ordinance as "operations operating for a profit which include ... the raising of livestock, fur bearing animals, fish or poultry. The ordinances do not define "fur bearing animals." Livestock is defined as "any animal commonly used by persons for use, draft or pleasure purposes. The definition includes poultry, cattle, swine, sheep, goats and horses, and specifically excludes exotic animals. This definition was modified by resolution in 2007. The current definition defines livestock as any animal commonly used by persons for draft or pleasure purposes. The definition continues to exclude exotic animals. The term fur bearing animals is not separately defined by township ordinance. 31. Therefore, there is a direct conflict between the townships ordinances themselves, to the extent that the town considers the raising of fur bearing animals as agricultural, but excludes from the definition of livestock all exotic animals such that there are no fur bearing animals permitted for agricultural purposes in Eureka. Secondly, and most importantly, the ordinance also conflicts with state law with regard to the classification of fur farming as an agricultural pursuit. Although the town ordinance seems to coincide with§ 17.352 in that there is a recognition that fur farming is agricultural, the town ordinance goes on
42
to ban possession of any animals that would classify as fur bearing under § 17.351, subd. 3. The township ordinance expressly excludes from agricultural operations the possession of fur bearing animals. As a result, Eureka Township expressly forbids what state statute permits. The ordinance is irreconcilable with state law in that regard. 32. Eureka Township Ordinance 3, Chapter 7, Section 3, when read in conjunction with the agricultural operations ordinance and livestock definition, directly conflicts with Minn. Stat. § 17.351 to 17.352. 33. Because of the conflict with state law, Eureka Township Ordinance 3, Chapter 7, Section 3, the exotic animal ordinance, must be struck down. 34. As a result, Defendants may possess any animals prohibited under this statute, as long as such possession is in compliance with state law and licensing requirements. 35. Minnesota courts applying the "occupation of the field" concept when a preemption argument is raised. Mangold, 143 N.W.2d at 819. In other words, if a state law fully occupies a particular field of legislation such that there is no room for local regulation, local regulation is preempted. Blue Earth County Pork Producers v. County of Blue Earth, 558 N.W.2d 25, 27 (Minn. Ct. App. 1997), citing Mangold, 143 N.W.2d at 819. Preemption does not require any conflict of law. Id. The Minnesota Supreme Court has posed four questions that are useful in determining whether a local law is preempted: a. What is the subject matter to be regulated?
43
b. Has the subject matter been so fully covered by state law as to have become solely a matter of state concern? c. Has the legislature indicated that it is a matter solely of state concern? d. Is the subject matter itself of such a nature that local regulation would have unreasonably adverse effects upon the general public? Mangold, 143 N.W.2d at 820.
36. The subject matter at issue is the possession of certain animals. Defendant asserts that there are various state laws classifying animals as big game, small game, unprotected wild animals, protected wild animals, etc. Defendant argues that the Eureka Township ordinance bans the possession of certain animals which is permissible under state law. As a result, Defendants asks the Court to conclude that state law fully covers the field of regulation and invalidate the ordinance. 37. The Court cannot find, however, that this subject matter has been so fully covered by state law as to be a matter of state concern. The legislature has not indicated that this is a matter solely of state concern. First, the legislature has specifically granted zoning authority, including the authority to regulate to the use of land for agricultural purposes. See Minn. Stat. § 462.357, subd. 1. Secondly, the statutes raised by Defendant do not express prohibit any regulation on a local level. These statues merely provide a mechanism upon which an individual may become licensed as a fur farmer or a game farm, depending on the nature of the animals possessed. Third, statutes relating to fur
44
farming are limited in applicability pursuant to its own terms. 38. Minnesota statutes define furbearing animals as fox, mink, fitch, chinchilla, karakul, marten, nutria, or fisher that is the second or later generation raised in captivity. Minn. Stat. § 17.351, subd. 3. Pursuant to Minn. Stat. § 17.352, furbearing animals are domestic animals, products of furbearing animals are agricultural products, and a fur farmer is engaged in an agricultural pursuit. The application of these statutes is limited, however. The definition of furbearing animal is limited in application to Minn. Stat. Sections 17.352 to 17.354. In addition, Sections 17.351 and 17.352 do not apply to provisions of law relating to wild animals. Minn. Stat. § 17.354. "Fur-bearing animals" as defined by Minn. Stat. § 97A.015 means protected wild animals. Therefore, the definition of furbearing animals in Section 17.351 cannot extend to Section 97A.015, since those are wild animals. Protected wild animals include raccoon, lynx, bobcat, wolf, red fox and gray fox, fisher, pine marten, opossum, badger, cougar, mink, otter, and beaver, among other animals. Minn. Stat. § 97A.015, subd. 45 (2016). Therefore, Minnesota statutes draw a distinction between second generation animals or later born in captivity and wild caught. 39. The Eureka Township exotic animal ordinance is much broader than state statutes and does not draw a distinction between animals bred in the wild or captivity. The ordinance prohibits all animals that are specifically allowed for the purposes of fur farming or a game farm under state law.
45
40. The exotic animal ordinance does not seek to regulate the possession of animals already regulated by the MNDA and DNR. Rather, the exotic animal ordinance constitutes an outright ban, regardless of compliance with MNDA and DNR regulations. The regulatory statutes do not preempt a local ban.
ORDER: 1. Teresa Lynn Petter; Daniel Robert Storlie; Wolves, Woods, & Wildlife; and FurEver Wild, are permanently ENJOINED from operating an animal exhibition and conducting activities related to animal exhibition in Eureka Township at 10132
235th Street. 2. Teresa Lynn Petter; Daniel Robert Storlie; Wolves, Woods, & Wildlife; and FurEver Wild, are permanently ENJOINED from conducting retail sales in Eureka Township at 10132 235th Street.
3. Eureka Township Ordinance 3, Chapter 7, Section 3 is hereby declared INVALID. 4. The Dakota County Sheriff's Department is authorized to enforce Eureka Township ordinances in accordance with this Order.
BY THE COURT:
Dated:
LET JUDGMENT BE ENTERED ACCORDINGLY.
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