STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DIVISION OF FISH& WILDLIFE v. JOAN BYRON-MARASEK and JAN MARASEK

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4643-03T54643-03T5

STATE OF NEW JERSEY,

DEPARTMENT OF ENVIRONMENTAL

PROTECTION, DIVISION OF FISH

& WILDLIFE,

Plaintiff-Respondent,

v.

JOAN BYRON-MARASEK and JAN MARASEK,

Defendants-Appellants,

and

TIGERS ONLY PRESERVATION

SOCIETY,

Defendants.

________________________________________________________________

 

Argued November 30, 2005 - Decided

Before Judges Stern, Parker and Lihotz.

On appeal from the Superior Court of New Jersey,

Chancery Division, Ocean County, Docket Number

C-080-01.

Joan Byron-Marasek, appellant, argued the cause

pro se.

Andrew D. Reese, Deputy Attorney General, argued

the cause for respondent (Peter C. Harvey, Attorney

General, attorney; Michael Haas, Assistant Attorney

General, of counsel; Mr. Reese, on the brief).

PER CURIAM

Defendants Joan Byron-Marasek and Jan Marasek appeal pro se from an order entered on March 19, 2004, directing them to pay plaintiff, the Department of Environmental Protection, Division of Fish & Wildlife (DEP or Division), $141,555.13 as reimbursement for costs incurred in moving defendants' tigers from defendants' compound in Jackson Township to San Antonio, Texas, and for costs incurred by the DEP for having to inspect defendants' tiger preserve repeatedly from May 1999 until November 2003, when the tigers were finally relocated to San Antonio. We affirm.

Byron-Marasek is the founder, president and registered agent of the Tigers Only Preservation Society (TOPS), a non-profit, tax-exempt 501(c)(3) Endangered Species Organization dedicated to the protection, propagation, preservation and conservation of endangered and threatened tigers. Nothing in the record indicates that TOPS had any members or officers other than Byron-Marasek. Since 1976, defendants have maintained the wooded property in Jackson Township on which they live as a compound for tigers donated from various entities, such as Ringling Brothers.

Defendants operated the compound with licenses as exhibitors under the Animal Welfare Act from the United States Department of Agriculture (USDA) and theatrical agency permits from the DEP. Defendants did not use the tigers for performance purposes, however, and failed to give the DEP notice of activities covered by the permits, as required by regulations.

On January 14, 1999, Byron-Marasek applied for a renewal of the permit allowing her to possess twenty-three tigers. On January 27, 1999, law enforcement officials received a report that a tiger was loose in Jackson Township and, when defendants' property was inspected on January 29 in connection with the investigation of the loose tiger, only seventeen could be counted. Defendants were unable to explain the whereabouts of the other six tigers. The escaped tiger was later shot by law enforcement, but it was never determined whether it was one of defendants' tigers. Nor was it ever determined why Byron-Marasek had submitted an application for twenty-three tigers when there were only seventeen in the compound.

During the inspection of the compound on January 29, Lawrence Herrighty, the Division of Fish & Wildlife's Supervising Wildlife Biologist, and Dr. Patrick Thomas, a wildlife conservationist who has served as the Bronx Zoo's keeper of tigers, reported that the conditions on defendants' property were significantly substandard:

The applicant's tiger facility was a ramshackle arrangement with yards (compounds), chutes, runs, and shift cages enclosed by chain link fence, some of which were covered by deteriorating plywood, stockade fencing and tarps, etc. This arrangement and the applicant's many guard dogs prevented the officials from effectively locating and counting her tigers.

. . . .

On the chain link fence around the compound, bottom pipe was separated. On the chain link fence around the compound there was no overhang. Erosion had lowered the ground surface under part of the fence. Support pipes intended to stabilize the upper pipes of the chain link fence (and angled to the ground outside of the compound) were not secured. The periphery fence (along the border of the property), intended to keep out troublemakers, was down in several places. There was standing water and mud in the compound. There was mud on the applicant's tigers. Wood alongside and over the runs and chutes was decaying. There were many rat holes and heaps of deer carcasses picked clean by rats.

. . . .

Straw and substrate in the compound were wet and soiled with feces, conditions productive for bacterial growth which could be harmful to the tigers. No means of disinfecting the compounds appeared present. Fifteen deer carcasses, each more than a week old, were in piles in the compound and were covered with mud and feces. Rat borrows and the presence of rats showed very severe infestation.

Herrighty and Thomas repeatedly asked Byron-Marasek for records regarding the number of tigers maintained in the compound and documentation of their health and safety. Plaintiff produced very few records and ultimately the DEP obtained and served a warrant to search the Maraseks' house, located within the compound, for records related to the tigers. Because of the number of guard dogs in the house, the officials were required to arm themselves with loaded firearms for their protection. The search produced no more records than Byron-Marasek had already provided.

On February 3, 1999, Herrighty notified defendants of remedial actions they were required to undertake to bring the tiger compound to the permit standards:

1. Within one week of the letter's date, the applicant was to install a concrete barrier along the tiger compound fencing, below the surface, to prevent erosion and rat holes from opening an area through which a tiger could escape.

2. Within two days of the letter, the applicant was to secure the separated pipe along the bottom of the tiger compound fencing.

3. Within one week, the applicant was to install a 3-foot chain link overhang at an angle of 45 along the tiger compound fencing.

4. Within one week, the applicant was to anchor to the ground the pipes extending out and supporting the tiger compound fencing.

5. Immediately, a daily count of tigers was to be performed and, in the event a tiger was not accounted for, the applicant was to immediately notify the Division and Township police.

6. Within one week, the guard dog pens were to be relocated to allow Division officials to inspect the facility.

7. Until the above-enumerated remedies were in place, Division officials would inspect the facility and the applicant was to maintain a security firm to inspect and report on circumstances at the facility.

With respect to defendants' permit application, Herrighty advised defendants of the following:

1. The applicant had applied for a theatrical agency permit. However, her annual report listed lectures presented in 1998 and her activities as described were closer to those of an animal exhibitor. Consequently, she was advised to submit a list of individuals or groups who attended lectures at her facility in 1998.

2. Her facility and husbandry were substandard, making questionable her ability to satisfy criteria for possession of a permit. The condition of the facility was inconsistent with the design originally submitted to the Division and the facility's arrangements obstructed safe observation and care of tigers by keepers and Division inspectors. Consequently, such obstructions were to be removed and any plan for alteration of the facility was to be submitted to the Division.

3. The trailer on the applicant's property was to be replaced with shelter sufficient to protect the tigers from the weather, to allow tigers to be isolated as needed in case of incompatibility and for veterinary care, and to be easily cleaned and sanitized. Double door systems were to be installed on the replacement shelter and at the facility to protect keepers and prevent escape of tigers.

4. Given the number of petitioner's tigers, the partitioned areas and shelters were inadequate to provide privacy and to prevent fighting and injuries. The decaying deer carcasses, feces, wet substrate and rat infestation showed criteria for possession were not satisfied. Therefore, the applicant should either submit a plan to alter the facility or to reduce the number of tigers.

5. The petitioner's inability to identify each tiger or to produce records showing each tiger's origin, veterinary care and husbandry program brought into question her ability to satisfy possession criteria. The petitioner was to immediately make and maintain records of care for each tiger, including a log of feeding, cleaning, husbandry and veterinary care. She and Division officials would have to discuss the discrepancy between the twenty-three tigers shown in the applicant's application and the seventeen counted.

6. Given the age and condition of the fence around the perimeter of the property, a contractor should determine whether it was sufficient to prevent members of the public from entering the property and making contact with the tigers and whether the applicant should replace the fence.

Defendant failed to provide any records in response to the Division's request. She also failed to remove the guard dogs and thereby prevented further inspection of the property. Consequently, the DEP filed a complaint in the Chancery Division seeking injunctive relief pursuant to the Endangered and Non-Game Species Conservation Act (Act), N.J.S.A. 23:2A-1 to -14, to compel defendants to (1) implement security measures; (2) allow access and inspection of the premises and tigers; (3) produce records; and (4) remove some or all of the tigers from the compound if it was found to be in the interest of public safety and welfare.

On February 11, 1999, a consent order was entered in which defendants agreed to undertake the remedial actions enumerated in Herrighty's February 3, 1999 letter and to "make available . . . any and all records within defendants' possession, including veterinary records, regarding the tigers in defendants' possession for the past five (5) years." Thereafter, defendant submitted a plan for improvements to the property and a schedule for completion.

In April 1999, however, when officials inspected the compound, they discovered five tiger cubs that defendant had failed to report to the Division. Herrighty found that some of the tigers were bleeding and one had a long wound across its nose, exposing muscle. He requested the veterinary records for the tiger, but Byron-Marasek refused to produce them, commenting that "tigers fight." Although Herrighty found that defendants had undertaken some of the repairs required by the consent order, they still had not produced the required records and failed to demonstrate that the feeding, care and housing of the tigers was adequate.

On May 3, 1999, the Division notified defendants that their application for renewal of the permit was denied. Defendants appealed and in June 1999 the matter was transferred to the Office of Administrative Law for a hearing on the application. The hearings were conducted in March 2000, and the Administrative Law Judge (ALJ) rendered an initial decision on April 26, 2000, in which he made extensive and detailed findings of fact, set forth the criteria for the permits, and found that defendants fell well below the regulatory criteria. N.J.A.C. 7:25-4.8(b) to -4.9. The ALJ concluded, "[G]iven the applicant's repeated refusal and/or failure to comply with the regulatory criteria for possession of tigers, her compliance cannot reasonably be expected in the foreseeable future. Consequently, her application may not be approved."

Defendants submitted their exceptions to the initial decision which were considered by the Commissioner, who rendered a final decision on June 8, 2000, in which he reviewed the record and concluded that:

There is well-documented evidence sufficient to find that Petitioner has failed to demonstrate that she met the criteria for the possession of the permits in question as required by the DEP's rules and regulations. I agree with the Administrative Law Judge's conclusion and adopt his Initial Decision.

Defendants appealed and we affirmed the Commissioner's decision on June 28, 2001. Byron-Marasek v. Dep't of Envtl. Prot., No. A-6065-99T3 (App. Div. June 28, 2001). Defendants' petition for certification was denied by the Supreme Court on November 15, 2001. Byron-Marasek v. Dep't of Envtl. Prot., 170 N.J. 387 (2001).

The Division continued to inspect the compound through 1999 and 2000, but defendants did not cooperate with the inspections. For example, in September 1999, officials observed a tiger who appeared to have recently given birth. When asked if there were any additional tigers, Joan said, "No." She later admitted, however, that four additional tiger cubs had been born, although she had not reported them to the Division. In October 1999, defendants refused to allow the Division to inspect and photograph the facility, and the Division sought court intervention. On October 6, 1999, an order was entered compelling defendants to allow inspection of the compound.

On October 19, 1999, Dr. Thomas inspected the property and noted that conditions had improved, but that defendants now had twenty-six tigers and the facility was too small for that number. Some tiger cubs were kept in kennel crates, which "were filthy from dirt and oil and appeared not to have been cleaned for some time. Other cubs were kept in a trailer whose floor was carpeted and cubs kept there would soak the carpet with urine, creating an unhealthy environment." Thomas also observed that one tiger had an open wound; mud, urine and feces were still in the facility, and there was no means to sanitize the floors and walls; locks on certain doors remained insecure; and the facility remained a generally poor environment for the tigers. Defendants still produced no records, particularly regarding the newborn cubs.

On April 16, 2001, the DEP filed a complaint and an application for an order to show cause in the Chancery Division to determine when and how the tigers would be removed, where they would be relocated and who would be responsible for moving them. In the complaint, the DEP sought the following relief: (1) entrance to the compound for removal and relocation of the tigers; (2) immediate, continuous and unannounced access to the property for inspection purposes; (3) an injunction against defendants removing and disposing of any tigers; (4) an injunction against defendants interfering with the DEP's removal of the tigers; (5) assessment of penalties pursuant to N.J.S.A. 23:2A-10(b); and (6) other such equitable relief as deemed appropriate by the court.

On May 3, 2001, the DEP amended the complaint to add TOPS as a main defendant in response to Byron-Marasek's claim that TOPS is the owner of the tigers. On June 1, 2001, the DEP submitted a plan to transfer the tigers to the Wild Animal Orphanage in Texas, and the trial judge allowed defendants time to develop their own plan for voluntary removal of the tigers. During this time, the court engaged in numerous conferences with counsel in an effort to bring "about a voluntary and satisfactory plan of relocation by defendants."

After a period of several months, defendants failed to submit a feasible plan for voluntary removal of the tigers to a proposed location in New York. The matter was then scheduled for trial in May 2002. During the trial, defendants presented Dr. Patrick J. Knapmen, the tigers' veterinarian since May 1999. He testified that defendants' compound was safe for the tigers and the public. Defendants also presented two witnesses by video conference. John Weinhart testified as an expert in transporting tigers and claimed that, if the tigers survived the trip to Texas, they would be dead within a year. Weinhart never saw defendants' compound, had no personal knowledge of the tigers kept there and was not familiar with the Texas facility to which the DEP planned to move the tigers. John Cuneo testified on behalf of defendants as an expert in tiger breeding and management. He claimed that the tigers were too old to move without being sedated and the move could not be done "without catastrophic results."

Defendants criticized the Texas facility to which the DEP intended to locate the tigers but offered no viable alternative. They raised three legal arguments before the trial court: (1) the State failed to demonstrate that it was entitled to injunctive relief; (2) the individual defendants should be dismissed, leaving TOPS as the sole defendant; and (3) seizure of the tigers would constitute a taking under the State and Federal constitutions. After several adjournments, granted at defendants' request, the trial finally concluded in August.

In an opinion rendered on November 8, 2002, Judge Eugene Serpentelli set forth a lengthy and detailed recitation of the procedural and factual history. He then determined that the DEP could seize the tigers, even though the Conservation Act does not specifically permit seizure, because the defendants continued to violate state law by keeping the tigers without a permit. The court further determined that (1) N.J.S.A. 23:2A-10 authorized injunctive relief; (2) TOPS was a corporate shell and the individual defendants, as the owners of the facility where the tigers were located, were necessary parties; and (3) because defendants failed to take steps to avoid the seizure by becoming licensed or removing the tigers themselves, they were not entitled to be compensated for the seizure. The court found that defendants had been given a fair and reasonable opportunity to relocate the tigers in the two-and-a-half years since the ALJ's initial decision and concluded that the DEP should proceed with its relocation plan because defendants failed to create a viable plan of their own.

On December 19, 2002, an order was entered memorializing Judge Serpentelli's decision. The order (1) authorized the DEP and its agents to remove and relocate the tigers; (2) granted the DEP the right to use law enforcement resources to protect the public and restrict access to defendants' property to anyone, including defendants, who interfered with the removal; (3) granted the DEP the right to continuous and unimpeded access to the compound for three days prior to the relocation; (4) allowed the DEP to make whatever arrangements or alterations to defendants' cages and holding areas that were reasonably necessary to remove the tigers safely, but required prior court approval for any major alterations to defendants' property or facilities; and (5) required defendants to provide the DEP with all records relating to the tigers within two weeks of the order, and five days prior to the relocation. The order further provided that the DEP "may, upon completion of the relocation, submit to the court an itemization of costs incurred and seek reimbursement." Defendants appealed but the appeal was ultimately dismissed for failure to prosecute. Dep't of Envtl. Prot. v. Byron-Marasek, No. A-5187-02T2 (App. Div. March 2, 2004).

The tigers were relocated to Texas on November 11, 2003. On February 3, 2004, the DEP moved for reimbursement of the cost of the inspections and relocation of the tigers pursuant to N.J.S.A. 23:2A-5(b), which authorizes the DEP to charge and collect fees for inspections. In support of the motion, Lawrence Herrighty submitted a certification detailing the expenses incurred by the DEP. The expenses included $5,311 for the hourly wages of DEP and law enforcement personnel and travel costs for inspections from May 3, 1999 through October 2003; $136,244.13 for the costs of transporting, relocating and maintaining the tigers; $13,449.14 for DEP personnel to move the tigers; $1,741 in catering services for the DEP and law enforcement personnel who participated in preparing and moving the tigers; $121.00 for emergency veterinary treatment; and $693.99 for supplies purchased from Home Depot for the move. Herrighty further certified that the cost of the inspections and removal of the tigers exhausted the Non-Game and Exotic Species Permit Program budget, resulting in a "lack [of] sufficient funds to conduct inspections of any other facilities throughout the State until the next fiscal year."

After considering the submissions made by the parties, Judge Serpentelli found that the statute did not specifically authorize the reimbursement requested by the DEP,

but as a matter of equity that the State of New Jersey precipitated or was caused to do an extraordinary amount of inspection work that would not have otherwise been generated had [Byron-Marasek] . . . abided by the court orders both with respect to the relocation and also with respect to other issues in terms of the safety and welfare of the animals.

The judge noted that Byron-Marasek had not challenged the reasonableness of specific fees and, when the court reviewed Herrighty's certification and the bills and receipts attached thereto, he found "nothing . . . which appears to be unreasonable."

On March 19, 2004, an order was entered directing defendants to pay $141,555.13 "to reimburse the Department for its costs incurred in moving defendants' tigers to San Antonio, Texas, and inspecting defendants' tiger preserve since May 3, 1999." It is from this order that defendants now appeal, arguing: (1) the fees and expenses were improperly awarded because there was no statutory, legal or equitable basis for doing so; and (2) there is no liability because TOPS is a non-profit organization subject to immunity under the Charitable Immunity Act and the individual defendants are not liable because the tigers were owned by TOPS.

I

Defendants first argue that there is no statutory, legal or equitable basis for imposing fees. They further contend that the fees imposed are unreasonable and that they should have been given an "equity offset" for the expenses incurred (1) from the time title to the tigers was transferred to the State; (2) for the thirty years of care they provided to the tigers; and (3) for the value of the tigers themselves, which defendants allege is $20,000,000.

The application for fees is a purely legal issue; that is, the court must determine whether the DEP is entitled to reimbursement for the costs incurred for the removal and relocation of the tigers. The standard of review for a purely legal issue is de novo, and the trial court's legal rulings are not entitled to deference. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

In adopting the Endangered and Non-Game Species Conservation Act, the Legislature declared that "it is the policy of the State to manage all forms of wildlife to insure their continued participation in the ecosystem." N.J.S.A. 23:2A-2.

N.J.S.A. 23:2A-5 provides:

a. The commissioner shall have the power to formulate and promulgate, adopt, amend and repeal rules and regulations, limiting, controlling and prohibiting the taking, possession, transportation, exportation, sale or offer for sale, or shipment of any nongame species or any wildlife on the endangered species list. Such rules and regulations shall be designed to promote the public health, safety and welfare and shall be adopted in accordance with the "Administrative Procedure Act" (P.L. 1968, c. 410, C.52:14B-1 et seq.).

b. The commissioner is authorized to conduct periodic inspections in order to determine compliance with the rules and regulations adopted pursuant to this section, and, to that end, is authorized to charge and collect fees in an amount sufficient to cover the costs of the inspections and services performed pursuant to the amendatory act. Such fees shall be devoted entirely and exclusively to carrying out the purposes and provisions of this amendatory act. Inspection fees shall be established in accordance with a fee schedule adopted by the department as a rule and regulation pursuant to the provisions of the aforesaid "Administrative Procedure Act."

Regulations promulgated in accordance with the act include N.J.A.C. 7:25-4.5, which provides that "[a] permit shall be required for any [] exotic mammals . . . not specifically exempted by N.J.A.C. 7:25-4.4." Tigers are not an exempt species under N.J.A.C. 7:25-4.4. Defendants, therefore, were required to obtain a permit to possess the tigers.

In 1999, defendants applied for a permit under N.J.A.C. 7:25-4.6(a)(7) as an animal theatrical agency. The permit requires an annual application and inspection fee of $110. N.J.A.C. 7:25-4.6(c). No other fees are authorized by the regulation governing the permit.

While N.J.S.A. 23:2A-5(b) authorizes the Commissioner to "charge and collect fees in an amount sufficient to cover the costs of the inspections and services performed pursuant to this amendatory act," the statute also states that "[i]nspection fees shall be established in accordance with a fee schedule adopted by the department as a rule and regulation." The regulation, however, lists only the annual inspection and permit fee of $110. The statute states, however, that the Act "shall be liberally construed to effectuate the purposes and the intent thereof." N.J.S.A. 23:2A-13.

The DEP sought injunctive relief pursuant to N.J.S.A. 23:2A-10, which provides in part:

a. If any person violates any of the provisions of this act or any rule, regulation or order adopted or issued pursuant to the provisions of this act, the department may institute a civil action in a court of competent jurisdiction for injunctive relief to prohibit and prevent such violation or violations and the court may proceed in the action in a summary manner.

The DEP is authorized to revoke any permit issued to any person "who ceases to consistently meet the eligibility criteria for that particular permit." N.J.A.C. 7:25-4.2(a). After a permit is revoked, the DEP may, "in its discretion, seek an order from the Director or court of competent jurisdiction allowing immediate removal of any animal possessed under that permit." Ibid. Although defendants' permit was not revoked, it was not renewed. Consequently, it was unlawful for defendants to continue to possess the tigers and the DEP properly sought to remove them.

In an analogous situation, we previously found that the DEP was authorized to charge fees for remediation under the Spill Act, even though the Act did not expressly authorize such fees, because they were included in the definition of "cleanup and removal costs" in N.J.S.A. 58:10-23.11b. E.I. DuPont de Nemours & Co. v. Dep't of Envtl. Prot. and Energy, 283 N.J. Super. 331, 342 (App. Div. 1995). Similarly, N.J.S.A. 23:2A-5(b), the statute under consideration here, authorizes the Commissioner to "charge and collect fees in an amount sufficient to cover the costs of the inspections and services performed" under the Act. Thus, the Act does authorize an assessment for the inspections and relocation of the tigers.

With respect to defendants' "taking" argument, we note initially that the State was required to relocate twenty-four tigers because defendants' facility was substandard. Governmental entities have inherent power to take actions necessary to protect the public when private owners fail to remediate an unsafe condition. City of Paterson v. Fargo Realty, Inc., 174 N.J. Super. 178, 183 (Cty. Dist. Ct. 1980) (holding that "[a] municipality may, in the exercise of its police power, without compensation[,] destroy a building or structure that is a menace to the public safety or welfare, or require the owner to demolish the dangerous piece of property.") "[W]hen a nuisance exists, threatening the public at large, it is the owner's responsibility to abate it, and in the event he fails to do so, the city must act." Id. at 190. "It has long been recognized that a right to reimbursement will accrue to a municipality for its expenses in rightfully demolishing a building constituting a public nuisance." Id. at 185.

Judge Serpentelli found that the DEP's action was necessary to abate a condition that violated state law. Defendants could have avoided the action by complying with the agency's order to repair the facility and obtain the necessary permit or by voluntarily removing the tigers. The trial court held that the seizure of the animals was not a compensable "taking" because the government is not required "to compensate owners for limitations placed on property use pursuant to police power in aid of such matters as the public health, safety or welfare." We agree.

Defendants next argue that the fees assessed are not reasonable and that they were entitled to a fact-finding hearing on the amount of the assessment. We note initially that defendants never requested a fact-finding hearing in the trial court, nor did they challenge the reasonableness of specific fees sought by the DEP. Moreover, defendants waived oral argument on the motion and failed to appear.

The amount of fees assessed is discretionary. See, e.g., Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001) (awarding attorneys' fees); Musto v. Vidas, 333 N.J. Super. 52, 74 (App. Div.), certif. denied, 165 N.J. 607 (2000) (awarding pre-judgment interest); Maul v. Kirkman, 270 N.J. Super. 596, 619-20 (App. Div. 1994) (awarding punitive damages). As with all discretionary decisions, we must determine whether the trial court abused its discretion in an arbitrary and unreasonable manner.

We have carefully considered the Herrighty certification along with the bills and receipts attached thereto, and we are satisfied that the amounts sought for reimbursement are, indeed, reasonable under the circumstances here, where defendants consistently failed to comply with agency directives and court orders and failed to repair the facility or voluntarily relocate the tigers.

Defendants next argue that they are entitled to an "equitable offset" for the costs they incurred between the time title was given to the DEP by the trial court on November 8, 2002 and the date the tigers were removed on November 11, 2003. Defendants also argue that they are entitled to the costs of caring for the tigers for thirty years and for the $20,000,000 value of the tigers.

We note that defendants have never submitted any information or documentation to support their claim for costs incurred or the value of the tigers. Notwithstanding their claim, defendants are not entitled to an equitable offset because equitable relief is not available to "a wrongdoer with respect to the subject matter in suit." Faustin v. Lewis, 85 N.J. 507, 511 (1981). Defendants had every opportunity to remove the tigers voluntarily from the time they were initially ordered to do so by the ALJ on April 26, 2000, until the tigers were finally removed by the DEP on November 11, 2003. Even prior to the order of removal, defendants could have repaired and renovated the facility to properly accommodate the tigers, but failed to make sufficient changes to remedy the situation in order to obtain the necessary permit. In short, there is no basis for an equitable offset.

II

In their second point, defendants contend that the trial court erred in entering judgment against them personally, rather than against TOPS. They maintain "that at all times, all the tigers were owned by TOPS, and that all transactions, activities, and operations were in the name of, for the account of, and for the benefit of the non-profit organization, Tigers Only Preservation Society (TOPS), a charitable and educational 501(c)(3) tax exempt, non-profit organization."

Judge Serpentelli rejected defendants' argument for four specific reasons:

First, throughout these proceedings, the individual defendants have never provided the court with any proof regarding ownership of the tigers. Second, it has been represented that the Maraseks owned the land upon which the facilities are located, so should it become necessary for the State to remove the tigers, it will need authority to enter the Marasek property. Third, at an earlier stage in the litigation, Tigers Only was independently represented. On August 6, 2001, when that attorney moved to be relieved as counsel, Byron-Marasek notified him that his services were terminated and she advised the court that the Tigers Only "membership" had been "dissolved." Last, throughout these proceedings, Byron-Marasek demonstrated that she alone has control over the tigers, facilities, litigation strategy, and certainly the corporate structure known as Tigers Only Preservation Society. The court has never been made aware of any other members of Tigers Only and Byron-Marasek claims to be the sole Director and President of the organization. One might say that the society is a paper tiger - certainly it is a corporate shell.

While defendants argue that neither they nor the corporation should be responsible for the costs incurred in relocating the tigers, they alternatively argue that liability can be imposed only on the corporate entity that owns the animals. We disagree.

Defendants' argument that TOPS was the bona fide owner of the tigers is simply not supported in the record. The few documents purporting to demonstrate that TOPS was the owner and permit applicant were generated by defendants and they have submitted no other documents to support their contention. Indeed, at a hearing on August 6, 2001 - two years before the tigers were removed by the DEP - Byron-Marasek represented to the trial court that TOPS had been dissolved. In a letter dated August 2, 2001, she advised TOPS' attorney that "as President, I do not share this organization's control and direction of this corporation with any other party, volunteers and past members." Moreover, despite repeated requests by the DEP, the ALJ and the trial judge, defendants never produced corporate documentation to demonstrate ownership or lineage of the tigers.

Although defendants' brief refers to thirteen documents purporting to demonstrate TOPS' ownership of the tigers, the fact remains that defendants have not presented any evidence to support a conclusion that TOPS was anything other than a corporate shell. The order of March 19, 2004 is affirmed.

 
Affirmed.

Jan Marasek has appealed but did not appear to argue. Byron-Marasek, his wife, argued pro se on her own behalf and appears to have been the primary party involved in all proceedings, beginning with the permit application. The record does not indicate that Jan Marasek appeared or testified at any of the prior proceedings.

The tigers were fed road-kill deer.

We note that the veterinarian was not engaged until several months after Byron-Marasek applied for the permit renewal and the DEP began its inspections.

Defendants also filed a complaint in the Federal District Court seeking to enjoin the DEP from removing the tigers. In re Joan Byron-Marasek v. Dep't of Envtl. Prot., Docket No. 03CV5285 (JEI). Defendants claim that the tigers were removed before a hearing on their application.

In its complaint, the DEP initially sought a penalty assessment against defendants of between $250 and $5,000 for each offense. Each day that defendants failed to comply with the order to relocate the tigers would have constituted a separate offense. N.J.S.A. 23:2A-10(b). The potential penalty assessment would have been much higher than the $141,555.13 reimbursement sought by the DEP and would not have been subject to any argument for equitable offset. The DEP did not pursue the penalty, however.

"'Cleanup and removal costs' means all direct costs . . . and those indirect costs that may be imposed by the department . . . associated with a discharge, incurred by the State." N.J.S.A. 58:10-23.11b.d.

The documentation included in defendants' reply brief appendix include two charts titled "Chart Containing Accession log & inventory specimen list of (24) tigers possessed by TOPS" and "Chart containing inventory list of acquisitions of tigers possessed by TOPS." Even these documents do not represent that TOPS was the owner of the tigers.

(continued)

(continued)

27

A-4643-03T5

December 21, 2005

 


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