[Cite as State ex rel. Bales v. Dept. of Agriculture, 2018-Ohio-3631.]


                                         COURT OF APPEALS
                                       LICKING COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


 STATE OF OHIO EX REL. TIMOTHY                            :    JUDGES:
 BALES                                                    :
                                                          :
                                                          :    Hon. John W. Wise, P.J.
        Relator-Appellant                                 :    Hon. W. Scott Gwin, J.
                                                          :    Hon. Patricia A. Delaney, J.
 -vs-                                                     :
                                                          :    Case No. 17-CA-98
                                                          :
 OHIO DEPARTMENT OF                                       :
 AGRICULTURE                                              :
                                                          :
                                                          :
        Respondent-Appellee                               :    OPINION


CHARACTER OF PROCEEDING:                                      Appeal from the Licking County Court of
                                                              Common Pleas, Case No. 17CV-00969



JUDGMENT:                                                     AFFIRMED




DATE OF JUDGMENT ENTRY:                                       September 6, 2018




APPEARANCES:

 For Relator-Appellant:                                        For Respondent-Appellee:

 ERIC T. MICHENER                                              JAMES R. PATTERSON
 CHAD YODER                                                    LYDIA ARKO ZIGLER
 225 North Market St., P.O. Box 599                            30 East Broad St., 26th Floor
 Wooster, OH 44691                                             Columbus, OH 43215

Delaney, J.
Licking County, Case No. 17-CA-98                                                       2



       {¶1} Relator-Appellant Timothy Bales appeals the November 30, 2017 judgment

entry of the Licking County Court of Common Pleas.

                        FACTS AND PROCEDURAL HISTORY

       {¶2} Pursuant to Ohio Revised Code Chapter 941, et seq., one of the duties of

the Respondent-Appellee Ohio Department of Agriculture (“ODA”) is to protect the

livestock, poultry, and other animal interests of the state, prevent the spread of

dangerously contagious or infectious disease, and provide for the control and eradication

of such disease. One such infection monitored and controlled by the ODA is known as

chronic wasting disease (“CWD”), which can infect whitetail deer. Chronic wasting

disease is an untreatable, dangerously contagious or infectious disease that can be

transmitted from deer to deer through environmental contamination or direct contact.

CWD leads to the animal’s death. It is the goal of the ODA to eradicate CWD, but if CWD

gets transmitted to the wild deer population, eradication becomes impossible.

Unfortunately, the only way to diagnose whether a deer is infected with CWD is by a post

mortem examination and only when the disease has progressed to a certain stage.

       {¶3}   Dan Yoder was the owner of captive whitetail deer operations in central

Ohio. The ODA had previous interactions with Yoder due to his lack of proper

management of his herds of captive whitetail deer. Two herds of captive whitetail deer

owned by Yoder were destroyed due to exposure and confirmed contamination of CWD.

       {¶4} Relator-Appellant Timothy Bales purchased Honey Run Farm from Yoder.

With the purchase of the farm, Bales also became the owner of one of Yoder’s herd of

captive whitetail deer. Bales was aware at the time of purchase that the herd of whitetail

deer was under quarantine due to herd’s risk of exposure to CWD. When Bales purchased
Licking County, Case No. 17-CA-98                                                     3


the farm and herd, he did not possess the required license for owning captive whitetail

deer.

        {¶5} The ODA determined Yoder violated the Honey Run Farm quarantine by

bringing two deer into the herd without the knowledge or consent of the ODA. Yoder did

not keep the required records to determine whether the deer were exposed to CWD from

Yoder’s infected herds.

        {¶6} On May 17, 2016, the ODA issued Order No. 2017-092 requiring the

destruction of all captive whitetail deer currently on the Honey Run Farm because it

believed the deer were exposed to CWD. It based its decision to destroy the Honey Run

Farm herd on Yoder’s violation of the quarantine order, Yoder’s poor record keeping, and

Bales’ lack of a license for owning captive whitetail deer.

        {¶7} Bales contested the order and requested an administrative hearing. Prior to

the date of the hearing, the ODA destroyed the Honey Run Farm herd. During the post

mortem examination, it was determined the herd was not infected with CWD.

        {¶8} The matter proceeded to an administrative hearing and the Hearing Officer

issued his Report and Recommendation on April 3, 2017. It found it was reasonable for

the ODA to determine the Honey Run Farm herd was exposed to CWD that endangered

the health and well-being of the Ohio deer population and to recommend that the Honey

Run Farm herd be destroyed.

        {¶9} Bales appealed the administrative decision to the Franklin County Common

Pleas in Timothy Bales v. Ohio State Department of Agriculture, Case No. 17CVF-05-

4743. The trial court affirmed the administrative decision on September 29, 2017.
Licking County, Case No. 17-CA-98                                                         4


      {¶10} On September 5, 2017, Bales filed a petition for writ of mandamus with the

Licking County Court of Common Pleas seeking compensation from the ODA for the

destruction of the Honey Run Farm deer herd. The ODA filed a motion to dismiss pursuant

to Civ.R. 12(B) and Bales responded.

      {¶11} Bales appealed the September 29, 2017 judgment entry of the Franklin

County Court of Appeals to the Tenth District Court of Appeals.

      {¶12} On November 30, 2017, the trial court granted the ODA’s motion to dismiss

under Civ.R. 12(B)(6). It found that Bales had an adequate remedy at law to seek

compensation for the herd under R.C. 941.11 and 941.12. Bales appealed the November

30, 2017 judgment to this court.

      {¶13} On April 5, 2018, the Tenth District Court of Appeals affirmed the trial court’s

judgment in Bales v. Ohio State Department of Agriculture, 10th Dist. Franklin No. 17AP-

757, 2017-Ohio-1312.

                              ASSIGNMENT OF ERROR

      {¶14} Bales raises one Assignment of Error:

      {¶15} “I. THE LICKING COUNTY COURT OF COMMON PLEAS ERRED WHEN

PURSUANT TO CIV.R. 12(B)(6), IT DISMISSED APPELLANT’S PETITION FOR WRIT

OF MANDAMUS BY HOLDING THAT A STATUTORY REMEDY EXISTS WHICH

NEGATES A NECESSARY ELEMENT OF A MANDAMUS ACTION.”

                                       ANALYSIS

      {¶16} Bales argues in his sole Assignment of Error that the trial court erred when

it dismissed his petition for writ of mandamus against the ODA. We disagree.
Licking County, Case No. 17-CA-98                                                               5


                        A Motion to Dismiss under Civ.R. 12(B)(6)

       {¶17} Our standard of review on a Civil Rule 12(B) motion to dismiss is de novo.

Huntsman v. State, 5th Dist. Stark No. 2016CA00206, 2017–Ohio–2622, ¶ 20 citing

Greeley v. Miami Valley Maintenance Contractors Inc., 49 Ohio St.3d 228, 551 N.E.2d

981 (1990). The ODA argued Bales’ petition for writ of mandamus should be dismissed

for failure to state a claim. A motion to dismiss for failure to state a claim upon which relief

can be granted is procedural and tests the sufficiency of the complaint. State ex rel.

Hanson v. Guernsey County Bd. of Commissioners, 65 Ohio St.3d 545, 605 N.E.2d 378

(1992). Under a de novo analysis, we must accept all factual allegations of the complaint

as true and all reasonable inferences must be drawn in favor of the nonmoving party.

Byrd v. Faber, 57 Ohio St.3d 56, 565 N.E.2d 584 (1991). In order to dismiss a complaint

pursuant to Civil Rule 12(B)(6), it must appear beyond doubt that the plaintiff can prove

no set of facts in support of the claim that would entitle plaintiff to relief. York v. Ohio State

Highway Patrol, 60 Ohio St.3d 143, 573 N.E.2d 1063 (1991).

                               No Clear Legal Right or Duty

       {¶18} In his petition for writ of mandamus, Bales does not challenge the authority

of the ODA to destroy the Honey Run Farm herd to protect the public health. That

argument was addressed and resolved in Bales’ administrative appeal of the ODA order

to destroy the Honey Run Farm herd. Bales brought the petition for writ of mandamus to

compel the ODA to initiate an appropriation proceeding to compensate Bales for the

destroyed herd of whitetail deer. He further argued the destruction of the Honey Run Farm

herd was a taking pursuant to Article I, Section 19 of the Ohio Constitution and the Fifth

Amendment of the Constitution of the United States for which he is entitled to just
Licking County, Case No. 17-CA-98                                                                     6


compensation. Bales contends the destruction of the herd was a taking because the herd

tested negative for CWD.

        {¶19} “For a writ of mandamus to issue, the relator must establish a clear legal

right to the relief prayed for; the respondent must have a clear legal duty to perform the

act; and the relator must have no plain and adequate remedy in the ordinary course of

the law.” State ex rel. Dunkle v. Marcelain, 5th Dist. Licking No. 17-CA-94, 2018-Ohio-

1019, ¶ 5 quoting State ex rel. Widmer v. Mohney, 11th Dist. Geauga No. 2007–G–2776,

2008–Ohio–1028, ¶ 31.

        {¶20} Bales does not dispute that under R.C. 941.11(A), the ODA, “without prior

hearing, may order the destruction of any domestic or nondomestic animal * * * infected

with or exposed to a dangerously contagious or infectious disease, infected with or

exposed to a disease of concern, or determined to endanger the health or well-being of

animal populations or public health in the state.” Bales does not challenge the authority

of the ODA to destroy the Honey Run Farm herd to protect the public health. Bales

contends he is entitled to compensation for the destruction of the herd.

        {¶21} If an animal is ordered destroyed by the ODA, Ohio law provides an

appropriation procedure under R.C. 941.121:

        (A) Except as provided in rules adopted under section 941.41 of the

        Revised Code, no animal shall be ordered destroyed by the director of

        agriculture, in accordance with this chapter, until that animal has been

        appraised in accordance with divisions (B) and (C) of this section. * * *



1The version of R.C. 941.12 in effect at the time of the order by the ODA to destroy the Honey Run Farm
herd was S.B. 134, effective June 20, 1994. R.C. 941.12 was amended by H.B. 49, effective September
29, 2017.
Licking County, Case No. 17-CA-98                                                      7


      (B) The director of agriculture shall appraise, based on current market

      value, any animal destroyed by his order under this chapter, and may

      indemnify the owner of the animal if, upon the request of the director, the

      director of budget and management provides written notification to the

      director of agriculture that there is an unencumbered balance in the

      appropriation for the current biennium sufficient to pay the indemnity. The

      amount of indemnity shall be the appraised value of the animal, less any

      salvage value and indemnity received from another agency. In no case shall

      the state indemnity payment exceed fifty dollars per head for a grade animal

      or one hundred dollars per head for a registered purebred animal.

      (C) For the purpose of indemnification, the value of the animal ordered

      destroyed shall be determined by an appraisal made by a representative

      chosen by the owner and a representative chosen by the department of

      agriculture. In the event of a disagreement as to the amount of the appraisal,

      a third disinterested person shall be selected, at the owner’s expense, by

      the two, to act with them in the appraisal of the animal.

      (D) The director of agriculture may refuse to pay an indemnity for any animal

      ordered destroyed if the owner has been convicted of or pleads guilty to a

      violation of any of the provisions of this chapter or the rules promulgated

      thereunder.

      {¶22} Under R.C. 941.12(A), the ODA is required to appraise, based on current

market value, any animal destroyed under its order. Bales has made no allegation in
Licking County, Case No. 17-CA-98                                                       8


these proceedings that the ODA failed to appraise the Honey Run Farm herd pursuant to

R.C. 941.12(A).

       {¶23} The issue in this matter is indemnification. Bales argues the ODA did not

offer him any compensation for the destroyed animals. R.C. 941.12(B) reads, “The

director of agriculture shall appraise, based on current market value, any animal

destroyed by his order under this chapter, and may indemnify the owner of the animal * *

*.” (Emphasis added.) While the world “shall” is usually interpreted to make the provision

in which it is contained mandatory, the word “may” is “generally construed to make the

provision in which it is contained optional, permissive, or discretionary.” Dean v. Ohio

Dept. of Mental Health & Addiction, 5th Dist. Stark No. 2017CA00233, 2018-Ohio-3159,

¶ 22 citing State v. Edwards, 5th Dist. Perry No. 2012-CA-12, 2012-Ohio-5142, citing

Dorrian v. Scioto Conservancy District, 27 Ohio St.2d 102, 271 N.E.2d 834 (1971). The

unambiguous language of R.C. 941.12(B) states the ODA is not required to indemnify an

owner for an animal destroyed pursuant to its authority under R.C. 941.11(A). It is within

the discretion of the ODA to indemnify the owner of the animal if, upon request of the

director, the director of budget and management provides written notification to the

director of agriculture that there is an unencumbered balance in the appropriation for the

current biennium sufficient to pay the indemnity. R.C. 941.12(B).

       {¶24} “It is axiomatic that in mandamus proceedings, the creation of the legal duty

that a relator seeks to enforce is the distinct function of the legislative branch of

government, and courts are not authorized to create the legal duty.” State ex rel. Pipoly

v. State Teachers Retirement Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, 767 N.E.2d 719,

¶ 18. R.C. 941.12 addresses the issue of appraisal and indemnification if an animal is
Licking County, Case No. 17-CA-98                                                         9


destroyed by the ODA. There is no dispute in this case that the ODA was within its

statutory authority to destroy the Honey Run Farm herd. R.C. 941.12(A) and (B) create a

clear legal duty for the ODA to appraise an animal destroyed by the director of

agriculture’s order. No party has asserted the ODA failed to appraise the Honey Run Farm

herd. R.C. 941.12(B) states it is within the discretion of the ODA to indemnify the owner

of the animal. Because indemnification is discretionary, there is no clear legal duty on the

part of the ODA to indemnify Bales for the destruction of the Honey Run Farm herd.

       {¶25} Bales makes the distinction that the indemnification provision of R.C.

941.12 is not applicable in this case because the deer destroyed by the ODA were healthy

and not infected by CWD. He states there is no statutory remedy available to him because

R.C. 941.12 addresses only diseased animals with little or no value. Under R.C.

941.11(A), the ODA, “without prior hearing, may order the destruction of any domestic or

nondomestic animal * * * infected with or exposed to a dangerously contagious or

infectious disease, infected with or exposed to a disease of concern, or determined to

endanger the health or well-being of animal populations or public health in the state.” The

facts in this case are established that the Honey Run Farm herd was exposed to Yoder’s

deer. Two of Yoder’s deer herds were destroyed and confirmed to be infected with CWD.

Bales does not dispute the ODA was within its authority to destroy the Honey Run Farm

herd. The plain language of R.C. 941.11 states the ODA may destroy an animal that is

infected with or exposed to disease. R.C. 941.12 applies to animals destroyed pursuant

to Chapter 941. Because the Honey Run Farm herd was exposed to disease and

destroyed pursuant to R.C. 941.11, R.C. 941.12 provides a remedy for the owner of an

animal so destroyed.
Licking County, Case No. 17-CA-98                                                          10


         {¶26} Bales finally contends the ODA’s action in destroying the healthy deer of

the Honey Run Farm herd was an unconstitutional taking because it did not abate a public

nuisance. It is well-settled that the ordering of the destruction of property in order to

preserve the public health is not a taking of private property for public use but, rather, the

abatement of a public nuisance. Kroplin v. Traux, 119 Ohio St. 610, 621, 165 N.E. 498

(1929). Thus, a property owner is not entitled to compensation. Id. As stated above, there

is no dispute the ODA was within its authority to destroy the Honey Run Farm herd

pursuant to R.C. 941.11. If an owner’s animal is destroyed pursuant to R.C. 941.11, R.C.

941.12 provides for appraisal and indemnification procedures to compensate the animal’s

owner.

         {¶27} In this case, Bales failed to establish the ODA had a clear legal duty to

compensate him for the destruction of the Honey Run Farm herd. We agree with the trial

court that pursuant to Civ.R. 12(B)(6), Bales could prove no set of facts in support of his

claim that he was entitled to compensation for the destruction of the Honey Run Farm

herd pursuant to R.C. 941.11 and therefore his petition for mandamus is without merit.

         {¶28} Bales’ sole Assignment of Error is overruled.
Licking County, Case No. 17-CA-98                                                   11


                                    CONCLUSION

      {¶29} The judgment of the Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Wise, John, P.J. and

Gwin, J., concur.
