WEST VIRGINIA RECORD

ELKINS – Wildlife sanctuary owner Joel Rosenthal has offered to drop a claim for damages against state conservation agents who prosecuted him for rescuing a half drowned fawn.

"I, the plaintiff, seek only justice not financial gain," Rosenthal wrote in an Oct. 20 brief for his suit in federal court at Elkins against Division of Natural Resources director Frank Jezioro.

Rosenthal, who lives in Hillsboro, seeks to overturn an order Jezioro signed in January, calling on him to cease and desist from treating injured wildlife.

Jezioro issued the order two weeks after the state Supreme Court of Appeals upheld Rosenthal's right to care for wildlife.

"The man cares nothing about the law, court rulings or even the moral and ethical consequences of his actions," Rosenthal wrote. "All he cares about is his power."

Rosenthal owns Point of View Farm and operates it as a wildlife sanctuary. He holds a state business license and a federal permit to care for injured birds.

In 2005, he received a phone call from two men who had pulled a fawn from a pond. He drove to the pond, loaded the fawn into his vehicle and took it home.

Natural Resources agents arrested him and charged him with illegal possession of wildlife, a misdemeanor.

A jury in magistrate court convicted him, but Pocahontas Circuit Judge Joseph Pomponio threw out the verdict last year.

Assistant Attorney General William Valentino then sent Rosenthal a letter advising him that Pomponio's decision wouldn't protect him from further prosecution.

Valentino sent Pomponio a copy of the letter.

Valentino petitioned the state Supreme Court to review Pomponio's decision, and the Justices granted review.

Representing himself "pro se," without a lawyer, Rosenthal told the Justices Jan. 11 during oral argument that he would break the law if he didn't care for injured animals.

He said DNR agents have brought injured animals to him.

Justice Robin Davis marveled that with thousands of children being abused and criminals running the streets, the state would prosecute Rosenthal.

The Justices ruled the same day that they shouldn't have granted review at all.

Again, Rosenthal's victory only fueled Jezioro's determination to stop him.

"I am ordering you to cease and desist all unlawful activity involving native wildlife," Jezioro wrote to Rosenthal on Jan. 25.

Rosenthal responded by suing Jezioro, Valentino and three DNR agents in Pocahontas Circuit Court.

He sought to retract the cease and desist order, and he sought damages for harm to his reputation and his ability to raise funds for the sanctuary.

Attorney General Darrell McGraw retained Charles Bailey of Charleston to defend the suit, and Bailey removed it to federal court.

Bailey moved in August to dismiss the suit. He argued that Rosenthal didn't serve proper notice and that state agencies enjoy immunity from damage suits.

Bailey wrote that Rosenthal felt the Supreme Court released him forever from criminal liability.

"This is clearly a false sense of security on the part of the plaintiff," he wrote.

Rosenthal responded Oct. 20 that all defendants received notice and the state forwarded the case to its insurer, AIG.

"The Plaintiff's only direct request for relief is a retraction of Mr. Jezioro's 'cease and desist order' and an apology," he wrote.

"The Plaintiff has made no direct claim for damages, but has simply left it up to the court to decide if any such awards should exist," he wrote.

He wrote that he would eliminate any reference to remuneration if it would facilitate argument on the merits of his allegations.

"Any fifth grader could read the order and ruling of the circuit court and realize that the Plaintiff is entitled to continue his care for wildlife," he wrote.

"That Mr. Valentino, Mr. Jezioro and Mr. Bailey are unable to comprehend this ruling is most disturbing and says a lot about their understanding of the law, the English language and their obligations," he wrote.

"My right to continue helping our wildlife is exactly what the courts have acknowledged," he wrote.

On Oct. 21, Senior U. S. Judge Robert Maxwell transferred the case to Chief District Judge John Preston Bailey, "for reasons appearing to the court."