Sanctuary owner, DNR reach agreement

By Steve Korris | Jan 2, 2009

ELKINS – Wildlife sanctuary owner Joel Rosenthal can capture wild animals anywhere in West Virginia and rehabilitate them on his farm near Hillsboro under an agreement he reached with Division of Natural Resources director Frank Jezioro.

U.S. District Judge John Preston Bailey, who ruled in November that Jezioro and other state officials violated Rosenthal's rights, approved the agreement on Dec. 30.

Bailey called it fair and appropriate.

It sounded more like surrender than agreement, and Rosenthal rejoiced.

He said he felt like the Philadelphia Eagles, which defeated the Dallas Cowboys 44-6 on Dec. 28 to earn a playoff spot and knock their rivals out of the postseason.

"The Eagles didn't want the game to end because they were having so much fun," he said.

Rosenthal represented himself "pro se" and won every point of law against Jezioro's counsel at the Charleston firm of Bailey and Wyant.

He topped his "pro se" success of a year ago, when the West Virginia Supreme Court of Appeals vindicated his rescue of a fawn that had nearly drowned.

The Justices rejected an argument of assistant attorney general William Valentino that Rosenthal's action constituted illegal possession of wildlife, a misdemeanor.

Jezioro nevertheless sent Rosenthal a letter ordering him to cease and desist.

Rosenthal sued Jezioro, Valentino and DNR conservation officer Sean Duffield in Pocahontas County, claiming defamation and malicious prosecution.

Jezioro removed the suit to federal court in Elkins, arguing that Rosenthal raised issues under the U. S. Constitution.

Judge Bailey quickly answered the constitutional issues, all in Rosenthal's favor.

"In this case, the pleaded facts, taken as true, demonstrate that the defendants violated the plaintiff's constitutional rights," he wrote.

He stripped Jezioro, Valentino and Duffield of the immunity from liability that protects state officials performing job duties. He opened the way to punitive damages.

Rosenthal said Bailey's order meant, "He's going to kick your ass and drag you around for a year."

Jezioro, Valentino and Duffield moved to alter judgment, but in six days Bailey denied the motion.

At that point Rosenthal secured what he wanted –- to be left alone.

"I wanted to put them on the witness stand but I had to be pragmatic," he said. "Once you get a bureaucrat where he has to answer under oath, he doesn't want to fight.

"They hate telling the truth."

The agreement allows him to take and capture wildlife in any county, and to rehabilitate or maintain wildlife at his Point of View Farm.

The state officials promised to take no action against his Tax Department business license or his certificate of authority from the Secretary of State.

Thomas Smith, managing deputy to Attorney General Darrell McGraw, signed the agreement along with Rosenthal. Jezioro initialed it.

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