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Judge Refuses to Toss ‘Opossum Drop’ Lawsuit

(CN) - The state of North Carolina must face claims it wrongly permitted an annual New Year's Eve 'Opossum Drop' that torments innocent animals, a superior court judge ruled Monday.

The law in question, H.B. 574, was passed by the North Carolina General Assembly in June and suspends all legal protections for opossums between Dec. 29 and Jan. 2 each year.

The law was written to go into effect immediately, prompting a lawsuit by the People for the Ethical Treatment of Animals and five state residents seeking to have it tossed as invalid.

The state attorney general and North Carolina Wildlife Resources Commission sought to have the complaint dismissed for lack of standing and failure to state a claim, but Wake County Superior Court Judge G. Bryan Collins on Monday said the case, which claims the law violates both the U.S. and North Carolina Constitutions should go on.

At the heart of the controversy it the annual New Year's Eve "Possum Drop" in Brasstown, N.C.

Last year, Clay Logan, a convenience store owner who has organized the event for more than 20 years announced that the use of a live opossum would be put on hold until pending PETA's pending challenges to the event are resolved.

PETA sued North Carolina in January 2012 and again in November 2013 to stop North Carolina's Wildlife Resources Commission from issuing license for the possession and exhibition of a live opossum for the event.

In its lawsuits, PETA says the state "lacks the authority to issue a permit or license for the possession and exhibition of a live opossum at the Opossum Drop," because Logan is not is not trained or qualified to work with wild animals.

These lawsuits ended with PETA winning the right to be notified when Logan received a permit to capture a live Opossum to be used in the drop.

They were followed by the passage of what the resources commission called the "Possum Right to Work Act," and other statutes, allowing it to issue Logan a license for his event. The state made the law retroactive to 2013, immunizing Logan's actions which were then the subject of the pending litigation.

PETA again sued n July 2014, and was granted injunctive relief, but the state once again tried to create a law giving it the authority to issue a license or permit the Opossum Drop, the result being the 2015 Act.

Logan has vowed in the past to go back to using a live opossum if and when a judge rules in the state's favor.

In Monday's decision, Judge Collins said the major problem with the law -- and why PETA and their fellow defendants do have standing -- is that it nullifies the injunctive relief PETA obtained in the 2014 case, and the right to notification won in the earlier cases.

Collins also found questionable the defendants' argument that the 2015 serves a permissible public purpose because local businesses will allegedly benefit financially from the Opossum Drop.

"Plaintiffs allege that exhibiting a live opossum is not necessary in order for the event to be financially successful. ... Even if a live opossum were used, WRC and Mr. Logan have declared the Mr. Logan is fully capable of meeting the requirements of all applicable statutes and regulations to qualify for a license (should he choose to). ... The Possum Right to Work Act of 2013 was all that was needed to accomplish this same alleged public purpose. The 2015 Act is therefore not reasonably connected to securing a financial benefit for local businesses."

Collins then went on to another of the plaintiffs' allegations: that the 2015 Act distinguishes persons who engage in conduct with respect to opossums from persons who engage in the same conduct with respect to other wildlife.

"Defendants cannot eras that classification by arguing that all persons are treated equally with respect to opossums under the 2015 Act. A classification in a law must find justification outside itself in order to prevent the classification from becoming an exercise in tautological reasoning."

Lastly, Judge Collins held the economic benefits argument failed because "providing a financial benefit to a select group of businesses that happened to be favored" by state Rep. Roger West, the sponsor of the bill, "does not constitute a legitimate government purpose."

"It is the essence of impermissible economic protectionism."

"The Amended complaint raises a strong inference that the 2015 Act was 'born of animosity' toward animal welfare groups such as PETA. ... For these reasons, Defendants' motion to dismiss ... are denied," Collins wrote.

Following the ruling, Jeff Kerr, general counsel to PETA, released the following statement:

"This ruling means that PETA's lawsuit will go forward, and on December 11, Judge Bryan Collins will hear PETA's motion for a preliminary injunction to make sure that sensitive opossums will have the same legal protection, no matter what day of the year it is. The Opossum Drop's screaming crowds, thumping music, and fireworks are what frighten opossums most, and the event's promoter, Clay Logan, has said that it doesn't matter what's in the box that he drops, so PETA hopes that the people of Brasstown can ring in 2016 without tormenting a live opossum."

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