Appeal from the District Court of the Seventh Judicial District of the State of Idaho, Bingham County. Hon. Darren B. Simpson, District Judge.
The opinion of the court was delivered by: W. Jones, Justice
The decision of the district court granting summary judgment to defendant is affirmed.
I. FACTS AND PROCEDURAL HISTORY
This lawsuit stems from an attempt by Peter Renzo, who was doing business as S.A.B.R.E. Foundation, Inc. ("S.A.B.R.E."), to bring Siberian tigers and other big cats (herein cumulatively referred to as "tigers") into the State of Idaho. The Foundation is allegedly dedicated to repopulating Siberian tigers and educating the general public about them.
In 2007, Renzo sought to bring the tigers into Idaho. S.A.B.R.E. had a facility in Nevada, but needed to find a new location because their premises were being sold. Renzo had allegedly obtained investors and sought to construct a fifty-acre tiger habitat, a residence, a restaurant, a veterinary hospital, and a sixty-room hotel. The project was expected to cost $8,000,000.
There are two separate permits at issue in this case, a possession permit and a propagation permit. Renzo applied for the former, a deleterious exotic animal possession permit, with the Idaho State Department of Agriculture (the "Department") on October 9, 2007. While Renzo thereafter requested the issuance of a propagation permit, no application for a propagation permit was ever filed.
On October 17, 2007, Dr. Greg Ledbetter, the Administrator of the Division of Animal Industries of the Department, wrote a letter to Renzo regarding the possession permit, clearly stating that all tigers had to be spayed or neutered before the possession application could be approved. The letter was not a denial of the possession permit but rather, it was essentially a conditional grant. It contained conditions that had to be satisfied for the permit to be issued, namely, that the tigers be spayed and neutered. It stated:
Before ISDA can finalize your application, the following conditions must be met: . . . 2) Provide documentation from an accredited veterinarian that all female tigers proposed to be moved into Idaho have been spayed prior to shipment. 3) Provide documentation from an accredited veterinarian that all male tigers proposed to be moved into Idaho have been neutered prior to shipment.
On November 2, 2007, Renzo's attorney, Nick Nielson, sent a letter to Dr. Ledbetter which acknowledged the October 17 letter's requirement that the tigers be spayed or neutered, stating that "[i]t is my understanding from your October 17 letter that the S.A.B.R.E. Foundation must spay and/or neuter all of its tigers prior to shipment." The November 2 letter also acknowledged that Becky Harris, Renzo's administrative assistant, had engaged in a conversation with Dr. Ledbetter some time before the letter was written in which Dr. Ledbetter "indicated that breeding permits were only given to zoos." Mr. Nielson's letter confirmed that Renzo had knowledge that "[w]hen asked if [Dr. Ledbetter] would provide a denial of the request for a breeding permit in writing, [Dr. Ledbetter] indicated that the October 17 letter was sufficient and there was no need for further discussion." On November 16, 2007, Dr. Ledbetter sent a letter to Mr. Nielson that acknowledged "[t]he State of Idaho will not issue a Propagation Permit to your client." However, a propagation permit was never correctly applied for by Renzo, and therefore there was never an actual denial of a propagation permit application but rather only a statement of intent to deny any such permit.
On December 14, 2007, Renzo filed a petition for judicial review challenging the Department's decision to require sterilization of the tigers and the Department's refusal to issue a propagation permit. On April 24, 2008, the district court issued an order and judgment that the decision of the Department be set aside in its entirety and that the Department "shall, within a reasonable amount of time, adopt criteria and/or rules for which possession and propagation permits are issued and apply these rules and criteria fairly to Petitioner's application." The court based its ruling upon the finding that the Department's "decision was made in the absence of any specific criteria promulgated by the Department for awarding propagation permits." The court also found that the Department's decision exceeded statutory authority, was made upon unlawful procedure, was arbitrary and capricious, and prejudiced Renzo's substantial rights.
Renzo filed a notice of tort claim on May 14, 2008, and a complaint on October 6, 2008. In his complaint, Renzo prayed for monetary damages claiming that the Department breached its duty to exercise ordinary care by refusing to grant possession and propagation permits without a basis in law or fact. Renzo also claimed that the Department acted maliciously and/or recklessly, willfully and wantonly, and/or with gross negligence. Lastly, Renzo claimed that the Department intentionally interfered with his prospective economic advantage. The Department filed a motion to dismiss on January 6, 2009, which the court converted into a motion for summary judgment. On May 27, 2009, the district court entered an order granting summary judgment in favor of the Department. The court entered a final judgment that same day. Renzo filed a notice of appeal with this Court on July 7, 2009.
1. Whether Renzo's notice of tort claim was untimely under ...