Friends of Ruth & Emily, Inc. v. City of New Bedford
Filing
91
Judge William G. Young: ORDER entered. FINDINGS OF FACT AND CONCLUSIONS OF LAW"For these reasons, the Court finds and rules that there has been no violation of the Endangered Species Act. Judgment shall enter for the City.SO ORDERED."(Sonnenberg, Elizabeth)
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 1 of 32
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
JOYCE ROWLEY,
)
Plaintiff,
)
)
v.
)
)
CITY OF NEW BEDFORD,
)
MASSACHUSETTS,
)
)
Defendant.
)
___________________________________)
YOUNG, D.J.
CIVIL ACTION
NO. 17-11809-WGY
September 24, 2019
FINDINGS OF FACT, RULINGS OF LAW, AND
ORDER FOR JUDGMENT
I.
INTRODUCTION
This is a case about elephants -– specifically, Asian
elephants.
Asian elephants . . . usually weigh[] well under
eleven thousand pounds and st[an]d about seven to nine
feet tall at the shoulder, as opposed to African
elephants, who could weigh as much as fifteen thousand
pounds and reach thirteen feet in height. Both male and
female African elephants have tusks, while only some
Asian males have tusks, and none of the females do.
Their body shapes differ, too: Asians are more compact;
Africans lankier, with a more concave back.
The
Africans’ ears are enormous and wide (like maps of
Africa, it’s said) —- the biggest mammal ears in the
world —- while those of the Asian elephant are smaller
and closer to square.
In fact, the African and Asian elephants are not
only separate species but separate genera —- a whole
other level of taxonomic rank, as distinct in genetic
heritage as a cheetah is from a lion. And some say it
shows in their temperaments -- the Africans active and
more high-strung; the Asians more serene.
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 2 of 32
Physically, all elephants are astonishing.
They
are the largest animals walking on land.
And their
appetites are commensurate . . . . , gathering their
food with those incredible trunks. Longer and heavier
than a man, and much, much stronger, the trunks provide
elephants with a sense of smell that may be five times
more acute than that of a bloodhound. And by narrowing
or widening their nostrils like musical instruments,
they can modulate the sound of their voices.
They have extraordinary brains built for memory and
insight, and they use them to negotiate one of the most
advanced and complex societies of all mammals. To those
who have spent time with them, elephants often seem
philosophical and perceptive, and appear to have deep
feelings. They can cooperate with one another and have
been known to break tusks trying to hoist injured
relatives back on their feet. Further, their behavior
suggests they have an understanding of death, something
believed to be rare among nonhuman animals.
Vicki Constantine Croke, Elephant Company: The Inspiring Story
of an Unlikely Hero and the Animals Who Helped Him Save Lives in
World War II 22-23 (Random House 2014).
judicial notice of these facts.
The Court takes
See Fed. R. Evid. 201.
elephants are an endangered species.
Asian
50 C.F.R. § 17.11(h); see
also 41 Fed. Reg. 24062, 24066 (June 14, 1976).
Joyce Rowley (“Rowley”) sued the City of New Bedford
(“City”) under the Endangered Species Act, 16 U.S.C. §§ 15311544.
Am. Compl., ECF No. 47.
She alleged that the City is
harming and harassing two geriatric Asian elephants, Emily and
Ruth, in violation of the Endangered Species Act.
U.S.C. § 1540(g)(1).
See id.; 16
This Court has already determined that
Rowley has standing to pursue this claim.
Rowley v. City of New
Bedford, 333 F. Supp. 3d 30, 39-40 (D. Mass. 2018).
[2]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 3 of 32
II.
THE LEGAL FRAMEWORK
A.
The Endangered Species Act
Congress first enacted the Endangered Species Act, 16
U.S.C. §§ 1531-1544, in December 1973.
Stat. 884 (Dec. 28, 1973).
Pub. L. No. 93-205, 87
The tripartite mission of the
Endangered Species Act is to (1) “provide a means whereby the
ecosystems upon which endangered species and threatened species
depend may be conserved,” (2) “provide a program for the
conservation of such endangered species and threatened species,”
and (3) take appropriate steps to carry out the United States’
commitments in various international treaties and conventions
regarding species conservation.
16 U.S.C. § 1531(b).
Section nine of the Endangered Species Act makes it illegal
for any individual to “take” any endangered species.
§ 1538(a)(1)(B).
16 U.S.C.
The Supreme Court has emphasized evidence that
Congress intended the word “take” to cover “every conceivable
way in which a person can ‘take’ or attempt to ‘take’ any fish
or wildlife.”
Babbitt v. Sweet Home Chapter of Cmtys. for a
Great Or., 515 U.S. 687, 704 (1995) (quoting S. Rep. No. 93-307,
at 7 (1973)).
Far from prohibiting only intentional acts,
section nine reaches “more than the deliberate actions of
hunters and trappers.”
Id. at 705.
The Endangered Species Act itself defines “take” to mean
“harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
[3]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 4 of 32
or collect, or to attempt to engage in any such conduct.”
U.S.C. § 1532(19).
16
Here, Rowley’s claims rely on the
prohibition on harassing and harming endangered species.
See
Am. Compl. ¶¶ 95, 104-30.
The Fish and Wildlife Service, the agency within the United
States Department of the Interior tasked with implementing the
Endangered Species Act, see 16 U.S.C. § 1537a(a), has
promulgated regulations defining the terms “harm” and “harass”
in the context of the Endangered Species Act.
1.
Harming an Endangered Species
The Fish and Wildlife Service defines “harm” in the
definition of “take” in the Endangered Species Act to mean:
[A]n act which actually kills or injures wildlife. Such
act may include significant habitat modification or
degradation where it actually kills or injures wildlife
by
significantly
impairing
essential
behavioral
patterns, including breeding, feeding or sheltering.
50 C.F.R. § 17.3; see also Babbitt, 515 U.S. at 703
(deferring to regulation’s interpretation of “harm”)
(citing Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984)).
2.
Harassment of an Endangered Species
The Fish and Wildlife Service defines “harass” in the
definition of “take” in the Endangered Species Act to mean:
[A]n intentional or negligent act or omission which
creates the likelihood of injury to wildlife by annoying
it to such an extent as to significantly disrupt normal
[4]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 5 of 32
behavioral patterns which include, but are not limited
to, breeding, feeding, or sheltering.
Id.
This definition includes a carve-out that exempts from the
definition of “harass”:
generally accepted: (1) [a]nimal husbandry practices
that meet or exceed the minimum standards for facilities
and care under the Animal Welfare Act, (2) [b]reeding
procedures, or (3) [p]rovisions of veterinary care for
confining, tranquilizing, or anesthetizing, when such
practices, procedures, or provisions are not likely to
. . . result in injury to the wildlife.
Id.
B.
The Animal Welfare Act
Because the City is engaged in animal husbandry practices
with “animals intended . . . for exhibition purposes,” see 7
U.S.C. § 2131, the Animal Welfare Act exclusion applies to
Rowley’s harassment claims.
Before the enactment of the Endangered Species Act,
Congress enacted the Animal Welfare Act, 7 U.S.C. §§ 2131-2159,
Pub. L. No. 89-544, 80 Stat. 350 (Aug. 24, 1966), with the
following goals:
(1) to insure that animals intended for use in research
facilities or for exhibition purposes or for use as pets
are provided humane care and treatment; (2) to assure
the humane treatment of animals during transportation in
commerce; and (3) to protect the owners of animals from
the theft of their animals by preventing the sale or use
of animals which have been stolen.
Id. § 2131.
[5]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 6 of 32
Congress charged the United States Department of
Agriculture (“Department of Agriculture”) with enforcing this
statute.
Id. §§ 2132(b), 2133, 2146.
To implement the Animal
Welfare Act’s protections, the Department of Agriculture
promulgates regulations that set standards for facilities and
care of animals in captivity, see, e.g., 9 C.F.R. §§ 3.125-3.142
(setting standards for the “handling, care, treatment, and
transportation of warmblooded animals other than dogs, cats,
rabbits, hamsters, guinea pigs, nonhuman primates, and marine
mammals”), which it enforces through licensing and compliance
inspections, see 7 U.S.C. § 2146(a).
Unlike the Endangered
Species Act, the Animal Welfare Act does not include a citizen
suit provision.
See Graham v. San Antonio Zoological Soc’y, 261
F. Supp. 3d 711, 737 (W.D. Tex. 2017).
There are at least four recent District Court cases that
have grappled with the interplay between Animal Welfare Act
requirements and the Endangered Species Act’s harassment-based
“take” prohibition.
See Graham, 261 F. Supp. 3d at 739-43
(collecting cases).
The general consensus among these courts is that the
regulations that the Department of Agriculture promulgates
pursuant to the Animal Welfare Act are the substantive standards
by which a court ought assess harassment-based “take” claims
under the Endangered Species Act.
[6]
See id. at 745.
The findings
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 7 of 32
of past inspections by the Animal and Plant Health Inspection
Service (“USDA-APHIS,” the agency within Department of
Agriculture charged with enforcing the Animal Welfare Act) are
relevant to a court’s assessment of whether an entity has
violated the Animal Welfare Act by violating its implementing
regulations but are not dispositive.
See id. at 745-46.
The United States District Court for the Western District
of Texas clearly described the role of USDA-APHIS assessments as
follows:
APHIS determinations of past and present violations (or
a lack thereof) are certainly evidence of [a harassment
finding under the Endangered Species Act], but are
neither necessary to support nor sufficient to warrant
such a finding.
Thus, the regulatory definition of
“harass,” by excluding animal husbandry practices that
comply with the [Animal Welfare Act], does not permit a
finding of no liability simply because of a previous
determination of no [Animal Welfare Act] violation;
instead, it substitutes the compliance standards of the
[Animal Welfare Act] as the substantive standard for
whether an Endangered Species Act violation has
occurred, and requires such a determination to be made
through the typical adversarial process.
Graham, 261 F. Supp. 3d at 745.
The court in Graham thus concluded that a claim that a
zoo has violated the Endangered Species Act by “harassing”
a captive endangered species requires the court to
determine, first, if the zoo’s practices are generally
accepted, and, second, whether the zoo’s practices comply
with the governing Animal Welfare Act regulations.
[7]
Id. at
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 8 of 32
745-46.
“The burden is on the plaintiffs to show that the
Animal Welfare Act’s minimum standards were not met,”
however.
Id. at 741 (citing Kuehl v. Sellner, 161 F. Supp.
3d 678, 718 (N.D. Iowa 2016); Hill v. Coggins, No. 2:13-cv47, 2016 U.S. Dist. LEXIS 42374, at *31-32 (W.D.N.C. Mar.
30, 2016)).
The court held that it was to undertake this
inquiry independently -- considering, but not simply
deferring to –- any prior findings by the USDA-APHIS.
Id.
at 745-46.
The court in Graham further held that “whether the Zoo
committed a take under the Endangered Species Act by
‘harming’ [a captive elephant] is a separate legal issue
requiring a separate analysis of the facts, and is not at
all dependent on [Animal Welfare Act] compliance.”
Id. at
728, 746-48 (citing Kuehl, 161 F. Supp. 3d at 715-16; Hill
v. Coggins, 2016 U.S. Dist. LEXIS 42374, at *31-32). 1
In Kuehl v. Sellner, the District Court for the
Northern District of Iowa found after a bench trial that
the defendants, a rural family-run zoo and its owneroperators, had violated the Endangered Species Act by
harassing captive lemurs and both harming and harassing
1
After the court granted summary judgment on some
harassment-based “take” claims but denied it as to others, the
parties in Graham settled before trial. Order, Civ. A. No.
5:15-cv-01054-XR (W.D. Tex. Dec. 5, 2017), ECF No. 78.
[8]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 9 of 32
captive tigers.
161 F. Supp. 3d at 718.
The court’s
determination that the defendants had harassed the lemurs
and tigers was based on an evaluation of the zoo’s
compliance with the substantive standards in the Animal
Welfare Act’s implementing regulations.
Id. at 710-18.
While some of the conduct that the court found to
constitute harassment had previously been subject to
penalties by the USDA-APHIS for non-compliance, the court
also found harassment in certain conduct that the USDAAPHIS had not found to violate Animal Welfare Act
regulations.
Id.
For example, relying on the plaintiffs’
expert witness, the court found that the social isolation
of the lemurs disrupted their behavioral patterns and thus
constituted a “take” under the Endangered Species Act (even
though the USDA-APHIS had not previously sanctioned the
defendants for any conduct related to the animals’ social
isolation).
Id. at 710-11.
In Hill v. Coggins, the United States District Court
for the Western District of North Carolina found after a
bench trial that the plaintiffs had failed to demonstrate
that the defendants, owners and operators of the Cherokee
Bear Zoo, had harmed or harassed captive grizzly bears
pursuant to the Endangered Species Act.
LEXIS 42374, at *37-38.
2016 U.S. Dist.
In so finding, the court relied on
[9]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 10 of 32
the fact that the plaintiffs had failed to show any
evidence of instances in which the zoo’s treatment of the
grizzly bears had violated any Animal Welfare Act
regulations governing animal treatment.
Id. at *33-34.
The court failed to analyze separately whether the
defendants’ practices were also generally accepted animal
husbandry practices, however.
See id.; 50 C.F.R. § 17.3.
On appeal, the Fourth Circuit corrected this error,
clarifying that the exclusion in the Fish and Wildlife
Service’s definition of “harass” requires that the practice
be both (1) “generally accepted” and (2) compliant with the
Animal Welfare Act to withstand scrutiny under the
Endangered Species Act.
Hill v. Coggins, 867 F.3d 499,
509-10 (4th Cir. 2017).
The United States District Court for the Southern
District of Florida in People for the Ethical Treatment of
Animals, Inc. v. Miami Seaquarium granted summary judgment
for the Seaquarium, concluding that People for the Ethical
Treatment of Animals (“PETA”) had introduced no evidence
that the captive killer whale’s living conditions “gravely
threaten[ed]” her existence, and cast some doubt on the
applicability of the Endangered Species Act to endangered
species in captivity.
189 F. Supp. 3d 1327, 1355 (S.D.
[10]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 11 of 32
Fla. 2016). 2
As the court in Graham noted, this “gravely
threatening” standard exists nowhere in the Endangered
Species Act or Animal Welfare Act or regulations
implementing those statutes, and “was created -- without
citation -- by the PETA court.”
Graham, 261 F. Supp. 3d at
743 (discussing Miami Seaquarium, 189 F. Supp. 3d at 1351).
The Eleventh Circuit affirmed the grant of summary judgment
in Miami Seaquarium, holding that -- while it may not
require a grave risk of death -- “harassment” and “harm”
under the Endangered Species Act require a “threat of
serious harm.”
People for the Ethical Treatment of
Animals, Inc. v. Miami Seaquarium, 879 F.3d 1142, 1144,
1147-50 (11th Cir. 2018) (per curiam). 3
2
In People for the Ethical Treatment of Animals, Inc. v.
Tri-State Zoological Park of W. Md., Inc., the United States
District Court for the District of Maryland rejected the Miami
Seaquariam court’s reasoning on the potential conflict between
the Endangered Species Act and the Animal Welfare Act as they
pertain to endangered species in captivity. See Civ. A. No.
MJG-17-2148, 2018 U.S. Dist. LEXIS 6638, at *11-14 (D. Md. Jan.
16, 2018). The Maryland District Court noted that the Miami
Seaquarium logic represented a minority view among district
courts to have addressed the issue, and one that the Fourth
Circuit repudiated in Hill v. Coggins, 867 F.3d at 510. TriState, 2018 U.S. Dist. LEXIS 6638, at *11-14.
3
The Miami Seaquarium case is less relevant than others the
Court addresses here because it analyzed the living conditions
of marine mammals, which the National Marine Fisheries Service
regulates, instead of the Fish and Wildlife Service. See 189 F.
Supp. 3d at 1333.
[11]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 12 of 32
In responding to a challenge to the Tri-State Zoo in
Maryland, the United States District Court for the District
of Maryland ruled that PETA’s allegations that the zoo
housed lemurs, tigers, and a lion in an inappropriate
social setting; failed to provide adequate enrichment to
lemurs, tigers, and a lion; failed adequately to protect
lemurs, tigers, and a lion from the elements; and failed to
provide adequate veterinary care to a lion plausibly stated
a claim for a harassment- or harm-based “take” violation of
the Endangered Species Act.
People for the Ethical
Treatment of Animals, Inc. v. Tri-State Zoological Park of
W. Md., Inc., 2018 U.S. Dist. LEXIS 6638, at *15-18.
The
Maryland District Court later granted partial summary
judgment to PETA, 2019 U.S. Dist. LEXIS 112366, at *1 (D.
Md. July 8, 2019), ruling that “the zoo unlawfully took
Cayenne,” a tiger, through a “lack of basic veterinary
care,” id. at *18-19.
In sum, this Court must determine whether the City is
harming or harassing Ruth and Emily pursuant to the Endangered
Species Act.
If any of the City’s intentional or negligent
conduct “creates the likelihood of injury to [the elephants] by
annoying [them] to such an extent as to significantly disrupt
normal behavioral patterns which include, but are not limited
to, breeding, feeding, or sheltering,” that conduct constitutes
[12]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 13 of 32
a “take” and violates the Endangered Species Act, unless the
conduct is a generally accepted and Animal Welfare Act-compliant
animal husbandry practice.
See 50 C.F.R. § 17.3.
In addition,
the City has committed a “take” if its conduct “actually kills
or injures” the elephants.
See id.
III. FINDINGS OF FACT
The City owns and operates the Buttonwood Park Zoo.
The
zoo is an Association of Zoos and Aquariums accredited
institution.
Trial Tr. Day 3 at 39:14-18, ECF No. 77.
In April 1968, the City purchased Emily, a four-year-old
Asian elephant, from Southwick’s Zoo (then the Mendon Animal
Farm), and transferred her to the Buttonwood Park Zoo.
Trial
Ex. 4, Association Zoos & Aquariums Elephant Profile Form & City
New Bedford Board Park Commissioners Letter Dec. 31, 1967
(“Emily Profile & Board Park Commissioners 1967 Letter”) 1, 6.
There is no evidence to suggest Emily was anything but a
healthy, young elephant at the time of the City’s purchase.
See
Trial Tr. Day 3 at 43:25-44:2.
About fifteen years later, however, when Dr. Michael Ryer
arrived at the zoo to become a zookeeper, he found that Emily
“was not behaviorally adjusted well at all.”
92:11, ECF No. 75.
Trial Tr. Day 1 at
Her living conditions in 1982 were not
acceptable, according to veterinarian Dr. Ryer; she was chained
in the barn sixteen hours a day on a concrete floor with poor
[13]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 14 of 32
drainage and no ventilation.
Id. at 93:6-19.
When Emily
returned from her training stay at a zoo in Louisiana, however,
she was a changed elephant -- she was able to “be worked without
fear of . . . one of the keepers getting hurt,” Trial Tr. Day 2
at 18:19-20, ECF No. 76, and she returned to improved living
quarters, Trial Tr. Day 1 at 106:9-11.
Ruth is the hard luck elephant.
She is somewhat older and
a bit (a thousand pounds) smaller than Emily.
Trial Tr. Day 1
at 101:24-25; Trial Tr. Day 3 at 78:21-79:6, 80:2-10; Trial Ex.
5, Association Zoos & Aquariums Elephant Profile Form & Arrival
Report (“Ruth Profile & Arrival Report”) 1.
Farm in New Hampshire once owned her.
Benson’s Animal
Ruth Profile & Arrival
Report 1.
In 1986, she was found abandoned in a truck on a dump site
in Danvers, Massachusetts.
85:12-17.
Id. at 5-6; Trial Tr. Day 2 at
The Animal Rescue League of Boston apparently took
her from there.
Ruth Profile & Arrival Report 5, 7.
A United
States Department of the Interior report from the time she was
seized indicates that Ruth suffered several ailments: her ear
condition was fair, with one hole and ragged edges on each ear;
her skin was fair to poor; her tail and skin had an extreme
build-up of necrotic tissue; she had scars on her legs
(indicative of excessive chain wear) and chin (more than twenty
hook scars); and she was underweight, among other issues.
[14]
Id.
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 15 of 32
at 5-6.
This report further noted that Ruth was a “striker,
hitter, but not to the point of killing,” and “[r]epeatedly
struck out at keepers.”
Id.
Ruth’s trunk was of particular concern when she was
rescued.
The 1986 report stated that Ruth had “[l]ittle control
of dist[a]l area; no fine control of finger; appears paralyzed
in proximal area and peduncle; must use head to swing trunk.
Does appear to affect her ability to feed.”
Id. at 6.
The City soon took possession of Ruth.
Id. at 7.
Dr.
Ryer, then a zookeeper at the City’s zoo, confirmed Ruth’s
partial trunk paralysis and overall poor health upon her arrival
at the Buttonwood Park Zoo elephant habitat.
Trial Tr. Day 1 at
97:4-10.
In the City’s care, Ruth has become docile and, at least in
the eyes of the City’s zookeepers, 4 she appears affectionate and
warmly responsive to her treatment.
See Trial Tr. Day 2 at
22:7-17, 77:11-78:6.
Emily is now fifty-five years old.
Park Commissioners 1967 Letter 1.
Emily Profile & Board
Aside from a brief period
from November 1983 to July 1985, when she went to Baton Rouge,
4
Experts caution against anthropomorphizing elephant
behavior and attributing to them human emotions. What is clear
is that both zookeepers and attending veterinarians are
affectionate toward both Emily and Ruth.
[15]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 16 of 32
Louisiana for training (during which time the City renovated her
barn), Emily Profile & Board Park Commissioners 1967 Letter 1;
Trial Tr. Day 1 at 93:21-24, 96:7, Emily has resided at the
Buttonwood Park Zoo, for apparently forty-nine of her fifty-five
years.
Id. 5
Ruth, however, was approximately twenty-eight years old
when she was rescued by the Animal Rescue League of Boston,
seized by the United States Department of the Interior, and
delivered into the City’s care.
1, 5.
Ruth Profile & Arrival Report
She is thus approximately sixty-one years old and has
resided at the Buttonwood Park Zoo for the last thirty-three
years, together with Emily.
Id.
Emily and Ruth are thus among the oldest living Asian
elephants in a zoo setting in America.
See Trial Ex. 15, Robert
J. Wiese & Kevin Willis, Calculation of Longevity and Life
Expectancy in Captive Elephants, 23 Zoo Biology 365-73 (2004)
(estimating average life expectancy for Asian elephants in
captivity in North America at 44.8 years).
5
Indeed, because Emily’s captivity predates the
classification of Asian elephants as endangered in 1976 and the
Endangered Species Act itself in 1973, some of the Endangered
Species Act’s protections may not apply to her. See 16 U.S.C.
§ 1538(b). Critically, however, the Endangered Species Act’s
prohibition on taking does protect Emily. See id.; Am. Soc’y
for the Prevention of Cruelty to Animals v. Ringling Bros. &
Barnum & Bailey Circus, 502 F. Supp. 2d 103, 107-10 (D.D.C.
2007).
[16]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 17 of 32
Over the years Emily and Ruth have spent at the City Zoo,
elephant husbandry has undergone a near complete reversal.
Years ago, elephants were managed by guides or bullhooks -think a maharajah’s mahout with his goad.
Touching the elephant
at a guidepoint with the guide led a trained elephant to exhibit
the desired behavior; i.e. moving, stopping, and the like.
Advanced training might include kneeling, stepping up on a
pedestal, raising one or two legs, holding a banner in her trunk
-- you get the idea.
Today, the zookeepers allow the elephants to roam at will
throughout the zoo’s habitat, which seeks to replicate -- as far
as possible -- the elephants’ natural surroundings.
Elephants
are enticed by the prospect of forage out of their barn to allow
for its cleaning.
kept to a minimum.
Today, human contact with the elephants is
While the elephant caretakers routinely have
“hands-on” contact with the elephants, they do so almost
exclusively “through a protective barrier.”
Trial Ex. 16,
Elephant Mgmt. Policy & Elephant Keeper Handbook (Buttonwood
Park Zoo 9th ed. 2018) 4, 9.
But see Trial Ex. 17, Buttonwood
Park Zoo Protocols for Sharing Unrestricted Space with Elephants
2018.
Rowley faults the City for being behind the curve in every
respect.
The Court finds the contrary to be true.
Indeed,
commendably, the City has supported its zoo with an adequate
[17]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 18 of 32
budget; has attracted a cadre of dedicated, professional,
empathetic, and innovative zookeepers; and has employed top
notch veterinarians wherever necessary.
The pace of change at
the City Zoo has been commensurate with the evolution of
elephant husbandry.
Hydraulic fences limn the elephant stalls
within their barn, allowing the elephants to move as the
zookeepers desire without the need for guides.
The barn’s
concrete floor has been covered with thick sand (easier on the
elephants’ feet), and sand is banked up against one wall of each
stall so an elephant at rest leans against a sand bank rather
than kneeling and lying down (more difficult for geriatric
elephants with aging joints).
Outside, forage is made available
not only on the ground but on a raised, lattice-like wooden
structure which seeks to replicate the elephant’s natural
environment and encourages her to exercise her trunk to seek out
food where it would normally be found in the forest.
The zoo’s accomplishments are not, however, an unbroken
record of evolving improvements (although this is generally so).
The elephant barn lacks a hydraulic hoist (to lift an elephant
if necessary in case of injury or sickness), and the roof still
leaks (although not over the animal spaces).
human negligence is not unknown.
More seriously,
In January 2014, the door to
the elephant barn was left unlocked and Ruth wandered out into a
New England blizzard, suffering frostbite to her ears, vulva,
[18]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 19 of 32
and tail.
Trial Ex. 19, USDA Settlement Agreement 3; see also
Trial Tr. Day 2 at 90:9-91:13.
There are larger issues as well.
Asian elephants range
naturally across the Indian sub-continent 6 and throughout
Southeast Asia 7 and the Indonesian archipelago.
Now New Bedford,
Massachusetts has many fine attractions, but lush tropical
forests and mangrove swamps are not among them.
The elephant
habitat at the City Zoo is somewhat larger than 3/4 of an acre
and, while one could possibly conjure the dusty Deccan plains
(ignoring the New England white oaks), by no stretch of the
imagination could anyone believe these two elephants live in
their “natural” surroundings.
The zookeepers ensure that Emily and Ruth have delicacies
like bamboo in addition to their normal diet of hay and
livestock grains.
See Trial Tr. Day 3 at 32:22-33:14; Trial Tr.
Day 2 at 70:7-10.
Moreover, in collaboration with the
Massachusetts College of Art and Design, the zookeepers have
6
Alexander faced Porus’ Asian elephants at the Hydaspes in
326 B.C.E. The British used them as pack animals on the march
from Kandahar to Kabul during the ill-fated invasion of
Afghanistan, 1839-1842. See William Dalrymple, Return of a King
(Knopf 2013); George MacDonald Fraser, Flashman (Plume 1984).
7
See Croke, supra. For a sensitive, albeit Western,
discussion of the terrain and its peoples, see generally the
distinguished author John Masters, Bugles and a Tiger (Viking
1956) and The Road Past Mandalay (Harper 1961), the
autobiography of his service in the 4th Gurkha Rifles in the old
Indian Army.
[19]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 20 of 32
developed “toys” for the elephants which are intended to
maximize elephant dexterity.
xylophone.
Emily is said to favor the
See Trial Tr. Day 3 at 37:13-39:6; Laura Crimaldi,
MassArt Students Create Toys for Elephants at New Bedford Zoo,
Boston Globe (May 13, 2019), https://www.bostonglobe.com/metro/
2019/05/13/massart-students-create-toys-for-elephants-newbedford-zoo/EGB79VBrsiZB3TgUjpmpnO/story.html.
None of this will do, says Rowley, arguing that Emily and
Ruth ought be transported to a 34,000 acre elephant sanctuary in
Tennessee to live out the remainder of their lives in a setting
more closely resembling their natural habitat.
She is in good company.
Am. Compl. ¶ 97.
See Charles Seibert, The Swazi 17, N.Y.
Times Mag. 26-33, 42, 45 (July 14, 2019) (arguing that elephants
ought not be kept in captivity at all).
Important as these larger issues may be, they are beyond
the purview of this Court, immaterial because they are of no
legal consequence to the outcome of this action.
Evid. 401.
See Fed. R.
This is an action under the citizen suit provision
of the Endangered Species Act.
16 U.S.C. § 1540(g).
That Act,
as the Fish and Wildlife Service has authoritatively interpreted
it and in conjunction with the Animal Welfare Act, contemplates
that endangered species may be kept in captivity.
See 50 C.F.R.
§ 17.3 (excluding from the definition of “take,” as “applied to
captive wildlife,” “generally accepted” husbandry practices
[20]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 21 of 32
satisfying Animal Welfare Act standards); 7 U.S.C. § 2131
(explaining that the Animal Welfare Act is designed to “to
insure that animals intended for . . . exhibition purposes . . .
are provided humane care and treatment”).
The reference
standard for an endangered species in captivity is not a goal
requiring the least restrictive environment or the most natural
possible setting.
Rather, it is generally accepted and
appropriate animal husbandry.
See 50 C.F.R. § 17.3.
This is a
familiar concept, taught by 4-H groups to youth across the
nation.
When I was growing up, the Boy Scouts offered a merit
badge in Animal Industry.
See Boy Scouts of America, Handbook
for Boys 509 (New York: Boy Scouts of America, 1943).
Therefore, important as the questions posed by Rowley and
Seibert may be, this Court eschews analyzing them and, having
made its findings of fact, turns to the specific legal issues
which require the Court’s attention.
The Court will make
additional, issue-specific findings where necessary.
IV.
RULINGS OF LAW
A.
Veterinary Care
By mandate of the Code of Federal Regulations, “[e]ach
. . . exhibitor shall have an attending veterinarian who shall
provide adequate veterinary care to its animals.”
§ 2.40(a).
9 C.F.R.
The attending veterinarian must be employed
“under formal arrangements,” id. § 2.40(a)(1), and must have the
[21]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 22 of 32
authority to provide and oversee adequate care, id.
§ 2.40(a)(2).
In addition, the “exhibitor shall establish and
maintain programs of adequate veterinary care that include . . .
[t]he use of appropriate methods to prevent, control, diagnose,
and treat diseases and injuries, and the availability of
emergency, weekend, and holiday care.”
Id. § 2.40(b).
A zookeeper inspects Ruth and Emily each morning and
completes a “Daily Animal Health Checklist.”
46:10-47:17.
Trial Tr. Day 1 at
If any issue comes up, the zookeeper gets in touch
with the Zoo’s “elephant manager and the vet staff, the staff
veterinarian or even the vet technician” promptly to resolve it.
See id. at 47:7-17.
From at least 2000 to 2005, the City employed a full-time
on-site veterinarian at the Buttonwood Park Zoo, Dr. Ryer.
at 112:8-11, 115:15.
Id.
It is not clear when in the course of the
next ten years the City employed a full-time on-site
veterinarian, but the Zoo regularly called in Dr. Ryer for a
consultation when medical issues arose.
119:1.
See id. at 118:13-
One witness testified that when the City employed no
full-time on-site veterinarian, it contracted with a
veterinarian who would visit the elephants once per week.
See
id. at 47:18-48:3.
As of July 30, 2015, the City once again employed a fulltime on-site veterinarian, Dr. Elizabeth Arnett-Chinn.
[22]
Trial
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 23 of 32
Ex. 8, Independent Panel Review Buttonwood Park Zoo Elephant
Program (“Independent Panel Review”) 3.
Although she
subsequently resigned, the record also reflects that the City
employed a full-time on-site veterinarian in 2018, see Trial Ex.
10, Final Report Visiting Committee Accreditation Commission
(“Final Report Accreditation Commission”) 8, and also did so at
the time of the trial, see Trial Tr. Day 1 at 47:18-23.
In 2016, Ruth developed a severe gastrointestinal issue.
Absent competent and professional veterinary care, there was a
strong probability she would die.
24:8, 27:3-9.
Trial Tr. Day 2 at 22:24-
The City provided such care, providing not only
care through the Zoo’s staff veterinarian but flying in a
renowned large animal veterinarian from Tennessee to care for
Ruth.
Id. at 24:13-25:8.
re-hydrate Ruth.
The medical team employed enemas to
Id. at 25:13-22.
This process consisted of
injecting 30 to 60 gallons of an electrolyte solution into the
elephant’s rectum three or four times a day for one week using
clean 30-gallon trash buckets and a hose.
Id. at 25:13-26:6.
Ruth was compliant throughout the entire process, despite
simultaneously undergoing other procedures such as having her
blood drawn, a fact that the veterinarian attributed to her own
positive relationship with Ruth and to the elephant’s trust in
the zookeepers.
Id. at 26:10-27:2.
[23]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 24 of 32
Ruth also receives phenylbutazone, a non-steroidal antiinflammatory medication that treats her arthritis.
Trial Tr.
Day 1 at 129:1-10; Trial Tr. Day 2 at 4:20-5:5.
As the findings above exemplify, Ruth (and Emily) have
received and are receiving adequate veterinary care in all the
respects required by 9 C.F.R. § 2.40.
The City’s veterinary
care practices were “generally accepted,” 50 C.F.R. § 17.3,
given that a qualified professional oversaw them, and, in times
of unusual crisis, profitably consulted with between five and
ten “elephant veterinarians around the country.”
2 at 24:11-20.
Trial Tr. Day
The veterinary care that Ruth and Emily receive
does not “actually injure” them.
See 50 C.F.R. § 17.3.
Thus,
this Court rules that the City has provided generally accepted,
Animal Welfare Act-compliant veterinary care for Ruth and Emily.
The City’s veterinary care for Ruth and Emily neither harms nor
harasses them.
B.
Food and Shelter
The Court finds and rules that Emily and Ruth are provided
wholesome, palatable food free from contamination in sufficient
quantity and nutritive value to maintain them in good health.
Trial Tr. Day 3 at 33:2-14. Thus, the City complies with
applicable nutrition regulations.
See 9 C.F.R. § 3.129(a) (“The
food shall be wholesome, palatable, and free from contamination
and of sufficient quantity and nutritive value to maintain all
[24]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 25 of 32
animals in good health.”).
Further, the Visiting Committee to
the Accreditation Commission of the Association of Zoos and
Aquariums found in 2018 that the Buttonwood Park Zoo provides
the animals in its care with “diets of adequate quality and
quantity” that are “prepared and stored hygienically” and
“provided in a way that promotes the physical and psychological
well-being of the animals,” which supports the Court’s
conclusion that the elephants’ diet is also generally accepted.
See Final Report Accreditation Commission 10.
Regarding shelter, the Code of Federal Regulations requires
that elephants, among other warmblooded animals, be housed in
“structurally sound” facilities “in good repair,” 9 C.F.R.
§ 3.125(a), with adequate water and power, id. § 3.125(b), as
well as proper means of storing food, disposing of waste, and
maintaining cleanliness, id. § 3.125(c)-(e).
The City’s outdoor
facilities must provide the elephants shelter from bothersome
sunlight and inclement weather, while being properly drained and
fenced.
Id. § 3.127.
And there must be enough “space to allow
each animal to make normal postural and social adjustments with
adequate freedom of movement.”
Id. § 3.128.
The Zoo’s elephant barn is appropriate to the local New
Bedford climatic conditions and is otherwise suitable for
housing these two elephants.
While USDA-APHIS sanctioned the
City in 2014 for allowing Ruth to get out during a blizzard, see
[25]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 26 of 32
Trial Ex. 1, Citation & Notification of Penalty; Trial Ex. 19,
USDA Settlement Agreement 3; Trial Tr. Day 2 at 90:9-12, the
City has since made substantial renovations to the barn, and no
such incident has recurred.
Commission 27.
See Final Report Accreditation
Specifically, each elephant has adequate freedom
of movement within the barn and sufficient space to stand,
drink, and sleep.
See id.; Trial Tr. Day 1 at 36:10-24
(zookeeper testifying to automated water system in barn that
Ruth and Emily can reach with their trunks); Trial Tr. Day 2 at
68:13-24.
Further, the City provides shelter to Ruth and Emily that
is in accordance with generally accepted animal husbandry
practices.
See Final Report Accreditation Commission 7.
The Court thus rules that the City fully complies with 9
C.F.R. §§ 3.125, 127, 128, & 129. 8
The City’s accreditation by
the Association for Zoos and Aquariums, which sets standards for
animal care above the minimum standards required by Animal
Welfare Act regulations, supports the Court’s conclusion that
the shelter and food that the City provides the elephants are
consistent with generally accepted animal husbandry practices
8
The Court rules only on Rowley’s request for prospective
relief. See Am. Compl. ¶¶ 104-06. Although the Court observes
that Ruth’s frostbite may have constituted “harm” under the
Endangered Species Act, the Court holds that the City is not
causing Ruth “harm” today. See Final Report Accreditation
Commission 27.
[26]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 27 of 32
and do not harm or harass them.
See Final Report Accreditation
Commission 7, 10; Trial Tr. Day 3 at 39:14-18.
C.
Social Opportunities and Enrichment
The Department of Agriculture has not promulgated any
regulations imposing standards for socialization and enrichment
for the psychological wellbeing of animals that are not
primates.
Cf. 9 C.F.R. § 3.81; Kuehl, 161 F. Supp. 3d at 710-11
(ruling that keeping lemurs -- primates -- in social isolation
was harassment).
In addition, the parties have not introduced
evidence that maintaining two Asian elephants in captivity
together satisfies the “generally accepted” standard in the
captive wildlife exclusion to a harassment-based take.
See 50
C.F.R. § 17.3.
Thus the Court considers whether a lack of social
opportunities for Ruth and Emily amounts to a “take” under the
Endangered Species Act, which is to say, “an act which actually
kills or injures wildlife” or “an intentional or negligent act
or omission which creates the likelihood of injury to wildlife
by annoying it to such an extent as to significantly disrupt
normal behavioral patterns which include, but are not limited
to, breeding, feeding, or sheltering.”
See id.
Emily and Ruth (female Asian elephants) are the only two
elephants in the care of the City.
Although Emily and Ruth may
well feel lonely at times, the evidence does not establish that
[27]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 28 of 32
the City’s actions have significantly disrupted their normal
behavioral patterns in an injurious manner. 9
As for enrichment, the general fact-finding above limns the
innovative efforts of the City’s zookeepers to enrich the
elephants’ existence.
In Kuehl, the court held that captive
9
A significant area of dispute at trial was whether Emily
and Ruth engage in stereotypic behaviors. Stereotypic behaviors
are behaviors with no purpose, Trial Tr. Day 1 at 41:5-9, which
can indicate a captive animal’s mental stress, see Graham, 261
F. Supp. 3d at 717-18. Rowley suggests that Ruth’s and Emily’s
repetitive behaviors are “abnormal behavior” and thus are per se
evidence that the City’s actions or inaction “significantly
disrupt [their] normal behavioral patterns,” 50 C.F.R. § 17.3.
See, e.g., Trial Tr. Day 1 at 7:20-8:2.
If the evidence leaned in favor of a conclusion that Ruth
and Emily regularly do engage in stereotypic behaviors, not just
normal anticipatory ones, that could be evidence of harm or
harassment under the Endangered Species Act. Cf. Graham, 261 F.
Supp. 3d at 749.
Rowley elicited evidence at trial that Ruth and Emily
engage in the behaviors of swaying, bobbing, and pacing. See
Trial Tr. Day 1 at 42:4-12, 73:20-74:11. She failed, however,
to prove that these behaviors are stereotypic.
The evidence at trial was mixed at best as to whether Ruth
and Emily engage in stereotypy. See, e.g., Trial Tr. Day 1 at
39:10-40:8 (zookeeper describing Ruth and Emily’s swaying,
bobbing, and pacing as anticipatory, not stereotypic, behavior);
id. at 42:4-19 (same); id. at 73:20-74:6 (former elephant keeper
testifying that the elephants’ “swaying” is a result of them
“trying to get our attention” and is thus more “anticipatory”
than “stereotypic[]”); Trial Tr. Day 3 at 113:6-114:17 (Rowley
describing video footage of Emily and Ruth while eating and
swaying as “stereotyping”).
Rowley failed to carry her burden of proving that Ruth and
Emily regularly engage in stereotypic behaviors, and, moreover,
did not prove that the City’s action or inaction caused the
behaviors that she describes as stereotypy. Accordingly, the
Court cannot rule that the elephants’ repetitive behaviors
evidence that the City has actually injured them or
significantly disrupted their normal behavioral patterns.
[28]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 29 of 32
tigers were not harassed or harmed by a psychologically dull
environment even when they were provided only “nominal”
enrichment.
impoverished.
161 F. Supp. 3d at 718.
Emily and Ruth are not so
The Court rules that the City follows adequate
and generally accepted animal husbandry practices in these
regards.
Moreover, there is insufficient evidence to establish
the likelihood of significant disruption of normal behavioral
patterns.
D.
Failure to Protect Ruth
This is the most difficult issue in this case.
Rowley claims that the City has allowed Ruth to be harassed
and harmed over the years through Emily’s aggressive actions
toward her.
tail.
Indeed, years ago, Emily bit off the tip of Ruth’s
Trial Tr. Day 1 at 63:5-25.
Years later, after the
frostbite incident, when Ruth’s tail was bandaged up, Emily
(perhaps out of curiosity) used her trunk to toy with the
bandage, causing Ruth to squeal in apparent pain and move away.
Sporadically over the years there have been incidents where,
while Ruth has been peacefully feeding, Emily has come up and
shouldered her out of the way in order to enjoy that particular
foodstuff herself.
There is ample available food and Ruth,
although dispossessed, shambles off to feed elsewhere.
not malnourished.
[29]
Ruth is
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 30 of 32
Rowley, albeit a keen and frequent visitor to the City’s
elephants, is neither a zookeeper nor a veterinarian.
She
characterizes these incidents as “attacks” by Emily upon Ruth.
The zookeepers consider them normal dominant animal behavior
(Emily being the larger and heavier elephant).
Tr. Day 1 at 60:17-18, 62:20-25, 64:1-65:18.
See, e.g. Trial
The skilled
veterinarians who testified tend to side with the zookeepers but
are quick to point out that only a specialist in elephant
behavior could give a sound answer.
Under the Fish and Wildlife Service’s regulations, to
“harm” an endangered species means intentionally or negligently
to engage in “an act which actually kills or injures wildlife,”
and encompasses conduct “significantly impairing essential
behavioral patterns, including breeding, feeding, or
sheltering.” 50 C.F.R. § 17.3.
As stated above, to “harass”
such a species means:
[a]n intentional or negligent act or omission which
creates the likelihood of injury to wildlife by annoying
it to such an extent as to significantly disrupt normal
behavioral patterns which include, but are not limited
to, breeding, feeding, or sheltering.
Id.
One may thus violate the “harassment” requirement without
actually causing “harm” to wildlife.
See Hill, 867 F.3d at 511
(observing that “the regulatory definition of harass contains
requirements that are less demanding . . . than are the
requirements contained in the regulatory definition of harm”).
[30]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 31 of 32
In the absence of directly applicable expert testimony
about elephant behavior, and recognizing that Rowley bears the
burden of proof, this Court concludes that she has not proved
that the City was harassing or harming Ruth in violation of the
law by negligently allowing Emily to attack her.
Then, a few days ago, Rowley filed a “motion to confiscate”
in which she raises some new and disturbing allegations, viz. as
a result of increased elephant conflict, the City’s zookeepers
have restricted Ruth’s access to the outer barn, causing her
emotional and physical distress.
Mem. Favor Confiscation
(“Confiscation Mem.”), ECF No. 86; see also Suppl. Mem. Favor
Forfeiture, ECF No. 90.
Even as alleged by Rowley, it appears that the City’s
response is precisely what responsible elephant management
requires.
Rowley’s allegations in the motion to confiscate
suggest that the zookeepers have decided to provide separate
feedings to the two elephants to ensure that Ruth gets adequate
nutrition despite Emily’s displacement behaviors, see Trial Tr.
Day 2 at 95:4-96:15.
Confiscation Mem. 3.
Rather than proving
that the City fails to protect Ruth from Emily’s aggression, see
id., these allegations demonstrate that the City is proactively
responding to changes in the social dynamic between the two
elephants to ensure that both animals are comfortable and are
able to meet their needs to the extent possible.
[31]
Case 1:17-cv-11809-WGY Document 91 Filed 09/24/19 Page 32 of 32
Some of Rowley’s allegations in her latest motion raise
some concerns for the Court about the City’s provision of
adequate shelter during the summer months.
Rowley ¶¶ 6-7, 10-14, ECF No. 87.
See Aff. Joyce
expert, however, nor is this Court.
Rowley is not an elephant
Accordingly, Rowley’s
allegations here do not suffice to persuade the Court that it
ought revise its rulings in this case.
V.
CONCLUSION
For these reasons, the Court finds and rules that there has
been no violation of the Endangered Species Act.
Judgment shall
enter for the City.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
[32]
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?