Graham et al v. San Antonio Zoological Society

Filing 74

ORDER GRANTING IN PART AND DENYING IN PART 53 Motion for Summary Judgment; DENYING 59 Motion to exclude; GRANTING IN PART AND DENYING IN PART 61 Motion to exclude expert opinion testimony of Scott Blais. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JAMES GRAHAM, ET AL.,
Plaintiffs,
v.
SAN ANTONIO ZOOLOGICAL
SOCIETY,
Defendant.

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Civil Action No. SA-15-CV-1054-XR

ORDER
On this date, the Court considered the status of the above captioned case, along with its
three pending motions. After careful consideration, the Court DENIES the Zoo’s Motion to
Exclude Expert Opinion Testimony of Dr. Philip Ensley (Docket no. 59), GRANTS IN PART
AND DENIES IN PART the Zoo’s Motion to Exclude Expert Opinion Testimony of Scott Blais
(Docket no. 61), and GRANTS IN PART AND DENIES IN PART the Zoo’s Motion for
Summary Judgment (Docket no. 53).
BACKGROUND
I.

Introduction
Lucky is an endangered Asian elephant that since 1962 has lived at the San Antonio
Zoological Gardens and Aquarium, a facility operated by Defendant San Antonio Zoological
Society (“the Zoo”). Plaintiffs in this lawsuit are a group of San Antonio residents who have
frequently visited the Zoo, and particularly Lucky, over the years. They allege that they have
formed emotional bonds with Lucky, but that seeing her allegedly poor living conditions at the
Zoo has caused them to suffer aesthetic harms, requiring them to choose between not visiting
Lucky at all or visiting her but again suffering these aesthetic harms.
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Plaintiffs allege that the Zoo has violated Section 9 of the Endangered Species Act
(“ESA”) by unlawfully “taking” an endangered species, which is defined to include “harming”
and “harassing” such a species. Plaintiffs allege four ways in which the Zoo is harming and
harassing Lucky in violation of the ESA: (1) keeping her alone without any Asian elephant
companions; (2) keeping her in a small enclosure which fails to meet minimum size standards set
by the Association of Zoos and Aquariums (“AZA”); (3) depriving her of adequate shelter from
the sun; and (4) forcing her to live on a hard, unnatural, species-inappropriate substrate. Docket
no. 1 at 15, 18, 19, 20. Plaintiffs seek a declaration that the Zoo’s current treatment of Lucky
violates Section 9 of the ESA and request that this Court grant injunctive relief by either ordering
the transfer of Lucky to an elephant sanctuary in Tennessee or alternatively ordering the Zoo to
remedy its treatment of Lucky.
II.

Procedural History
Plaintiffs filed their original complaint on December 1, 2015. Docket no. 1. On
December 23, the Zoo filed a motion to dismiss, which this Court denied on January 27, 2016.
Docket nos. 8, 16. The case proceeded through discovery; fact discovery closed on November 1,
2016, and expert discovery closed on March 6, 2017.
There are currently three pending motions, all of which were filed by the Zoo. By two of
these motions, the Zoo seeks to exclude the opinions of the Plaintiffs’ experts—Dr. Philip
Ensley, a veterinarian, and Scott Blais, an expert on captive elephant behaviors. Docket nos. 59
(Ensley Motion), 61 (Blais Motion). The third motion is the Zoo’s motion for summary
judgment. Docket no. 53. All motions are fully briefed.
The Zoo argues that it is entitled to summary judgment for numerous reasons: (1) the
Animal Welfare Act (“AWA”), rather than the ESA, governs the treatment of animals in

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captivity, such as Lucky, and the AWA contains no citizen-suit provision; (2) the Zoo’s conduct
does not, as a matter of law, constitute “harm” or “harassment” under the ESA because it is not
“gravely threatening”; (3) the Zoo’s simple possession of Lucky does not violate the ESA; (4)
Plaintiffs’ requested injunctive relief of transfer of Lucky to an elephant sanctuary is legally
inappropriate because the ESA does not provide for a forfeiture remedy; and (5) Plaintiffs’
claims lack factual support. The Zoo’s first and second arguments fail as a matter of law. The
Court need not reach the third argument and the fourth argument can be addressed at trial if
necessary. The Zoo succeeds in part on the fifth argument.
III.

Lucky’s Health, Care, and Well-Being
a. Age
Lucky, at 57 years old, is considered geriatric by elephant standards, and is equivalent to
a 90 year-old human. Docket no. 53-2 at 5. The median life expectancy for an Asian elephant
living in North America is 46 years old, and Lucky is the tenth oldest living Asian elephant in
North America out of 210. Id.
b. Care
Lucky’s care team has five members. Docket no. 53-2 at 8. Officially titled “animal care
specialists,” these team members have progressed through the ranks of novice and handler,

ultimately becoming trainers. Id. at 8–10. These specialists engage in daily enrichment activities
with Lucky, bathe her, train her, and provide foot care. Id. at 9, 11. Two members of this team
are Randee Gonzalez, the Zoo’s elephant manager who has cared for Lucky since 1998, and
Mike Huff, the Zoo’s senior elephant keeper who has cared for Lucky since 2006. Id. at 4;
Docket no. 53-6 at 3.

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The Zoo has a separate staff of three full-time veterinarians. Docket no. 53-3 at 3–4. The
Zoo’s veterinary director is Dr. Rob Coke, who has been in this position since August 2002.
Docket no. 53-3 at 4. Doctors Debbie Meyers and Adriana Pastor began working at the Zoo in
the second half of 2016. Id. at 3. The veterinary staff performs an annual physical on Lucky, at
which they examine her teeth and oral cavity, examine her whole body by making her walk, and
conduct radiographs on her feet. Docket no. 53-4 at 3–4. The staff also washes her trunk and
takes fecal samples on an annual basis. Id. at 4–5. About four times per year, the veterinary staff
takes blood samples. Id. If Lucky’s health at a particular time requires more frequent attention
than the hour-long, annual physical, the staff performs further work as-needed. Id. at 3–5.
c. Health
Lucky has several health problems. Some of these problems are not at issue in this
lawsuit, and will not be discussed in this order. 1 Lucky’s other issues and their causes, however,
are the crux of this dispute.
i.

Lucky’s Mental Health (and its Physical Manifestations)

The parties dispute whether Lucky engages in “stereotypic behavior,” which Dr. Ensley,
Plaintiffs’ veterinary expert, explains is “repetitive meaningless activity the result of inadequate
mental stimulation, depression, frustration, and dysfunction causing as well repetitive motion
injury.” Docket no. 70-1 at 8. Dr. Ted Friend, an expert on animal science for the Zoo, defines
stereotypic behavior similarly. Docket no. 70-4 at 5.
The Zoo acknowledges Lucky’s behavior in this regard, but characterizes it as “normal,
anticipatory behavior, such as swaying back and forth on her feet by the barn door before feeding
time.” Docket no. 53. Dr. Friend reviewed videos that the Plaintiffs’ experts have watched; he

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For example, Lucky’s teeth are not at issue in this lawsuit. See Docket no. 53 at 7 (describing Lucky’s
teeth with reference to the summary judgment evidence).

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believes that Lucky’s behavior is merely “anticipatory,” that it reflects Lucky’s “excite[ment]
about an upcoming event,” and even if it is “stereotypic,” that stereotypic behavior is not
necessarily an indicator of an animal’s well-being. Docket no. 53-10 at 4. He added that
Plaintiffs have no support for a causal connection between any of the allegedly deficient Zoo
conditions and Lucky’s allegedly stereotypic behavior. Id. He acknowledges that Asian elephants
can exhibit stereotypic behavior due to being confined in solitude, although he did not state that
this was the case with Lucky. Docket no. 70-4 at 9–10. Dr. Ramiro Isaza, the Zoo’s veterinary
expert, made a similar acknowledgment. Docket no. 70-8 at 8–9.
Plaintiffs view Lucky’s behavior as stereotypic and believe it has harmful effects.
According to Dr. Ensley,
Lucky exhibits stereotypic behavior which manifests by a rocking or swaying
back and forth behavior documented in her records. Stereotypic behavior is
repetitive meaningless activity the result of inadequate mental stimulation,
depression, frustration, and dysfunction causing as well repetitive motion injury.
This repetitive, meaningless behavior is not documented in wild elephants. Lucky
suffers from chronic mastitis that may have been initiated by, and currently
enhanced with stereotypic suckling of her mammary gland likely preventing
resolution of this condition.
Docket no. 70-1 at 8. Dr. Ensley’s report culls several instances of “Swaying/Rocking
Stereotypic Behavior” from Lucky’s medical records. Id. at 53–54. These notes include several
references to swaying at the gate and swaying in relation to feedings, but they also include
numerous other instances of swaying. Id. For example, on March 8, 2011, Dr. Ensley quotes the
records as saying that Lucky “[p]articipated in KC but spent most of the day along the back wall
swaying.” Id. at 54. Contrary to Dr. Friend’s assertion that Plaintiffs lack evidence of a
connection between Lucky’s living conditions and potentially stereotypic behaviors, Dr. Ensley
believes that, based on a review of certain literature and his own knowledge and experience,
“[t]he chaining and confining of elephants in a reduced space in captivity is a cause of
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stereotypic behavior.” Id. at 38. In short, Dr. Ensley concludes that “Lucky suffers mentally,
which manifests in stereotypic swaying behavior.” Id. at 80.
Dr. Ensley opines that Lucky’s stereotypic behavior, sometimes in the form of a lateral
“rocking” from side to side, puts abnormal pressure on Lucky’s nails. Id. at 20. He added at his
deposition that Lucky has suffered from mammary gland mastitis for the past 30 to 40 years,
which may have been caused by her stereotypic behavior. Docket no. 70-3 at 14.
Blais, Plaintiffs’ expert on captive elephant behavior, also has opinions of Lucky’s
behavior and mental health that are contrary to the Zoo’s view:
As a direct result of her under stimulating environment, Lucky does not generally
exhibit [the] nuanced behaviors [of a typical elephant]. The primary aspect of her
life that changes is the different people walking past whom Lucky appears to tune
out or dismiss, as she frequently stands with her back to the public. Lucky’s
enclosure is limited and sterile and has changed little since her arrival in 1962.
Docket no. 70-7 at 9. Blais believes that Lucky “exhibits stereotypic behavioral patterns, like
head-bobbing and swaying.” Id. at 18. He disagrees with the Zoo’s characterization of these
behaviors as merely “anticipatory” and believes that with appropriate changes to Lucky’s
environment, they can be greatly reduced. Id. Blais also noted, though, that all elephants living in
captivity exhibit “some degree of stereotypical behavior.” Docket no. 61-2 at 62.
ii.

Feet

Lucky’s feet are a major point of contention between the parties. The Zoo characterizes
Lucky’s foot problems as “minor.” Docket no. 53 at 7. According to Dr. Coke, the Zoo’s
veterinary director, Lucky has “foot abscesses in the nail bed, she has had various degrees of
cracking and — but people call it nail abscesses or water blisters or water abscesses.” Docket no.
53-3 at 18. Dr. Coke explains that Lucky is “very right-handed,” and so when she digs, kicks, or
plays—primarily with her right foot—she suffers these lesions. Id. Dr. Coke stated that these

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abscesses resolve with routine foot care, such as daily cleanings and trimmings of the nails and
cuticles. Id. at 19. Dr. Coke and several others involved in Lucky’s care and medical treatment
stated that these foot issues were relatively minor, tended to go away on their own with routine
treatment, and never caused Lucky any serious health problems. Id. at 19; e.g., Docket no. 53-4
at 7–8. Dr. Isaza found some problems with Lucky’s feet by reviewing radiographs, but said that
these problems were common in geriatric elephants. Docket no. 53-2 at 21. Still, Dr. Isaza
acknowledged that there is a recognized difference of opinion among experts in the elephant
community regarding the causes of foot problems (and arthritis) in captive elephants, adding that
these medical issues may have numerous causes and controversies may exist as to which factors
play the biggest roles. Docket no. 70-8 at 16–17.
Plaintiffs view Lucky’s foot issues as much more serious. Dr. Ensley, after examining
radiographs of Lucky, stated at his deposition that, among other things, Lucky suffered from
abscessed tracts (which are indicative of osteomyelitis and bone infection) and boney lysis, both
of which are “life-threatening.” Docket no. 70-3 at 9–10. Later in his deposition, Dr. Ensley
affirmed that, based on a review of her medical and husbandry records, Lucky suffered from
“life-threatening” foot issues, including “chronic foot abscesses with life-threatening bone
infection and degenerative joint diseases, limb impairment, and crippling lameness.” Id. at 25.
iii.

Arthritis

Lucky has arthritis. According to Dr. Isaza, it is “clinically mild” and appropriate for her
age:
Lucky’s history of arthritis highlights that overall, her arthritis has been clinically
mild and manageable throughout her geriatric years. In my opinion Lucky has
arthritis that is common for her geriatric age, however, I have personally managed
several younger elephants with much more severe arthritis. It is my opinion that
her mild arthritis is far from “life-threatening” or “crippling” and that she is
currently well managed with medical treatments.
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Docket no. 53-2 at 21. Dr. Isaza explains that Lucky’s arthritis was first treated symptomatically
in October 2010 due to lameness in one of her legs. Id. at 20. That lameness resolved. Id. Five
years later, Lucky was diagnosed with arthritis in her left hip, and since then, the clinical
assessment of her pain due to arthritis has shifted through her legs, knees, and hips. See id. Dr.
Isaza said that Lucky’s arthritis has been appropriately treated, including with proper dosages of
ibuprofen. Id. Dr. Isaza admitted that arthritis can have a single cause or multiple causes and that
Lucky’s arthritis is likely caused by multiple factors, with the parties disagreeing over which
factors are playing the most important roles in causing it. Docket no. 70-8 at 16–17.
Dr. Ensley describes Lucky’s arthritis in different terms, characterizing it as “lifethreatening.” Docket no. 70-3 at 9; Docket no. 70-1 at 6. Ensley’s report states that Lucky’s
“chronic” arthritis “has resulted in her inability to consistently lay down resulting in sleep
deprivation and harassment by forcing her to sleep while standing up.” Docket no. 70-1 at 7. The
report, pointing to Lucky’s medical records, recites numerous references to arthritis and
accompanying treatment, beginning in 2006. Id. at 44–49. Dr. Ensley, instead of characterizing
Lucky’s arthritis as a result of her old age, opines that “the cumulative effects of an inadequate
enclosure with regard to space and unyielding substrate result[ ] in chronic arthritis.” Id. at 80;
see also id. at 6–7 (“These conditions[, including arthritis,] are enhanced by an enclosure that
may have some areas of soft sandy surface; however, taken on whole is made up of hard
unnatural species-inappropriate substrate coupled with concrete or concrete with essentially
unyielding barn flooring materials.”). At his deposition, he explained that there may be numerous
causes of arthritis in elephants. Docket no. 70-3 at 6–7. He added that arthritis in elephants can
be caused by stereotypic behavior. Id. at 6.

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Blais opines that the size of Lucky’s enclosure contributes to her arthritis. Docket no. 706 at 18. He explains that because her enclosure is too small, Lucky is unable to walk long
distances, as is typical for elephants. Id. As a result, Lucky’s lifestyle is more sedentary than
ideal, resulting in a shortened gait that caused her arthritis. Id. Blais acknowledges that it is
unclear whether Lucky’s shortened gait caused her arthritis or vice versa. Id. at 18, 21.
Regardless of whether Lucky’s shortened gait is a cause or an effect of her arthritis, Blais stated
that her lack of a full range of motion will continue to contribute to the degeneration of her
arthritis. Id. at 21. As Blais further explained, “[e]lephants naturally walk 30 to 50 miles a day
over diverse and challenging substrates,” which “force[s] the animals to utilize their muscles in a
way that does not occur in small spaces.” Id. at 22–23. Blais expressed concerns over the Zoo’s
treatment of Lucky’s arthritis because the long-term use of ibuprofen has been linked to kidney
failure. Docket no. 70-7 at 20.
iv.

Overall Welfare

In general, Dr. Isaza sums up the Zoo’s view of Lucky’s welfare in his report:
Lucky is in good physical condition for an Asian elephant of her age. Any
abnormalities noted above were all minor and typical for a geriatric elephant. In
my opinion, there was no evidence of any condition that is “life-threatening” or
even negatively influencing her current welfare and quality of life. In my opinion,
the most important clinical finding is the abnormal wearing of all of her molar
teeth. However, although the teeth are worn, she is able to chew and digest
enough food to maintain a 4/5 body condition score.
Docket no. 53-2 at 8. Dr. Isaza recognizes that when it comes to elephant welfare, “Welfare is
difficult to measure . . . Welfare is a state of being, a subjective assessment and subjective to
each person that makes that. So what I call a healthy person, another person may say, no, that’s
not healthy. And similar with welfare.” Docket no. 70-8 at 10.

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Dr. Ensley’s report is to the contrary:
Lucky is an Asian elephant, estimated to be 56 years of age, with multiple chronic
medical problems, some of which are life threatening, as a direct result of her past
and current standard of care and living conditions at the San Antonio Zoo. Lucky
suffers from chronic life threatening foot abscesses, chronic arthritis, and
degenerative joint disease with digital bone infection, bone lysis, and limb
impairment all documented in her medical records which manifest in the form of
chronic lameness, and a stiffened unnatural gait. Lucky’s chronic musculoskeletal
disease, rendering her essentially to be cripple [sic], relies upon non-steroidal
anti-inflammatory medications which in effect provide pain masking relief.
Docket no. 70-1 at 6–7.
Blais, who thinks that Lucky is in “moderate” physical condition, is somewhere in the
middle:
There is no indication that I see with Lucky, based on what I viewed, that Lucky
is near death. . . . The simple truth is that because of the lack of space that’s being
offered every day as to her compromise [sic]. Does that mean she’s in grave risk
of dying tomorrow? Not necessarily. But every day does influence and negatively
influence her overall well-being.
Docket no. 53-16 at 8.
IV.

Lucky’s Living Conditions and Their Relationship to Her Health
Plaintiffs allege four main ways in which the Zoo’s treatment of Lucky and her living

conditions violates the ESA. The following facts are organized based on Plaintiffs’ claims.
a. Companionship
The parties do not dispute Lucky’s history of companionship during her time at the Zoo:
When [Lucky] arrived, she was first paired with Ginny, an unrelated Asian
elephant that was five years older than Lucky. They lived together for 42 years,
and apparently socially bonded together. During that time, they also lived with
two other female Asian elephants and one African elephant named Alport. After
Ginny died in 2004, Lucky was housed with Alport for about three years until she
died in 2007. While looking for a companion elephant, Lucky was housed alone
for about three years until the arrival of Boo, a 56 year-old female Asian elephant,
in 2010. Boo was housed at the [Zoo] with Lucky for only three years because she
died of cancer. Again, Lucky was housed alone for about three years until the

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arrival of Nicole and Karen in early 2016. She is currently living with these two
elephants.
Docket no. 53-2 at 6 (Dr. Isaza’s report summarizing Lucky’s social history) (citations omitted).
In total, the 57 year-old Lucky has lived at the Zoo for 55 years. Id. She has lived with the
companionship of another elephant there for approximately 50 years. Id.
Nicole and Karen—Lucky’s current companions—were circus elephants and are owned
by Feld Entertainment, a company affiliated with the Ringling Brothers Circus. Docket no. 70-2
at 7. Nicole and Karen live at the Zoo pursuant to a loan agreement between the Zoo and Feld.
Id. Either party can terminate the agreement for either or both of Nicole and Karen at any time
after giving 30 days’ notice. Id. at 8. In the event that the loan agreement is terminated, Nicole
and/or Karen would return to Feld’s Center for Elephant Conservation in Florida. Id. Though the
Zoo views this arrangement as indefinite and does not believe that it or Feld have any intention
of terminating the agreement, it is possible that Feld could terminate the agreement, leaving
Lucky alone in her enclosure. Docket no. 70-2 at 8.
The parties dispute the effects of Lucky’s companionship (and lack thereof). The Zoo, in
short, argues that “Plaintiffs put forth no competent evidence to prove that Lucky has been—or
would be—‘harmed’ or ‘harassed’ by being the only elephant in the Zoo’s elephant enclosure.”
Docket no. 53 at 11. As affirmative evidence of this point, the Zoo cites Dr. Friend’s report,
which states that “there is no indication that [Lucky’s] welfare is poor.” Docket no. 53-10 at 7.
Beyond this broad assertion, Dr. Friend explains that Lucky’s allegedly stereotypic behavior is in
fact not stereotypic, and is in fact normal, anticipatory behavior. Id. at 6–9. Dr. Friend also
asserts that, even if this behavior is “stereotypic” or somehow indicative of Lucky being in a
“trance-like” state, “applied ethologists have warned that the simple occurrence of stereotypic
behavior should never be used as the sole index of welfare.” Id. at 8. Dr. Friend acknowledged,
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however, that captive Asian elephants can exhibit stereotypic behavior as a result of being
separated from other elephants. Docket no. 70-4 at 9–10. He remembers this being the case with
a male Asian elephant living in a Houston zoo whose stereotypic “rocking” was “probably
stimulated by his being separated.” Id. Similarly, Dr. Izasa stated that living alone could
hypothetically be a factor in the development of abnormal behavior, although some elephants
may actually prefer to live alone. Docket no. 70-8 at 8–9.
Plaintiffs’ view of Lucky’s allegedly stereotypic behavior is discussed above—in short,
they argue that Lucky’s behavior is stereotypic and is harmful. As this behavior relates to
Lucky’s lack of companionship, Plaintiffs point to Blais’ report and deposition. Blais, describing
the natural familial structure of an Asian elephant (which consists of at least 25 members), stated
that “Lucky’s social life has been far from normal” due to her captivity at the Zoo. Docket no.
70-7 at 11; see also id. at 8 (“[Lucky’s] life in the zoo has not offered any semblance of
normalcy for her species.”). Blais points out that the Zoo has not met AZA standards governing
the social interactions of captive elephants, both by mixing Lucky (an Asian elephant) with
Alport (an African elephant) and by failing to keep three total elephants in Lucky’s enclosure at
all times. Id. at 11, n. 5. According to Blais, “[a]s a direct result of her under stimulating
environment, Lucky does not generally exhibit [the] nuanced behaviors” that are indicative of a
normal elephant’s extensive cognitive abilities. Id. at 9; see also Docket no. 70-6 at 11
(indicating that Lucky’s abnormal gait and stereotypical behavior are caused in part by her
limited social opportunities). Blais believes that “[w]ith a change of environment, within the
complex[,] stimulating and nurturing life of an expansive sanctuary, these stereotypic behavior
patterns are generally reduced by up to 80%, and in some [elephants] they are eliminated
entirely.” Docket no. 70-7 at 18. Despite his acknowledgement that all elephants in captivity

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(with or without companionship) exhibit “some degree of stereotypical behavior,” Blais did not
elaborate on the degree and severity of Lucky’s stereotypic behavior in relation to that of other
captive elephants. Docket no. 61-2 at 62.
b. Size of Enclosure
As of October 27, 2016, Lucky’s enclosure was 16,883 square feet, or about .37 acres.
Docket no. 53-11; Docket no. 70-7 at 9. The parties disagree as to whether this is adequate space
for Lucky.
Dr. Isaza’s report states that “[t]here is a legitimate controversy about the amount of area
needed for Asian elephants and how much an elephant needs to walk to maintain good health.”
Docket no. 53-2 at 12. Clarifying what he meant by “legitimate controversy,” Dr. Isaza explained
“[t]hat means among informed professionals, one person may have a — one opinion, the other
person may have another opinion and they discuss them and therefore it’s both — both sides can
be valid, so it’s a legitimate controversy.” Docket no. 70-8 at 14. Dr. Isaza believes that, based
on his inspection of the enclosure and certain studies and standards, Lucky’s enclosure is
adequately sized. Docket no. 53-2 at 10–12. Dr. Isaza believes there is no evidence to support
Plaintiffs’ claim that Lucky’s enclosure is inadequately size and insinuates that Lucky living past
the median age for a captive Asian elephant in the same enclosure means that the enclosure is
adequately sized. Id. at 12.
According to Plaintiffs’ own complaint, AZA regulations recommend that an enclosure
for three elephants should be a minimum of 16,200 square feet. Docket no. 1 at 18. Plaintiffs
nonetheless argue that the 16,833 square foot enclosure is too small. Blais states that the AZA’s
minimum standards “are deemed grossly insufficient by elephant experts around the globe.”
Docket no. 70-7 at 9. With respect to Lucky’s particular enclosure, Blais notes that part of the

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16,883 square foot measurement includes a holding area, which the elephants cannot always
access; because he estimates this area blocks off about 1,000 feet from the elephants, subtracting
it from the total 16,883 square feet of the enclosures drops it below AZA recommendations. Id.
Blais attributes numerous health issues at least in part to Lucky’s small enclosure, including
arthritis, gait limitations, foot infections, and various mental health issues. Docket no. 70-6 at
10–11. In his report, Blais emphasizes that an undersized enclosure limits an elephant’s social
and mental well-being. Docket no. 70-7 at 15. In sum, Blais stated that “Lucky is ailing in
captivity because of—substantially because of the limited space” of her enclosure. Docket no.
70-6 at 7.
Blais’ opinions about the space required for elephants living in captivity go beyond
Lucky. At his deposition, he stated that “I would be confident to say that the vast majority of
captive elephants are ailing because of the confinement that is associated with zoological
facilities.” Docket no. 61-2 at 21. Blais’ report asserts that “[z]oo elephants are ailing, and zoos
lack the space to adequately expand to meet these elephants’ needs.” Docket no. 70-7 at 5–6. He
stated that the inadequate amount of space provided by many zoos and elephant sanctuaries is “a
significant reason for their ailments.” Docket no. 61-2 at 22. Though he was non-committal on
stating an exact, ideal amount of space for a captive elephant—in part because differences in
terrain give different amounts of space a different character—Blais acknowledged that in some
cases even as much as 100 acres would not suffice. Id. at 22–23. Blais agreed with the following
statement taken from the website of his elephant sanctuary: “The end result of the multimillion
dollar expansions [of zoos’ elephant enclosures] have little increased benefit for the elephants, it
matters little if the space is 1/2 an acre or 3 acres, it is still woefully inadequate.” Id. at 23. Blais
is aware of no zoos in North America that “provide substantial enough space to adequately care

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for — adequately provide the psychological, social, and physical stimulation necessary for health
and well-being.” Docket no. 61-2 at 34.
c. Shelter from the Sun
The Zoo states that throughout different times of the day, the many various structures in
Lucky’s enclosure will cast shade in different directions. The Zoo identifies a pool, “two large
shade tarps” in the center of the enclosure, “two wooden umbrella-shaped structures” in the
center of the enclosure, and “a large rock wall” on the western side of the enclosure, all of which
cast shade throughout the day and allow “Lucky [to walk] into shaded areas whenever she wants
to.” Docket no. 53 at 12. These assertions are supported by descriptions of Lucky’s enclosure
and pool, a survey, a Google Earth image, and video of Lucky in her enclosure. See id. at 12–13
(citing Docket no. 53-1 at 18–19, Docket no. 53-8 at 7–9, Docket no. 53-11, Docket no. 53-13 at
3). The Zoo also points out that its veterinarians have never diagnosed Lucky with sunburns or
heat exhaustion. Docket no. 53-3 at 11–13. Dr. Isaza likewise found no evidence of sunburn or
heat exhaustion in Lucky’s medical records or after conducting a physical examination. Docket
no. 53-2 at 22.
Dr. Ensley’s report recites several instances of heat stress by quoting Lucky’s medical
records. Docket no. 70-1 at 50–51 (“vet alert: began showing signs of heat stress at ~1:00 p.m.;
did not get into barn until 3:00 p.m.”). Plaintiffs also point out that, aside from exposing Lucky
to too much heat, the lack of shade in the enclosure contributes to certain eye problems. Dr.
Ensley stated at his deposition that Lucky is “constantly standing out in the sun, which enhances
her, in my opinion, eye condition, her keratitis.” Docket no. 70-3 at 17; see also Docket no. 70-1
at 8 (“Lucky’s medical record reveals that she suffers from chronic corneal opacities, which are
further exacerbated by exposure to bright sunlight.”).

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d. Substrate
The substrate refers to the ground’s surface in Lucky’s enclosure. The parties offer
differing accounts of the appropriateness of the substrate, and whether it detrimentally affects
Lucky’s health. They also offer differing accounts of scientific literature that purports to analyze
the San Antonio Zoo’s substrate.
Plaintiffs’ soil expert, Philip King, conducted geotechnical engineering testing and
evaluated the near surface soil conditions of Lucky’s enclosure. Docket no. 53-14. His report
indicates that the outdoor substrate is composed of the following materials in different areas:
grass (comparable to a grass lawn); five to six inches of sand (comparable to a volleyball court)
over top of a harder base (comparable to an unpaved road or parking lot); eight inches of mulch
(comparable to a playground) over top of crushed limestone; clay (ranging from medium to very
dense); and concrete (in the elephants’ pool). Docket no. 53-14 at 2–3. At his deposition, King
estimated that about 60% enclosure was sand-covered, 30% clay, and 10% grass and mulch.
Docket no. 53-15 at 3–4; Docket no. 61-8 at 2. According to King, with the exception of the
concrete pool, the substrate was composed of “natural” materials. Id. at 3. Beyond the outdoor
enclosure, the Zoo points out that the floor of Lucky’s barn has a concrete foundation that is
covered by a rubber matting that is commonly used in zoos. Docket no. 53-10 at 12. The
elephant sanctuary in Tennessee—to which Plaintiffs seek to relocate Lucky—also uses a
rubber-coated concrete floor in its barn. Docket no. 53-16 at 9.
From the Zoo’s perspective, Dr. Friend’s report states that “there is no evidence that the
substrate at the San Antonio Zoo is unnaturally hard, nor is there any evidence that the substrate
is causing any harm to Lucky. Further, I am aware of no scientific studies or literature that
support Plaintiffs’ theory that ‘hard substrate’ causes stereotypic behavior in elephants—or any

16

other animal for that matter. In any case, as explained above, Lucky does not exhibit spontaneous
stereotypic behavior.” Docket no. 53-10 at 12. Dr. Isaza reaches similar conclusions, and notes
that some scientific literature characterizes surfaces such as grass, sand, and rubber padding as
“soft” surfaces. Docket no. 53-2 at 14. Dr. Isaza, like Dr. Friend, questions the effects of “hard”
surfaces, including their contribution to Lucky’s arthritis, sleep deprivation, and inability to lie
down. Id. at 14–18. Somewhat to the contrary, though, the Zoo’s veterinary director, Dr. Coke,
acknowledged that soil density is important to the health of an elephant’s foot: “The harder the
substrate has been — the hardness of the substrate, harder being more negatively impactful to the
health of the foot of the elephant.” Docket no. 70-9 at 5.
For Plaintiffs, Dr. Ensley does not challenge the underlying results of King’s surface
analysis, but characterizes some of the surfaces as hard. For example, Dr. Ensley states that the
sand and grass surfaces in the enclosure are compacted. Docket no. 70-1 at 59. He explains that
“[t]he lack of space causes the natural substrates to become hard packed because the elephants
are walking over the same ground constantly.” Id. at 81. Plaintiffs also point out that the
substrate has been altered since this lawsuit began, and the present substrate that has been
analyzed by King and others is not the same as the one that Lucky lived on for many years, such
that the Zoo does not account for the substrate’s past effects on Lucky. See Docket no. 70 at 27–
28. The Zoo disputes this assertion. Docket no. 71 at 24–25.
Dr. Ensley cites scientific literature that supports a causal link between elephant health
problems and substrate hardness. See, e.g., Docket no. 70-1 at 16–17 (quoting a veterinary text,
The Elephant’s Foot, to support the “general consensus that ‘lack of exercise, long hours,
standing on hard substrates, and contamination resulting from standing in their own excreta are
major contributors to elephant foot problems.’”). One of these sources is a study by Michele

17

Miller, Jennifer N. Hogan, and Cheryl L. Meehan entitled Housing and Demographic Risk
Factors Impacting Foot and Musculoskeletal Health in African Elephants [Loxodonta africana]
and Asian Elephants [Elephas maximas] in North American Zoos. Docket no. 59-9 [hereinafter
Miller Study]. It characterizes “grass, sand, and rubber padding” as “soft” substrates. Id. at 13.
This study found that “one of the main housing risk factors for increased foot and
musculoskeletal abnormalities was time spent on hard surfaces.” Id. In reaching this conclusion,
the Miller Study examined numerous elephant enclosures and discounted areas with mixed
substrate types: “While many environments had multiple substrate types, our modeling process
only included environments that had 100% coverage of hard or soft substrate.” Id. at 9–11; see
also id. at 13 (“Since our objective was to measure the amount of time the elephants spent in
contact with different substrate types, we therefore focused the analysis on substrate categories
where we knew the environment consisted of 100% coverage of hard substrate or 100% coverage
of soft substrate. This is a conservative approach, as time spent in environments with substrate
coverage that was large, but less than 100%, was not captured in this analysis.”).
The Miller Study examined the San Antonio Zoo and Lucky’s enclosure at the time the
study was conducted in 2012. Dr. Cheryl L. Meehan, one of the study’s co-authors, provided a
declaration explaining the data collected from the San Antonio Zoo. Docket no. 71-5. Dr.
Meehan said that when the Zoo was examined for the study, the majority of the substrate was
sand or rubber padding. 2 Id. at 2. Dr. Meehan stated that because “[n]one of the enclosures at the
San Antonio Zoo met the criterion for 100% hard substrate,” Lucky spent no time on “hard
flooring,” which the study defined as “areas with 100% hard flooring.” Id. at 2. Therefore, based
on the study’s analyses, “the elephants of the San Antonio Zoo would not be expected to have
2

In particular, the corral was 100% sand; the main exhibit was 85% sand, 6% stone aggregate, 5% grass,
3% dirt, and 1% concrete; the parlor was 90% rubber padding and 10% concrete; and the three stalls were all 100%
rubber padding. Docket no. 71-5 at 2.

18

increased risk of foot abnormalities or musculoskeletal disorders as a result of enclosure
substrate.” Id.
The parties disagree over the application of the Miller Study. Because the majority of
Lucky’s enclosure is “soft” substances—sand, grass, and rubber-coated concrete—the Zoo
argues that the Miller Study forecloses the Plaintiffs’ argument that the substrate is harming
Lucky. See Docket no. 52 at 18. Additionally, the Zoo cites Dr. Meehan’s specific insight into
the San Antonio Zoo as establishing that the Miller Study supports their position. Docket no. 71
at 23–25. Plaintiffs, on the other hand, argue that simply categorizing any sand-covered surface
as “soft” does not account for the compaction of sand-covered surfaces observed by Dr. Ensley.
See Docket no. 70 at 27. By all accounts, though, the Miller Study supports a causal link between
hard substrates and health problems.
e. Inspection Results
The Zoo is subject to inspections by an individual from Animal Plant Health Inspection
Services (“APHIS”), a division of the United States Department of Agriculture (“USDA”). As
summary judgment evidence, the Zoo produced its past three years’ worth of APHIS inspection
reports. Docket no. 53-7. Inspections from November 2016, September 2016, June 2016, July
2015, March 2015, October 2014, July 2014, and April 2014 revealed no non-compliant items
with respect to Lucky or any other Asian elephants. 3 Id.; see also Docket no. 53-8 at 3 (“[T]he
USDA has consistently inspected the zoo for years . . . and there’s never been a violation of the
AWA found in relation to elephants at the San Antonio Zoo.”).
At his deposition, Blais was asked “[d]o you know or have you heard that there have
been focused inspections by USDA at the San Antonio Zoo in connection with the elephant

3

The legal standards for compliance, which are based on the Animal Welfare Act, are discussed in detail
later in this order.

19

enclosure, and USDA has not found violations when it’s done those inspections?” Docket no. 612 at 64. He replied “I’m not aware that they’ve had focused inspections. It doesn’t surprise me
that there’s no violations because the standards are grossly minimal.” Id. Blais also
acknowledged that he had not seen the Zoo doing anything that does not meet the minimal
standards for normal animal husbandry practices. Id.
ANALYSIS
The procedural posture of this case, its several pending motions, and the complexity of its
legal theories make the Court’s task more difficult than simply determining whether there is a
genuine issue of material fact. First, the Court will consider the Zoo’s two pending Daubert
motions in order to define the scope of permissible summary judgment evidence; because a court
on summary judgment should only consider admissible evidence, if Plaintiffs’ experts are
disqualified by the Zoo’s Daubert motions, it would be inappropriate to consider those experts at
this stage. See FED. R. CIV. P. 56(c). Next, the Court will define Plaintiffs’ claims and burden of
proof, as this will set the proper context for determining whether the Zoo is entitled to summary
judgment. After setting forth the nature of Plaintiffs’ claims and burden of proof, along with the
scope of permissible summary judgment evidence, the Court will determine whether there are
any genuine issues of material fact.
I.

The Zoo’s Daubert Motions
The Zoo seeks to exclude testimony from Dr. Ensley and Blais. Docket no. 59 (Ensley
Motion); Docket no. 61 (Blais Motion). The experts’ substantive opinions are set forth in the

background section above; this section will add factual details from each expert relating to the
bases for their opinions. The court will first set forth the legal standards applicable to both
motions, then address each motion in turn.

20

a. Standard of Review
Rule 702 of the Federal Rules of Evidence provides for the admissibility of expert
testimony if it will “help the trier of fact to understand the evidence or to determine a fact in
issue.” FED. R. EVID. 702. Additionally, the testimony must be “based on sufficient facts or data”
and be “the product of reliable principles and methods” that the expert has “reliably applied” to
the facts of the case at hand. Id.
As a preliminary matter, the Court must determine whether the proffered witness
qualifies as an expert. “Before a district court may allow a witness to testify as an expert, it must
be assured that the proffered witness is qualified to testify by virtue of his ‘knowledge, skill,
experience, training, or education.’” United States v. Cooks, 589 F.3d 173, 179 (5th Cir. 2009)
(quoting FED. R. EVID. 702). Generally, if there is some reasonable indication of qualifications,
the court may admit the expert’s testimony, and then the expert’s qualifications become an issue
for the trier of fact, rather than for the court. Rushing v. Kansas City S. Ry. Co., 185 F.3d 496,
507 (5th Cir. 1999).
If the expert is qualified, then the Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993) provides the analytical framework for determining
the admissibility of expert testimony. Daubert requires the district courts to act as “gatekeepers”
to ensure expert testimony meets Rule 702’s standards. Id. at 589. This role requires “that an
expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id. at
597; Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir. 2002) (“In short, expert testimony is
admissible only if it is both relevant and reliable.”).
The reliability inquiry entails a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and can be properly applied to the

21

facts in issue. Id. at 592–93. In Daubert, the Supreme Court enumerated five nonexclusive
factors to consider when assessing whether the methodology upon which an expert rests his
opinion is reliable: (1) whether the expert’s theory can be or has been tested, (2) whether the
theory has been subject to peer review and publication, (3) the known or potential rate of error of
a technique or theory when applied, (4) the existence and maintenance of standards and controls,
and (5) the degree to which the technique or theory has been generally accepted in the scientific
community. Id. at 593–94; Burleson v. Tex. Dep’t of Criminal Justice, 393 F.3d 577, 584 (5th
Cir. 2004).
The test for determining reliability is flexible and can adapt to the particular
circumstances underlying the testimony at issue. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S.
137, 138 (1999); see also Black v. Food Lion, Inc., 171 F.3d 308, 311–12 (“In the vast majority
of cases, the district court first should decide whether the factors mentioned in Daubert are
appropriate.”). The point of this inquiry “is to make certain that an expert, whether basing
testimony upon professional studies or personal experience, employs in the courtroom the same
level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho
Tire, 526 U.S. at 152.
In applying the Daubert test, the proponent of expert testimony has the burden to prove
by a preponderance of the evidence that evidence is reliable (not that it is correct). Moore v.
Ashland Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998). Expert testimony must be reliable “at
each and every step” because “[t]he reliability inquiry applies to all aspects of an expert’s
testimony: the methodology, the facts underlying the expert’s opinion, the link between the facts
and the conclusion, et alia.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir.
2007) (quoting Heller v. Shaw Indus, Inc., 167 F.3d 146, 155 (3d Cir. 1999)). Meanwhile, “[t]he

22

expert’s assurances that he has utilized generally accepted scientific methodology [are]
insufficient.” Moore, 151 F.3d at 276. Critically, however, the district court must “approach its
task with proper deference to the jury’s role as the arbiter of disputes between conflicting
opinions.” United States v. 14.38 Acres of Land, More or Less Sit. in Leflore Cty., Miss., 80 F.3d
1074, 1077 (5th Cir. 1996) (internal quotations omitted).
Somewhat independently, “[t]he court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” FED. R. EVID. 403.
b. Discussion
i. The Zoo’s motion to exclude testimony from Dr. Philip Ensley is denied.
Dr. Ensley is a retired practicing zoo veterinarian of over 30 years who worked with
Asian elephants (among many other species) while employed by the Zoological Society of San
Diego. Docket no. 70-1 at 4. In reaching his opinions in this case, he reviewed video footage and
photographs of Lucky, Lucky’s medical and husbandry records, numerous depositions of Zoo
staff and others, and King’s expert report on Lucky’s substrate, among other things. Id. at 9. Dr.
Ensley spent about a day and a half observing Lucky at the Zoo, but he did not conduct his own,
full-fledged veterinary examination of Lucky. Docket no. 59-3 at 36. His 82-page expert report
spends about 30 pages reviewing scientific and veterinary literature and texts. Id. at 11–42. The
Zoo does not challenge his qualifications.

23

1. Dr. Ensley’s opinions are relevant, even though they do not
specifically conclude whether the Zoo’s animal husbandry
practices are AWA compliant.
The Zoo argues that Dr. Ensley’s opinions should be excluded because “the legal issue in
this case is whether the Zoo fails to meet the standards for animal husbandry required by the
AWA” and Dr. Ensley’s opinions “fail[ ] to address AWA compliance issues at all.” Docket no.
59 (Ensley Motion); see also Docket no. 61 at 6 n. 11 (making a similar argument to exclude
Blais’ opinions). This argument fails for two reasons.
First, whether the Zoo’s animal husbandry practices comply with the AWA is certainly
one of the legal issues in this case, but it is not the sole legal issue involved because it relates
only to whether the Zoo committed a “take” by “harassing” Lucky. As discussed below, whether
the Zoo committed a take under the ESA by “harming” Lucky is a separate legal issue requiring
a separate analysis of the facts, and is not at all dependent on AWA compliance. Thus, even
assuming that Dr. Ensley’s opinions are irrelevant to whether the Zoo is AWA compliant, they
are still relevant to whether the Zoo harms Lucky.
Second, Dr. Ensley’s opinions are relevant to AWA compliance because they could assist
the finder of fact in determining whether the Zoo’s animal husbandry practices are AWA
compliant even if his opinions do not expressly make such findings. The Zoo is correct that Dr.
Ensley does not explicitly address AWA compliance, as Dr. Ensley does not purport to be expert
in the AWA’s standards. Nevertheless, when Dr. Ensley says, for example, that Lucky’s wounds
such as “pressure sores [and] decubital ulcers are a direct result of laying down on unyielding
surfaces,” this opinion (assuming it is otherwise admissible) is relevant to certain AWA
regulations regarding facilities. Docket no. 59-2 at 43 (Ensley Report); see also 9 C.F.R. § 3.125
(“The facility must be constructed of such material and of such strength as appropriate for the

24

animals involved.”). Though Dr. Ensley does not express ultimate legal conclusions on AWA
compliance, his opinions would help a fact finder make that determination. In this respect, Dr.
Ensley’s opinions (and Blais’ opinions) 4 are relevant.
2. Dr. Ensley’s opinions are sufficiently reliable to be considered by
the finder of fact.
The Zoo argues that Dr. Ensley’s opinions are unreliable and should be excluded under
Daubert for four reasons: (1) he allegedly misstates the facts; (2) his “review of the literature”
allegedly provides no basis for his opinions; (3) his reliance on the Miller Study, Docket no. 599, allegedly undercuts his causation opinions; and (4) there is allegedly too great an analytical
gap between the facts and his opinions.
On the first point, the Zoo repeatedly attacks the substance of Dr. Ensley’s opinions
regarding the severity of Lucky’s arthritis and foot problems. Contrary to Dr. Ensley’s opinions,
the Zoo asserts that Lucky is not a “cripple” and her conditions are not “life-threatening.” The
Zoo argues that Dr. Ensley is alone among Lucky’s vets and handlers in reaching a conclusion
this extreme. Similarly, the Zoo also points to instances where Dr. Ensley’s opinions allegedly
mischaracterize the surfaces in Lucky’s enclosure. 5 But as the Zoo’s own veterinary expert, Dr.
Isaza, stated at his deposition, “Welfare [of an elephant] is difficult to measure . . . Welfare is a
4

As noted, the Zoo makes the same argument with respect to Blais’ opinions. See Docket no. 61 at 6, n. 11.
For the same reasons this argument fails as to Dr. Ensley, it fails as to Blais. When Blais opines, for example, that
the Zoo’s 16,400 square foot enclosure for Lucky “offers limited psychological, emotional and physical stimulation
and is known to be a root cause of many of the ailments that plague captive elephants,” this opinion (assuming it is
otherwise admissible) is relevant to AWA compliance. Docket no. 61-2 at 8–9 (Blais Report); see also 9 C.F.R. §
3.128 (“Enclosures shall be constructed and maintained so as to provide sufficient space to allow each animal to
make normal postural and social adjustments with adequate freedom of movement. Inadequate space may be
indicated by evidence of malnutrition, poor condition, debility, stress, or abnormal behavior patterns.”).
5

The Zoo dedicates a large portion of its Daubert briefing to reciting evidence of the substrate’s “soft”
character. See, e.g., Docket no. 68 at 4–8. In doing so, the Zoo argues that Dr. Ensley is not a soil expert, and those
who are soil experts have not opined as to the effects of the substrate on Lucky. Both of these points are well taken,
but do not undermine the reliability of Dr. Ensley’s opinions. Nowhere does Dr. Ensley purport to be a soil expert,
but he does purport to explain what effects the substrate has on Lucky based on his veterinary expertise and review
of the literature. Dr. Isaza does the same. See Docket no. 53-2 at 14–18.

25

state of being, a subjective assessment and subjective to each person that makes that. So what I
call a healthy person, another person may say, no, that’s not healthy. And similar with welfare.”
Docket no. 70-8 at 10 (emphasis added).
Though the Zoo argues that “Plaintiffs’ response fails to point to any analysis (in the
absence of a full veterinary exam) that Dr. Ensley conducted to provide a basis for his
inflammatory opinion[s],” Dr. Ensley’s report itself summarizes that analysis—Dr. Ensley
provides a detailed recitation of his observations and how they lead to his conclusions. See, e.g.,
Docket no. 70-1 at 59. On each of the points that the Zoo says Dr. Ensley “mischaracterizes,” Dr.
Ensley has examined much of the same evidence available to the Zoo and has simply reached a
contrary conclusion on the basis of that evidence. 6 The result is not an unreliable opinion but
merely a different one, which, as Plaintiffs put it, “highlights the existence of questions of fact.”
Docket no. 64 at 11. In other words, what the Zoo characterizes as “false premises” of Dr.
Ensley’s opinions are in actuality contested questions of fact.
The Zoo’s objections to Dr. Ensley’s review of scientific literature and reliance on the
Miller Study to support his causation theory are likewise without merit for purposes of the
Daubert inquiry. The literature reviewed by Dr. Ensley (and cited in his report) provides a sound
basis for his opinions.7 As to the Miller Study, the parties’ disagreement over its application to

6

Dr. Ensley and Dr. Isaza rely on substantially similar evidence in reaching their conclusions. Compare
Docket no. 70-1 at 9, 111–13 (Ensley report) with Docket no. 53-2 at 31–32 (Isaza report).
7

The following excerpts from Dr. Ensley’s report are quoted portions of scientific literature that support
the contention that certain of Lucky’s living conditions can contribute to her health problems: “Wet conditions and
inadequate exercise are predisposing factors [to certain foot problems],” Docket no. 70-1 at 12 (emphasis added);
“Degenerative joint disease . . . is apparently more common in captive than in wild elephants. Debate concerning the
cause of degenerative joint disease in captive elephants has centered on husbandry. Some researchers believe that
elephants forced to live out their lives on hard surfaces such as bare concrete . . . most often develop degenerative
joint disease,” id. at 14; “Actions that might be taken to prevent degenerative joint disease in elephants include
providing a dirt exercise yard, providing concrete floors with a warm heat system built into them, [and] padding the
concrete surfaces on which elephants are house,” id. at 15; “Major contributors to foot problems in elephants are
lack of exercise, standing on hard substrates, and contamination resulting from standing in their own excrement,”
id.; “[Arthritic and rheumatoid disorders which affect the bones and joints of the extremities] are rarely reported in

26

the present case again exemplifies the underlying fact issues over whether Lucky’s substrate is
species appropriate. The Zoo is correct that the Miller Study categorizes “sand, grass and rubber
padding” as “soft” and “concrete and stone aggregate” as “hard.” Docket no. 59-9 at 9. But
Lucky’s substrate includes a mixture of materials (including clay) that were not mentioned by the
Miller Study. Further, as Dr. Meehan’s declaration seems to suggest, the data collected by the
Miller Study from the San Antonio Zoo reveals only that Lucky spent no time on areas where the
entire surface is composed of 100% hard materials. Docket no. 71-5 at 2. It is difficult to
extrapolate this study to the present case to say that it renders Dr. Ensley’s analysis unreliable
when Lucky’s substrate is indisputably composed of a combination of various hard and soft
materials. See Miller Study, Docket no. 59-9 at 5 (“We wanted to calculate the time that
elephants spent in contact with each substrate type [as between hard or soft] so to confirm this
we determined which environments were comprised of 100% hard and 100% soft substrate and
calculated the percent time each elephant spent in environments that met this criteria from
detailed housing time budgets.”). As a result, these criticisms of the application of certain
scientific literature to Dr. Ensley’s opinions go to the weight, not admissibility, of Dr. Ensley’s
testimony, and are best left for full development on cross examination.
Finally, there is not an “analytical gap” between the facts and Dr. Ensley’s opinions that
renders them unreliable. Though Dr. Ensley did not perform his own veterinary exam, he bases
wild elephants who generally walk a lot,” id. at 16; “[Foot abscesses] are caused by internal blood supply disruption,
which is a sign or symptom of the multitude of problems associated with keeping elephants in captivity. We feel that
the elephant is not genetically programmed to withstand the constant gravitational pressure of living on hard
surfaces . . . Elephants certainly didn’t evolve to stand motionless for long periods of time,” id. at 20; “Abnormal
Behaviors- Repetitive or ‘stereotypical’ behaviors can have the same effect as poor conformation on an elephant’s
feet,” id. at 21; “Mechanical trauma due to repetitive loading stress on hard surfaces is probably a major factor in the
development of joint disease,” id. at 23; see generally Docket no. 59-9 (Miller Study). This list is by no means
exhaustive of the references in Dr. Ensley’s report.
With this survey of scientific support in mind, the present case is distinct from Moore v. Ashland Chem.
Inc., in which the Fifth Circuit affirmed a district court’s exclusion of an expert who had “no scientific support for
his general theory.” 151 F.3d 269, 278–79 (5th Cir. 1998) (emphasis added); see also Gen. Elec. Co. v. Joiner, 522
U.S. 136, 144–45 (1997) (affirming district court’s exclusion of expert testimony that was based on four studies, two
of which were factually distinct and two of which did not support the causal link suggested by the expert).

27

his opinions (including his causation opinion) on his day-and-a-half long observation of Lucky
and her living conditions, along with the numerous examples of scientific literature discussed
above. Dr. Ensley’s citations reveal a relative scientific consensus about the potential causes of
many of Lucky’s medical issues. See supra footnote 7. And though Dr. Ensley does not attribute
much significance to Lucky’s age in causing many of her health problems, he at least
acknowledges that it can play a role, which is consistent with the methodology and results of the
Miller Study and the Zoo’s own veterinary expert. See Docket no. 59-3 (Dr. Ensley stating at his
deposition that “[a]ge can be a factor if an animal is spending its life on improper — what we
consider today to be improper substrate or hardened or unyielding substrate . . . There are many
factors that contribute to arthritis.”); Docket no. 59-9 at 14 (Miller Study indicating that age
along with several other factors contribute to foot problems and degenerative processes of the
musculoskeletal system in elephants); Docket no. 70-8 at 16–17 (Dr. Isaza agreeing at his
deposition that there is a recognized difference of opinion among elephant experts and
veterinarians regarding the causes of foot problems and arthritis in captive elephants). 8
3. The prejudicial effect of Dr. Ensley’s opinions does not
substantially outweigh their probative value under FED. R. EVID.
403.
Last, the Zoo presents two arguments for excluding Dr. Ensley’s opinions under Federal
Rule of Evidence 403, which permits a court to exclude evidence where “its probative value is
substantially outweighed by a danger of . . . unfair prejudice,” among other things. See Viterbo v.
Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987) (“[An expert opinion’s] lack of reliable
support may render it more prejudicial than probative, making it inadmissible under FED. R.

8

For this reason, the present case is distinct from another aspect of Moore, which involved the discretion
afforded to a district court in finding an expert’s testimony unreliable for failing to consider alternative explanations.
151 F.3d at 279 (“The district court was also entitled to conclude that [the plaintiff’s] personal habits and medical
history made [the expert’s] theory even more unreliable” where the expert did not consider them).

28

EVID. 403.”). Under Rule 403, the Zoo first argues that Dr. Ensley’s opinions are irrelevant
because they do not speak to AWA compliance, but for the reasons discussed above, Dr.
Ensley’s opinions are relevant. Second, the Zoo argues that the Court should exclude Dr.
Ensley’s opinions under Rule 403 because “Ensley presents his opinions as if they were facts,
but they are contrary to the undisputed facts.” Docket no. 59 at 14. Specifically, the Zoo objects
to Dr. Ensley’s statements that Lucky is a “cripple” and suffers from life-threatening health
issues as “inflammatory rhetoric, unsupported by objective facts, render[ing] his opinion unfairly
prejudicial because it confuses the issues, misleads the fact finder, and offers no probative
value.” Id. (internal quotations omitted). This argument merely restates the Zoo’s previous
argument that Dr. Ensley’s opinions are unreliable because they misstate facts, and fails for the
same reason—namely, that Dr. Ensley’s purported “false premises” are simply different
conclusions based on different experts’ analyses of the same underlying evidence.
For the foregoing reasons, the Zoo’s motion to exclude the opinions of Dr. Ensley is
denied.
ii. The Zoo’s motion to exclude testimony from Scott Blais is granted in part
and denied in part.
Blais has “worked with elephants for more than 25 years,” including in his recent role as
founder and CEO of the nonprofit Global Sanctuary for Elephants. Docket no. 70-7 at 2. In short,
he has worked with captive elephants in a variety of capacities, including training them and
conducting behavioral evaluations. Id. at 3. His work with captive elephants has been featured in
a variety of news outlets and publications (including scientific, ethical, and historical pieces,
among others). Id. at 5. In forming his opinions on Lucky, Blais has been monitoring Lucky’s
behavioral and physical health since 2010. Id. at 7. He has reviewed photos, medical documents,
depositions from the Zoo’s staff, a plan of Lucky’s enclosure (including dimensions), “more than
29

200 hours of video,” and “direct inquiries with individuals who have observed Lucky’s
behavior.” Id. at 7–8. Outside of challenges to certain aspects of his opinions that the Zoo
characterizes as veterinary opinions, there are no challenges to his general qualifications.
The Zoo makes several arguments to exclude Blais’ opinions. First, it argues that Blais’
opinions are not relevant because they apply to all zoo elephants and have no probative value
relating to Lucky and because Blais does not offer ultimate conclusions as to the Zoo’s
compliance with AWA standards. Second, the Zoo argues that Blais’ opinions lack a sufficiently
reliable methodology. Finally, the Zoo argues that Blais is not qualified to give expert veterinary
testimony because he is not a veterinarian.
1. Blais’ opinions are relevant even though they discuss the size of
enclosures at other zoos. 9
The Zoo characterizes Plaintiffs’ main claim with respect to the size of Lucky’s enclosure
as an objection to the Zoo’s non-compliance with the AZA recommendation of a 16,200 square
foot enclosure. The Zoo then attacks Blais’ broad conclusions regarding the inadequacy of zoo
elephant enclosures that exceed this recommendation—“Mr. Blais’ opinion is that it matters not
whether a zoo meets the AZA’s size recommendation, because all zoo elephants will continue to
suffer the same ailments unless they are given access to ‘more than 100 acres.’” Docket no. 61 at
5–6 (quoting Blais’ deposition); see also Docket no. 69 at 3 (“Mr. Blais irrelevantly opines that
even if the Zoo were to exceed the AZA size recommendation of 16,200 square feet hundreds of
time over, Lucky would still experience the same harm from lack of adequate space.” (emphasis
original, footnote omitted)).

9

As discussed above, the Zoo’s argument that Blais’ opinions are irrelevant because they do not address
AWA compliance fails. See supra footnote 4 and accompanying text. This section addresses only the Zoo’s
additional argument for why Blais’ opinions are irrelevant.

30

This view of Plaintiffs’ complaint is far too narrow. Plaintiffs’ complaint invokes AZA
size minimums, which Blais admits would be inadequate even if the Zoo minimally complied
with them. But Plaintiffs do not seek simply to enforce AZA requirements. Instead, Plaintiffs’
legal theory is that the small size of Lucky’s enclosure “harms” or “harasses” her, and therefore,
that the Zoo has violated the ESA by committing a “take.” This theory does not necessarily
depend on AZA compliance or non-compliance, though Plaintiffs do indeed reference AZA
requirements as a relevant data point in assessing the size of Lucky’s enclosure. Thus, while
Blais’ opinions may be broad or even ideologically driven, the Zoo misses the mark in saying
that they are irrelevant to whether Lucky’s enclosure is adequately sized. Instead, an assessment
of the size of Lucky’s enclosure, how it affects her, and whether it is appropriate is precisely the
determination that must be made by the finder of fact, and Blais’ opinions speak precisely to
these questions.
Further, to the extent that the Zoo objects to Blais’ testimony as irrelevant because it
apply to other zoos’ elephant enclosures and not to Lucky’s in particular, the Zoo
mischaracterizes Blais’ opinions. Though he sets forth some broad opinions about the size of
elephant enclosures in general, Blais also makes specific conclusions as to Lucky’s enclosure.
For example, the Zoo argues that Blais “opines that Lucky—just like all other elephants in
zoos—is being ‘detrimentally impacted’ by lack of space.” Docket no. 61 at 5 (emphasis
original) (quoting Docket no. 70-7 at 10). Yet this portion of Blais’ report is specifically stating
that Lucky is being “detrimentally impacted” by being unable to walk with full strides for long
distances due to the size of her enclosure. Docket no. 70-7 at 10. Additionally, much of Blais’
broad and allegedly irrelevant testimony was procured by the Zoo at its deposition of Blais. For
example, at Blais’ deposition, the Zoo read a sentence from the website of Blais’ elephant

31

sanctuary and asked him whether he agreed with it, even though Blais’ expert report does not
contain that sentence. Docket no. 61-2 at 23. Despite being the party who asked the question, the
Zoo now argues that the answer should be excluded as irrelevant. For these reasons, Blais’
opinions are relevant.
2. Blais’ opinions are excluded in part because they are unreliable.
The parties’ arguments over Blais’ reliability and methodology boil down to how much
leniency from the typical Daubert factors is appropriate. The Zoo argues for strict adherence to
the traditional Daubert inquiry, adding that even if some deviation is appropriate, neither Blais
nor Plaintiffs “have even attempted to articulate a methodology . . . to evaluate, much less a
methodology that shows any signs of reliability.” Docket no. 69 at 10. Plaintiffs, on the other
hand, rely on Blais’ professional experience and personal observations, along with his reliance
on “generally accepted theories in the elephant community” to argue that Blais’ testimony should
be permitted.
The five factors enumerated by Daubert for determining whether an expert’s testimony is
sufficiently reliable are: (1) whether the expert’s theory can be or has been tested, (2) whether
the theory has been subject to peer review and publication, (3) the known or potential rate of
error of a technique or theory when applied, (4) the existence and maintenance of standards and
controls, and (5) the degree to which the technique or theory has been generally accepted in the
scientific community. 509 U.S. at 593–94. Importantly, the first step in this “flexible” test is
often determining “whether the factors mentioned in Daubert are appropriate.” Kumho Tire, 526
U.S. at 138; Food Lion, 171 F.3d at 311–12. Nevertheless, district courts are not required “to
reinvent the wheel every time expert testimony is offered in court.” Food Lion, 171 F.3d at 311.

32

“‘[N]o one denies that an expert might draw a conclusion from a set of observations
based on extensive and specialized experience.’ Accordingly, [the Fifth Circuit] has upheld the
admission of expert testimony where it was based on the expert’s specialized knowledge,
training, experience, and first-hand observation while supported by solid evidence in the
scientific community.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 247 (5th Cir. 2002) (quoting
Kumho Tire, 526 U.S. at 156). On this point, St. Martin v. Mobil Exploration & Producing U.S.
Inc. illustrates the application of “alternative indices” of reliability where an expert bases his
opinions primarily on personal observation. 224 F.3d 402, 406–07 (5th Cir. 2000). There, a
group of private landowners sued a group of oil companies, alleging that the oil companies
damaged a marsh ecosystem on their properties. Id. at 403. The landowners succeeded at a bench
trial, and on appeal, the oil companies argued that the district court erred by refusing to exclude
the landowners’ expert who testified to the cause of the damage to the marsh. Id. at 406. The
Fifth Circuit affirmed, applying a version of the five Daubert factors that Plaintiffs here urge this
Court to apply. Id. at 406–07. Recognizing that “[e]ach marsh will have different forces acting
upon it, depending upon its specific location and its surroundings,” the Fifth Circuit did not
rigidly apply the Daubert factors because “a court could not rationally expect that a marshland
expert would have published a peer-reviewed paper on each possible permutation of factors or
each damaged area of marsh.” Id. at 406. The court recounted in detail the expert’s qualifications
and site visits, finding ultimately that “the district court properly considered alternative indices of
his testimony’s reliability and relevance.” Id. at 407.
This rationale provides a sound basis for permitting Blais’ testimony in one respect but
excluding it as to all others. This Court could not rationally expect that an elephant expert would
have published a peer-reviewed study on Lucky in particular, along with each of her individual

33

ailments. Thus, when Blais testifies as to Lucky’s behaviors based on his own observations of
those behaviors, his professional experience in working with elephants and his extensive
personal observations render his opinions reliable. Similarly, Blais’ opinion that Lucky’s stride is
shortened is sufficiently reliable based on Blais’ experience working with similar animals and his
review of video footage of Lucky walking. 10 These opinions are like those of the marsh expert in
St. Martin, who made detailed observations of specific features of the marsh and interpreted his
observations based on his own experience to reach his conclusions. Thus, Blais’ descriptive
opinions regarding Lucky’s behavior and activity are admissible because these opinions—related
specifically to Lucky and Lucky only—could otherwise never be deemed reliable under the peerreview-required rigidity of a typical Daubert inquiry and because Blais has sufficient experience
and observations to make them reliable.11 To the extent that the Zoo questions or disagrees with
Blais’ observations, the Zoo is free to develop these issues on cross examination. See Docket no.
61 at 12–13.
It is one thing for Blais to say that Lucky’s behavior is stereotypic or that she walks with
a shortened stride, as these are the types of observations that evade the typical Daubert inquiry
but are captured by Blais’ unique experience. It is quite another for him to opine as to what
causes these behaviors and conditions, and St. Martin is distinct in this regard.

12

Scientific

10

The Zoo objects to Blais’ testimony regarding a shortened stride because Blais did not look for changes
in Lucky’s stride length over a period of time, which Blais himself admitted would be a reliable and empirical way
to assess an elephant’s stride length. Docket no. 61 at 9–10 (citing Docket no. 61-2 at 36). But Blais also made clear
that this method would be best only to determine whether an elephant’s stride has changed over time, not whether it
is or always has been shortened compared to that of an ideal, healthy elephant.
11

Notably, the testimony of Dr. Friend, the Zoo’s expert and a professor of animal science, is based in large
part on examining many of the same sources and videos. See, e.g., Docket no. 53-10 at 7 (opining that a video of
Lucky reviewed by Blais “clearly shows that Lucky’s rocking and excitement is anticipatory.”).
12

Though St. Martin addressed the admissibility of a marsh expert’s causation opinion, the Fifth Circuit’s
opinion could hardly be read as exempting all causation evidence from the typical Daubert inquiry. Indeed, the court
noted the particular idiosyncrasies of marsh loss causation, which made peer review of any particular marsh loss
difficult: “All experts agreed at trial that marsh deterioration can be caused by a complex and synergistic interaction

34

literature describing the causes of various elephant ailments exists in droves and is not dependent
on the particular nuance of Lucky alone. Indeed, the Zoo points out several examples. Docket no.
53-2 at 11. Dr. Ensley does the same. See supra footnote 7. Blais does not. See generally Docket
no. 70-7; Docket no. 61-2 at 33 (Blais testifying at his deposition that he knows of studies
indicating that limited space is a cause of ailments in elephants but failing to identify any such
studies). Though there are unquestionably situations where an expert can rely on his experience
and personal observations in forming a reliable opinion, this is not the case where he does so to
the exclusion of a vast world of scientific literature.
Blais’ methodology is his reliance on “commonly accepted fact” or things that “[are]
known.” Docket no. 61-2 at 33. When asked at his deposition to identify sources, authorities,
articles, or studies that support these conclusions, Blais was unable to recall any, noting only that
these sources exist. Id. He added that the reports that he reviewed are noted in his expert report,
but a review of his report reveals no specific citations to outside authorities supporting his
causation opinions. Id.; see generally Docket no. 70-7. Because “[t]he expert’s assurances that he
has utilized generally accepted scientific methodology [are] insufficient,” Blais’ reliance on
unidentified “commonly accepted fact” does not render his causation opinion reliable. Moore,
151 F.3d 269, 276 (5th Cir. 1998). For this reason, Blais’ causation opinions are excluded.
3. Blais is not subject to exclusion for giving unqualified veterinary
testimony.
The Zoo last argues that Blais’ opinions should be excluded because Blais is not qualified
to give expert veterinary testimony. Having already excluded Blais’ causation opinions as
unreliable, the only issues remaining are Blais’ opinions regarding Lucky’s abbreviated stride

among several different factors. The precise factors and their relative importance will vary with individual areas of
marsh loss.” St. Martin, 224 F.3d at 406 n. 4.

35

and her stereotypic behavior. Docket no. 61 at 13. The parties do not dispute that Blais is not a
veterinarian.
Though Blais has neither a medical degree (nor a degree of any kind), his professional
experience and training with elephants is extensive. See Docket no. 70-7 at 1–6, 24–25. Based on
his experience in training, observing, and working with elephants, he is qualified to provide
sufficiently reliable testimony based on his observations of Lucky’s behavior. His lack of a
degree goes to the weight, not admissibility, of his testimony.
In sum, Blais’ testimony is admissible to the extent that he merely observes the existence
of certain conditions in Lucky based on his experience working with animals. His testimony is
excluded as unreliable to the extent that he attributes causal significance to these conditions.
II.

Plaintiffs’ Claims and Burden of Proof
Having analyzed the Zoo’s motions to exclude to determine the scope of summary
judgment evidence, the Court now turns to Plaintiffs’ burden of proof on its claims so that it may
then properly analyze these claims in light of the evidence. Determining Plaintiffs’ burden of
proof and the nature of their claims turns on the relationship between the ESA and the AWA. An
analysis of this relationship, along with the relevant statutory and regulatory definitions,
implicates many of the arguments that the Zoo asserts in its motion for summary judgment.
The Court finds that the Zoo may violate the ESA by harassing or harming Lucky as
these terms are defined by Fish and Wildlife Service (“FWS”) regulations that do not include a
“gravely threatening” qualifier that the Zoo urges the Court to apply. Furthermore, though the
Zoo will avoid liability for harassing Lucky where its animal husbandry practices comply with

the AWA, the Zoo must first in fact comply with the AWA, and the Plaintiffs carry the burden of

36

proving the Zoo’s non-compliance. Finally, to the extent that the Zoo complies with the AWA,
this compliance precludes ESA liability for harassing Lucky, but not for harming her.
a. The Statutory and Regulatory Scheme of the ESA and AWA
i. The ESA
The stated purposes of the ESA are “to provide a means whereby the ecosystems upon
which endangered species and threatened species depend may be conserved [and] to provide a
program for the conservation of such endangered species and threatened species.” 16 U.S.C. §
1531(b). The ESA contains a citizen-suit provision, allowing any person to commence a civil suit
on his own behalf to enjoin any person who is alleged to be in violation of the Act. 16 U.S.C. §
1540(g)(1). Under Section 9 of the ESA (codified at 16 U.S.C. § 1538), “it is unlawful for any
person subject to the jurisdiction of the United States to . . . take any [endangered species of fish
or wildlife listed pursuant to section 1533 of this title] within the United States or the territorial
sea of the United States.” 16 U.S.C. § 1538(a)(1)(B) (emphasis added). 13
“The term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19) (emphasis added).
Interpreting the legislative history behind use of the term “take,” the Supreme Court has
recognized that
Congress intended ‘take’ to apply broadly to cover indirect as well as purposeful
actions. The Senate Report stressed that “‘[t]ake’ is defined . . . in the broadest
possible manner to include every conceivable way in which a person can ‘take’ or
attempt to ‘take’ any fish or wildlife.” S. Rep. No. 93–307, p. 7 (1973). U.S. Code
Cong. & Admin. News 1973, pp. 2989, 2995. The House Report stated that “the
broadest possible terms” were used to define restrictions on takings. H.R. Rep.
No. 93–412, p. 15 (1973). The House Report underscored the breadth of the
13

The ESA also makes it unlawful to “possess . . . any such species taken in violation of [§
1538(a)(1)(B)].” 16 U.S.C. § 1538(a)(1)(D). The parties argue over whether the Zoo violates the ESA by
“possess[ing]” Lucky. Legally, though, this question is irrelevant, and the Court need not decide it. Plaintiff’s main
theory of liability is that the Zoo committed an ESA-prohibited “take,” as defined in the statute. If the Zoo has, it
may also be unlawfully “possess[ing]” Lucky, but it will already be liable for an unlawful “take” in the first place. If
it has not committed a “take,” it has not violated the ESA’s anti-possession provision.

37

“take” definition by noting that it included “harassment, whether intentional or
not.” Id. at 11 (emphasis added). The Report explained that the definition “would
allow, for example, the Secretary to regulate or prohibit the activities of
birdwatchers where the effect of those activities might disturb the birds and make
it difficult for them to hatch or raise their young.” Ibid. These comments . . .
support the Secretary’s interpretation that the term “take” in § 9 reached far more
than the deliberate actions of hunters and trappers.
Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704–05 (1995) (some
alterations added).
Regulations promulgated by the FWS under the ESA define “harm” (as used in the
definition of “take”) as “an 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. This same regulation defines “harass” (again, as used in the definition of
“take”) as
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. This definition, when applied to captive wildlife, does not include
generally accepted:
(1) Animal husbandry practices that meet or exceed the minimum
standards for facilities and care under the [AWA],
(2) Breeding procedures, or
(3) Provisions 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. (emphasis added). As emphasized, the exclusionary language in the definition of “harass”
applies only to “captive wildlife,” like Lucky. See id.

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ii. The AWA
The AWA is a separate piece of legislation from the ESA, but as noted in the definition
of “harass,” there is some overlap. The two relevant purposes of the AWA are “(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; [and] (2) to assure the humane treatment of animals during
transportation in commerce.” 7 U.S.C. § 2131. The AWA, unlike the ESA, does not have a
citizen suit provision. Congress charged the USDA with enforcing the AWA, and in particular,
issuing licenses to dealers and exhibitors of captive animals and setting standards for proper care
and treatment of these animals. 7 U.S.C. § 2133, 2146. APHIS is a wing of the USDA that is
tasked with carrying out many of these administrative, regulatory, and enforcement functions.
See, e.g., 9 C.F.R. § 2.3 (“Each applicant for an initial license must be inspected by APHIS and
demonstrate compliance with the regulations and standards . . . before APHIS will issue a
license.”).
Beyond enforcement, regulations promulgated under the AWA also set minimum,
substantive standards for facilities and care. These regulations, separated by types of animals,
govern a wide variety of aspects of animal captivity, including facilities and operating standards,
animal health and husbandry standards, and transportation standards. E.g., 9 C.F.R. § 3.129–132
(defining “Specifications for the Humane Handling, Care, Treatment, and Transportation of
Warmblooded Animals Other than Dogs, Cats, Rabbits, Hamsters, Guinea Pigs, Nonhuman
Primates, and Marine Mammals.”).
With reference to this statutory and regulatory backdrop, the Zoo’s argument is
essentially that it has complied with the AWA in full, meaning that it cannot have “harassed”
Lucky under the definition of “take” in the ESA. According to the Zoo, “[an] ESA ‘take’ can

39

occur with respect to an animal in captivity only through a violation of the AWA,” and
“generally accepted [a]nimal husbandry practices that meet or exceed the minimum standards for
facilities and care under the [AWA]” are not harassment under the ESA. Docket no. 53 at 20
(emphasis added). Because APHIS has never found violations of these standards with respect to
the Zoo’s treatment of Lucky, the Zoo argues that it has not harassed Lucky. Additionally, the
Zoo argues that because its AWA compliance exempts it from “take” liability for harassing
Lucky, it is likewise exempt from liability for harming her.
iii. The current definition of “harass” according to the FWS
The FWS’s current definition of “harass,” which now includes an exception for generally
accepted, AWA compliant animal husbandry practices, was created in 1998, and substantial
guidance can be gleaned from FWS interpretations and history:
The purpose of amending the [FWS’] definition of “harass” is to exclude
proper animal husbandry practices that are not likely to result in injury from the
prohibition against “take.” Since captive animals can be subjected to improper
husbandry as well as to harm and other taking activities, the [FWS] considers it
prudent to maintain such protections, consistent with Congressional intent.
It is true that the [ESA] applies to all specimens that comprise a “species”
(as defined in the [ESA]) that has been listed as endangered or threatened, and in
general does not distinguish between wild and captive specimens thereof.
However, the definition of “take” in the [ESA] clearly applies to individual
specimens or groups of specimens, and the captive or non-captive status of a
particular specimen is a significant factor in determining whether particular
actions would “harass” that specimen or whether such actions would “enhance the
propagation or survival” of the species. The [FWS] believes that ample authority
is provided by the [ESA] to adopt the regulatory amendments set out in this final
rule as a proper interpretation of the statutory provisions of the [ESA].
To decide otherwise would place those persons holding captive specimens
of a listed species in an untenable position. If providing for the maintenance and
veterinary care of a live animal were considered to be “harassment,” those
persons holding such specimens in captivity would be forced to obtain a permit or
give up possession since any failure to provide proper care and maintenance
would be an unlawful “taking.” Since Congress chose not to prohibit the mere
possession of lawfully-taken listed species in Section 9(a)(1) of the Act, the
40

Service believes that congressional intent supports the proposition that measures
necessary for the proper care and maintenance of listed wildlife in captivity do not
constitute “harassment” or “taking.”
Captive-bred Wildlife Regulation, 63 Fed. Reg. 48634-02, 1998 WL 597499 (Sept. 11, 1998).
Based on this logic, the FWS added the AWA compliance exclusion to the definition of harass.
The definition of harm contains no similar exclusion.
b. The Court’s previous order denying the Zoo’s motion to dismiss
In a previous order, the Court denied the Zoo’s motion to dismiss based on similar
theories. See Docket no. 16. The Court reasoned that Plaintiffs’ allegations regarding Lucky’s
solitude and other conditions of her enclosure “could constitute ‘harm.’” Id. at 4 (citing 50
C.F.R. § 17.3) (alterations original).
In addition, the Court addressed Plaintiffs’ allegations of harassment, and, by reference to
the regulatory definition of that term, concluded that the ESA applies to and protects captive
wildlife:
The Zoo’s argument that captive wildlife is not protected under the ESA is also
undercut by the language in the ESA that defines “harass.” Specifically, excluded
from the definition is animal husbandry practices that meet or exceed the
minimum standards for facilities and care under the [AWA]. Accordingly,
Congress meant to apply captive wildlife to the protections under the ESA, but
exempted certain acceptable animal husbandry practices . . . This ruling, of
course, is no ruling on the merits of whether acceptable animal husbandry
practices have been met.
Id. at 4–5. By this order, the Court rejected one argument that the Zoo now re-asserts in its
motion for summary judgment—that the AWA alone, rather than the ESA, governs the treatment
of animals in captivity, and the AWA’s lack of a citizen suit provision therefore forecloses
Plaintiffs’ ability to bring their claims.

41

c. Subsequent case law
i. Kuehl v. Sellner
Since the Court denied the Zoo’s motion to dismiss in January 2016, at least three other
federal district courts have issued relevant opinions on the relationship between the ESA and the
AWA where plaintiffs allege a Section 9 violation by committing a harm- or harassment-based
“take” of a protected species. The first was Kuehl v. Sellner, in which the U.S District Court for
the Northern District of Iowa found, after a bench trial, that defendants violated the ESA’s antitaking provision by harassing and harming endangered lemurs and tigers held in captivity in a
zoo. 161 F. Supp. 3d 678, 710–18 (N.D. Iowa 2016).
The court conducted a detailed factual analysis, making numerous findings of harassment
and harm based on tigers’ and lemurs’ veterinary care and living conditions. As the Zoo here
correctly points out, many of the court’s findings were specifically tied to AWA violations
previously identified by APHIS. E.g., id. at 712 (noting an APHIS’ officer’s findings of
uncleanliness in lemur confinements and ultimately concluding that for these and other reasons,
the unsanitary conditions constituted “harassment”). Most relevant here, though, is the court’s
finding that the zoo “harassed” its lemurs—highly cognitive and social animals—by forcing
them to live in social isolation, which disrupted their behavioral patterns and therefore
constituted a “take” in violation of the ESA. Id. at 710–11. Importantly, of all the previous AWA
violations identified by APHIS and referenced by the court, none were tied to this social
isolation-based form of harassment, and the court made this finding almost exclusively in
reliance on the testimony of an expert in the behavior and care of lemurs. 14 Id. Ultimately, the

14

The Zoo here points out that “the USDA cited the Kuehl defendants for hundreds of AWA violations,
including many violations specifically in connection with the lemurs. 161 F. Supp. 3d at 696–701 (quoting USDA
reports that, among other violations specific to lemurs, found that lemur enclosure ‘did not facilitate good husbandry

42

court granted the plaintiffs declaratory and injunctive relief “[t]o prevent further ‘taking’ in
violation of the ESA” based on numerous findings of “harm” and “harassment” to the zoo’s
lemurs and tigers. Id. at 718.
Kuehl provides several takeaways. First, the court found that the zoo violated the ESA by
harassing its lemurs through social isolation, even though APHIS had previously found no
corresponding violations of the AWA based on this conduct. Second, previous regulatory
findings of AWA violations were evidence of harassment- and harm-based takings with respect
to other conditions, such as cleanliness of living conditions. Synthesizing these two points and
the broader factual analysis, the court conducted its own, independent analysis of the evidence
presented—which included APHIS’ findings of previous violations of the AWA—to determine
whether the zoo’s animal husbandry practices met AWA standards. Finally, the court conducted
separate analyses of whether the zoo’s conduct “harmed” the animals and whether it “harassed”
them.
ii. Hill v. Coggins
The next case to address a similar issue was Hill v. Coggins, 2:13-CV-00047-MR-DLH,
2016 WL 1251190 (W.D.N.C. Mar. 30, 2016). There, the court found after a bench trial that the
plaintiffs failed to carry their burden of showing that the defendants’ treatment of four threatened
grizzly bears held in captivity constituted “harm” as defined in the ESA and accompanying
regulations. Hill, 2016 WL 1251190 at *12. Further, the court made a similar but separate
practices,’ ‘two weeks of animal waste’ was found in lemur enclosure, and cobwebs and ‘build-up of dark
brown/black grime’ was found).” Docket no. 71 at 7. This characterization is generally accurate.
Nevertheless, this reading of the Kuehl court’s findings misinterprets Plaintiffs’ correct reading of the case
and inappropriately generalizes what the court actually found. Specifically as to social isolation of lemurs at the zoo
in Kuehl, the USDA (through APHIS) did not previously find any violations of the AWA. The court did not rely on
any of the findings, testimony, or other evidence supplied by any APHIS veterinary medical officers in assessing
whether the zoo harassed its lemurs by socially isolating them. Relying almost exclusively on expert testimony of a
lemur expert at trial, the court found that the zoo, by socially isolating its lemurs, did not satisfy the AWA’s
generally accepted animal husbandry standards and therefore harassed its lemurs. None of the AWA violations in
Kuehl, collected in the San Antonio Zoo’s briefing, are related to this specific finding by the Kuehl court.

43

finding with respect to the plaintiffs’ allegation that the defendants harassed the bears. Id. at
*12–13. In the course of making the “harassment” finding, the court analyzed the definition of
“harassment,” and in particular, its exclusion of generally accepted, AWA compliant animal
husbandry practices. The court read “the plain language of 50 C.F.R. § 17.3” as meaning that
“[o]nly when the exhibitor’s practices fail to meet the minimum standards established by the
[AWA] can such practices constitute ‘harassment’ of a captive endangered or threatened
species.” Id. The court continually cited the plaintiffs’ failure to present any evidence showing a
violation of the applicable AWA regulations. Id. And in concluding, the court noted that
The USDA has concluded that the pit enclosures do not violate the provisions of
[a regulation related to enclosure size] when it has conducted quarterly
inspections of the [zoo’s] facilities, in that it has never cited the [zoo] for
providing inadequate space for the grizzly bears. In fact, the USDA has never
cited the [zoo] for any violation of the AWA. While corrective action has been
requested on occasion, the [zoo] has promptly responded to the USDA’s requests.
As a result, the [zoo] has continually maintained its Class C exhibitor license.
Id.
The lessons from Hill are similar to those of Kuehl—those who hold an animal in
captivity can violate the ESA if they commit a taking by “harassing” that animal, but the burden
is on the plaintiffs to show that the AWA’s minimum standards were not met. Further, as in
Kuehl, the court in Hill analyzed previous findings of AWA compliance by APHIS as evidence
of non-harassment (or more precisely, as evidence that an exhibitor’s conduct fits within the
“generally accepted animal husbandry practices” exclusion), and analyzed “harm” as a separate
ESA violation from “harassment.”
iii. PETA v. Miami Seaquarium
The final recent decision in this area is People for the Ethical Treatment of Animals, Inc.
v. Miami Seaquarium, 189 F. Supp. 3d 1327 (S.D. Fla. 2016) [hereinafter PETA]. The court’s

44

opinion in PETA arose from an animal rights group’s challenge to the living conditions of
Lolita—an endangered captive killer whale living at the defendant’s “Seaquarium” facility.
PETA, 189 F. Supp. 3d at 1333–34. On the defendant’s motion for summary judgment, the court
undertook an extensive analysis to determine what Congress meant by “take” as used in Section
9 of the ESA. Id. at 1343. The court began by looking to the statutory definition of “take” and
comparing its list of ten prohibited verbs—“harass, harm, pursue, hunt, shoot, wound, kill, trap,
capture, or collect, or attempt to engage in any such conduct.” Id. at 1345 (quoting 16 U.S.C. §
1532(19)). Pointing to a dissenting Justice Scalia’s observation that “the proscribed conduct
overlaps in some respects” 15 and seeking to limit Congress’s broad purpose by applying the
statutory canon of “noscitur a sociis” (“a word is known by the company it keeps”), the court
held that “harm” and “harass” should be interpreted with the same level of “impact” as the eight
other terms in the definition of “take.” Id. Applying a separate canon of statutory construction,
“esjudem generis” (“that general words or principles, when appearing in conjunction with
particular classes of things, will not be considered broadly, but rather will be limited to the
meaning of the more particular and specific words”), the court reached the same conclusion: “the
Court’s textual interpretation of ‘harm’ and ‘harass’ as used to describe ‘take’ in the ESA section
9(a)(1) is human conduct that amounts to a seizure or is gravely threatening, or has the potential
to seize or gravely threaten the life of a member of a protected species.” Id. at 1346–47. Notably,
however, the court does not cite a source for its “gravely threatening” standard. See generally id.
Blending its textual analysis with legislative history and administrative interpretations,
the court stated that the types of harm that violate the ESA are “distinct from concerns regarding
15

“As recognized by the Supreme Court, the proscribed conduct overlaps in some respects. For example,
there is no meaningful difference between the terms ‘trap’ and ‘capture’; and, there is only a pedantic distinction
between ‘wound’ and ‘harm,’ the former and more narrow term involving the piercing or laceration of skin, and the
latter, broader term involving a physical injury of some kind. Babbitt, 515 U.S. at 721, 115 S.Ct. 2407 (Scalia, J.,
dissenting) (‘[T]he word trap in the definition otherwise . . . adds nothing to the word capture.’).” PETA, 189 F.
Supp. 3d at 1345 (footnotes and some citations omitted).

45

the humane treatment and welfare of an animal in captivity.” Id. at 1350–51. Against this
backdrop of the ESA and AWA, the trial court stated that
it is clear that the AWA is intended for the specific purpose of protecting
animals in captivity that are used by licensees for exhibition or research purposes.
7 U.S.C. § 2131(1). It is equally clear that APHIS has implemented the
Congressional intent embodied in the AWA for the humane treatment and care of
such animals by promulgating regulations concerning subjects such as the
appropriate spatial dimensions for captive marine mammals’ enclosures, social
companionship, and veterinary care. See 9 C.F.R. Ch. 1, Subch. A, Pt. 3, Subprt.
E. Nonetheless, Plaintiffs argue that this Court should address the conditions of
Lolita’s captivity under the ESA section 9(a)(1) because the Seaquarium has
independent obligations under the ESA not to “harm” or “harass” Lolita in the
manner alleged, and because APHIS, when issuing its findings, failed to consider
“compliance issues” uncovered during discovery in this matter . . .
The flaw in Plaintiffs’ position is that their expansive interpretation of the
words “harm” and “harass” in the ESA section 9(a)(1), if adopted by this Court,
would bring the ESA into conflict with the AWA. It would displace a long
established regulatory framework providing for licensing and oversight of
exhibitors and researchers by APHIS, it would expose licensed exhibitors and
researchers to liability to special interest groups despite their compliance with
APHIS’ captive care standards, and would substitute the judgment of a federal
trial court judge for the technical expertise of the responsible agency. Marsh v.
Or. Nat. Res. Council, 490 U.S. 360, 375–77 (1989); see Tug Allie–B, Inc. v.
United States, 273 F.3d 936, 941 (11th Cir. 2001) (holding courts should avoid a
construction of two statutes that leads to a “dichomotous [sic] result”).
Id. at 1354–55. In granting summary judgment against plaintiff’s claims, the trial court found
that “[t]here is simply no evidence from the experts or otherwise that these conditions and
concomitant injuries, individually or collectively, gravely threaten Lolita’s existence. Thus,
while in a literal sense the conditions and injuries of which Plaintiffs complain are within the
ambit of the ordinary meaning of ‘harm’ and ‘harass,’ it cannot be said that they rise to the level
of grave harm that is required to constitute a ‘take’ by a licensed exhibitor under the ESA.” Id. at
1355.
PETA is not binding on this Court, and for three reasons, it largely is unpersuasive. First,
because PETA dealt with Lolita, a marine mammal, the relevant regulations administering the
46

AWA (and adopted by reference in the ESA) were promulgated by the National Marine Fisheries
Service (“NMFS”); in the present case dealing with Lucky, a terrestrial mammal, the relevant
regulations are promulgated by the FWS. See id. at 1344. NMFS regulations and FWS
regulations define “harm” similarly. Compare 50 C.F.R. § 222.102 (NMFS definition) with 50
C.F.R. § 17.3 (FWS definition). But NMFS regulations do not define “harass,” while FWS
regulations do.
Second, despite not being governed by the FWS definition of “harass” or having an
equivalent NMFS definition, the court in PETA looked to the FWS’ statements in creating its
definition of “harass.” PETA, 189 F. Supp. 3d at 1350–51 (quoting at length Captive-bred
Wildlife Regulation, 63 Fed. Reg. 48634-02, 1998 WL 597499). The court cited this FWS
language, and the resulting definition of “harass” as support for the proposition that “the types of
harm—more specifically, the acute nature of harm—the ESA was designed to safeguard against
are, on the whole, distinct from concerns regarding the humane treatment and welfare of an
animal in captivity.” Id. at 1351. In doing so, the court took this language out of context, reading
it to apply to any taking, when it was specifically linked to only one way in which a taking could
occur (i.e., harassment). The Zoo makes this same mistake in invoking this FWS language.
Third, and most importantly, the court in PETA added a “gravely threatening” qualifier to
the definitions of “harm” and “harass.” There is no support for this standard in the ESA, the
AWA, or the relevant regulations. The “gravely threatening” standard that the Zoo here urges
this Court to adopt was created—without citation—by the PETA court. Although the PETA
court’s invocation of statutory canons of construction and foray into legislative history are
thorough in depth, they overlook that the FWS has promulgated clear, straightforward definitions
of these terms, obviating the need for such inquiries. In particular, by holding that “a licensed

47

exhibitor ‘take[s]’ a captive animal in violation of the ESA’s section 9(a)(1) only when its
conduct gravely threatens the animal’s survival,” the PETA court ignored limiting language in
these definitions that raises the legal standard above literal notions of “harm” and “harass”:
Harass in the definition of “take” in the Act means 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. . . .
Harm in the definition of “take” in the Act means an 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 (emphasis added). As shown, the FWS’ definitions of these terms require
significance from the acts that “harm” or “harass.” This language, consistent with the PETA
court’s textual analyses and discussion of legislative intent, shows that the nature of an act that
violates the ESA must be more than any minor injury or harm in the literal sense, but must have
some notion of significance, though the language comes far short of requiring a “grave[ ] threat.”
No other court has added a “gravely threatening” standard, nor have any others added their own,
similar qualifiers to the definitions of “harm” and “harass.” See Kuehl, 161 F. Supp. 3d at 709
(applying the plain-language definitions of “harm” and “harass” without modifying 50 C.F.R. §
17.3); Hill, 2016 WL 1251160 at *12–13 (same).
For these reasons, this Court rejects the Zoo’s argument that its conduct, as a matter of
law, does not “harm” or “harass” Lucky because it is not “gravely threatening.”

48

d. Discussion
i. With respect to a harassment-based “take” under the ESA, the Zoo’s
compliance with the AWA’s substantive standards for generally accepted
animal husbandry practices precludes liability only if the Zoo actually
complies with the AWA.
The Zoo argues that “when APHIS determines that there is no AWA violation, there is no
ESA take liability—as a matter of law.” Docket no. 53 at 24. This assertion is at odds with the
case law (including even PETA to a certain extent). Instead, this Court concludes that APHIS
determinations of AWA compliance are evidence of AWA compliance for purposes of ESA take
liability, but the court must independently assess the Zoo’s animal husbandry practices under the
AWA.
Kuehl and Hill embody this conclusion. In both cases, the courts’ analyses looked to
APHIS’ determinations of AWA violations for guidance. In Kuehl, the court noted numerous
areas where APHIS found AWA violations, and went on to analyze additional evidence
presented at trial as it related to those violations. See 161 F.3d at 710–18. Crucially, though, with
respect to the zoo’s harassment of its lemurs through social isolation, the court made this
determination in the absence of a prior APHIS finding of an AWA violation. Id. at 710–11.
Similarly, in Hill, the court looked to the defendants’ near-spotless AWA compliance record as
evidence that they did not violate the ESA by harassing their bears. 2016 WL 1251190 at *14.
But this AWA compliance record alone did not permit the court to short-circuit its analysis and
make an automatic finding of no liability; instead, the court additionally and repeatedly noted the
plaintiffs’ failure to present evidence and carry their burden of proof. Id. at *13 (“The Plaintiffs
have failed to prove by a preponderance of the evidence that the pit enclosures fail to comply
with 9 C.F.R. § 3.128 . . . There is no evidence that any of the bears are malnourished, in poor
condition, or physically weak . . . [T]here is no evidence that the bears have exhibited signs of
49

stress or abnormal behavior patterns as a result of the size of their enclosures . . . [T]here is no
evidence that the bears have exhibited signs of stress or abnormal behavior patterns beyond what
any grizzly bear would exhibit as a result of being held in captivity.” (emphasis added)). Even in
PETA, the court examined the summary judgment evidence, despite its own admonition that
doing so might “substitute the judgment of a federal trial court judge for the technical expertise
of the responsible agency.” 16 189 F. Supp. 3d at 1354–55.
This point from PETA warrants further discussion, as this Court is mindful of the
regulatory functions served by APHIS in enforcing the AWA. APHIS is a wing of the USDA
and is composed of animal experts, which the federal courts are not. Still, the relevant regulatory
and statutory language, as applied by Kuehl and Hill, compels the district courts to examine the
evidence surrounding an exhibitor’s animal husbandry practices.
The definition of “harass” clearly excludes “generally accepted [a]nimal husbandry
practices that meet or exceed the minimum standards for facilities and care under the [AWA].”
For this exclusion to prevent harassment-based liability, there must first be a determination that
an exhibitor’s husbandry practices satisfy the AWA requirements. As shown by Kuehl and Hill,
APHIS determinations of past and present violations (or a lack thereof) are certainly evidence of
this finding, 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

16

In its concluding paragraph, the court stated “[t]here is simply no evidence from the experts or otherwise
that these conditions and concomitant injuries, individually or collectively, gravely threaten Lolita’s existence. Thus,
while in a literal sense the conditions and injuries of which Plaintiffs complain are within the ambit of the ordinary
meaning of ‘harm’ and ‘harass,’ it cannot be said that they rise to the level of grave harm that is required to
constitute a ‘take’ by a licensed exhibitor under the ESA.” Id. at 1355.
In a footnote, the court added a more detailed critique of some of the plaintiffs’ summary judgment
evidence—“The Court notes the speculative and unreliable quality of the experts’ causation opinions: that Lolita’s
blisters and wrinkles might be caused by sun exposure; that her illnesses might be caused by, and her medications
might be necessary, because of the stress of her tank design and cohabitation with the [pacific white-sided dolphins];
and she might have wear in her teeth due to stereotypic behavior.” Id. at 1355 n. 27 (emphasis original, citations
omitted).

50

the AWA, does not permit a finding of no liability simply because of a previous determination of
no AWA violation; instead, it substitutes the compliance standards of the AWA as the
substantive standard for whether an ESA violation has occurred, and requires such a
determination to be made through the typical adversarial process.
Supporting this framework for assessing “take” claims under the ESA is the FWS’
findings with respect to the definition of “harass.” In creating the present definition of “harass”
(and its AWA-compliant animal husbandry exclusion), the FWS stated that “[s]ince captive
animals can be subjected to improper husbandry as well as to harm and other taking activities,
the [FWS] considers it prudent to maintain such protections, consistent with Congressional
intent.” Captive-bred Wildlife Regulation, 63 Fed. Reg. 48634-02, 1998 WL 597499 (emphasis
added). This statement recognizes that the ESA’s anti-taking provision protects captive
wildlife. 17 The FWS goes further: “the captive or non-captive status of a particular specimen is a
significant factor in determining whether particular actions would ‘harass’ that specimen or
whether such actions would ‘enhance the propagation or survival’ of the species.” Id. (emphasis
added). By stating that an animal’s status as captive or non-captive was a “significant factor”
(rather than the single, determinative factor), the FWS meant simply that the ESA applies
differently—but nevertheless still applies—to captive wildlife. Ultimately, by recognizing “that
measures necessary for the proper care and maintenance of listed wildlife in captivity do not
17

This statement is also contrary to the Zoo’s argument that Plaintiffs’ claims are barred because they
concern “the subject matter of the AWA” and the AWA does not contain a citizen suit provision. The premise of the
Zoo’s argument on this point is that the AWA in some way displaces all ESA liability related to the treatment of
captive wildlife. This is not so. As discussed in its previous order denying the Zoo’s motion to dismiss, this Court
reasoned that the very existence of the AWA compliance exemption shows that the ESA still applies to captive
wildlife, but that the AWA simply provides the substantive standard for defining liability under the ESA. The FWS’
guidance here reinforces that conclusion, and defeats the Zoo’s argument.
Additionally, the Zoo’s argument on this point assumes that where the AWA and the ESA overlap (i.e., in
cases involving captive, endangered animals), the ESA must yield to the AWA. Yet this argument overlooks that the
ESA affords heighted protections to endangered species because they are endangered, not because of their captive
status. The Court does not read the statutory and regulatory framework as abrogating these protections simply
because an endangered animal is held in captivity. Rather, the framework makes the appropriate adjustment for an
ESA-protected animal in captivity through the AWA compliance exclusion in the definition of “harass.”

51

constitute ‘harassment’ or ‘taking,’” the FWS supported adding the AWA-compliance exclusion
to the definition of “harass” in order to borrow from and incorporate a pre-existing and
substantive legal framework for determining whether a “take” has occurred under the ESA.
Thus, to succeed on their ESA harassment-based “take” claims, Plaintiffs must show that
the Zoo’s acts towards Lucky are not generally accepted, AWA compliant animal husbandry
practices. If APHIS has previously found that these acts do (or do not) comply with the AWA,
these findings are merely evidence of AWA compliance, and such findings do not automatically
result in the defeat (or success) of Plaintiffs’ claims.
ii. Because “harm” and “harass” are separately defined ways to commit a
“take,” Plaintiffs may prove that the Zoo violated the ESA by doing
either.
The Zoo argues that “AWA-compliant zoos do not ‘harm.’” Docket no. 71 at 12. This
argument is not supported by the definition of “harm.” As described, 50 C.F.R. § 17.3 defines
both “harm” and “harass” for purposes of a “take” under the ESA. The definition of “harass”
contains a clear exclusion of generally accepted, AWA-compliant animal husbandry practices.
The definition of “harm” does not. AWA-compliant practices are not “harassment” based on
these definitions, but the FWS’ failure to include a similar exclusion in the language of “harm”
indicates that no such exclusion was intended. It would be inappropriate for this Court to write in
an AWA compliance exclusion to the definition of “harm” when one simply is not there and
could have been added contemporaneously with the addition of that exclusion in the definition of
“harass.”
Again, this result is consistent with the case law. Both Kuehl and Hill treat “harm” and
“harass” allegations separately. For example, in Kuehl, the court found that the zoo’s veterinary
practices “harmed” the zoo’s tigers without making a corresponding finding that the zoo’s

52

veterinary practices “harassed” those tigers. 161 F. Supp. 3d at 715–16. On the flip side, the
court found that the zoo “harassed” its lemurs by socially isolating them, but made no finding
that the zoo “harmed” its lemurs through social isolation. Id. at 710–11. And the court made
several explicit findings regarding harm and harassment with respect to certain practices,
indicating that some of the zoo’s practices implicated these two analyses separately, but that
perhaps some evidence was relevant to both questions. For example, after discussing the zoo’s
alleged failure to provide appropriate environmental enrichment for its tigers, the court made
findings regarding both harassment and harm:
The Court concludes that Plaintiffs’ evidence falls short of supporting a finding
that the tigers are “harassed” or “harmed” within the meaning of the [ESA] due to
lack of environmental enrichment. While the amount of enrichment provided by
[the zoo] appears to be nominal, the Court cannot say that the limited enrichment
“creates the likelihood of injury to wildlife by annoying it to such an extent as to
significantly disrupt normal behavioral patterns.” 18 50 C.F.R. § 17.3.
Furthermore, because the lack of enrichment does not “actually kill[ ] or injure[ ]”
the tigers, it does not meet the definition of “harm” within the meaning of “take”
in the Endangered Species Act.
Id. at 717–18 (alterations original, footnote added).
Similarly, the court in Hill conducted separate analyses of whether wildlife was “harmed”
and “harassed.” 2016 WL 1251190, at *12–14. The court concluded that public feedings of
threatened bears at the zoo did not “harm” the bears based on the possibility that the bears may
swallow foreign objects or contract communicable diseases. Id. at *12. Independently, the court
concluded that the zoo’s animal husbandry practices, such as the sizes of the bears’ enclosures,
did not “harass” the bears. Id. at *13–14. To the extent that the court recognized the AWA
compliance exception to ESA liability, the court limited this exception to only harassment-based
liability: “Only when the exhibitor’s practices fail to meet the minimum standards established by

18

For clarity, this Court points out that this language from Kuehl tracks the definition of “harass” verbatim.

53

the [AWA] can such practices constitute ‘harassment’ of a captive endangered or threatened
species.” Id. at *13. 19
The Zoo makes three arguments to avoid harm-based liability. First, relying on PETA’s
analysis of legislative history, it argues that the “harms” caused by the Zoo arise from
“categorically different act[s] than [those] that ‘actually kill[ ] or injure[ ]’ an animal.” Docket
no. 71 at 12. For the same reasons that this Court rejects the PETA court’s “gravely threatening”
requirement, it rejects this argument as well.
Second, the Zoo points to the FWS’ statement that “proper care and maintenance of listed
wildlife in captivity do[es] not constitute ‘harassment’ or ‘taking.’” Docket no. 71 at 13
(emphasis in the Zoo’s briefing). This citation, though, makes the same mistake that the PETA
court made by taking the FWS’ language out of context. By this statement, the FWS was
speaking precisely about the definition of “harass” and proposed changes thereto. The FWS was
not discussing broader changes to what constitutes a “take” under the ESA or the broader scope
of ESA coverage. Again, the definition of “harass” was changed to exclude certain AWAcompliant practices, but the FWS did not add this exclusion to any other forms of “taking.”
Reading this language otherwise would import an AWA compliance exception to the very
definition of “take” rather than simply the definition of “harass.”
Finally, by reference to the definitions of harm and harass, the Zoo argues that “[i]f a
zoo’s AWA-compliant husbandry practices cannot, as a matter of law, constitute ‘harassment,’
they a fortiori cannot be a ‘harm.’” Docket no. 71 at 13. Here, the Zoo quotes the definitions:

19

Kuehl and Hill affirmatively support a separate theory of “take” liability for “harming,” and PETA is
especially unavailing on this point. Here, the Court must interpret regulatory definitions governing the harassment of
terrestrial mammals that did not apply in PETA and were only briefly mentioned as providing contextual support for
the court’s conclusions regarding Lolita, a marine mammal. See 189 F. Supp. 3d at 1350 (briefly mentioning the
FWS’ definition of “harass” in 50 C.F.R. § 17.3); id. at 1344 (“The NMFS has not promulgated a definition of
‘harass.’”).

54

“Harm” is defined as “an act which actually kills or injures wildlife,” while
“harass” is defined as “an intentional or negligent act or omission which creates
the likelihood of injury to wildlife.” 50 C.F.R. § 17.3. Thus, if an act “actually
kills or injures wildlife,” it also meets the much lower threshold of “creat[ing] the
likelihood of injury to wildlife.” Plaintiffs do not and cannot point to any act—
whether hypothetical or real—that, on the one hand, does not “create the
likelihood of injury to wildlife,” but, on the other hand, “actually kills or injures
wildlife.”
Id. (some citations omitted and altered). Again, though, the Zoo misquotes the applicable
definitions, this time by omitting certain language. To “harass” is to commit “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.” 50 C.F.R. § 17.3 (emphasis
added). By omitting the emphasized language, the Zoo disregards that many acts might not
create a likelihood of injury by annoying wildlife, but may nonetheless actually kill or injure
wildlife by means other than annoyance, therefore “harming” an animal.
e. Summary
To summarize the foregoing, the Court holds that in order for Plaintiffs to succeed on
their ESA “taking” claims, they must carry the burden of showing either that the Zoo “harmed”
or “harassed” Lucky within the meaning of 50 C.F.R. § 17.3. Under the definition of “harass,”
Plaintiffs must show that the Zoo’s treatment of Lucky does not amount to generally accepted,
AWA-compliant animal husbandry practices. In making this showing, APHIS determinations are
evidence of AWA compliance, but are not necessarily conclusive. Finally, because this issue is
presented at the summary judgment phase, there need only be a genuine issue of material fact on
this question in order for Plaintiffs’ claims to proceed.
III.

The Zoo’s Motion for Summary Judgment
Having defined the scope of permissible summary judgment evidence and having
determined the nature of Plaintiffs’ claims and burden of proof, the Court turns to the ultimate
55

question before it at this stage—is the Zoo entitled to summary judgment on Plaintiffs’ claims
that it committed an ESA prohibited “take” on Lucky by harming or harassing her?
a. Standard of Review
The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(a). To establish that there is no genuine issue as to any material fact, the movant must
either submit evidence that negates the existence of some material element of the non-moving
party’s claim or defense, or, if the crucial issue is one for which the non-moving party will bear
the burden of proof at trial, merely point out that the evidence in the record is insufficient to
support an essential element of the non-movant’s claim or defense. Lavespere v. Niagra Machine
& Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990), cert. denied, 510 U.S. 859 (1993). Once
the movant carries its initial burden, the burden shifts to the non-movant to show that summary
judgment is inappropriate. See Fields v. City of S. Hous., 922 F.2d 1183, 1187 (5th Cir. 1991).
In order for a court to conclude that there are no genuine issues of material fact, the court
must be satisfied that no reasonable trier of fact could have found for the non-movant, or, in
other words, that the evidence favoring the non-movant is insufficient to enable a reasonable jury
to return a verdict for the non-movant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.
4 (1986). In making this determination, the court should review all the evidence in the record,
giving credence to the evidence favoring the non-movant as well as the “evidence supporting the
moving party that is uncontradicted and unimpeached, at least to the extent that evidence comes
from disinterested witnesses.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151
(2000).

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b. Discussion
There are numerous fact issues in this case that preclude a wholesale grant of summary
judgment in favor of the Zoo. Summary judgment is appropriate on Plaintiffs’ companionship
and size-of-enclosure claims, but not on Plaintiffs’ substrate and shelter-from-the-sun claims. In
this regard, the background section at the beginning of this order largely speaks for itself and
adequately shows the existence of numerous fact issues. Below, the Court will highlight these
fact issues as they relate to each of Plaintiffs’ four theories of how the Zoo is committing a take.
The Court also points out that aside from the remaining fact issues in two of these four areas,
there are also fact issues regarding the severity and causes of Lucky’s health conditions which
are apparent from the background section above.
Furthermore, the summary judgment evidence shows that fact issues remain as to both
the harm and harass theories on Plaintiffs’ substrate and shelter-from-the-sun claims. As
discussed above, the Zoo cannot be committing a “take” by “harassing” Lucky if its animal
husbandry practices are generally accepted and AWA compliant. In this regard, APHIS has
never found a violation of AWA regulations in terms of the Zoo’s treatment of its elephants, and
Blais failed to identify any AWA violations himself. But the summary judgment evidence—
recounted in full in the background section and highlighted below—would allow a reasonable
trier of fact to infer and conclude that the Zoo’s animal husbandry practices are not AWA
compliant. Accordingly, summary judgment is inappropriate as to this claim.
i. The Zoo is entitled to summary judgment on Plaintiffs’ companionship
claims because they are moot.
Summary judgment is appropriate against Plaintiffs’ claim that the Zoo is harming or
harassing Lucky by forcing her to live in isolation because this claim is now moot. The theory of
this claim is that social isolation damages Lucky’s mental well-being and is manifested itself in
57

stereotypic behavior which has its own physical harms. Though experts on both sides seem to
agree about the potential effects of elephant isolation in the abstract, the facts here are
undisputed—Lucky no longer lives alone and is accompanied in her enclosure by two former
circus elephants pursuant to a loan agreement with Feld Entertainment, which either party can
terminate (seemingly unilaterally) though neither the Zoo nor Feld plans to do so.
“Mootness is the doctrine of standing in a time frame.” Envtl. Conservation Org. v. City
of Dallas, 529 F.3d 519, 524 (5th Cir. 2008) (internal quotations omitted). “Generally, any set of
circumstances that eliminates actual controversy after the commencement of a lawsuit renders
that action moot.” Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th Cir. 2006).
“[I]t is not enough that a dispute was very much alive when suit was filed . . . The parties must
continue to have a personal stake in the outcome of the lawsuit.” Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 477–78 (1990) (internal quotations and citations omitted). On the other hand, a
dispute is not moot where “the parties maintain a concrete interest in the outcome and effective
relief is available to remedy the effect of the violation,” regardless of the size of the dispute
between the parties. Dailey v. Vought Aircraft Co., 141 F.3d 224, 227 (5th Cir. 1998).
Plaintiffs allege that they “will suffer irreparable injury if the Zoo does not agree to
transport Lucky to The Elephant Sanctuary in Tennessee, or at a minimum, remedy its treatment
of Lucky.” Docket no. 1 at 13. With respect to Plaintiffs’ allegations based on Lucky’s lack of
companionship, there is no further relief for the Court to grant—the Zoo already has “remed[ied]
its treatment of Lucky” by finding her two suitable companions with which to live. As a result,
Plaintiffs’ claim based on Lucky’s lack of companionship is now moot, and summary judgment
is appropriate as to this claim. 20

20

Though neither party addresses it, one exception to the doctrine of mootness is worth discussing.
Questions that would otherwise be moot may still be reviewed in appropriate circumstances where they present

58

ii. The Zoo is entitled to summary judgment on Plaintiffs’ claims regarding
the size of Lucky’s enclosure.
Under AWA regulations, “[e]nclosures shall be constructed and maintained so as to
provide sufficient space to allow each animal to make normal postural and social adjustments
with adequate freedom of movement. Inadequate space may be indicated by evidence of
malnutrition, poor condition, debility, stress, or abnormal behavior patterns.” 9 C.F.R. § 3.128.
The exclusion of Blais’ causation testimony is fatal to Plaintiffs’ claims based on the size of
Lucky’s enclosure because Blais provided the only evidence that the size of the enclosure caused
Lucky’s various health issues. Dr. Isaza acknowledged that “[t]here is a legitimate controversy
about the amount of area needed for Asian elephants and how much an elephant needs to walk to
maintain good health.” Docket no. 53-2 at 12; see also Docket no. 70-8 at 14 (“[A]mong
informed professionals, one person may have a — one opinion, the other person may have
another opinion and they discuss them and therefore it’s both — both sides can be valid, so it’s a
legitimate controversy.”). Dr. Ensley too opines that “the San Antonio Zoo’s enclosure space is
less than adequate for one elephant, where now there are two additional elephants.” Docket no.
70-1 at 7. But outside of a general recognition that the space required for elephants is up for
debate, Plaintiffs have no evidence to show that any of Lucky’s ailments are caused by this
particular feature of her enclosure. Though Dr. Ensley opines only that Lucky’s enclosure space
“issues capable of repetition yet evading review.” Bayou Liberty Ass’n, Inc. v. U.S. Army Corps of Engineers, 217
F.3d 393, 398 (5th Cir. 2000) (internal quotations omitted). This exception “‘applies only in exceptional situations . .
. where the following two circumstances are simultaneously present: (1) the challenged action is in its duration too
short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same
complaining party will be subject to the same action again.’” Id. (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998).
Given the loan agreement of Lucky’s two companions with Feld Entertainment, it is at least possible that
the revocation of the agreement could occur at any time, leaving Lucky with no companions once again. But it is not
clear that either requirement to the exception is met in this case. On the first requirement, Lucky previously was
alone in her enclosure for two separate stints of three years each before the Zoo added new companions. Docket no.
53-2 at 6. A similar period would provide ample time for future claims to be fully litigated. On the second
requirement, the Zoo has no intention of terminating the agreement with Feld, nor is there any indication that Feld
plans to terminate the agreement. Docket no. 70-2 at 8. As a result, there is only a “mere physical or theoretical
possibility” that Lucky will be left in solitude again, which is insufficient to invoke this exception to mootness.
Libertarian Party v. Dardenne, 595 F.3d 215, 217 (5th Cir. 2010).

59

is “less than adequate,” he does not meaningfully 21 attribute any of her specific ailments to the
size of her enclosure. Id. Because Blais’ opinions on the issue are inadmissible under Daubert,
Plaintiffs are left with no evidence on this claim, and summary judgment is appropriate here.
iii. Genuine issues of material fact preclude summary judgment on
Plaintiff’s claims that Lucky lacks adequate shelter from the sun.
AWA regulations require that “[w]hen sunlight is likely to cause overheating or
discomfort of the animals, sufficient shade by natural or artificial means shall be provided to
allow all animals kept outdoors to protect themselves from direct sunlight.” 9 C.F.R. § 3.127(a).
The Zoo’s staff and veterinarians say that Lucky has never been diagnosed with sunburns or heat
exhaustion, and Dr. Isaza reached a similar conclusion. Dr. Ensley reached a contrary
conclusion, pointing to vet records that reference “heat stress” and opining that exposure to the
sun exacerbates Lucky’s eye issues. Though the facts are relatively clear as to the structures in
Lucky’s enclosure that cast shade, there is nonetheless a genuine issue of material fact as to
whether the Zoo harms or harasses Lucky by providing an enclosure with inadequate shade and
shelter from the sun.
iv. Genuine issues of material fact preclude summary judgment on
Plaintiff’s substrate claims.
AWA regulations governing animal facilities provide that “[t]he facility must be
constructed of such material and of such strength as appropriate for the animals involved. The
indoor and outdoor housing facilities shall be structurally sound and shall be maintained in good
repair to protect the animals from injury and to contain the animals.” 9 C.F.R. § 3.125(a). On the

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At his deposition, Dr. Ensley was asked “Do you have an opinion as to whether or not the size of
Lucky’s enclosure is contributing to her harm?” Docket no. 70-3 at 32. He replied, “Yes . . . It is contributing to her
harm . . . The character, the construction does not allow her enough room to explore, to move about and exhibit
species-specific behaviors that have been known with elephants to the degree where it has — the current and past
exhibit have created the problems that she has today.” Id. This brief exchange is the extent of Dr. Ensley’s causation
opinion as it relates to the size of Lucky’s enclosure.

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appropriateness of Lucky’s substrate, genuine issues of material fact as to whether the substrate
“harms” or “harasses” foreclose the possibility of summary judgment.
Initially, there is a genuine issue of material fact as to the hardness of the substrate.
King’s report and deposition provide much detail as to the composition of the substrate.
According to King, Plaintiff’s soil expert, the substrate is approximately 60% sand, 30% clay,
and 10% grass and mulch. Additional portions of the substrate include the harder bases
underlying the mulch and sand, the rubber-coated concrete in the barn, and the concrete pool.
King’s report and deposition provide much clarity as to the density and hardness of certain areas,
such as sand that is like a volleyball court or mulch comparable to a playground. But the
summary judgment record is not conclusive on the precise hardness of many of these areas. In
particular, fact issues surrounding the hardness of the clay areas (approximately one-third of the
substrate) preclude summary judgment. King’s report describes the clay as “[s]uperficial hard
clay soil material . . . observed to be in a medium to very dense conditions [sic], similar to a sun
baked clay strata.” Docket no. 53-14 at 2. Though the Zoo argues that the density of this clay
material (80-90 pounds per square foot) is far less than that of concrete (150 pounds per square
foot), the Zoo does not explain how the density of a material affects its hardness or more
importantly, Lucky’s health. Docket no. 71 at 21 (quoting Docket no. 71-3 at 8, 11 (King
testifying at his deposition regarding density)). And assuming, as the Zoo seems to imply, that a
denser material is harder and more unyielding, this view actually undercuts the Zoo’s position
because many of the sandy areas in Lucky’s enclosure have a density of well over 100 pounds
per cubic foot. See Docket no. 53-14 at 4.
Aside from the disputes about the hardness of the materials that make up the substrate,
the more important point is that the parties dispute what effect the substrate has on Lucky—that

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is, whether the substrate is “species-inappropriate.” See Docket no. 1 at 20. In this regard, the
background section recounts the parties’ disputes in full detail. Dr. Ensley opines that the surface
is harder and “compacted” in certain areas, that it is species inappropriate, and that Lucky suffers
foot problems and arthritis as a result of it. The Zoo’s experts continually characterize the
substrate as soft, though even they seem to recognize that the wrong substrate can hurt an animal.
See Docket no. 70-9 at 5 (Zoo veterinary director Dr. Coke testifying at his deposition that “[t]he
harder the substrate has been — the hardness of the substrate, harder being more negatively
impactful to the health of the foot of the elephant.”). Due to these remaining fact issues, the Zoo
is not entitled to summary judgment on Plaintiffs’ substrate claims.
CONCLUSION
For the foregoing reasons, the Zoo’s Motion to Exclude Expert Opinion Testimony of Dr.
Philip Ensley (Docket no. 59) is DENIED. The Zoo’s Motion to Exclude Expert Opinion
Testimony of Scott Blais (Docket no. 61) is GRANTED IN PART AND DENIED IN PART as
described above. The Zoo’s Motion for Summary Judgment (Docket no. 53) is GRANTED IN
PART AND DENIED IN PART. Summary judgment is GRANTED as to the claims that Lucky
is being harmed and harassed by a lack of companionship because this claim is now moot, and
summary judgment is GRANTED as to the claims that Lucky is being harmed and harassed by
the small size of her enclosure because Plaintiffs fail to adduce any evidence of causation on this
point. Accordingly, this case will proceed to trial on Plaintiffs’ two remaining claims—that the
Zoo is harming and harassing Lucky by providing an enclosure with an inappropriate substrate
and inadequate shelter from the sun.

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It is so ORDERED.
SIGNED this 8th day of June, 2017.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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