Recent Decision May Reduce Zoos’ Potential Exposure to ESA Violations
Kelley Drye Client Advisory
October 3, 2019
There is good news for zoos that hold animals designated as endangered or threatened, i.e., “listed”, under the Endangered Species Act (ESA).  The recent decision in Hill v. Coggins, No. 2:13-cv-47 W.D.N.C. (Sept. 24, 2019), should reduce zoos’ potential exposure to ESA violations. Over the past few years, zoos that hold listed animals have been the target of ESA lawsuits brought by animal rights groups.  One of the claims frequently seen in such lawsuits has been that practices zoos use to care for a listed animal - including the living conditions in which the zoos keep the animal - “harass” the animal and thereby constitutes a “take” in violation of the ESA.  If followed by other courts, Hill should make it more difficult for a plaintiff to prevail on such a claim.

BACKGROUND

A.        “Take” and “Harass” Under the ESA 

The ESA makes it unlawful to “take” a listed animal, and violators can be subject to civil and criminal penalties for taking a listed animal.  16 U.S.C. §§ 1538(a)(1)(B) & 1540.  “Take” means, among other things, to “harass”, or to attempt to engage in such conduct.  Id. § 1532(19).  “Harass”, as used in federal regulations promulgated under the ESA, 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 which include, but are not limited to, breeding, feeding, or sheltering.” 50 C.F.R. § 17.3.  Significantly, however, the definition of “harass” in the ESA regulations, “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 Animal Welfare Act ….”  Id. (emphasis added).

B.        The Hill v. Coggins Case

In Hill, the defendant zoo was alleged to have violated the ESA based on the zoo’s practices in caring for four grizzly bears, including the living conditions – a concrete pit – in which the bears were kept.  Grizzly bears are listed under the ESA.  The plaintiffs claimed that the zoo’s husbandry practices constituted harassment resulting in an illegal take of the bears. 

The initial district court decision.  A bench trial was held at which the plaintiffs put on expert witnesses who testified that the zoo’s husbandry practices met the definition of harassment and that those practices did not meet federal Animal Welfare Act (AWA) standards or comply with generally accepted animal husbandry practices.  At the conclusion of the trial, the district court found that the zoo’s animal husbandry practices for the bears did not amount to harassment because the evidence showed that the zoo’s animal husbandry practices, including keeping the grizzly bears in a concrete pit, met or exceeded the AWA standards. 

The appellate decision.  On appeal, the United States Fourth Circuit Court of Appeals found that the trial court had erred. See 867 F. 3d 499 (4th Cir. 2017).  According to the Fourth Circuit, the district court mistakenly did not consider whether the defendant zoo’s animal husbandry practices met or exceeded “generally accepted” animal husbandry practices, apart from whether minimum AWA standards had been met.  See id. at 509-10.  AWA.  See id.  The case was remanded to the district court for further consideration of whether the zoo’s animal husbandry practices were “generally accepted.”

One of three judges on the Fourth Circuit panel dissented in part.  He reasoned that it was proper for the district judge to look only to the AWA standards.  According to the dissenting justice, the “generally accepted” clause was vague and would require application of some unknown “generally accepted” animal husbandry practices, which raised concerns under the Due Process clause of the Constitution.  The dissenting judge also was troubled because requiring a court to look beyond the AWA standards to attempt to determine what “generally accepted” animal husbandry practices were would put courts in the untenable position of making rules as to what those practices were – a task that was the province of Congress or regulatory agencies.  See id. at 515-16.

The district court’s September 24, 2019 decision on remand.  On remand, the district court followed much of the rationale of the dissenting judge’s opinion and found that the plaintiffs failed to prove “a clearly articulated, findable, and understandable exposition of a ‘generally accepted’ animal husbandry standard.”  In reaching this conclusion, the district court:

- Explained that “[n]o ‘generally accepted’ animal husbandry practices have been adopted by the ordinary rule-making process or subjected to public debate.  There is no single source to which anyone can refer to learn what is allowed and what is prohibited.  Indeed, the Plaintiffs have not identified any literature or peer-reviewed material that establishes the ‘generally accepted’ animal husbandry practices applicable to the treatment of threatened or endangered wildlife in captivity.”; and,

- Found that plaintiffs failed to prove that the American Zoological Association (AZA) Accreditation Standards were “generally accepted” animal husbandry practices for zoos holding listed animals.  The district court did not credit the testimony offered by one of the plaintiffs’ expert witnesses that AZA standards were considered generally accepted animal husbandry practices.  According to the district court, AZA standards were for accreditation for membership in a group of zoos having limited membership, and thus, by definition, not generally accepted.  As for the plaintiffs’ other expert, who testified that the defendant’s animal husbandry practices did not meet the AZA Accreditation Standards, the district court noted that this expert never identified the AZA standards as being generally accepted animal husbandry practices. 

THE TAKE-AWAYS FROM HILL

1.         To prevail on a claim that a zoo’s animal husbandry practices – including living conditions in which the animal in question is kept -- constitute harassment under the ESA, a plaintiff must prove, among other things, that the zoo’s animal husbandry practices both (a) are not generally accepted and (b) do not meet or exceed applicable AWA standards.  Significantly, part (a) requires the plaintiff to prove what the generally accepted animal husbandry practices are.

2.         The AZA Accreditation Standards are not proof of generally accepted animal husbandry standards for listed animals kept in zoos.

3.         A plaintiff may be hard-pressed to find any competent proof to establish what, if any, are generally accepted animal husbandry standards for listed animals kept in zoos.

4.         We anticipate the plaintiffs in Hill will appeal the decision.

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