Environmental — Court Used Wrong Standard for Bear Treatment

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Hill v. Coggins (Lawyers Weekly No. 001-168-17, 33 pp.) (Floyd, J.) No. 16-1457, Aug. 14, 2017; USDC at Bryson City, NC. (Reidinger, J.) 4th Cir.

Holding: Two patrons, members of a local Cherokee tribe, who visited defendants’ Cherokee Bear Zoo had standing to sue the zoo and its owners under the Endangered Species Act for the zoo’s “taking” of its grizzly bears by housing the bears in a small concrete pit with no shade or vegetation; however, the 4th Circuit says the district court erred in applying the Animal Welfare Act standard to defendants’ treatment of the bears, which plaintiffs claimed was “harassment” under the ESA.

Standing

We conclude plaintiffs possess Article III standing to bring this suit against the zoo. Plaintiffs’ claim – that the zoo is depriving them of a right to personally observe the zoo’s bears in a setting compatible with the ESA – constitutes an aesthetic injury that satisfies the first standing element of injury in fact. Plaintiffs claim the bears currently are being mistreated and plaintiffs are willing and able to go back and visit the bears if the conditions the bears live in are improved. The court defended its finding of injury by highlighting the “spiritual and cultural connection with the bears” that plaintiffs, members of the Eastern Band of Cherokee Indians, possessed. We discern no clear error in these sound credibility determinations.

The additional elements of an injury-in-fact easily follow. Plaintiffs’ alleged aesthetic injury is fairly traceable to the zoo, and plaintiffs claim they are being deprived of a right to observe the bears in a setting that does not violate the ESA.

Further, we agree with the district court’s determination that plaintiffs have proven that the subject bears are indeed grizzly bears, based on the zoo’s online representations, signs and veterinary records, as well as U.S. Department of Agriculture reports. The district court did not abuse its discretion in deciding that any pretrial discovery failure by plaintiffs to provide an expert identification was harmless.

‘Taking’ of Bears

We conclude that the district court’s determination that the zoo did not engage in an unlawful “taking” under the ESA was the result of incorrect legal analysis.

The ESA expansively defines the term “take” as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The district court interpreted the ESA’s first enumerated exclusion to excuse animal husbandry practices that comply with the applicable AWA standards, without regard to whether those practices are “generally accepted.” We agree with plaintiffs that the exclusion can only fairly be interpreted to excuse animal husbandry practices that are both “generally accepted” and AWA compliant.

To establish harassment in this case, plaintiffs must prove 1) that the zoo’s animal husbandry practices fall within 50 C.F.R. § 17.3’s definition of harass and that those practices do not fall within the enumerated exclusion from that definition. The district court did not reach the first issue, and the second issue remains unresolved in light of our holding that the district court improperly declined to ask whether the zoo’s animal husbandry practices are “generally accepted” before it invoked the exclusion. It is therefore appropriate to resolve these issues.

Affirmed in part, vacated in part and remanded.

Concurrence & Dissent

Bailey, D.J.: I am pleased to concur in that part of the majority opinion affirming the district court decision with respect to Article III standing and the fact that the subject bears are indeed grizzly bears. I feel compelled, however, to respectfully dissent from the majority’s interpretation of 50 C.F.R. § 17.3.

The only appropriate reading of the regulation is that the Secretary of Agriculture, taking into consideration generally accepted practices, is to determine, establish and enforce the minimum standards for operators holding captive, threatened animals. I would affirm the district court judgment.