Am. Soc'y For the Prevention of Cruelty To Animals v. Feld Ent. Inc.

• Decision Date: 28 October 2011
• Docket Number: Nos. 10–7007,10–7021.,s. 10–7007
• Citation: 73 ERC 1577,659 F.3d 13
• Parties: AMERICAN SOCIETY FOR the PREVENTION OF CRUELTY TO ANIMALS, et al., Appellantsv.FELD ENTERTAINMENT, INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

659 F.3d 13

73 ERC 1577

AMERICAN SOCIETY FOR the PREVENTION OF CRUELTY TO ANIMALS, et al., Appellants

v.FELD ENTERTAINMENT, INC., Appellee.

Nos. 10–7007

10–7021.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 12, 2011.Decided Oct. 28, 2011.

Appeals from the United States District Court for the District of Columbia (No. 1:03–CV–02006).Carter G. Phillips argued the cause for appellants/cross-appellees. With him on the briefs were Paul J. Zidlicky, Eric D. McArthur, and Bryson L. Bachman. Katherine A. Meyer, Howard M. Crystal, and Eric R. Glitzenstein entered appearances.

John M. Simpson argued the cause for appellee/cross-appellant. With him on the briefs were Jonathan S. Franklin, Michelle C. Pardo, and Mark Emery. Joseph T. Small Jr. entered an appearance.Before: TATEL, GARLAND, and BROWN, Circuit Judges.Opinion for the Court filed by Circuit Judge TATEL.TATEL, Circuit Judge:

Feld Entertainment, Inc., owns the country's largest collection of endangered Asian elephants, some of whom travel and perform with its famed Ringling Brothers and Barnum & Bailey Circus. In this case, a former barn helper with Ringling Brothers and an organization dedicated to fighting exploitation of animals allege that not all is well under the big top. Specifically, they claim that Feld's use of two techniques for controlling the elephants—bullhooks and chains—harms the animals in violation of the Endangered Species Act. But the district court never reached the merits of this claim because, following a lengthy bench trial, it found that plaintiffs had failed to establish Article III standing. For the reasons set forth in this opinion, we agree.

I.

The Endangered Species Act of 1973 (ESA) requires the Secretary of the Interior to identify species that are “endangered” or “threatened.” 16 U.S.C. § 1533(a)(1). Section 9 makes it unlawful to “take” any endangered species within the United States, or to “possess, sell, deliver, carry, transport, or ship, by any means whatsoever” any endangered species “taken” in violation of the Act. 16 U.S.C. § 1538(a)(1)(B), (D). The Act defines “take” to mean “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). Pursuant to ESA section 10, the Secretary may issue a permit for a take otherwise prohibited by section 9, provided that he first gives public notice and an opportunity to comment on the permit application, as well as makes certain findings regarding the impact of the permitted activities. 16 U.S.C. § 1539.

This case involves two techniques Feld uses to handle its Asian elephants. First, its handlers guide and control the elephants with an instrument known as a bullhook, a two- to three-foot rod with a metal point and hook mounted on one end. Second, Feld tethers its Asian elephants with chains when the animals are not performing and when they are traveling by train. Plaintiffs maintain that these two practices “harm,” “wound,” and “harass” the elephants within the meaning of ESA section 9, and therefore qualify as a “take” which Feld cannot continue without obtaining a section 10 permit.

One of the plaintiffs, Tom Rider, witnessed Feld's use of the challenged practices over two years, from June 1997 to November 1999, when working as a “barn helper” and “barn man” on one of Feld's traveling circus units. His responsibilities included cleaning up after the elephants, giving them food and water, and generally watching over them. Rider claims that during his employment with Feld, he developed a “strong, personal attachment” to the elephants with whom he worked, and that he left his employment with Feld because he could no longer stand to see the elephants mistreated. Compl. ¶¶ 18, 21.

In 2000, Rider and several other individuals and organizations filed suit against Feld, alleging that its use of bullhooks and tethering violated ESA's “take” provision. Concluding that neither Rider nor any other plaintiff had standing to bring suit under ESA's citizen-suit provision, 16 U.S.C. § 1540(g), the district court dismissed the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). Performing Animal Welfare Soc'y v. Ringling Bros. & Barnum & Bailey Circus, No. 00–cv–01641 (D.D.C. June 29, 2001).

We reversed. Am. Soc'y for Prevention of Cruelty to Animals v. Ringling Bros. & Barnum & Bailey Circus, 317 F.3d 334 (D.C.Cir.2003) ( “ ASPCA ”). Noting that Rider presented the “strongest case for standing,” we began with his allegations. Id. at 335. In the complaint, we observed, Rider alleged that during his employment at Feld, he formed a “strong, personal attachment” to the elephants; that he witnessed the elephants exhibiting stress-related, “stereotypic” behavior in response to the use of bullhooks and chains by Feld handlers; and that he ultimately left his job because of this mistreatment. Id. (internal quotation marks omitted). Although claiming that he would like to visit the elephants again, Rider alleged that he was unwilling to do so “because he would suffer ‘aesthetic and emotional injury’ from seeing the animals unless they are placed in a different setting or are no longer mistreated.” Id.

We found these allegations sufficient to survive Feld's Rule 12(b)(1) motion to dismiss. Relying on our decision in Animal Legal Defense Fund, Inc. v. Glickman, 154 F.3d 426 (D.C.Cir.1998) (en banc), we explained that “an injury in fact can be found when a defendant adversely affects a plaintiff's enjoyment of flora or fauna, which the plaintiff wishes to enjoy again upon the cessation of the defendant's actions,” and concluded that “the injury Rider allegedly suffers from the mistreatment of the elephants to which he became emotionally attached” could constitute such an injury to his “aesthetic” sense. ASPCA, 317 F.3d at 336. Emphasizing the lesser showing required at the pleading stage, we found that Rider's allegations of emotional attachment, coupled with his desire to visit the elephants and his ability to recognize the effects of mistreatment, were sufficient to establish injury in fact. Causation was never in question—Feld clearly caused the alleged mistreatment—and we reasoned that Rider's injury could be adequately redressed through the lawsuit, assuming the elephants were likely to cease exhibiting signs of stress once the alleged mistreatment ended.

After our decision, Rider and the other plaintiffs dismissed the original action without prejudice and filed a new complaint against Feld. They subsequently filed a supplemental complaint adding another plaintiff, Animal Protection Institute (API), appellant herein, which has advocated against Feld's allegedly abusive treatment of animals since at least 1998. Following rulings on a number of motions not relevant here, the district court held a six-week bench trial, heard testimony from approximately thirty witnesses, reviewed hundreds of documents entered into the evidentiary record, and concluded that both Rider and API had failed to establish standing. Although acknowledging that, pursuant to our ASPCA decision, Rider's allegations, if proven, would be sufficient to establish Article III standing, the district court found that Rider was “essentially a paid plaintiff and fact witness” whose trial testimony, and particularly his claim that he had developed an attachment to the elephants, lacked credibility. Am. Soc'y for the Prevention of Cruelty to Animals v. Feld, 677 F.Supp.2d 55, 67 (D.D.C.2009) ( “ ASPCA ”). Based on Rider's lack of credibility and the totality of the evidence presented, the district court concluded that Rider failed to prove the allegations that we had relied upon in finding standing at the pleading stage. Id. at 93–94.

The district court also rejected API's two theories of standing. First, API alleged “informational” standing, arguing that Feld's refusal to seek a permit for activities prohibited by ESA deprived API of information to which it would be entitled in the course of a permit proceeding. The district court rejected this theory on a number of grounds, including that: (1) the statutory basis for API's suit, ESA section 9, imposes no duty on Feld to provide information; (2) even if Feld's practices were deemed a “taking,” Feld might decide not to seek a permit, and if it did, the flow of information to API would be controlled by the agency, not Feld; and (3) API already had all of the information it would obtain through the permit process. Id. at 97–101.

Second, API argued that it suffered an injury in fact because it had to expend resources to combat Feld's treatment of elephants. The district court rejected this alternative theory of injury because API had failed to present any evidence that it would spend fewer resources on captive animal issues if the use of bullhooks and tethering were declared to be a taking. Id. at 101. Because the remaining plaintiffs had abandoned any claim to independent standing, id. at 96, the district court entered judgment in favor of Feld, id. at 101.

Rider and API appeal. We review the district court's standing determination de novo, Nat'l Wrestling Coaches Ass'n v. Dep't of Educ., 366 F.3d 930, 937 (D.C.Cir.2004), and its underlying factual findings for clear error, Armstrong v. Geithner, 608 F.3d 854, 857 (D.C.Cir.2010); Fed.R.Civ.P. 52(a)(6).

II.

ESA's citizen-suit provision permits “any person” to commence a civil suit to enjoin alleged violations of the Act or regulations issued under its authority. 16 U.S.C. § 1540(g)(1). Described as “an authorization of remarkable breadth,” the citizen-suit provision expands standing to the full extent permitted under Article III of the Constitution and eliminates any prudential standing requirements. Bennett v. Spear, 520 U.S. 154, 164–66, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); ASPCA, 317 F.3d at 336. To establish standing, then, Rider and API need only satisfy the “irreducible constitutional minimum...