AMERICAN SOC. FOR PREVENTION TO ANIMALS v. FEI

• Citation: 677 F. Supp.2d 55
• Decision Date: 30 December 2009
• Docket Number: Civ. Action No. 03-2006 (EGS).
• Parties: AMERICAN SOCIETY FOR the PREVENTION OF CRUELTY TO ANIMALS, et al., Plaintiffs, v. FELD ENTERTAINMENT, INC., Defendant.
• Court: U.S. District Court — District of Columbia

677 F.Supp.2d 55

AMERICAN SOCIETY FOR the PREVENTION OF CRUELTY TO ANIMALS, et al., Plaintiffs, v. FELD ENTERTAINMENT, INC., Defendant.

Civ. Action No. 03-2006 (EGS).

United States District Court, District of Columbia.

December 30, 2009.

Katherine A. Meyer, Tanya Sanerib, Eric Robert Glitzenstein, Howard M. Crystal, Meyer Glitzenstein & Crystal, Kimberly Denise Ockene, Jonathan Russell Lovvorn, The Humane Society of the United States, Stephen A. Saltzburg, George Washington University Law School, Washington, DC, for Plaintiffs.

John M. Simpson, Joseph T. Small, Jr., Lisa Zeiler Joiner, Michelle C. Pardo, George A. Gasper, Kara L. Petteway, Lance L. Shea, Fulbright & Jaworski, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

EMMET G. SULLIVAN, District Judge.

Plaintiff Tom Rider was formerly employed by Defendant Feld Entertainment, Inc. ("FEI"), where he worked with several of defendant's Asian elephants in defendant's Ringling Bros. and Barnum & Bailey ("Ringling Bros.") traveling circus. Plaintiff Animal Protection Institute ("API") is a non-profit organization which conducts advocacy and public policy campaigns focused on animals in entertainment. Plaintiffs brought this action against FEI, alleging that FEI's use of bullhooks and prolonged periods of chaining with respect to its circus elephants violates the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq. The Court presided over a non-jury trial from February 4, 2009 to March 18, 2009, during which time the Court heard testimony from approximately thirty fact and expert witnesses and reviewed and admitted hundreds of documents into the evidentiary record. After the trial concluded, and at the Court's direction, each party submitted Proposed Findings of Fact and Conclusions of Law. Closing arguments were held on July 14, 2009. Based on all of the evidence presented, the relevant law, and the entire record developed over nine years of litigation in this matter, and for the reasons stated herein, the Court makes the following findings of fact and conclusions of law. Consistent with these findings and conclusions, and because the plaintiffs have failed to establish the standing required by Article III of the United States Constitution, the Court will enter judgment in favor of defendant.

I. BACKGROUND

A. The Parties

Defendant FEI is a corporation organized under the laws of the State of Delaware. See Defendant's Proposed Findings of Fact and Conclusions of Law ("Def.'s Prop. FOF") at ¶ 11.¹ FEI or its predecessor entities have produced and presented a live circus show under the "Ringling Bros." or similar name for 139 years, and elephants have been included in those shows since 1872. Id. at ¶ 12. FEI currently owns fifty-four (54) Asian elephants, the largest group of captive Asian elephants in the United States. Id. at ¶¶ 24, 27. A number of FEI's Asian elephants perform in circus shows and travel with three circus units. Id. at ¶ 28. In addition to the traveling shows, FEI also maintains Asian elephants at its Center for Elephant Conservation ("CEC") in central Florida, and at the Two Tails Ranch in Williston, Florida ("Williston Ranch"). Id. Those facilities are not open to the public. Id. FEI's elephants are sent to the CEC or the Williston Ranch for breeding, research, and retirement. Id. at ¶ 28. Since 1992, through FEI's breeding program, twenty-two (22) Asian elephants have been bred and born in captivity. Id. at ¶ 29.

Plaintiff Tom Rider worked for the Ringling Bros. circus on one of the circus's traveling units, the Blue Unit, from June 1997 to November 1999. See Plaintiffs' Proposed Findings of Fact ("Pls.' Prop. FOF") at ¶ 3. Initially employed as a "barn helper," and later as a "barn man," Rider was responsible for cleaning up after the elephants, providing them with food and water, and watching over them while he was on duty. Id. As discussed below, see infra Part I.C., plaintiffs' complaint in this case alleges that during the nearly two and a half years that Rider worked on the Blue Unit, he developed a strong personal attachment to many of the Ringling Bros. elephants. See Complaint (Docket Entry ("DE") 1) (Sept. 26, 2003) ("Compl.") at ¶ 18. Seven of the elephants with whom Rider worked on the Blue Unit are still in FEI's possession: Karen, Nicole, Lutzi, Zina, Mysore, Susan, and Jewell.² Pls.' Prop. FOF at ¶ 9. Karen and Nicole still perform on the circus's Blue Unit, while Lutzi, Jewell, Susan, Mysore, and Zina are at the CEC. Pls.' Prop. FOF at ¶ 12; Def.'s Prop. FOF at ¶¶ 48, 49. According to FEI, Lutzi, Jewell, Susan, Mysore, and Zina are retired from circus performing, and will never again be exhibited by FEI in the circus. Def.'s Prop. FOF at ¶ 49. All seven of the elephants at issue in this case are adults; the oldest, Mysore, is approximately sixty-three (63) years old, and the youngest, Nicole, is approximately thirty-four (34) years old. Id. at ¶ 25.

Plaintiff API is a non-profit organization formed in 1968 and based in Sacramento, California. Pls.' Prop. FOF at ¶ 67. API has four campaign areas, one of which focuses on animals in entertainment. Id. API also works on international wildlife trade, exotic pets, and trapping and fur issues. Id. API's work related to circus animals includes (a) public education and advocacy; (b) legislative efforts; and (c) regulatory work. Id. at ¶ 68. API has approximately 40,000 members and supporters. Id. at ¶ 74.

B. Plaintiffs' Claims

Rider and API contend that FEI "takes" the Asian elephants in its possession in violation of Section 9 of the ESA by "harming," "harassing," and "wounding" the elephants. See Plaintiffs' Second Amended Pre-Trial Statement ("Pls.' Pretrial St.") at 1 (citing 16 U.S.C. § 1532(19) (providing definition of "take")). Specifically, plaintiffs allege that defendant's employees "take" the elephants by routinely hitting them with bullhooks³ to train, handle, "correct," and "discipline" the animals, and by chaining them on hard surfaces for many hours each day, and for even longer durations while the elephants are transported on train cars from one location to the next.⁴ Id. at 1-2.

Plaintiffs maintain that the use of the bullhook "wounds," "harms," and "harasses" the elephants in violation of the ESA's "take" prohibition because it causes physical, psychological, and behavioral injuries to the elephants, and also significantly impairs and disrupts the elephants' essential and normal behavioral patterns, including their ability to move freely without being hit, their ability to explore their surroundings, and their ability to socialize with other elephants. See Pls.' Pretrial St. at 11. Plaintiffs also contend that defendant's practice of chaining the elephants "harms," "harasses," and "wounds" the elephants in many ways, such as by contributing to serious foot, leg, joint, and other injuries and diseases, as well as significantly impairing and disrupting their essential and normal behavior patterns, including their need to walk, their need to turn around and to explore their surroundings, and their need to socialize with other elephants. Id. at 7.

C. Procedural History

This litigation is in its ninth year.⁵ The original complaint in this action was docketed as Civil Action Number 00-1641, and was filed on July 11, 2000, on behalf of, among others, the American Society for the Prevention of Cruelty to Animals ("ASPCA"), Animal Welfare Institute ("AWI"), and Fund for Animals ("FFA"), as well as certain plaintiffs who were later dismissed, namely the Performing Animal Welfare Society ("PAWS"), Pat Derby, Edward Stewart, and Glenn Ewell. See Def.'s Prop. FOF at ¶ 18. Plaintiffs filed a Second Amended Complaint on April 10, 2001.

On June 29, 2001, the Court dismissed the Second Amended Complaint on the grounds that plaintiffs lacked standing to sue. See Mem. Op. & Order, Civ. No. 00-1641 (DE 20) (June 29, 2001) ("June 29, 2001 Decision"). With regard to Rider, the Court found that Rider had "failed to demonstrate sufficient injury-in-fact," because "he had not alleged a presently suffered aesthetic injury." Id. at 6, 9 (finding that like the plaintiff in Animal Legal Defense Fund v. Espy, 23 F.3d 496 (D.C.Cir.1994), whose alleged injury based on exposure to animals being inhumanely treated in her research field was found to be insufficient to support standing where she had been away from the research field for six years and therefore had not suffered the aesthetic injury during that time, Rider had been away from the circus for two years and during that time had not been exposed to the alleged mistreatment). The Court also found that Rider's contention that he wished to return to elephant training was a "speculative and uncertain claim . . . not sufficient to support the requirement that the plaintiff's aesthetic injury, if not presently suffered, be imminently threatened." June 29, 2001 Decision at 6.

The Court also dismissed the case as to the organizational plaintiffs, who alleged that they suffered informational and economic injury as a result of defendant's failure to apply for a permit prior to "taking" the elephants. See id. at 10-11 (discussing organizational plaintiffs' argument that if defendant applied for a permit, plaintiffs would receive all of the information they require through the public notice and comment period provided by the Section 10 process). The Court recognized that under this Circuit's precedent, an informational or economic injury "may be sufficient to support standing to a person adversely affected or aggrieved by an agency action (or inaction)." Id. at 11 (citing Animal Legal Def. Fund v. Espy ("ALDF II"), 29 F.3d 720, 724 (D.C.Cir. 1994)). The Court found, however, that the cases in which informational injury was sufficient to support standing were limited to suits brought against the agency whose failure to enforce the regulation at issue caused the plaintiff's injury. See June 29, 2001 Decision at 12 (citi...