Graham v. San Antonio Zoological Soc'y, Civil Action No. SA–15–CV–1054–XR

• Court: U.S. District Court — Western District of Texas
• Writing for the Court: XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE
• Citation: 261 F.Supp.3d 711
• Docket Number: Civil Action No. SA–15–CV–1054–XR
• Decision Date: 08 June 2017
• Parties: James GRAHAM, et al., Plaintiffs, v. SAN ANTONIO ZOOLOGICAL SOCIETY, Defendant.

261 F.Supp.3d 711

James GRAHAM, et al., Plaintiffs,
v.
SAN ANTONIO ZOOLOGICAL SOCIETY, Defendant.

Civil Action No. SA–15–CV–1054–XR

United States District Court, W.D. Texas, San Antonio Division.

Signed June 8, 2017

Anthony T. Eliseuson, Dentons U.S. LLP, Chicago, IL, Blake Jordan Brownshadel, Marina Stefanova, Matthew T. Nickel, Spencer D. Hamilton, Adam H. Pierson, SNR Denton U.S., LLP, Dallas, TX, Carney Anne Nasser, Jeffrey Pierce, Animal Legal Defense Fund, Cotati, CA, for Plaintiffs.

David A. King, David P. Smith, Matthew B. Baumgartner, Graves Dougherty Hearon & Moody, P.C., Austin, TX, for Defendant.

261 F.Supp.3d 716

ORDER

XAVIER RODRIGUEZ, UNITED STATES DISTRICT JUDGE

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.

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 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

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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.

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 believes that Lucky's behavior is merely "anticipatory,"

261 F.Supp.3d 718

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...