Hill v. Coggins, CIVIL CASE NO. 2:13-cv-00047-MR-DLH

• Decision Date: 24 September 2019
• Docket Number: CIVIL CASE NO. 2:13-cv-00047-MR-DLH
• Citation: 423 F.Supp.3d 209
• Court: U.S. District Court — Western District of North Carolina
• Parties: Peggy HILL and Amy Walker, Plaintiffs, v. Barry COGGINS and Collette Coggins, d/b/a Cherokee Bear Zoo, and Coggins & Coggins, Inc., Defendants.

423 F.Supp.3d 209

Peggy HILL and Amy Walker, Plaintiffs,

v.Barry COGGINS and Collette Coggins, d/b/a Cherokee Bear Zoo, and Coggins & Coggins, Inc., Defendants.

CIVIL CASE NO. 2:13-cv-00047-MR-DLH

United States District Court, W.D. North Carolina, Asheville Division.

Signed September 24, 2019

Gary A. Davis, James S. Whitlock, Davis & Whitlock, P.C., Asheville, NC, for Plaintiffs.

Mark Russell Melrose, Melrose Law, PLLC, Waynesville, NC, for Defendants.

MEMORANDUM OF DECISION AND ORDER

Martin Reidinger, United States District Judge

THIS MATTER is before the Court on remand from the Fourth Circuit Court of Appeals, Hill v. Coggins, 867 F.3d 499 (4th Cir. 2017), cert. denied, ––– U.S. ––––, 138 S. Ct. 1003, 200 L.Ed.2d 253 (2018), and the parties' supplemental briefs [Docs. 112, 113, 115, 116]. Upon consideration of the Fourth Circuit's opinion, the testimony and evidence presented by the parties at trial, and the arguments of counsel, the Court hereby enters the following Memorandum of Decision and Order.

I. PROCEDURAL BACKGROUND

The Plaintiffs Peggy Hill and Amy Walker initiated this citizen suit on December 3, 2013, against the Defendants Barry Coggins and Collette Coggins, collectively doing business as Cherokee Bear Zoo ("CBZ" or "Zoo"), alleging various violations of the Endangered Species Act, 16 U.S.C. §§ 1531 - 1544 ("ESA").¹ [Doc. 1]. As asserted in their Amended Complaint, the Plaintiffs allege that the Zoo's past and ongoing practice of keeping four adult grizzly bears in allegedly undersized concrete pits constitutes an unlawful "taking" and unlawful possession of a "taken" threatened species (Counts One and Two).² [Doc. 30].

After the Defendants' motion for summary judgment was denied [Text-Only Order entered Aug. 13, 2015], the case proceeded to a bench trial. On March 30, 2016, the Court entered an Order containing findings of fact and conclusions of law. [Doc. 93]. Specifically, the Court concluded that the Plaintiffs generally had standing to bring their suit.³ The Court further found that the four subject bears were in fact grizzly bears and thus subject to protection under the ESA. However, the Court concluded that the manner in which the Zoo maintains the bears does not amount to an unlawful taking under the Act. Accordingly, the Court dismissed the Plaintiffs' action in all respects. [Doc. 93].

Both the Plaintiffs and the Defendants appealed. On August 14, 2017, the Fourth Circuit Court of Appeals affirmed the Court's rulings on the issues of standing and the status of the subject bears as grizzly bears. Hill, 867 F.3d at 502. The Fourth Circuit concluded, however, that this Court erred in its legal analysis of the issue of whether the Zoo is committing an unlawful taking of the bears. Id. Accordingly, that ruling was vacated, and this matter was remanded for further proceedings. Id. The United States Supreme Court denied a petition for a writ of certiorari on February 20, 2018. Coggins v. Hill, ––– U.S. ––––, 138 S. Ct. 1003, 200 L.Ed.2d 253 (2018).

Following the denial of the writ of certiorari, this Court ordered the parties to file supplemental briefing on the issues raised by the Fourth Circuit's opinion. The parties filed their respective briefs [Docs. 112, 113], and responded to each other's brief in kind [Docs. 115, 116].

Having been fully briefed, this matter is ripe for disposition.

II. FACTUAL BACKGROUND

The following is a summary of the relevant findings of fact made by the Court upon conclusion of the bench trial. These factual findings were not disturbed on appeal.

The Plaintiffs Peggy Hill and Amy Walker are enrolled members of the Eastern Band of Cherokee Indians ("EBCI"). [T. 18, 100]. Both Plaintiffs reside within the Qualla Boundary in Cherokee, North Carolina. [T. 16, 98]. Defendants Barry Coggins and Collette Coggins have owned and operated the Cherokee Bear Zoo, an unaccredited roadside zoo in Cherokee, North Carolina, for over twenty years. [T. 411, 415]. There are approximately 35 animals currently at the Zoo, including black bears, monkeys, lemurs, goats, and a tiger. [T. 67, 203]. The Zoo also possesses four grizzly bears that are the subject of this litigation: Elvis, Marge, Lucky, and Layla. [T. 424-27]. The grizzly bears are housed in concrete pits and can be viewed by the general public from a walkway above. Underneath the public walkway and adjoining the pit enclosures, there are additional enclosures lined with hay or wood shavings where the bears can access food and water, come out of the sun, and come and go as they please. [T. 445].

Barry and Collette Coggins began operating the Zoo in 1994. [T. 415]. They oversaw the construction of the Zoo, which exceeded the minimum requirements of the United States Department of Agriculture (USDA)⁴ at the time. [T. 416]. The Defendants' first grizzly bear was Elvis, whom they brought from another roadside zoo where they both had previously worked. Marge was purchased later. [T. 424]. Elvis and Marge are Lucky's parents. [T. 427]. Lucky and Layla were both born at the Zoo. [T. 437].

The Zoo holds a Class C Exhibitor's license issued by the USDA. The Zoo's license has never been suspended or revoked. [T. 418]. The Zoo is subjected to surprise inspections every three months by the USDA. [T. 196, 197, 419]. Over the years, the Zoo has received two or three notices of the need for corrective action with respect to the bears.⁵ [T. 420]. The Zoo has never received a noncompliance notice, and the USDA has never brought an enforcement action against the Zoo. [T. 418-19, 420-21, 447, 517, 545, 546; Defendants' Exs. 11-30].

The Plaintiffs' expert, professional zookeeper Else Poulsen, made four visits to the Zoo between October 2009 and November 2014 in order to observe the bears and review the records pertaining to their care and treatment. [Plaintiffs' Ex. 37 at 21]. Ms. Poulsen testified that pit enclosures are not accepted by the international zoo community as appropriate housing for captive brown bears. [Id. at 76]. Ms. Poulsen further testified that the pit enclosures do not meet minimum size standards required by North Carolina regulation 15A N.C. Admin. Code § 10H.0302(b)(5)⁶ for the housing of captive black bears. [Id. at 41-43]. Ms. Poulsen opined that the pit enclosures at the Zoo do not meet generally accepted animal husbandry practices because: the high walls and small size of the enclosures prevent wind from eddying into the pits, thereby depriving the bears of their sense of smell on a daily basis [Id. at 44-45]; there is music playing constantly which blocks out other sounds the bears might be interested in hearing [Id. at 47]; the high walls force the bears to sit in an abnormal position, with their heads leaning back, which results in physical stress if they wish to see anything moving [Id. at 48]; and no significant shade structures are present [Id. at 60-61].

Ms. Poulsen testified that she observed the bears pacing, which is stereotypic (i.e., abnormal) behavior. [Id. at 59]. According to Ms. Poulsen, public feeding is not a standard husbandry practice as it encourages the bears to beg for food, which is an abnormal behavior, and presents a risk of disease being transferred to the bears from members of the public. She noted that, for these reasons, public feeding is prohibited by the Accreditation Standards established by the Association of Zoos and Aquariums ("AZA"). [Id. at 53]. The AZA is a voluntary zoological organization that has developed accreditation standards as to how a zoo should operate with regard to the treatment and care of captive animals and all aspects of zoo operation. [T. 283-84; Plaintiffs' Ex. 84]. In some respects, AZA Accreditation Standards are more stringent than existing state and federal laws and regulations. [T. 285]. Less than 10% of the 2,800 exhibitors in the United States are accredited members of the AZA. [T. 331].

Ms. Poulsen testified that, in her opinion, the Zoo is not in compliance with the Animal Welfare Act ("AWA") because the pit enclosures do not allow for freedom of movement. [Plaintiffs' Ex. 37 at 224, 255]. Specifically, she testified:

I believe these animals [would be] free to move, if they lived in, say, an environment similar to what the state of North Carolina sets out for American black bears. That's free to move. Because the animal is able to run, swim, walk, you know, climb, those kind of things. That's not possible in these pit enclosures.

[Id. at 255]. Ms. Poulsen conceded that the USDA has determined that the Zoo is in compliance with the Animal Welfare Act, but she does not agree with this assessment. [Id. at 224, 259, 260-61].

The Plaintiffs' second expert, Edward Ramsay, D.V.M., visited the Zoo in November 2014. [T. 243]. Additionally, he reviewed photographs and videos taken by other witnesses within the last five years. [T. 244]. Dr. Ramsay opined that begging for food is not a normal behavioral pattern for a bear. [T. 246]. Dr. Ramsay opined that this abnormal behavior is encouraged by the Zoo because it allows public feeding of the bears. [T. 247]. Dr. Ramsay described this as "an unfortunate practice" as it prevents the zoo from controlling the animals' nutrition; it poses a risk of foreign objects being swallowed by the bears and for the communication of diseases; and it encourages stereotypic behavior. [T. 248-49]. Dr. Ramsay testified that the Zoo's feeding practices fail to meet generally accepted husbandry practices, as public feeding of animals is not considered a generally accepted practice. [T. 305].

Dr. Ramsay further opined that the concrete pits do not meet generally accepted husbandry practices because: they are constructed of high block walls that are taller than a bear can reach [T. 251]; they are devoid of enrichment⁷ [T. 254, 260-61]; and they lack adequate shade [T. 255]. He further opined that the size of the enclosures also fails to meet generally accepted animal husbandry practices, as the pits are only a few hundred square feet in area,...