People for the Ethical Treatment of Animals, Inc. v. Tri-State Zoological Park of W. Md., Inc., Civil Action No. 8:17-cv-02148-PX

• Court: United States District Courts. 4th Circuit. United States District Court (Maryland)
• Writing for the Court: Paula Xinis, United States District Judge
• Citation: 424 F.Supp.3d 404
• Decision Date: 26 December 2019
• Docket Number: Civil Action No. 8:17-cv-02148-PX
• Parties: PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. TRI-STATE ZOOLOGICAL PARK OF WESTERN MARYLAND, INC., et al., Defendants.

424 F.Supp.3d 404

PEOPLE FOR the ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff,
v.
TRI-STATE ZOOLOGICAL PARK OF WESTERN MARYLAND, INC., et al., Defendants.

Civil Action No. 8:17-cv-02148-PX

United States District Court, D. Maryland.

Signed December 26, 2019

424 F.Supp.3d 407

Adam Abelson, Zuckerman Spaeder LLP, Baltimore, MD, Caitlin K. Hawks, Pro Hac Vice, Martina Bernstein, Pro Hac Vice, Zeynep J. Graves, Pro Hac Vice, PETA Foundations, Los Angeles, CA, Marcos E. Hasbun, Pro Hac Vice, Zuckerman Spaeder LLP, Tampa, FL, for Plaintiff.

Nevin L. Young, Burlington & Young, LLP, Annapolis, MD, for Defendants.

MEMORANDUM OPINION

Paula Xinis, United States District Judge

This opinion and order follow a six-day bench trial brought by People for the Ethical Treatment of Animals ("PETA") against Defendants Tri-State Zoological Park of Western Maryland Inc., Animal Park, Care & Rescue, Inc., and Robert

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Candy (collectively, "Tri-State"), the owners and operators of a zoological park in Cumberland, Maryland. ECF No. 26 ¶¶ 12–14. The animals protected under the Endangered Species Act (ESA)—the lions, tigers, and lemurs— are the subject of this lawsuit. ECF No. 1 ¶¶ 2–3.

Shortly before this lawsuit began, Tri-State was home to two lemurs, Bandit and Alfredo; five tigers, Cheyenne, Cayenne, India, Kumar, and Mowgli; and two lions, Peka and Mbube. Since 2016, five of the nine animals, more than half of the protected species, have died at Tri-State. Alfredo has been transferred to the Maryland Zoo (JX7 at 3), and only Cheyenne, Mowgli, and Peka remain alive and at Tri-State.

PETA initiated suit on July 31, 2017, alleging violations of the Endangered Species Act, 16 U.S.C. § 1531 et seq. ECF No. 1. The suit proceeded to summary judgment and on July 8, 2019, this Court granted in part and denied in part summary judgment in PETA's favor. ECF No. 138.

At trial, PETA argued that Defendants have violated the ESA by subjecting the protected animals to harm and harassment. PETA contended that Defendants have committed a "take" as understood in the ESA arising from Tri-State's provision of unsanitary living conditions, poor diets, substandard veterinary care, and inadequate shelter and enrichment. Trial exposed Tri-State and Candy's flagrant and persistent violations of the ESA. For the following reasons, and based on the following facts, the Court finds in favor of PETA on all theories of liability.

I. Findings of Fact¹

A. General Conditions Affecting the Protected Species

1. The Zoo Grounds

The uncontroverted testimony reflects that every animal at issue suffered under Tri-State's living conditions. The zoo is situated on sixteen acres of what used to be an old campground. Trial Tr. vol 5, 11. Past the ramshackle entrance are a range of enclosures and buildings that house its approximately fifty animals. Trial Tr. vol. 5, 21–22; JX37. These include a gated farm animal enclosure, a reptile room and a kinkajou room, both situated around the corner of a kitchen in which food is prepared, an aviary across the path from the reptile room, an approximately six-foot diameter pool for large alligators, and a group of small primate enclosures. See generally JX37. And, of course, the zoo houses separate enclosures for the tigers, lions, and lemurs.

Trial evidence demonstrated that since PETA began its investigation, the animals have been housed in fetid and dystopic conditions. Filth and feces dominate Tri-State. PETA's undercover investigation in 2014 and 2015 documented animal excrement throughout the zoo grounds—in the kitchen where animal food is prepared, the room that houses the reptile exhibits, the grounds generally, and in each of the protected animals' enclosures. See generally

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PX20–24; PX30; PX45–47; PX74; PX77; see also photos below (documenting feces and decaying vegetables in kinkajou cages and the aviary across more than a month).

Rotting vegetables spilled over large receptacles, decaying meat sat in piles outside the kitchen and in the furnace room under the nearby reptile house, and decomposing carcasses were left for days in the enclosures for the tigers and lions (collectively "Big Cats"). See generally PX21–22; PX27; PX73–74; PX77. General filth coated the kitchen, from the walls and sink to the refrigerator. PX75; Trial Tr. vol. 2, 101. A trashcan filled with waste stood uncovered. Id.

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Outside the kitchen, piles of donated produce lay unrefrigerated, many in a state of decay and long past their expiration dates. PX73; PX19; PX17; Trial Tr. Vol. 1, 80, 97, 100. Free-roaming cats, chickens, and ducks took turns scavenging the piles. Id.

In the reptile room, just feet away from the kitchen, "decaying remnants of fruits and vegetables were scattered across the floor, and there were [ ] large smears of feces, presumably from the sulcatas [tortoises]." PX74 at :00–2:09, 2:27–3:50; Trial Tr. vol. 1, 78–80. Rotten scraps of vegetables and feces scattered the marmoset cage, which is stationed in the reptile room. PX77; Trial Tr. vol. 1, 92. Of the rooms near the kitchen, PETA investigator Stuart Henstock stated that they "smelled horrendous, [ ] an almost choking smell of feces" and of "rotting vegetables." Trial Tr. vol. 1, 79, 89.

In the indoor tiger enclosures, tufts of fur coated rusted bars, and carcasses, bones, feathers, fur, and debris mixed with dirty straw. Trial Tr. vol. 1, 138–39, 144.

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The tigers' outdoor enclosures contained piles of feces, discolored water sources filled with decaying leaves, and large spots of urine residue accumulated over time. PX31; Trial Tr. vol. 1, 76; Trial Tr. vol. 4, 34.

Throughout the grounds, free-roaming animals traipsed between rooms and enclosures. See generally PX11; PX12; PX19; PX74; PX75; Trial Tr. vol. 1, 135. Scores of domestic cats, many of whom are unvaccinated, sported matted and unkempt fur along with crusted, watery, or bloody discharge seeping from their eyes, nose, or ears. JX39, Candy 30(b)(6) Dep. 336; PX12 at 1; Trial Tr. vol. 2, 66–68, 101–102. The cat in the screenshot below, for example, had "obvious ocular discharge," according to Dr. Haddad. Trial Tr. vol. 2, 102.

Candy and zoo volunteers take no precautions to minimize the filth or stop the spread of disease. Tri-State has no areas designated for cleaning that are standard at zoos and sanctuaries, such as footbaths and cleaning receptacles. Trial Tr. vol. 4, 10–11. Perhaps PETA investigators Stuart Henstock and Chris Fontes said it best: that even though they had visited dozens of zoos and sanctuaries combined, Tri-State was "the dirtiest" and "worst place" they had ever seen. Trial Tr. vol. 1, 101, 149.²

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2. Inadequate Veterinary Care

Tri-State has never provided adequate veterinary care to its lemurs, tigers, and lions. The Animal Welfare Act (AWA) governing Tri-State's USDA-issued exhibitors license requires that Tri-State secure an attending veterinarian with species-specific training and experience. See 9 C.F.R. § 2.40(a) ("Each dealer or exhibitor shall have an attending veterinarian who shall provide adequate veterinary care to its animals in compliance with this section."); 9 C.F.R. § 1.1 (defining attending veterinarian as a person who "has received training and/or experience in the care and management of the species being attended ") (emphasis added). Defendants never came close to complying with this regulation.

Between 2009 and 2018, Tri-State employed Dr. Timothy Fox as the attending veterinarian. JX39, Fox Dep. 8–9. After PETA initiated suit, Dr. Fox was no longer willing to serve as the zoo's veterinarian, and he was replaced with Dr. Gale Duncan. Neither Dr. Fox nor Dr. Duncan had acquired any formal or informal training, education, or experience working with Big Cats or primates other than the animals at Tri-State. "I'm just a regular old veterinarian [,] I'm not a specialty in any of those zoo animals," Dr. Fox admitted. JX39, Fox Dep. 28. Dr. Duncan readily conceded that she did not have any experience with Big Cats or lemurs apart from some training in veterinary school. ECF No. 138 at 6.

Unsurprisingly, Dr. Fox and Dr. Duncan, in concert with Candy, utterly failed to implement a satisfactory program of veterinary care for the lions, tigers, and lemurs. The AWA provides that "each exhibitor shall establish and maintain programs of adequate veterinary care that include...the use of appropriate methods to prevent, control, diagnose, and treat diseases and injuries..." 9 C.F.R. § 2.40(b)(2). The Program of Veterinary Care (PVC) must be written, reviewed on an annual basis, and modified as needed. Trial Tr. vol. 2, 47, 77. Similarly, as is standard in any medical field, the provision of medical services must be documented contemporaneously. Applying here is the old adage, "if it is not written down, it did not happen." PX69 at 52; Trial Tr. vol. 3, 153.

Stunningly,...