People for the Ethical Treatment of Animals, Inc. v. Miami Seaquarium & Festival Fun Parks, LLC

• Decision Date: 01 June 2016
• Docket Number: CASE NO. 1:15–cv–22692–UU
• Citation: 189 F.Supp.3d 1327
• Parties: People for the Ethical Treatment of Animals, Inc., et al, Plaintiffs, v. Miami Seaquarium and Festival Fun Parks, LLC, d/b/a Palace Entrainment, Defendant.
• Court: U.S. District Court — Southern District of Florida

189 F.Supp.3d 1327

People for the Ethical Treatment of Animals, Inc., et al, Plaintiffs,

v.Miami Seaquarium and Festival Fun Parks, LLC, d/b/a Palace Entrainment, Defendant.

CASE NO. 1:15–cv–22692–UU

United States District Court, S.D. Florida.

Signed June 1, 2016

Caitlin Hawks, Jared Goodman, Matthew Daniel Strugar, Peta Foundation, Los Angeles, CA, Stefanie Wilson, Animal Legal Defense Fund, Cotati, CA, Scott Andrew Hiaasen, Paul Joseph Schwiep, Coffey Burlington, P.L., Miami, FL, for Plaintiffs.

Evelyn Anne Cobos, Mark Allan Salky, Greenberg Traurig, P.A., Miami, FL, James Hardwick Lister, Melinda L. Meade Meyers, Birch Horton Bittner And Cherot, P.C., Washington, DC, Jennifer B. Moore, Greenberg Traurig, Atlanta, GA, Michael Gerard Murphy, Greenberg Traurig, P.A., Orlando, FL, William A. Earnhart, Birch, Horton, Bittner & Cherot, P.C., Anchorage, AK, for Defendant.

ORDER

URSULA UNGARO, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court on cross-motions for summary judgment. Plaintiffs People for the Ethical Treatment of Animals ("PETA"), Animal Legal Defense Fund, The Orca Network, and Howard Garrett move for entry of partial summary judgment on the threshold issue of standing. D.E. 131. Defendant Miami Seaquarium and Festival Fun Parks, LLC, d/b/a Palace Entertainment (the "Seaquarium") moves for entry of summary judgment on the grounds that Plaintiffs lack standing to maintain their claims and on the merits. D.E. 126.

THE COURT has reviewed the Motions, the pertinent portions of the record, and is otherwise fully advised of the premises.

I. BACKGROUND

This case concerns the welfare and humane treatment of a captive killer whale named Lolita (a/k/a "Toki") that resides at the Seaquarium.¹ Plaintiffs seek to redress injuries that Lolita is suffering due to the conditions under which she is confined at the Seaquarium, claiming that such injuries amount to a "take" in violation of section 9(a)(1)(B) of the Endangered Species Act (the "ESA"), 16 U.S.C. § 1538(a)(1)(B) (1988).

Lolita is a Southern Resident Killer Whale ("SRKW")² that was legally captured off the coast of Washington State in 1970 when she was approximately five years old. Compl. ¶ 33. Seaquarium purchased Lolita soon after her capture, and she has lived at the Seaquarium since September 24, 1970. D.E. 147 at 6. She is now approximately 51 years of age. D.E. 147 at 8. Her current age exceeds the median life expectancy of SRKWs.³

Lolita weighs about 8,000 pounds and is twenty-five feet long. D.E. 147 at 8. For as long as she has been housed by the Seaquarium, she has lived in an oblong tank that, at its widest point, is eighty (80) feet across, and at its lowest point, is twenty (20) feet deep. D.E. 22 ¶ 42. Since the 1980s, the tank has been surrounded by stadium seating. D.E. 22 ¶ 47; D.E. 147–1. For a time, Lolita shared her tank with Hugo, another SRKW. However, Hugo died in the 1980s. For the last twenty years, Lolita has shared her tank with pacific white-sided dolphins ("PWSDs"), who are of a biologically related species in that they are taxonomically members of the same family (i.e., the dolphin or "delphinidae" family). D.E. 22–4.

Until very recently, Lolita was not protected by the ESA. Although the National Marine Fisheries Service (the "NMFS") (the agency charged with administering the ESA with respect to various marine mammals, discussed infra ) recognized the SRKW as an endangered species in 2005, it excluded from the listing those members of the population held in captivity. 70 Fed. Reg. 69903, 69911 (Nov. 18, 2005).

In January 2013, PETA submitted to the NMFS a petition: (1) to recognize Lolita as a protected SRKW; and, (2) to remove the captive member exclusion from the ESA. PETA was successful, and in May 2015, the NMFS recognized Lolita as protected. Accordingly, Lolita, the only SKRW presently held in captivity, is now protected by the ESA. Listing Endangered or Threatened Species: Amendment to the Endangered Species Act Listing of the Southern Resident Killer Whale Distinct Population Segment, 80 Fed. Reg. 7380 (Feb. 10, 2015) (codified at 50 C.F.R. pt 224).⁴

Shortly after the effective date of the rule recognizing Lolita as a member of an endangered species, Plaintiffs commenced this action. In their Complaint, Plaintiffs seek declaratory and injunctive relief, claiming that the Seaquarium has committed an unlawful "take" of Lolita in violation of the ESA section 9(a)(1)(B), 16 U.S.C. § 1538(a)(1)(B) ("section 9(a)(1)"). Compl. ¶¶ 73–76 (a)–(d). More specifically, Plaintiffs allege that a "take" has occurred because Lolita is suffering "harm" and "harass[ment]" in violation of the ESA section 9(a)(1) (making it unlawful to "take" an endangered species, which is defined as, among other conduct, "to harass [or] harm") from the conditions under which she is confined.

In support, Plaintiffs allege that the conditions of Lolita's captivity do not meet the minimum standards for captive marine mammals applicable to exhibitors under the Animal Welfare Act ("AWA"), 7 U.S.C. §§ 2131 et seq. , and its implementing regulations, Title 9 of the Code of Federal Regulations, parts 1, 2 and 3. See Compl. ¶¶ 45, 56, 66. The alleged harmful conditions are that she is maintained in an undersized tank, is not provided with adequate protection from the sun, and the PWSDs with which she shares her tank are of an incompatible species. Id. These conditions harm Lolita, according to Plaintiffs, because they create physical and psychological stress, deprive her of the ability to engage in natural behaviors, expose her to excessive radiation from the sun, and cause physical injuries. Compl. ¶¶ 46, 55, 64.

While the NMFS is charged with administering the ESA with respect to marine mammals, the AWA is administered by the Animal Plant Health Inspection Services ("APHIS") under the jurisdiction of the U.S. Department of Agriculture ("USDA"). APHIS also is the agency that licenses the Seaquarium to hold and exhibit Lolita (D.E. 164, Ex. GG) subject to its compliance with APHIS, which establishes minimum standards for the humane handling, care, and treatment of captive marine mammals. In June 2011, the Administrative Investigations and Compliance Branch of APHIS responded to a telephone complaint and a letter writing campaign concerning the alleged injuries to Lolita at the Seaquarium. APHIS arrived at the following conclusions:

In general, Seaquarium's inspection history shows Lolita and the other marine mammals at the facility to be healthy and receiving appropriate veterinary care. Animals may develop superficial ("rake") injuries as part of their normal behavior and activities: such lesions are promptly identified and treated.

Animal enclosures have adequate shade, protection from weather, and compliant perimeter fences. [S]hade and protection from weather is provided by the stadium seating around Lolita's pool, and based on the facility's inspection history, Lolita has none of the skin and eye lesions associated with inadequate shade.

Many people have expressed concern about the size of Lolita's pool. Therefore, our agency has re-evaluated the measurements. Based on this re-assessment, we have determined that the pool meets the AWA space requirements for marine mammals.

See D.E. 22–3 at 3.

In March 2012, APHIS again reviewed the conditions of Lolita's captivity in response to a letter from the Animal Legal Defense Fund and PETA concerning harms related to Lolita's tank dimensions and the sharing of her tank with the PWSDs. APHIS found the Seaquarium compliant with the AWA's space and social companionship regulations:

[W]e have determined that [Lolita's] pool meets the AWA space requirements for marine mammals ... [and] exceeds the minimum requirements in all required dimensions.

Miami Seaquarium meets section 3.109 of the AWA regulations requiring that social marine mammals, such as orcas, be housed with at least one compatible animal of the same species or biologically related species. Lolita has shared her tank for many years with Pacific white-sided dolphins that are, like Lolita, cetacean mammals and therefore a biologically related species.

See D.E. 22–4.⁵

In their Notice of Intent to File Citizen Suit Pursuant to the Endangered Species Act, which served as a precondition to the initiation of this lawsuit, Plaintiffs acknowledged that "... generally accepted husbandry practices that meet the Animal Welfare Act (AWA) requirements are exempt from the regulatory definition of ‘harass' under the ESA." D.E. 1–4 at 3. Nonetheless, Plaintiffs contest APHIS' findings herein and assert that Lolita is the subject of an unlawful "take" pursuant to the ESA section 9(a)(1). 16 U.S.C. § 1538(a)(1)(B). On this basis, Plaintiffs request that this Court enter an order enjoining Seaquarium from continuing to violate the ESA, requiring Seaquarium to forfeit possession of Lolita, and requiring Seaquarium to transfer Lolita to a sea pen. D.E. 22–4 at 17.

In order to resolve the pending motions, the Court must determine as a threshold matter whether one or more Plaintiffs have standing to pursue the ESA claims as alleged in the Complaint. Assuming standing, the Court next must construe and apply the relevant portions of two federal statutes, the Endangered Species Act, 16 U.S.C. §§ 1531 et seq ., and the Animal Welfare Act, 7 U.S.C. §§ 2131 et seq ., and those Acts' implementing regulations, taking into consideration the interrelationship of these laws and their associated regulatory frameworks.

II. LEGAL STANDARD

Summary judgment is authorized only when the moving party meets its burden of demonstrating that "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56. When determining whether the moving party has met this burden, the court must view the evidence and all...