People for the Ethical Treatment of Animals, Inc. v. Tri-State Zoological Park of W. Md., Inc., Civil Action No. 1:17-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: 397 F.Supp.3d 768
• Parties: PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC., Plaintiff, v. TRI-STATE ZOOLOGICAL PARK OF WESTERN MARYLAND, INC., et al., Defendants.
• Docket Number: Civil Action No. 1:17-cv-02148-PX
• Decision Date: 08 July 2019

397 F.Supp.3d 768

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

Civil Action No. 1:17-cv-02148-PX

United States District Court, D. Maryland.

Signed July 8, 2019

397 F.Supp.3d 770

Adam Abelson, Conor Brendan O. Croinin, Zuckerman Spaeder LLP, Baltimore, MD, Caitlin K. Hawks, Martina Bernstein, Zeynep J. Graves, Pro Hac Vice, PETA Foundations, Los Angeles, CA, Justin R. Cochran, 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

Pending before the Court is Plaintiff People for the Ethical Treatment of Animals, Inc. ("PETA")'s Motion for Summary Judgment. ECF No. 99. The motion is fully briefed, and a hearing was held on June 28, 2019, during which time the Court ruled orally on all but this motion. See Loc. R. 105.6. After thorough review of the pleadings, and based on additional information learned at the hearing, the Court grants in part and denies in part summary judgment in PETA's favor and will schedule trial on the remaining matters.

The gravamen of PETA's claims is that Tri-State Zoological Park of Western Maryland, Inc., Animal Park, Care & Rescue, Inc., and Robert Candy (collectively, "the Zoo") harassed and harmed the lions, tigers, and lemurs by providing inadequate veterinary care, shelter, and environmental enrichment. On July 31, 2017, PETA filed suit against the Zoo, alleging violations of the Endangered Species Act, 16 U.S.C. § 1531 et seq. ECF No. 1. At the close of discovery, the parties filed cross-motions for summary judgment. ECF Nos. 99 & 114. The Zoo moved to strike a supplemental affidavit filed by PETA. ECF No. 130. PETA moved to exclude or strike three of the Zoo's experts, portions of Candy's affidavit, and the Zoo's reply, arguing that it functioned as an impermissible surreply. ECF Nos. 94, 95, 96, 119, 125. PETA, however, did not move to exclude Candy as an expert witness in the relevant areas of zookeeping, animal husbandry and care of the lemurs and big cats.

At the June 28, 2019 hearing, the Court granted PETA's motions to exclude the Zoo's experts, denied the motion to strike the reply, and granted in part and denied in part the motion to strike portions of Candy's affidavit. The Court also denied the Zoo's motion to strike and motion for summary judgment. The sole remaining motion for resolution is PETA's motion for summary judgment. ECF No. 99.

I. Background

Defendants own and operate a zoological park in Cumberland, Maryland. ECF No. 26 ¶¶ 12–14. The Zoo currently holds approximately 50 animals. ECF No. 99-20 at 35. Those protected under the ESA—the lions, tigers, and lemurs—are the subject of this lawsuit. ECF No. 1 ¶¶ 2–3.

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The Zoo was home to two lemurs, Bandit and Alfredo; five tigers, Cheyenne, Cayenne, India, Kumar, and Mowgli, and two lions, Peka and Mbube. ECF No. 99-17 at 35–36. Since 2016, three of the nine animals, or a full one-third of the protected species, have died at the Zoo. According to PETA, the Defendants are squarely to blame for these deaths. PETA alleges that Defendants violated the ESA as to each category of protected species (lions, tigers, and lemurs), and grounds its theory of liability in the Zoo's provision of inadequate shelter, enrichment and veterinary care. The Court first summarizes the pertinent facts as to each liability theory and then discusses whether summary judgment is warranted as to the claimed deficiencies.

A. Shelter at the Zoo

The lions and tigers (collectively, "big cats") live in enclosures that allow travel between outdoor and indoor portions. ECF No. 114-3 at 7–8. None of the big cat enclosures are heated or have insulation in the walls or ceiling. ECF No. 99-17 at 119–20, 135. Rather, the Zoo provides hay or straw in the enclosures for warmth and heats Peka's drinking water to prevent it from freezing. ECF No. 99-21 at 15; ECF No. 99-17 at 135. The Zoo annually experiences snow, ice, and subfreezing temperatures, but has not installed thermometers to measure the ambient air temperature or humidity. ECF No. 99-21 at 15; ECF No. 99-17 at 120, 135. Instead, the Zoo gauges air by "feel" and by noting if the drinking water is frozen. ECF No. 99-17 at 135.

Lions and most subspecies of tigers have not evolved a thick, insulating coat to maintain appropriate internal body temperatures in the cold. ECF No. 99-47 at 9, 35. Amur tigers, however, can grow a thick, insulating coat. Id. at 35. Although it is unclear what subspecies of tigers are at the Zoo, some evidence suggests that Mowgli is a Bengal, not an Amur. Id. Exposing big cats to inappropriately cold temperatures can lead to hypothermia, dehydration, and damage to the cats' pads and mucous membranes. Id. at 9, 36.

The enclosures provide the big cats some limited shade from the walls and the indoor portions of their enclosures. ECF No. 114-3 at 33. However, lack of climate control or insulation in the structure causes the enclosed areas of the lion shelter to be hotter than the outdoor, ambient temperature. ECF No. 99-47 at 9. Exposing big cats to inappropriately hot temperatures can lead to overheating, dehydration, heat sickness, and stroke. Id. at 9, 36. For lions, this exposure is likely to result in tissue injuries, psychological distress, and eventually death. Id. at 9. Candy contends, however, that the big cats were not exposed to such inappropriate temperatures at the Zoo. See ECF No. 114-3 at 23, 34.

Peka has lived alone in her enclosure since 2011. ECF No. 99-17 at 127; ECF No. 99-16 at 356. Peka could previously view, hear, and smell Mbube, prior to his death in 2016. ECF No. 114-3 at 31. Although the Zoo planned to find another lion to keep Peka company, the Zoo has decided not to pursue such plans. Id.

Lions are a highly social species. ECF No. 99-47 at 22. Lion prides can reach up to 40 lions, and lions frequently communicate, stalk, hunt, play, and rear young together. Id. ; ECF No. 99-10 at 38. PETA's experts opine that keeping a lion in solitude does not meet commonly accepted zoological practices. ECF No. 99-10 at 38; ECF No. 99-47 at 23. Solitude is extremely stressful for lions and disrupts natural social behaviors. ECF No. 99-10 at 38; ECF No. 99-47 at 23. Some evidence suggests that Peka is in distress as displayed through her abnormal interactions

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with Candy. ECF No. 99-10 at 38. Candy, however, who has cared for Peka since infancy, disputes that Peka shows signs of stress. ECF No. 114-3 at 22.

The lemurs were housed in a small enclosure that only provided shade inside the shelter and at the top of the cage, despite the risks of heat sickness and dehydration. ECF No. 99-47 at 61. The appropriate temperature for lemurs is above 70 degrees Fahrenheit. Id. When temperatures dip below 65 degrees, lemurs must be provided shelter with adequate heat. ECF No. 99-10 at 9. If the temperature falls below 48 degrees, lemurs must be kept indoors. Id. The indoor portion of the lemur enclosure is not insulated and has two electric heaters and one heat lamp. ECF No. 99-47 at 61; ECF No. 99-17 at 151. The record is not clear as to whether the heaters are temperature controlled. Compare ECF No. 99-17 at 152, with ECF No. 99-29 at 68. Zoo staff monitored the temperature by checking whether the lemurs' drinking water had frozen. ECF No. 99-17 at 152. At least once, the lemurs were permitted outside with snow on the ground. ECF No. 99-40. And on the day Bandit died in January, his body was at a subnormal temperature. ECF No. 99-20 at 197. In fact, the Zoo's treating veterinarian at the time, Dr. Timothy Fox, described Bandit as "freezing" when presented for treatment on the day of his death. Id. at 262.

B. Environmental Enrichment

The Zoo does not employ a formal written enrichment plan for the big cats because Candy believes the big cats "make their own fun." ECF No. 99-17 at 367. Peka has a stuffed bear that she has carried around for years, which Candy attests is enriching. ECF No. 114-3 at 32. The tigers have old tires and bowling balls, which are not offered at accredited facilities because of the risk of injury to the animals. ECF No. 99-47 at 31. The big cats also receive Christmas trees, carcasses, barrels, and cardboard containers. ECF No. 114-3 at 32. No evidence suggests that the Zoo frequently alternates or rotates out the items. The Zoo is largely a static environment except for visitors who pass by the animal enclosures.

It is generally accepted that big cat enrichment tools and techniques must be changed frequently because the enrichment value of any given item dissipates over time, and after five days, offers no value all. ECF No. 99-47 at 101. Lack of adequate enrichment for big cats can cause frustration and distress, which can, in turn, manifest as stress, hypertension, respiratory and cardiac distress, suppression of the immune system, atrophy of the hippocampus, myopathy, injury, and ultimately death. ECF No. 99-47 at 26, 55–56; ECF No. 99-10 at 17.

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