Rowley v. City of New Bedford
Decision Date | 24 September 2019 |
Docket Number | CIVIL ACTION NO. 17-11809-WGY |
Parties | Joyce ROWLEY, Plaintiff, v. CITY OF NEW BEDFORD, MASSACHUSETTS, Defendant. |
Court | U.S. District Court — District of Massachusetts |
Joyce Rowley, New Bedford, MA, pro se.
John A. Markey, Moses Smith and Markey LLC, Kreg R. Espinola, Burke, Espinola & van Colen, New Bedford, MA, for Defendant.
YOUNG, D.J.
This is a case about elephants -- specifically, Asian elephants.
Vicki Constantine Croke, Elephant Company: The Inspiring Story of an Unlikely Hero and the Animals Who Helped Him Save Lives in World War II 22-23 (Random House 2014). The Court takes judicial notice of these facts. See Fed. R. Evid. 201. Asian elephants are an endangered species. 50 C.F.R. § 17.11(h) ; see also 41 Fed. Reg. 24062, 24066 (June 14, 1976).
Joyce Rowley ("Rowley") sued the City of New Bedford ("City") under the Endangered Species Act, 16 U.S.C. §§ 1531 - 1544. Am. Compl., ECF No. 47. She alleged that the City is harming and harassing two geriatric Asian elephants, Emily and Ruth, in violation of the Endangered Species Act. See id.; 16 U.S.C. § 1540(g)(1). This Court has already determined that Rowley has standing to pursue this claim. Rowley v. City of New Bedford, 333 F. Supp. 3d 30, 39-40 (D. Mass. 2018).
Congress first enacted the Endangered Species Act, 16 U.S.C. §§ 1531 - 1544, in December 1973. Pub. L. No. 93-205, 87 Stat. 884 (Dec. 28, 1973). The tripartite mission of the Endangered Species Act is to (1) "provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," (2) "provide a program for the conservation of such endangered species and threatened species," and (3) take appropriate steps to carry out the United States' commitments in various international treaties and conventions regarding species conservation. 16 U.S.C. § 1531(b).
Section nine of the Endangered Species Act makes it illegal for any individual to "take" any endangered species. 16 U.S.C. § 1538(a)(1)(B). The Supreme Court has emphasized evidence that Congress intended the word "take" to cover "every conceivable way in which a person can ‘take’ or attempt to ‘take’ any fish or wildlife." Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 704, 115 S.Ct. 2407, 132 L.Ed.2d 597 (1995) (quoting S. Rep. No. 93-307, at 7 (1973)). Far from prohibiting only intentional acts, section nine reaches "more than the deliberate actions of hunters and trappers." Id. at 705, 115 S.Ct. 2407.
The Endangered Species Act itself defines "take" to mean "harass, harm, pursue, hunt, shoot, wound
, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). Here, Rowley's claims rely on the prohibition on harassing and harming endangered species. See Am. Compl. ¶¶ 95, 104-30.
The Fish and Wildlife Service, the agency within the United States Department of the Interior tasked with implementing the Endangered Species Act, see 16 U.S.C. § 1537a(a), has promulgated regulations defining the terms "harm" and "harass" in the context of the Endangered Species Act.
The Fish and Wildlife Service defines "harm" in the definition of "take" in the Endangered Species Act to mean:
[A]n act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.
50 C.F.R. § 17.3 ; see also Babbitt, 515 U.S. at 703, 115 S.Ct. 2407 ( )(citing Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ).
The Fish and Wildlife Service defines "harass" in the definition of "take" in the Endangered Species Act to mean:
This definition includes a carve-out that exempts from the definition of "harass":
Because the City is engaged in animal husbandry practices with "animals intended ... for exhibition purposes," see 7 U.S.C. § 2131, the Animal Welfare Act exclusion applies to Rowley's harassment claims.
Before the enactment of the Endangered Species Act, Congress enacted the Animal Welfare Act, 7 U.S.C. §§ 2131 - 2159, Pub. L. No. 89-544, 80 Stat. 350 (Aug. 24, 1966), with the following goals:
(1) to insure that animals intended for use in research facilities or for exhibition purposes or for use as pets are provided humane care and treatment; (2) to assure the humane treatment of animals during transportation in commerce; and (3) to protect the owners of animals from the theft of their animals by preventing the sale or use of animals which have been stolen.
Id. § 2131.
Congress charged the United States Department of Agriculture ("Department of Agriculture") with enforcing this statute. Id. §§ 2132(b), 2133, 2146. To implement the Animal Welfare Act's protections, the Department of Agriculture promulgates regulations that set standards for facilities and care of animals in captivity, see, e.g., 9 C.F.R. §§ 3.125 - 3.142 ( ), which it enforces through licensing and compliance inspections, see 7 U.S.C. § 2146(a). Unlike the Endangered Species Act, the Animal Welfare Act does not include a citizen suit provision. See Graham v. San Antonio Zoological Soc'y, 261 F. Supp. 3d 711, 737 (W.D. Tex. 2017).
There are at least four recent District Court cases that have grappled with the interplay between Animal Welfare Act requirements and the Endangered Species Act's harassment-based "take" prohibition. See Graham, 261 F. Supp. 3d at 739-43 (collecting cases).
The general consensus among these courts is that the regulations that the Department of Agriculture promulgates pursuant to the Animal Welfare Act are the substantive standards by which a court ought assess harassment-based "take" claims under the Endangered Species Act. See id. at 745. The findings of past inspections by the Animal and Plant Health Inspection Service ("USDA-APHIS," the agency within Department of Agriculture charged with enforcing the Animal Welfare Act) are relevant to a court's assessment of whether an entity has violated the Animal Welfare Act by violating its implementing regulations but are not dispositive. See id. at 745-46.
The United States District Court for the Western District of Texas clearly described the role of USDA-APHIS assessments as follows:
APHIS determinations of past and present violations (or a lack thereof) are certainly evidence of [a harassment finding under the Endangered Species Act], but are neither necessary to support nor sufficient to warrant such a finding. Thus, the regulatory definition of "harass," by excluding animal husbandry practices that comply with the [Animal Welfare Act], does not permit a finding of no liability simply because of a previous determination of no [Animal Welfare Act] violation; instead, it substitutes the compliance standards of the [Animal Welfare Act] as the substantive standard for whether an Endangered Species...
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