Rowley v. City of New Bedford
| Decision Date | 25 September 2018 |
| Docket Number | CIVIL ACTION NO. 17-11809-WGY |
| Citation | 333 F.Supp.3d 30 |
| Parties | Joyce ROWLEY, Plaintiff, v. CITY OF NEW BEDFORD, 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.
Former plaintiff Friends of Ruth & Emily, Inc. ("Friends") filed suit against the defendant City of New Bedford ("New Bedford"), alleging that New Bedford's city zoo committed an unlawful taking under the Endangered Species Act. After New Bedford moved to dismiss the complaint for lack of proper legal representation, Joyce Rowley ("Rowley") substituted herself as plaintiff, rendering the issue moot. ECF Nos. 18, 23. This Court withheld judgment on the motion, however, asking the parties instead to brief the issue of standing. ECF No. 30. Satisfied that Rowley does indeed have the requisite standing to maintain this suit at this stage of the litigation, the Court now DENIES New Bedford's motion to dismiss.
On September 21, 2017, Friends filed a complaint against New Bedford in this Court under its federal question jurisdiction. Compl. Decl. & Inj. Relief ("Compl.") ¶ 25. New Bedford moved to dismiss the complaint on October 16, on the basis that Rowley, the non-attorney founder and president of Friends, could not represent Friends in a federal lawsuit. Mot. Dismiss Pl.'s Compl. ("Mot. Dismiss"), ECF No. 7. Friends opposed the motion, Resp. Opp'n Def.'s Mot. Dismiss ("Opp'n Mot. Dismiss"), ECF No. 14, and moved for a preliminary injunction on December 12, Mot. Prelim. Inj., ECF No. 16. That day, this Court heard oral argument on the motion to dismiss and granted a conditional dismissal, allowing Friends thirty days to retain proper counsel. See ECF No. 18.
On February 12, 2018, Rowley moved to intervene, which this Court allowed as a motion to substitute the plaintiff. See ECF Nos. 21, 23. Rowley then renewed Friends' previous motion for a preliminary injunction. See ECF Nos. 27, 28. Concerned about Rowley's standing to maintain suit, this Court requested briefing on the issue, which both parties duly provided. See Pl.'s Br. Supp. Pl.'s Standing ("Pl.'s Mem."), ECF No. 31; Def.'s Mem. Law Supp. Mot. Dismiss ("Def.'s Mem."), ECF No. 33.
Rowley alleges maltreatment of two Asian elephants, named Ruth and Emily, at the Buttonwood Park Zoo (the "Zoo") in New Bedford. Compl. ¶¶ 7-8. Rowley is the founder and president of Friends, a "nonprofit organization and [ ] public charity" consisting of "dozens" of members supporting the effort to shut down the Zoo's elephant exhibit and transfer Ruth and Emily to an elephant sanctuary in Tennessee. Id. ¶¶ 2, 13. Rowley is also a member of the Buttonwood Park Zoological Society and visits the Zoo on a "near daily basis" to observe Ruth and Emily. Id. ¶ 14. Rowley alleges that she has formed "an aesthetic, emotional, and spiritual relationship with Ruth and Emily over the years." Id. ¶ 15.
Rowley alleges that the Zoo has harmed Ruth and Emily in several ways, such as by chaining their legs to restrain them overnight; failing to protect Ruth from attacks by Emily (it is allegedly "well documented" that the two elephants do not get along); housing them in inadequate facilities; failing to provide the elephants with sufficient socialization opportunities; and failing to provide adequate veterinary care. Id. ¶¶ 36-65. Rowley claims that the Zoo's treatment of Ruth and Emily violates Section 9 of the Endangered Species Act, which prohibits the "taking" of any endangered species and the possession of any endangered species unlawfully taken. Id. ¶¶ 78-79. Rowley requests that this Court declare that the Zoo's treatment of Ruth and Emily violates the Endangered Species Act and enjoin the Zoo from committing any further violations. Id. at 25.
As Justice Scalia explained in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) :
[O]ur cases have established that the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally protected interest which is (a) concrete and particularized and (b) "actual or imminent, not ‘conjectural’ or ‘hypothetical.’ " Second, there must be a causal connection between the injury and the conduct complained of -- the injury has to be "fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Id. at 560-61, 112 S.Ct. 2130 (citations omitted) (first quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990), then quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976), then quoting Simon, 426 U.S. at 38, 43, 96 S.Ct. 1917 ). While "[t]he party invoking federal jurisdiction bears the burden of establishing these elements," the severity of this burden varies depending on the stage of litigation. Id. at 561, 112 S.Ct. 2130. "At the pleading stage," for example, "general factual allegations of injury resulting from the defendant's conduct may suffice." Id.
Here, Rowley brings her suit under the Endangered Species Act, 16 U.S.C. §§ 1531 - 44, which expressly authorizes citizen suits for injunctive relief. See id. § 1540(g)(1). Thus, she may bring such a suit if she has standing. Since this case has not proceeded beyond the motion to dismiss stage, Rowley "must clearly allege facts demonstrating standing; [this Court] then construe[s] those facts and reasonable inferences drawn from them in [her] favor." Animal Welfare Inst. v. Martin, 623 F.3d 19, 25 (1st Cir. 2010).
While "there is ordinarily little question" of injury when a plaintiff is herself the object of the government action she challenges, in certain cases, such as those arising under the Endangered Species Act, the plaintiff's "asserted injury arises from the government's allegedly unlawful regulation (or lack of regulation) of someone else." Lujan, 504 U.S. at 561-62, 112 S.Ct. 2130. In these cases, "standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish." Id. (quoting Allen v. Wright, 468 U.S. 737, 758, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ).
The Supreme Court has noted that "the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing." Id. at 562-63, 112 S.Ct. 2130. A plaintiff must show, however, that she is herself suffering an injury to that interest -- in other words, that she is " ‘directly’ affected apart from [her] ‘special interest in th[e] subject.’ " Id. at 563, 112 S.Ct. 2130 (quoting Sierra Club v. Morton, 405 U.S. 727, 735, 739, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972) ). In Sierra Club, where this idea was articulated in the similar environmental protection context, the plaintiff sought a declaratory judgment that a proposed development through part of Sequoia National Park violated federal law governing the preservation of natural parks, forests, and game refuges. 405 U.S. at 730, 92 S.Ct. 1361. The Supreme Court held that the plaintiff failed to establish injury in fact because, while "[t]he alleged injury will be felt directly ... by those who use [the area], and for whom the aesthetic and recreational values of the area will be lessened," the plaintiff "failed to allege that it or its members would be affected in any of their activities or pastimes by the ... development." Id. at 735, 92 S.Ct. 1361. The plaintiff did not assert "that its members use [the area] for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions," and its "mere ‘interest in a problem,’ no matter how longstanding," was not sufficient to confer standing. Id. at 735, 739, 92 S.Ct. 1361.
The Supreme Court again rejected claims of injury in fact in Lujan, where an organization challenged a federal regulation interpreting the Endangered Species Act not to apply to agency actions taken in foreign nations. 504 U.S. at 558, 112 S.Ct. 2130. The plaintiff relied on affidavits from two of its members, each stating that the member had traveled to a foreign country (one to Egypt, the other to Sri Lanka) on one occasion and observed the habitat of an endangered species, intended to do so again, and would suffer harm from the reduced chance of observing the species on that future visit due to the agency action. See id. at 563-64, 112 S.Ct. 2130. The Supreme Court explained, "[t]hat the women ‘had visited’ the areas of the projects before the projects commenced proves nothing," and "[s]uch ‘some day’ intentions" to return, "without any description of concrete plans, or indeed even any specification of when the some day will be[,] do not support a finding of the ‘actual or imminent’ injury that our cases require." Id. at 564, 112 S.Ct. 2130.
In so holding, the Supreme Court rejected the "animal nexus" approach, under which "anyone who has an interest in studying or seeing the endangered animals anywhere on the globe has standing," and the "vocational nexus" approach, under which "anyone with a professional interest in such animals" has standing. Id. at 566, 112 S.Ct. 2130. Justice Scalia remarked:
Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue because the Director of the Agency for International Development (AID) did not consult with the Secretary regarding the AID-funded project in Sri Lanka. This is beyond all reason.... It is clear that the person who...
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Rowley v. City of New Bedford
...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).II. THE LEGAL FRAMEWORKA. The Endangered Species ActCongress first enacted the Endangered Species Act, 16 U.S.C. ......