Rowley v. City of New Bedford
| Decision Date | 12 April 2023 |
| Docket Number | Civil Action 21-11649-FDS |
| Parties | JOYCE ROWLEY, Plaintiff, v. CITY OF NEW BEDFORD, MASSACHUSETTS, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
MEMORANDUM AND ORDER ON PLAINTIFF'S MOTIONS FOR A TEMPORARY RESTRAINING ORDER AND PERMANENT INJUNCTION
Plaintiff Joyce Rowley has brought this action seeking declaratory and injunctive relief against the City of New Bedford Massachusetts, which owns and operates a zoo where two Asian elephants reside. According to the complaint, the City is harming and harassing the elephants in violation of the Endangered Species Act (“ESA”), 16 U.S.C §§ 1531-1544. The complaint seeks, among other things, a declaration that the City's treatment of the elephants violates section nine of the ESA and an injunction permitting plaintiff to remove the elephants from defendant's care and transfer them to a sanctuary. Plaintiff is proceeding pro se.
At issue here are three motions filed by plaintiff that are, in substance, motions for a temporary restraining order, a preliminary injunction, and a permanent injunction. For the reasons set forth below, the motions will be denied.
The Court relies on the parties' briefs, affidavits, and documentary evidence to decide the present motions. Where noted, the Court also refers to the judgment in an earlier, related case between the same parties before District Judge William G. Young. See Rowley v. City of New Bedford, Massachusetts (Rowley I), 413 F.Supp.3d 53 (D. Mass. 2019), aff'd, 2020 WL 6111190 (1st Cir. Sept. 24, 2020).[1]
1. The Parties
Joyce Rowley is a resident of New Bedford and a member of the Buttonwood Park Zoological Society. (Am. Compl. at 2). She visits “Emily” and “Ruth,” the two Asian elephants who are the subject of this litigation, “on a daily basis, often spending one to two hours with them.” (Id.). According to the complaint, the conditions in which the elephants live affect her “aesthetically, emotionally, and spiritually.” (Id.).
The City of New Bedford (the “City”) is a municipality that owns and operates the Buttonwood Park Zoo where Emily and Ruth reside. (Def.'s Answer at 2). The elephant exhibit at the zoo is approximately 20,000 square feet. (Id. at 3).
2. The Elephants
Asian elephants are an endangered species. See 50 C.F.R. § 17.11(h); see also 41 Fed.Reg. 24062, 24066 (June 14, 1976). Emily, the larger of the two elephants at the Buttonwood Park Zoo, is approximately 58 years old and was acquired by the City in 1968. (See Am. Compl. ¶ 44). Ruth is several years older than Emily and was first brought to the zoo in 1986. (See id. ¶¶ 23-24).[[2]]
On September 21, 2017, plaintiff filed a complaint for declaratory and injunctive relief against the City of New Bedford. (“Rowley I”).[3]As amended, the complaint asserted that the City was harming and harassing Emily and Ruth in violation of the ESA by failing to provide adequate shelter (Count 1), adequate space (Count 2), and adequate social opportunities (Count 3); by failing to prevent Ruth from being attacked by Emily (Count 4); by failing to provide adequate veterinary care (Count 5); and by failing to provide proper feeding and adequate enrichment (Count 6). (Rowley I, Am. Compl. ¶¶ 104-30).[4]
After a three-day bench trial in March 2019, Judge Young concluded that the City had not violated the ESA. See Rowley I, 413 F.Supp.3d at 67. The court held that the City had provided care that complied with the Animal Welfare Act and generally accepted veterinary practices, and had neither harmed nor harassed the elephants; that the food and shelter provided by the City was consistent with generally accepted animal-husbandry practices and did not harm or harass the elephants; that there was insufficient evidence to establish the likelihood of a significant disruption of normal behavioral patterns; and that plaintiff had not proved that the City harmed or harassed Ruth by negligently allowing Emily, the larger of the two elephants, to attack her. Id. at 64-67.
Approximately two years after judgment entered for the City in Rowley I, plaintiff commenced the present action (“Rowley II”), alleging that there had been “substantial changes” at the zoo since 2019. (See Am. Compl. at 1).[5]Specifically, the amended complaint asserts that the facilities housing the elephants have become “dilapidated” and that the management of the facilities and elephants has changed, resulting in the elephants developing pododermatitis, a painful foot disease. (Id.). It further alleges that since the judgment in Rowley I, Ruth has lost significant weight, and has been restricted from moving, eating, and drinking. (See id. ¶¶ 24-25). As in Rowley I, it asserts violations of the ESA and seeks declaratory and injunctive relief. (See id. ¶¶ 77-84).[6]
On November 12, 2021, plaintiff filed a motion for a preliminary injunction, which the Court denied on February 10, 2022. (See ECF 9, 33).[7]
On September 28, 2022, plaintiff filed a motion for a permanent injunction concerning both elephants and a temporary restraining order concerning Ruth. (ECF 77). The next day, plaintiff filed a substantively identical motion. (ECF 80).[8]On October 11, 2022, plaintiff filed an additional motion for a temporary restraining order. (ECF 84).[9]
Collectively, plaintiff's motions for a temporary restraining order request (1) that Ruth be allowed out of the elephant barn by 9 a.m. each morning, weather permitting; (2) that Ruth be provided overnight access to the yard on alternating nights with Emily, weather permitting; (3) that Ruth not be “cued” to stand still or be prohibited from moving freely around the elephant exhibit and into or out of the barn; (4) that Ruth not be restricted from eating or drinking at any time and that she be fed as frequently as Emily; (5) that the elephant foot “trimmer” used by defendant be prohibited from trimming Ruth's feet; (6) that plaintiff be provided overnight access to the elephant-barn cameras; (7) that defendant be prohibited from euthanizing Ruth; (8) that defendant be prohibited from transferring either elephant to a third party in order to avoid litigation; (9) that defendant be prohibited from restricting Ruth's freedom of movement through “stall rest”; (10) that an independent veterinarian acting on plaintiff's behalf be permitted to examine Ruth and assess her health; and (11) that plaintiff be permitted to transfer Ruth to a nonzoo elephant facility should plaintiff's veterinarian conclude that Ruth should be removed from defendant's care. (See ECF 84 at 2-3).
Congress 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 purpose of the ESA 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 commitments of the United States in various international treaties and conventions concerning species conservation. 16 U.S.C. § 1531(b).
Section nine of the ESA makes it illegal for any individual to “take” any endangered species. 16 U.S.C. § 1538(a)(1)(B). The Supreme Court has emphasized 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 (1995) (quoting S. Rep. No. 93-307, at 7 (1973)). Section nine thus reaches “more than the deliberate actions of hunters and trappers.” Id. at 705.
The ESA 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, plaintiff's claims rely on the prohibition on harassing and harming endangered species. (See Am. Compl. ¶¶ 63-75).
The Fish and Wildlife Service, the agency within the United States Department of the Interior tasked with implementing the ESA, see 16 U.S.C. § 1537a(a), has promulgated regulations defining the terms “harm” and “harass” under the statute.
Under those regulations, the term “harm” is defined (as part of the definition of “take” in the ESA) 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 () (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).
The term “harass” is defined (again, as part of the definition of “take”) to mean:
[A]n intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering.
50 C.F.R. § 17.3. That definition includes a carve-out that exempts the following:
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