Martin Reidinger, United States District Judge.
The Plaintiffs Peggy Hill and Amy Walker initiated this citizen suit on December 3, 2013, against the Defendants Barry Coggins and Collette Coggins, collectively doing business as Cherokee Bear Zoo ("CBZ" or "Zoo"), alleging various violations of the Endangered Species Act, 16 U.S.C. §§ 1531-1544 ("ESA").
After the Defendants' motion for summary judgment was denied [Text-Only Order entered Aug. 13, 2015], the case proceeded to a bench trial. On March 30, 2016, the Court entered an Order containing findings of fact and conclusions of law. [Doc. 93]. Specifically, the Court concluded that the Plaintiffs generally had standing to bring their suit.
Both the Plaintiffs and the Defendants appealed. On August 14, 2017, the Fourth Circuit Court of Appeals affirmed the Court's rulings on the issues of standing and the status of the subject bears as grizzly bears.
Following the denial of the writ of certiorari, this Court ordered the parties to file supplemental briefing on the issues raised by the Fourth Circuit's opinion. The parties filed their respective briefs [Docs.
Having been fully briefed, this matter is ripe for disposition.
The following is a summary of the relevant findings of fact made by the Court upon conclusion of the bench trial. These factual findings were not disturbed on appeal.
The Plaintiffs Peggy Hill and Amy Walker are enrolled members of the Eastern Band of Cherokee Indians ("EBCI"). [T. 18, 100]. Both Plaintiffs reside within the Qualla Boundary in Cherokee, North Carolina. [T. 16, 98]. Defendants Barry Coggins and Collette Coggins have owned and operated the Cherokee Bear Zoo, an unaccredited roadside zoo in Cherokee, North Carolina, for over twenty years. [T. 411, 415]. There are approximately 35 animals currently at the Zoo, including black bears, monkeys, lemurs, goats, and a tiger. [T. 67, 203]. The Zoo also possesses four grizzly bears that are the subject of this litigation: Elvis, Marge, Lucky, and Layla. [T. 424-27]. The grizzly bears are housed in concrete pits and can be viewed by the general public from a walkway above. Underneath the public walkway and adjoining the pit enclosures, there are additional enclosures lined with hay or wood shavings where the bears can access food and water, come out of the sun, and come and go as they please. [T. 445].
Barry and Collette Coggins began operating the Zoo in 1994. [T. 415]. They oversaw the construction of the Zoo, which exceeded the minimum requirements of the United States Department of Agriculture (USDA)
The Zoo holds a Class C Exhibitor's license issued by the USDA. The Zoo's license has never been suspended or revoked. [T. 418]. The Zoo is subjected to surprise inspections every three months by the USDA. [T. 196, 197, 419]. Over the years, the Zoo has received two or three notices of the need for corrective action with respect to the bears.
The Plaintiffs' expert, professional zookeeper Else Poulsen, made four visits to the Zoo between October 2009 and November 2014 in order to observe the bears and review the records pertaining to their care and treatment. [Plaintiffs' Ex. 37 at 21]. Ms. Poulsen testified that pit enclosures are not accepted by the international zoo community as appropriate housing for captive
Ms. Poulsen testified that she observed the bears pacing, which is stereotypic (
Ms. Poulsen testified that, in her opinion, the Zoo is not in compliance with the Animal Welfare Act ("AWA") because the pit enclosures do not allow for freedom of movement. [Plaintiffs' Ex. 37 at 224, 255]. Specifically, she testified:
[
The Plaintiffs' second expert, Edward Ramsay, D.V.M., visited the Zoo in November 2014. [T. 243]. Additionally, he reviewed photographs and videos taken by other witnesses within the last five years. [T. 244]. Dr. Ramsay opined that begging for food is not a normal behavioral pattern for a bear. [T. 246]. Dr. Ramsay opined that this abnormal behavior is encouraged by the Zoo because it allows public feeding of the bears. [T. 247]. Dr. Ramsay described this as "an unfortunate practice" as it prevents the zoo from controlling the
Dr. Ramsay further opined that the concrete pits do not meet generally accepted husbandry practices because: they are constructed of high block walls that are taller than a bear can reach [T. 251]; they are devoid of enrichment
According to Dr. Ramsay, the AZA Accreditation Standards form the basis for generally accepted practices in the field of zoology. [T. 283; Plaintiffs' Ex. 84]. According to Dr. Ramsay, it is the "generally held opinion in the captive animal community" that Section 10.3.3 of the AZA Accreditation Standards
Dr. Ramsay opined that the "generally accepted" standard for an enclosure for two brown bears would be a minimum of fifty yards by fifty yards. [T. 386]. He did not cite any reference materials for this opinion, noting that the calculation of the minimum size required was "just a Dr. Ramsay opinion." [
Dr. Ramsay opined that the Zoo's pit enclosures also fail to meet the North Carolina regulatory standards for captive black bear enclosures, 15A N.C. Admin. Code § 10H.0302(b)(5). [T. 291-93]. These regulations require an enclosure to provide at least one acre of land for two black bears, plus additional acreage for every additional bear. Dr. Ramsay testified that these regulatory standards actually exceed what he considered to be the "generally accepted" practice. [
With respect to veterinary care, Dr. Ramsay testified that it was unclear from the records whether the bears have ever been immobilized for examination. Further, the records indicate that the bears were treated on multiple occasions for skin problems or hair loss, but the only diagnostic test indicated was a single fungal culture. [T. 315]. Based on what he observed, Dr. Ramsay opined that the USDA
According to both Ms. Coggins and the Zoo's veterinarian, Dr. David Ackerman, the bears are in good health. Dr. Ackerman visits the bears on a monthly basis. [T. 440, 531]. He testified that the bears' weight is normal, and their fecal matter has been normal. [T. 560]. While the bears occasionally have exhibited some hair loss, Dr. Ackerman did not believe that this hair loss was due to stress, as it appeared to be a seasonal allergic reaction which responded to medical treatment. [T. 441, 559, 583].
According to both Ms. Coggins and Dr. Ackerman, the bears do not exhibit stereotypic behavior. [T. 443, 555]. Ms. Coggins testified that the bears receive limited feeding from the public of apples, bread, lettuce, and pellets of dog food; the Zoo ensures that the bears are also fed meat, vegetables, fruits, nuts, and berries on a daily basis. [T. 444]. Dr. Ackerman admits that current zookeeping practices for brown bears provide for more space and a more natural environment, and he has had discussions with Mr. Coggins of implementing such practices in the future. [T. 573].
The Plaintiffs assert that the Defendants' treatment of the subject grizzly bears violates Section 9 of the ESA, 16 U.S.C. § 1538. Specifically, the Plaintiffs claim that the Defendants have violated 16 U.S.C. § 1538(a)(1)(B), which prohibits the "take" of any endangered or threatened species, and 16 U.S.C. § 1538(a)(1)(D), which makes it unlawful to possess any endangered or threatened species that has been unlawfully "taken" in violation of § 1538(a)(1)(B). Regulations promulgated by the Fish and Wildlife Service (FWS) pursuant to the ESA specifically prohibit the "taking" of any grizzly bear in the lower 48 states, including North Carolina. 50 C.F.R. § 17.40(b)(1)(i)(A).
The prohibitions in Section 9 of the ESA and its accompanying regulations apply to endangered or threatened animals bred and/or kept in captivity, as well as those in the wild.
The ESA defines the term "take" to include "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). As the Supreme
"Harass," as used in the definition of "take," is defined as "an 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. The definition of "harass" in the ESA regulations includes certain exceptions for captive wildlife:
This Court initially held that the Defendants did not "harass" the subject bears because the Defendants' animal husbandry practices complied with the minimum standards for facilities and care under the Animal Welfare Act (AWA), and therefore their animal husbandry practices came within the first enumerated exclusion under § 17.3. On appeal, the Court of Appeals held that this Court improperly construed this regulation:
Accordingly, the Court of Appeals remanded this matter to this Court to resolve two issues:
The decision of the Court of Appeals construes § 17.3 literally and employs its plain language. This interpretation, however, presents some distinct difficulties for the Court in the application of the regulation to the evidence in this case. More importantly, it presents some significant obstacles for the Plaintiffs in carrying their burden of proof. The problem arises from the application of the constitutional concepts of due process and the separation of powers to § 17.3 as construed by the Court of Appeals in the procedural context presented here.
The Fifth Amendment to the United States Constitution guarantees that an individual's life, liberty or property cannot be taken "without due process of law." U.S. Const. amend. V. "A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required."
Requiring "clarity in regulation" is also essential to upholding the separation of powers doctrine. Article I of the Constitution vests the Congress with "[a]ll legislative Powers" in the federal government. U.S. Const. art. I, § 1. The federal courts are assigned the "judicial Power" to hear "Cases" and "Controversies." U.S. Const. art. III, § 2. "From this division of duties, it comes clear that legislators may not abdicate their responsibilities for setting the standards of the criminal law by leaving to judges the power to decide the various crimes includable in a vague phrase."
"The degree of vagueness tolerated in a law depends in part on the type of statute."
Here, the Endangered Species Act clearly has both criminal and civil consequences. "Any person" who knowingly "takes" an endangered or threatened species is "subject to substantial civil and criminal penalties, including imprisonment."
The first significant component of the procedural context here is that, while this is a civil suit, it is at bottom a regulatory enforcement action. The Plaintiffs have demonstrated, and the Court has found, that the Plaintiffs have standing to assert a citizen suit under the ESA. The Court thus has subject matter jurisdiction, as such standing is necessary for there to be an Article III case or controversy. Having established such standing, the Plaintiffs essentially stand in the shoes of the federal government to enforce the provisions of the ESA and its related regulations with respect to these bears.
The second significant component of the procedural context presented here is the relief that the Plaintiffs seek. In their prayer for relief, the Plaintiffs seek, inter alia, the award of injunctive relief that would require the Defendants "to forfeit possession of all threatened grizzly bears in [their] possession to the United States or an accredited wildlife sanctuary where the grizzly bears are allowed to behave naturally in an environmentally stimulating setting that prevents them from being further `taken.'" [Amended Complaint, Doc. 30 at 11]. Such a remedy effectively would put the Defendants — who operate a "bear zoo" — out of business. Moreover, it would operate to effectively forfeit the Defendants' property to the United States or its designee. Given the drastic nature of
As interpreted by the Fourth Circuit, § 17.3 excludes from the definition of "harass," when applied to captive wildlife, animal husbandry practices that are both "generally accepted" and meet or exceed the minimum standards of the AWA.
In light of the Fourth Circuit's ruling, this Court must now take a further step to examine the evidence for any practice by the Defendants that complies with the AWA, but yet violates § 17.3 where it requires something more,
With respect to this "generally accepted" requirement, the compliance waters become quite murky. There is no set of regulations or other guidance promulgated by the FWS or USDA delineating what "generally accepted" animal husbandry practices are with respect to any endangered or threatened species, much less grizzly bears. No "generally accepted" animal husbandry practices have been adopted by the ordinary rule-making process or subjected to public debate. There is no single source to which anyone can refer to learn what is allowed and what is prohibited. Indeed, the Plaintiffs have not identified any literature or peer-reviewed material that establishes the "generally accepted" animal husbandry practices applicable to the treatment of threatened or endangered wildlife in captivity. Instead, the Plaintiffs rely on their experts to provide opinions as to what those "generally accepted" practices are. As such, applying the Plaintiffs' arguments to § 17.3 as construed by the Court of Appeals, renders that section to be something of a regulatory "head-fake." It cites to a formally adopted set of regulations, but then dictates that those regulations are superseded by a higher, more stringent standard that cannot be found in the Code of Federal Regulations or anywhere else.
Even the Plaintiffs' expert Dr. Ramsay candidly admitted that "generally accepted" animal husbandry practices are "subjective" and that there is "very little hard data." [T. 396]. Dr. Ramsay's testimony illustrates how difficult it is to ascertain what the "generally accepted" practice requires with respect to an enclosure for a brown bear subject to the provisions of the ESA. He never testified as to what the standard actually is, or where one would look to find it. Neither Dr. Ramsay nor the
In its decision, the Court of Appeals did not find that the inclusion of the "generally accepted" requirement renders § 17.3 unconstitutionally vague. But as Judge Bailey aptly noted in his dissent in this case:
The Court of Appeals has expressly remanded this matter directing this Court to apply § 17.3, as construed, to the evidence presented. And this the Court will now endeavor to do. In order to do so, however, the Court must explore the constitutional parameters of due process and separation of powers as they would apply to the evidence in order to ascertain where the Court and the parties are constrained.
The Court is further constrained by the requirement of due process, which mandates, at a minimum, that defendants have fair notice of what is required and what is prohibited under a particular statute or regulation. Therefore, in order for § 17.3 to be constitutionally applied, it is incumbent upon the Plaintiffs to prove by a preponderance of the evidence (1) that there is an applicable standard; (2) that it
With these requirements in mind, the Court now turns to the evidence of record and makes the following findings. The Plaintiffs presented evidence, primarily through the testimony of Ms. Poulsen and Dr. Ramsay, that the "normal behavioral patterns" for brown bears (including grizzlies) include roaming over multiple square miles, in mostly wooded or forested areas, foraging for a variety of foods. Given the evidence of the wide range of the bears' natural habitat and their foraged diet, it is difficult to conceive of any captive environment which would not be deemed to "significantly disrupt" these normal behavioral patterns to such an extent as to constitute "harassment," but for the exemption for captive animals in § 17.3. While some foraging could be mimicked in a captive setting — such as by the use of enrichment objects, like puzzle feeders — it would be impossible for any zoo or other facility to provide an enclosure large enough to allow a bear to roam as freely as it does in the wild.
While this might be evidence that any sort of captivity of grizzly bears would constitute "harassment" as defined in the first part of § 17.3, that is not the critical inquiry in this case. The Plaintiffs' burden is to show that the treatment of the subject grizzly bears falls outside of the exclusion for captive animals. Thus, at trial it was incumbent upon the Plaintiffs to prove either that the Zoo's animal husbandry practices were not "generally accepted" or that such practices fail to meet the minimum standards of the AWA in order for the Court to conclude that the enumerated exclusion does not apply and that the bears are subject to "harassment" within the meaning of the ESA.
As for the AWA compliance requirement, this Court already has concluded that the preponderance of the evidence demonstrates that the Zoo complied with the AWA minimum standards in caring for the subject grizzly bears:
[Doc. 93 at 35-36 ¶¶ 39, 40]. The Plaintiffs did not challenge these findings and conclusions on appeal.
The issue of whether the first enumerated exception applies, therefore, comes down to whether the Zoo's animal husbandry practices are "generally accepted." On this point, the Plaintiffs again rely on the testimony of Ms. Poulsen and Dr. Ramsay.
Dr. Ramsay opined that the AZA Accreditation Standards, and particularly the provisions of Section 10.3.3 of such Standards, are considered the "generally accepted" animal husbandry practices for zoos.
The Plaintiffs' other expert, Ms. Poulsen, testified that the Zoo's animal husbandry practices do not comply with the AZA Accreditation Standards. Significantly, however, Ms. Poulsen never identified the AZA Accreditation Standards as being the "generally accepted" standard for animal husbandry practices. Evidence that the Zoo did not comply with a more stringent animal husbandry standard is meaningless
For these reasons, the Court finds as fact and concludes as a matter of law that the AZA Accreditation Standards are not the standard of "generally accepted" animal husbandry practices within § 17.3. Rather, these standards cited by the Plaintiffs' experts represent, at most, an aspirational standard.
Even if the AZA Accreditation Standards could be looked to as the standard for "generally accepted" animal husbandry practices, such standards at best establish a moving target. The AZA Accreditation Standards themselves note that AZA-accredited zoos and aquariums are "continuously evolving." Association of Zoos & Aquariums,
While Ms. Poulsen and Dr. Ramsay identified numerous ways in which the Zoo's animal husbandry practices failed to meet the aspirational standards set by the AZA and the more stringent standards followed by some other facilities, they have failed to demonstrate that those higher standards are "generally accepted." Moreover, the Plaintiffs' experts did not cite any learned treatise, published literature, scholarly writing or peer-reviewed material in support of their conclusion that the Zoo's animal husbandry practices are not "generally accepted." A close examination of these experts' testimony reveals that they failed to present a sufficient factual basis for their opinions regarding "generally accepted" animal husbandry practices.
As the Court previously stated, in order for § 17.3 to be constitutionally applied, it was incumbent upon the Plaintiffs to prove by a preponderance of the evidence (1) that there is an applicable standard; (2) that it is generally accepted; (3) that the adoption and acceptance of the standard is so widely known as to give the Defendants fair notice of its existence, terms, and requirements; and (4) that the Defendants' acts or omissions violated that standard. For the reasons set forth above, this Court finds and concludes that the Plaintiffs have failed to demonstrate by a
Having determined that the Defendants did not "harass" the subject bears, the Court now turns to the issue of whether the bears were subject to "harm."
"Harm," as used in the definition of "take," is defined as "an 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 (emphasis added). A mere potential for future injury is insufficient to establish a "harm." Rather, there must be a showing that an actual injury has occurred or is reasonably certain to occur in the imminent future.
Here, the Plaintiffs have failed to demonstrate by a preponderance of the evidence that the Defendants' treatment of the four grizzly bears at the Zoo constitutes "harm" as that term is defined in the ESA and the applicable regulations. Specifically, the Plaintiffs have failed to demonstrate that the Defendants' animal husbandry practices resulted in any death or actual injury to the subject bears or that death or injury is reasonably certain to occur in the imminent future.
While the Plaintiffs' experts expressed concern that the public feeding of the bears could allow for foreign objects to be swallowed by the bears or for the communication of diseases, no such injuries have in fact occurred. That such harm may potentially occur if the practice is continued is not sufficient to establish a "harm" within the meaning of the regulation.
Finally, while Ms. Poulsen testified that the conditions of the bears' confinement caused abnormal behavioral patterns in the bears, such as pacing, the Plaintiffs have failed to provide any evidence that such behavior was exhibited on such a regular basis as to be considered an "injury." They further have failed to show that such pacing behavior would not otherwise exist with captive brown bears in other settings.
Neither the ESA nor the regulations promulgated pursuant thereto give USDA-licensed exhibitors any means of discerning whether their animal husbandry practices comply with the "generally accepted" standard within the meaning of 50 C.F.R. § 17.3. Because there is a dearth of regulatory guidance, determining whether an exhibitor is in compliance can be made only when a citizen suit is brought, and experts are brought in to testify regarding the "generally accepted" practices, leaving the courts to determine the scope and breadth of the generally accepted standards. Such a system not only raises serious separation of power concerns but also fails to provide licensed exhibitors fair notice of what is required of them under the ESA.
Assuming that this interpretation of § 17.3 is constitutional, however, the Court concludes that the Plaintiffs have failed to prove by a preponderance of the evidence that the Defendants did not comply with "generally accepted" animal husbandry practices or with the minimum standards of the AWA. As such, the Court concludes that the Defendants' conduct falls within the first enumerated exclusion of 50 C.F.R. § 17.3 and therefore does not constitute "harassment" within the meaning of the ESA. The Court further concludes that the Plaintiffs have failed to prove that the grizzly bears were subjected to "harm" within the meaning of the ESA. Accordingly, the Court concludes that there has been no "taking" and thus no violation of the ESA with respect to the four grizzly bears in question. Therefore, the Plaintiffs' claims will be dismissed.
A Judgment consistent with this Memorandum of Decision and Order shall be filed contemporaneously herewith.
Association of Zoos and Aquariums,
