Rowley v. City of New Bedford

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

___________________________________

)

JOYCE ROWLEY, )

Plaintiff, )

)

v. ) CIVIL ACTION

) NO. 17-11809-WGY

CITY OF NEW BEDFORD, )

MASSACHUSETTS, )

)

Defendant. )

___________________________________)

YOUNG, D.J. September 24, 2019

FINDINGS OF FACT, RULINGS OF LAW, AND

ORDER FOR JUDGMENT

I. INTRODUCTION

This is a case about elephants -– specifically, Asian

elephants.

Asian elephants . . . usually weigh[] well under

eleven thousand pounds and st[an]d about seven to nine

feet tall at the shoulder, as opposed to African

elephants, who could weigh as much as fifteen thousand

pounds and reach thirteen feet in height. Both male and

female African elephants have tusks, while only some

Asian males have tusks, and none of the females do.

Their body shapes differ, too: Asians are more compact;

Africans lankier, with a more concave back. The

Africans’ ears are enormous and wide (like maps of

Africa, it’s said) —- the biggest mammal ears in the

world —- while those of the Asian elephant are smaller

and closer to square.

In fact, the African and Asian elephants are not

only separate species but separate genera —- a whole

other level of taxonomic rank, as distinct in genetic

heritage as a cheetah is from a lion. And some say it

shows in their temperaments -- the Africans active and

more high-strung; the Asians more serene.

Physically, all elephants are astonishing. They

are the largest animals walking on land. And their

appetites are commensurate . . . . , gathering their

food with those incredible trunks. Longer and heavier

than a man, and much, much stronger, the trunks provide

elephants with a sense of smell that may be five times

more acute than that of a bloodhound. And by narrowing

or widening their nostrils like musical instruments,

they can modulate the sound of their voices.

They have extraordinary brains built for memory and

insight, and they use them to negotiate one of the most

advanced and complex societies of all mammals. To those

who have spent time with them, elephants often seem

philosophical and perceptive, and appear to have deep

feelings. They can cooperate with one another and have

been known to break tusks trying to hoist injured

relatives back on their feet. Further, their behavior

suggests they have an understanding of death, something

believed to be rare among nonhuman animals.

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).

II. THE LEGAL FRAMEWORK

A. The Endangered Species Act

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 (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.

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.

1. Harming an Endangered Species

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

(deferring to regulation’s interpretation of “harm”)

(citing Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984)).

2. Harassment of an Endangered Species

The Fish and Wildlife Service defines “harass” in the

definition of “take” in the Endangered Species Act 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.

Id.

This definition includes a carve-out that exempts from the

definition of “harass”:

generally accepted: (1) [a]nimal husbandry practices

that meet or exceed the minimum standards for facilities

and care under the Animal Welfare Act, (2) [b]reeding

procedures, or (3) [p]rovisions of veterinary care for

confining, tranquilizing, or anesthetizing, when such

practices, procedures, or provisions are not likely to

. . . result in injury to the wildlife.

Id.

B. The Animal Welfare Act

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

(setting standards for the “handling, care, treatment, and

transportation of warmblooded animals other than dogs, cats,

rabbits, hamsters, guinea pigs, nonhuman primates, and marine

mammals”), 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 Act violation has

occurred, and requires such a determination to be made

through the typical adversarial process.

Graham, 261 F. Supp. 3d at 745.

The court in Graham thus concluded that a claim that a

zoo has violated the Endangered Species Act by “harassing”

a captive endangered species requires the court to

determine, first, if the zoo’s practices are generally

accepted, and, second, whether the zoo’s practices comply

with the governing Animal Welfare Act regulations. Id. at

745-46. “The burden is on the plaintiffs to show that the

Animal Welfare Act’s minimum standards were not met,”

however. Id. at 741 (citing Kuehl v. Sellner, 161 F. Supp.

3d 678, 718 (N.D. Iowa 2016); Hill v. Coggins, No. 2:13-cv-

47, 2016 U.S. Dist. LEXIS 42374, at *31-32 (W.D.N.C. Mar.

30, 2016)). The court held that it was to undertake this

inquiry independently -- considering, but not simply

deferring to –- any prior findings by the USDA-APHIS. Id.

at 745-46.

The court in Graham further held that “whether the Zoo

committed a take under the Endangered Species Act by

‘harming’ [a captive elephant] is a separate legal issue

requiring a separate analysis of the facts, and is not at

all dependent on [Animal Welfare Act] compliance.” Id. at

728, 746-48 (citing Kuehl, 161 F. Supp. 3d at 715-16; Hill

v. Coggins, 2016 U.S. Dist. LEXIS 42374, at *31-32).1

In Kuehl v. Sellner, the District Court for the

Northern District of Iowa found after a bench trial that

the defendants, a rural family-run zoo and its owner-

operators, had violated the Endangered Species Act by

harassing captive lemurs and both harming and harassing

1 After the court granted summary judgment on some

harassment-based “take” claims but denied it as to others, the

parties in Graham settled before trial. Order, Civ. A. No.

5:15-cv-01054-XR (W.D. Tex. Dec. 5, 2017), ECF No. 78.

captive tigers. 161 F. Supp. 3d at 718. The court’s

determination that the defendants had harassed the lemurs

and tigers was based on an evaluation of the zoo’s

compliance with the substantive standards in the Animal

Welfare Act’s implementing regulations. Id. at 710-18.

While some of the conduct that the court found to

constitute harassment had previously been subject to

penalties by the USDA-APHIS for non-compliance, the court

also found harassment in certain conduct that the USDA-

APHIS had not found to violate Animal Welfare Act

regulations. Id. For example, relying on the plaintiffs’

expert witness, the court found that the social isolation

of the lemurs disrupted their behavioral patterns and thus

constituted a “take” under the Endangered Species Act (even

though the USDA-APHIS had not previously sanctioned the

defendants for any conduct related to the animals’ social

isolation). Id. at 710-11.

In Hill v. Coggins, the United States District Court

for the Western District of North Carolina found after a

bench trial that the plaintiffs had failed to demonstrate

that the defendants, owners and operators of the Cherokee

Bear Zoo, had harmed or harassed captive grizzly bears

pursuant to the Endangered Species Act. 2016 U.S. Dist.

LEXIS 42374, at *37-38. In so finding, the court relied on

the fact that the plaintiffs had failed to show any

evidence of instances in which the zoo’s treatment of the

grizzly bears had violated any Animal Welfare Act

regulations governing animal treatment. Id. at *33-34.

The court failed to analyze separately whether the

defendants’ practices were also generally accepted animal

husbandry practices, however. See id.; 50 C.F.R. § 17.3.

On appeal, the Fourth Circuit corrected this error,

clarifying that the exclusion in the Fish and Wildlife

Service’s definition of “harass” requires that the practice

be both (1) “generally accepted” and (2) compliant with the

Animal Welfare Act to withstand scrutiny under the

Endangered Species Act. Hill v. Coggins, 867 F.3d 499,

509-10 (4th Cir. 2017).

The United States District Court for the Southern

District of Florida in People for the Ethical Treatment of

Animals, Inc. v. Miami Seaquarium granted summary judgment

for the Seaquarium, concluding that People for the Ethical

Treatment of Animals (“PETA”) had introduced no evidence

that the captive killer whale’s living conditions “gravely

threaten[ed]” her existence, and cast some doubt on the

applicability of the Endangered Species Act to endangered

species in captivity. 189 F. Supp. 3d 1327, 1355 (S.D.

Fla. 2016).2 As the court in Graham noted, this “gravely

threatening” standard exists nowhere in the Endangered

Species Act or Animal Welfare Act or regulations

implementing those statutes, and “was created -- without

citation -- by the PETA court.” Graham, 261 F. Supp. 3d at

743 (discussing Miami Seaquarium, 189 F. Supp. 3d at 1351).

The Eleventh Circuit affirmed the grant of summary judgment

in Miami Seaquarium, holding that -- while it may not

require a grave risk of death -- “harassment” and “harm”

under the Endangered Species Act require a “threat of

serious harm.” People for the Ethical Treatment of

Animals, Inc. v. Miami Seaquarium, 879 F.3d 1142, 1144,

1147-50 (11th Cir. 2018) (per curiam).3

2 In People for the Ethical Treatment of Animals, Inc. v.

Tri-State Zoological Park of W. Md., Inc., the United States

District Court for the District of Maryland rejected the Miami

Seaquariam court’s reasoning on the potential conflict between

the Endangered Species Act and the Animal Welfare Act as they

pertain to endangered species in captivity. See Civ. A. No.

MJG-17-2148, 2018 U.S. Dist. LEXIS 6638, at *11-14 (D. Md. Jan.

16, 2018). The Maryland District Court noted that the Miami

Seaquarium logic represented a minority view among district

courts to have addressed the issue, and one that the Fourth

Circuit repudiated in Hill v. Coggins, 867 F.3d at 510. Tri-

State, 2018 U.S. Dist. LEXIS 6638, at *11-14.

3 The Miami Seaquarium case is less relevant than others the

Court addresses here because it analyzed the living conditions

of marine mammals, which the National Marine Fisheries Service

regulates, instead of the Fish and Wildlife Service. See 189 F.

Supp. 3d at 1333.

In responding to a challenge to the Tri-State Zoo in

Maryland, the United States District Court for the District

of Maryland ruled that PETA’s allegations that the zoo

housed lemurs, tigers, and a lion in an inappropriate

social setting; failed to provide adequate enrichment to

lemurs, tigers, and a lion; failed adequately to protect

lemurs, tigers, and a lion from the elements; and failed to

provide adequate veterinary care to a lion plausibly stated

a claim for a harassment- or harm-based “take” violation of

the Endangered Species Act. People for the Ethical

Treatment of Animals, Inc. v. Tri-State Zoological Park of

W. Md., Inc., 2018 U.S. Dist. LEXIS 6638, at *15-18. The

Maryland District Court later granted partial summary

judgment to PETA, 2019 U.S. Dist. LEXIS 112366, at *1 (D.

Md. July 8, 2019), ruling that “the zoo unlawfully took

Cayenne,” a tiger, through a “lack of basic veterinary

care,” id. at *18-19.

In sum, this Court must determine whether the City is

harming or harassing Ruth and Emily pursuant to the Endangered

Species Act. If any of the City’s intentional or negligent

conduct “creates the likelihood of injury to [the elephants] by

annoying [them] to such an extent as to significantly disrupt

normal behavioral patterns which include, but are not limited

to, breeding, feeding, or sheltering,” that conduct constitutes

a “take” and violates the Endangered Species Act, unless the

conduct is a generally accepted and Animal Welfare Act-compliant

animal husbandry practice. See 50 C.F.R. § 17.3. In addition,

the City has committed a “take” if its conduct “actually kills

or injures” the elephants. See id.

III. FINDINGS OF FACT

The City owns and operates the Buttonwood Park Zoo. The

zoo is an Association of Zoos and Aquariums accredited

institution. Trial Tr. Day 3 at 39:14-18, ECF No. 77.

In April 1968, the City purchased Emily, a four-year-old

Asian elephant, from Southwick’s Zoo (then the Mendon Animal

Farm), and transferred her to the Buttonwood Park Zoo. Trial

Ex. 4, Association Zoos & Aquariums Elephant Profile Form & City

New Bedford Board Park Commissioners Letter Dec. 31, 1967

(“Emily Profile & Board Park Commissioners 1967 Letter”) 1, 6.

There is no evidence to suggest Emily was anything but a

healthy, young elephant at the time of the City’s purchase. See

Trial Tr. Day 3 at 43:25-44:2.

About fifteen years later, however, when Dr. Michael Ryer

arrived at the zoo to become a zookeeper, he found that Emily

“was not behaviorally adjusted well at all.” Trial Tr. Day 1 at

92:11, ECF No. 75. Her living conditions in 1982 were not

acceptable, according to veterinarian Dr. Ryer; she was chained

in the barn sixteen hours a day on a concrete floor with poor

drainage and no ventilation. Id. at 93:6-19. When Emily

returned from her training stay at a zoo in Louisiana, however,

she was a changed elephant -- she was able to “be worked without

fear of . . . one of the keepers getting hurt,” Trial Tr. Day 2

at 18:19-20, ECF No. 76, and she returned to improved living

quarters, Trial Tr. Day 1 at 106:9-11.

Ruth is the hard luck elephant. She is somewhat older and

a bit (a thousand pounds) smaller than Emily. Trial Tr. Day 1

at 101:24-25; Trial Tr. Day 3 at 78:21-79:6, 80:2-10; Trial Ex.

5, Association Zoos & Aquariums Elephant Profile Form & Arrival

Report (“Ruth Profile & Arrival Report”) 1. Benson’s Animal

Farm in New Hampshire once owned her. Ruth Profile & Arrival

Report 1.

In 1986, she was found abandoned in a truck on a dump site

in Danvers, Massachusetts. Id. at 5-6; Trial Tr. Day 2 at

85:12-17. The Animal Rescue League of Boston apparently took

her from there. Ruth Profile & Arrival Report 5, 7. A United

States Department of the Interior report from the time she was

seized indicates that Ruth suffered several ailments: her ear

condition was fair, with one hole and ragged edges on each ear;

her skin was fair to poor; her tail and skin had an extreme

build-up of necrotic tissue; she had scars on her legs

(indicative of excessive chain wear) and chin (more than twenty

hook scars); and she was underweight, among other issues. Id.

at 5-6. This report further noted that Ruth was a “striker,

hitter, but not to the point of killing,” and “[r]epeatedly

struck out at keepers.” Id.

Ruth’s trunk was of particular concern when she was

rescued. The 1986 report stated that Ruth had “[l]ittle control

of dist[a]l area; no fine control of finger; appears paralyzed

in proximal area and peduncle; must use head to swing trunk.

Does appear to affect her ability to feed.” Id. at 6.

The City soon took possession of Ruth. Id. at 7. Dr.

Ryer, then a zookeeper at the City’s zoo, confirmed Ruth’s

partial trunk paralysis and overall poor health upon her arrival

at the Buttonwood Park Zoo elephant habitat. Trial Tr. Day 1 at

97:4-10.

In the City’s care, Ruth has become docile and, at least in

the eyes of the City’s zookeepers,4 she appears affectionate and

warmly responsive to her treatment. See Trial Tr. Day 2 at

22:7-17, 77:11-78:6.

Emily is now fifty-five years old. Emily Profile & Board

Park Commissioners 1967 Letter 1. Aside from a brief period

from November 1983 to July 1985, when she went to Baton Rouge,

4 Experts caution against anthropomorphizing elephant

behavior and attributing to them human emotions. What is clear

is that both zookeepers and attending veterinarians are

affectionate toward both Emily and Ruth.

Louisiana for training (during which time the City renovated her

barn), Emily Profile & Board Park Commissioners 1967 Letter 1;

Trial Tr. Day 1 at 93:21-24, 96:7, Emily has resided at the

Buttonwood Park Zoo, for apparently forty-nine of her fifty-five

years. Id.5

Ruth, however, was approximately twenty-eight years old

when she was rescued by the Animal Rescue League of Boston,

seized by the United States Department of the Interior, and

delivered into the City’s care. Ruth Profile & Arrival Report

1, 5. She is thus approximately sixty-one years old and has

resided at the Buttonwood Park Zoo for the last thirty-three

years, together with Emily. Id.

Emily and Ruth are thus among the oldest living Asian

elephants in a zoo setting in America. See Trial Ex. 15, Robert

J. Wiese & Kevin Willis, Calculation of Longevity and Life

Expectancy in Captive Elephants, 23 Zoo Biology 365-73 (2004)

(estimating average life expectancy for Asian elephants in

captivity in North America at 44.8 years).

5 Indeed, because Emily’s captivity predates the

classification of Asian elephants as endangered in 1976 and the

Endangered Species Act itself in 1973, some of the Endangered

Species Act’s protections may not apply to her. See 16 U.S.C.

§ 1538(b). Critically, however, the Endangered Species Act’s

prohibition on taking does protect Emily. See id.; Am. Soc’y

for the Prevention of Cruelty to Animals v. Ringling Bros. &

Barnum & Bailey Circus, 502 F. Supp. 2d 103, 107-10 (D.D.C.

2007).

Over the years Emily and Ruth have spent at the City Zoo,

elephant husbandry has undergone a near complete reversal.

Years ago, elephants were managed by guides or bullhooks --

think a maharajah’s mahout with his goad. Touching the elephant

at a guidepoint with the guide led a trained elephant to exhibit

the desired behavior; i.e. moving, stopping, and the like.

Advanced training might include kneeling, stepping up on a

pedestal, raising one or two legs, holding a banner in her trunk

-- you get the idea.

Today, the zookeepers allow the elephants to roam at will

throughout the zoo’s habitat, which seeks to replicate -- as far

as possible -- the elephants’ natural surroundings. Elephants

are enticed by the prospect of forage out of their barn to allow

for its cleaning. Today, human contact with the elephants is

kept to a minimum. While the elephant caretakers routinely have

“hands-on” contact with the elephants, they do so almost

exclusively “through a protective barrier.” Trial Ex. 16,

Elephant Mgmt. Policy & Elephant Keeper Handbook (Buttonwood

Park Zoo 9th ed. 2018) 4, 9. But see Trial Ex. 17, Buttonwood

Park Zoo Protocols for Sharing Unrestricted Space with Elephants

2018.

Rowley faults the City for being behind the curve in every

respect. The Court finds the contrary to be true. Indeed,

commendably, the City has supported its zoo with an adequate

budget; has attracted a cadre of dedicated, professional,

empathetic, and innovative zookeepers; and has employed top

notch veterinarians wherever necessary. The pace of change at

the City Zoo has been commensurate with the evolution of

elephant husbandry. Hydraulic fences limn the elephant stalls

within their barn, allowing the elephants to move as the

zookeepers desire without the need for guides. The barn’s

concrete floor has been covered with thick sand (easier on the

elephants’ feet), and sand is banked up against one wall of each

stall so an elephant at rest leans against a sand bank rather

than kneeling and lying down (more difficult for geriatric

elephants with aging joints). Outside, forage is made available

not only on the ground but on a raised, lattice-like wooden

structure which seeks to replicate the elephant’s natural

environment and encourages her to exercise her trunk to seek out

food where it would normally be found in the forest.

The zoo’s accomplishments are not, however, an unbroken

record of evolving improvements (although this is generally so).

The elephant barn lacks a hydraulic hoist (to lift an elephant

if necessary in case of injury or sickness), and the roof still

leaks (although not over the animal spaces). More seriously,

human negligence is not unknown. In January 2014, the door to

the elephant barn was left unlocked and Ruth wandered out into a

New England blizzard, suffering frostbite to her ears, vulva,

and tail. Trial Ex. 19, USDA Settlement Agreement 3; see also

Trial Tr. Day 2 at 90:9-91:13.

There are larger issues as well. Asian elephants range

naturally across the Indian sub-continent6 and throughout

Southeast Asia7 and the Indonesian archipelago. Now New Bedford,

Massachusetts has many fine attractions, but lush tropical

forests and mangrove swamps are not among them. The elephant

habitat at the City Zoo is somewhat larger than 3/4 of an acre

and, while one could possibly conjure the dusty Deccan plains

(ignoring the New England white oaks), by no stretch of the

imagination could anyone believe these two elephants live in

their “natural” surroundings.

The zookeepers ensure that Emily and Ruth have delicacies

like bamboo in addition to their normal diet of hay and

livestock grains. See Trial Tr. Day 3 at 32:22-33:14; Trial Tr.

Day 2 at 70:7-10. Moreover, in collaboration with the

Massachusetts College of Art and Design, the zookeepers have

6 Alexander faced Porus’ Asian elephants at the Hydaspes in

326 B.C.E. The British used them as pack animals on the march

from Kandahar to Kabul during the ill-fated invasion of

Afghanistan, 1839-1842. See William Dalrymple, Return of a King

(Knopf 2013); George MacDonald Fraser, Flashman (Plume 1984).

7 See Croke, supra. For a sensitive, albeit Western,

discussion of the terrain and its peoples, see generally the

distinguished author John Masters, Bugles and a Tiger (Viking

1956) and The Road Past Mandalay (Harper 1961), the

autobiography of his service in the 4th Gurkha Rifles in the old

Indian Army.

developed “toys” for the elephants which are intended to

maximize elephant dexterity. Emily is said to favor the

xylophone. See Trial Tr. Day 3 at 37:13-39:6; Laura Crimaldi,

MassArt Students Create Toys for Elephants at New Bedford Zoo,

Boston Globe (May 13, 2019), https://www.bostonglobe.com/metro/

2019/05/13/massart-students-create-toys-for-elephants-new-

bedford-zoo/EGB79VBrsiZB3TgUjpmpnO/story.html.

None of this will do, says Rowley, arguing that Emily and

Ruth ought be transported to a 34,000 acre elephant sanctuary in

Tennessee to live out the remainder of their lives in a setting

more closely resembling their natural habitat. Am. Compl. ¶ 97.

She is in good company. See Charles Seibert, The Swazi 17, N.Y.

Times Mag. 26-33, 42, 45 (July 14, 2019) (arguing that elephants

ought not be kept in captivity at all).

Important as these larger issues may be, they are beyond

the purview of this Court, immaterial because they are of no

legal consequence to the outcome of this action. See Fed. R.

Evid. 401. This is an action under the citizen suit provision

of the Endangered Species Act. 16 U.S.C. § 1540(g). That Act,

as the Fish and Wildlife Service has authoritatively interpreted

it and in conjunction with the Animal Welfare Act, contemplates

that endangered species may be kept in captivity. See 50 C.F.R.

§ 17.3 (excluding from the definition of “take,” as “applied to

captive wildlife,” “generally accepted” husbandry practices

satisfying Animal Welfare Act standards); 7 U.S.C. § 2131

(explaining that the Animal Welfare Act is designed to “to

insure that animals intended for . . . exhibition purposes . . .

are provided humane care and treatment”). The reference

standard for an endangered species in captivity is not a goal

requiring the least restrictive environment or the most natural

possible setting. Rather, it is generally accepted and

appropriate animal husbandry. See 50 C.F.R. § 17.3. This is a

familiar concept, taught by 4-H groups to youth across the

nation. When I was growing up, the Boy Scouts offered a merit

badge in Animal Industry. See Boy Scouts of America, Handbook

for Boys 509 (New York: Boy Scouts of America, 1943).

Therefore, important as the questions posed by Rowley and

Seibert may be, this Court eschews analyzing them and, having

made its findings of fact, turns to the specific legal issues

which require the Court’s attention. The Court will make

additional, issue-specific findings where necessary.

IV. RULINGS OF LAW

A. Veterinary Care

By mandate of the Code of Federal Regulations, “[e]ach

. . . exhibitor shall have an attending veterinarian who shall

provide adequate veterinary care to its animals.” 9 C.F.R.

§ 2.40(a). The attending veterinarian must be employed

“under formal arrangements,” id. § 2.40(a)(1), and must have the

authority to provide and oversee adequate care, id.

§ 2.40(a)(2). In addition, the “exhibitor shall establish and

maintain programs of adequate veterinary care that include . . .

[t]he use of appropriate methods to prevent, control, diagnose,

and treat diseases and injuries, and the availability of

emergency, weekend, and holiday care.” Id. § 2.40(b).

A zookeeper inspects Ruth and Emily each morning and

completes a “Daily Animal Health Checklist.” Trial Tr. Day 1 at

46:10-47:17. If any issue comes up, the zookeeper gets in touch

with the Zoo’s “elephant manager and the vet staff, the staff

veterinarian or even the vet technician” promptly to resolve it.

See id. at 47:7-17.

From at least 2000 to 2005, the City employed a full-time

on-site veterinarian at the Buttonwood Park Zoo, Dr. Ryer. Id.

at 112:8-11, 115:15. It is not clear when in the course of the

next ten years the City employed a full-time on-site

veterinarian, but the Zoo regularly called in Dr. Ryer for a

consultation when medical issues arose. See id. at 118:13-

119:1. One witness testified that when the City employed no

full-time on-site veterinarian, it contracted with a

veterinarian who would visit the elephants once per week. See

id. at 47:18-48:3.

As of July 30, 2015, the City once again employed a full-

time on-site veterinarian, Dr. Elizabeth Arnett-Chinn. Trial

Ex. 8, Independent Panel Review Buttonwood Park Zoo Elephant

Program (“Independent Panel Review”) 3. Although she

subsequently resigned, the record also reflects that the City

employed a full-time on-site veterinarian in 2018, see Trial Ex.

10, Final Report Visiting Committee Accreditation Commission

(“Final Report Accreditation Commission”) 8, and also did so at

the time of the trial, see Trial Tr. Day 1 at 47:18-23.

In 2016, Ruth developed a severe gastrointestinal issue.

Absent competent and professional veterinary care, there was a

strong probability she would die. Trial Tr. Day 2 at 22:24-

24:8, 27:3-9. The City provided such care, providing not only

care through the Zoo’s staff veterinarian but flying in a

renowned large animal veterinarian from Tennessee to care for

Ruth. Id. at 24:13-25:8. The medical team employed enemas to

re-hydrate Ruth. Id. at 25:13-22. This process consisted of

injecting 30 to 60 gallons of an electrolyte solution into the

elephant’s rectum three or four times a day for one week using

clean 30-gallon trash buckets and a hose. Id. at 25:13-26:6.

Ruth was compliant throughout the entire process, despite

simultaneously undergoing other procedures such as having her

blood drawn, a fact that the veterinarian attributed to her own

positive relationship with Ruth and to the elephant’s trust in

the zookeepers. Id. at 26:10-27:2.

Ruth also receives phenylbutazone, a non-steroidal anti-

inflammatory medication that treats her arthritis. Trial Tr.

Day 1 at 129:1-10; Trial Tr. Day 2 at 4:20-5:5.

As the findings above exemplify, Ruth (and Emily) have

received and are receiving adequate veterinary care in all the

respects required by 9 C.F.R. § 2.40. The City’s veterinary

care practices were “generally accepted,” 50 C.F.R. § 17.3,

given that a qualified professional oversaw them, and, in times

of unusual crisis, profitably consulted with between five and

ten “elephant veterinarians around the country.” Trial Tr. Day

2 at 24:11-20. The veterinary care that Ruth and Emily receive

does not “actually injure” them. See 50 C.F.R. § 17.3. Thus,

this Court rules that the City has provided generally accepted,

Animal Welfare Act-compliant veterinary care for Ruth and Emily.

The City’s veterinary care for Ruth and Emily neither harms nor

harasses them.

B. Food and Shelter

The Court finds and rules that Emily and Ruth are provided

wholesome, palatable food free from contamination in sufficient

quantity and nutritive value to maintain them in good health.

Trial Tr. Day 3 at 33:2-14. Thus, the City complies with

applicable nutrition regulations. See 9 C.F.R. § 3.129(a) (“The

food shall be wholesome, palatable, and free from contamination

and of sufficient quantity and nutritive value to maintain all

animals in good health.”). Further, the Visiting Committee to

the Accreditation Commission of the Association of Zoos and

Aquariums found in 2018 that the Buttonwood Park Zoo provides

the animals in its care with “diets of adequate quality and

quantity” that are “prepared and stored hygienically” and

“provided in a way that promotes the physical and psychological

well-being of the animals,” which supports the Court’s

conclusion that the elephants’ diet is also generally accepted.

See Final Report Accreditation Commission 10.

Regarding shelter, the Code of Federal Regulations requires

that elephants, among other warmblooded animals, be housed in

“structurally sound” facilities “in good repair,” 9 C.F.R.

§ 3.125(a), with adequate water and power, id. § 3.125(b), as

well as proper means of storing food, disposing of waste, and

maintaining cleanliness, id. § 3.125(c)-(e). The City’s outdoor

facilities must provide the elephants shelter from bothersome

sunlight and inclement weather, while being properly drained and

fenced. Id. § 3.127. And there must be enough “space to allow

each animal to make normal postural and social adjustments with

adequate freedom of movement.” Id. § 3.128.

The Zoo’s elephant barn is appropriate to the local New

Bedford climatic conditions and is otherwise suitable for

housing these two elephants. While USDA-APHIS sanctioned the

City in 2014 for allowing Ruth to get out during a blizzard, see

Trial Ex. 1, Citation & Notification of Penalty; Trial Ex. 19,

USDA Settlement Agreement 3; Trial Tr. Day 2 at 90:9-12, the

City has since made substantial renovations to the barn, and no

such incident has recurred. See Final Report Accreditation

Commission 27. Specifically, each elephant has adequate freedom

of movement within the barn and sufficient space to stand,

drink, and sleep. See id.; Trial Tr. Day 1 at 36:10-24

(zookeeper testifying to automated water system in barn that

Ruth and Emily can reach with their trunks); Trial Tr. Day 2 at

68:13-24.

Further, the City provides shelter to Ruth and Emily that

is in accordance with generally accepted animal husbandry

practices. See Final Report Accreditation Commission 7.

The Court thus rules that the City fully complies with 9

C.F.R. §§ 3.125, 127, 128, & 129.8 The City’s accreditation by

the Association for Zoos and Aquariums, which sets standards for

animal care above the minimum standards required by Animal

Welfare Act regulations, supports the Court’s conclusion that

the shelter and food that the City provides the elephants are

consistent with generally accepted animal husbandry practices

8 The Court rules only on Rowley’s request for prospective

relief. See Am. Compl. ¶¶ 104-06. Although the Court observes

that Ruth’s frostbite may have constituted “harm” under the

Endangered Species Act, the Court holds that the City is not

causing Ruth “harm” today. See Final Report Accreditation

Commission 27.

and do not harm or harass them. See Final Report Accreditation

Commission 7, 10; Trial Tr. Day 3 at 39:14-18.

C. Social Opportunities and Enrichment

The Department of Agriculture has not promulgated any

regulations imposing standards for socialization and enrichment

for the psychological wellbeing of animals that are not

primates. Cf. 9 C.F.R. § 3.81; Kuehl, 161 F. Supp. 3d at 710-11

(ruling that keeping lemurs -- primates -- in social isolation

was harassment). In addition, the parties have not introduced

evidence that maintaining two Asian elephants in captivity

together satisfies the “generally accepted” standard in the

captive wildlife exclusion to a harassment-based take. See 50

C.F.R. § 17.3.

Thus the Court considers whether a lack of social

opportunities for Ruth and Emily amounts to a “take” under the

Endangered Species Act, which is to say, “an act which actually

kills or injures wildlife” or “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.” See id.

Emily and Ruth (female Asian elephants) are the only two

elephants in the care of the City. Although Emily and Ruth may

well feel lonely at times, the evidence does not establish that

the City’s actions have significantly disrupted their normal

behavioral patterns in an injurious manner.9

As for enrichment, the general fact-finding above limns the

innovative efforts of the City’s zookeepers to enrich the

elephants’ existence. In Kuehl, the court held that captive

9 A significant area of dispute at trial was whether Emily

and Ruth engage in stereotypic behaviors. Stereotypic behaviors

are behaviors with no purpose, Trial Tr. Day 1 at 41:5-9, which

can indicate a captive animal’s mental stress, see Graham, 261

F. Supp. 3d at 717-18. Rowley suggests that Ruth’s and Emily’s

repetitive behaviors are “abnormal behavior” and thus are per se

evidence that the City’s actions or inaction “significantly

disrupt [their] normal behavioral patterns,” 50 C.F.R. § 17.3.

See, e.g., Trial Tr. Day 1 at 7:20-8:2.

If the evidence leaned in favor of a conclusion that Ruth

and Emily regularly do engage in stereotypic behaviors, not just

normal anticipatory ones, that could be evidence of harm or

harassment under the Endangered Species Act. Cf. Graham, 261 F.

Supp. 3d at 749.

Rowley elicited evidence at trial that Ruth and Emily

engage in the behaviors of swaying, bobbing, and pacing. See

Trial Tr. Day 1 at 42:4-12, 73:20-74:11. She failed, however,

to prove that these behaviors are stereotypic.

The evidence at trial was mixed at best as to whether Ruth

and Emily engage in stereotypy. See, e.g., Trial Tr. Day 1 at

39:10-40:8 (zookeeper describing Ruth and Emily’s swaying,

bobbing, and pacing as anticipatory, not stereotypic, behavior);

id. at 42:4-19 (same); id. at 73:20-74:6 (former elephant keeper

testifying that the elephants’ “swaying” is a result of them

“trying to get our attention” and is thus more “anticipatory”

than “stereotypic[]”); Trial Tr. Day 3 at 113:6-114:17 (Rowley

describing video footage of Emily and Ruth while eating and

swaying as “stereotyping”).

Rowley failed to carry her burden of proving that Ruth and

Emily regularly engage in stereotypic behaviors, and, moreover,

did not prove that the City’s action or inaction caused the

behaviors that she describes as stereotypy. Accordingly, the

Court cannot rule that the elephants’ repetitive behaviors

evidence that the City has actually injured them or

significantly disrupted their normal behavioral patterns.

tigers were not harassed or harmed by a psychologically dull

environment even when they were provided only “nominal”

enrichment. 161 F. Supp. 3d at 718. Emily and Ruth are not so

impoverished. The Court rules that the City follows adequate

and generally accepted animal husbandry practices in these

regards. Moreover, there is insufficient evidence to establish

the likelihood of significant disruption of normal behavioral

patterns.

D. Failure to Protect Ruth

This is the most difficult issue in this case.

Rowley claims that the City has allowed Ruth to be harassed

and harmed over the years through Emily’s aggressive actions

toward her. Indeed, years ago, Emily bit off the tip of Ruth’s

tail. Trial Tr. Day 1 at 63:5-25. Years later, after the

frostbite incident, when Ruth’s tail was bandaged up, Emily

(perhaps out of curiosity) used her trunk to toy with the

bandage, causing Ruth to squeal in apparent pain and move away.

Sporadically over the years there have been incidents where,

while Ruth has been peacefully feeding, Emily has come up and

shouldered her out of the way in order to enjoy that particular

foodstuff herself. There is ample available food and Ruth,

although dispossessed, shambles off to feed elsewhere. Ruth is

not malnourished.

Rowley, albeit a keen and frequent visitor to the City’s

elephants, is neither a zookeeper nor a veterinarian. She

characterizes these incidents as “attacks” by Emily upon Ruth.

The zookeepers consider them normal dominant animal behavior

(Emily being the larger and heavier elephant). See, e.g. Trial

Tr. Day 1 at 60:17-18, 62:20-25, 64:1-65:18. The skilled

veterinarians who testified tend to side with the zookeepers but

are quick to point out that only a specialist in elephant

behavior could give a sound answer.

Under the Fish and Wildlife Service’s regulations, to

“harm” an endangered species means intentionally or negligently

to engage in “an act which actually kills or injures wildlife,”

and encompasses conduct “significantly impairing essential

behavioral patterns, including breeding, feeding, or

sheltering.” 50 C.F.R. § 17.3. As stated above, to “harass”

such a species means:

[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.

Id. One may thus violate the “harassment” requirement without

actually causing “harm” to wildlife. See Hill, 867 F.3d at 511

(observing that “the regulatory definition of harass contains

requirements that are less demanding . . . than are the

requirements contained in the regulatory definition of harm”).

In the absence of directly applicable expert testimony

about elephant behavior, and recognizing that Rowley bears the

burden of proof, this Court concludes that she has not proved

that the City was harassing or harming Ruth in violation of the

law by negligently allowing Emily to attack her.

Then, a few days ago, Rowley filed a “motion to confiscate”

in which she raises some new and disturbing allegations, viz. as

a result of increased elephant conflict, the City’s zookeepers

have restricted Ruth’s access to the outer barn, causing her

emotional and physical distress. Mem. Favor Confiscation

(“Confiscation Mem.”), ECF No. 86; see also Suppl. Mem. Favor

Forfeiture, ECF No. 90.

Even as alleged by Rowley, it appears that the City’s

response is precisely what responsible elephant management

requires. Rowley’s allegations in the motion to confiscate

suggest that the zookeepers have decided to provide separate

feedings to the two elephants to ensure that Ruth gets adequate

nutrition despite Emily’s displacement behaviors, see Trial Tr.

Day 2 at 95:4-96:15. Confiscation Mem. 3. Rather than proving

that the City fails to protect Ruth from Emily’s aggression, see

id., these allegations demonstrate that the City is proactively

responding to changes in the social dynamic between the two

elephants to ensure that both animals are comfortable and are

able to meet their needs to the extent possible.

Some of Rowley’s allegations in her latest motion raise

some concerns for the Court about the City’s provision of

adequate shelter during the summer months. See Aff. Joyce

Rowley ¶¶ 6-7, 10-14, ECF No. 87. Rowley is not an elephant

expert, however, nor is this Court. Accordingly, Rowley’s

allegations here do not suffice to persuade the Court that it

ought revise its rulings in this case.

V. CONCLUSION

For these reasons, the Court finds and rules that there has

been no violation of the Endangered Species Act. Judgment shall

enter for the City.

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

DISTRICT JUDGE