# Rowley v. City of New Bedford

> District Court, D. Massachusetts · October 31, 2024

URL: https://www.frixlaw.com/law-library/cases/10649376

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** October 31, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10649376

## How later opinions describe it (automated extraction)

- noting that “Rule 50(a) applies in jury trials and Rule 52(c) applies in non-jury trials”
- explaining that “[b]ecause the trial was heard without a jury, [the] motion at the close of [the] case should have been characterized as a motion for judgment on partial findings under Fed. R. Civ. P. 52(c)” instead of Rule 50

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

_______________________________________
)
JOYCE ROWLEY, )
)
Plaintiff, )
) Civil Action No.
v. ) 21-11649-FDS
)
CITY OF NEW BEDFORD, )
MASSACHUSETTS, )
)
Defendant. )
_______________________________________)

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION
FOR DIRECTED VERDICT AND PARTIAL FINDINGS OF FACT AND
CONCLUSIONS OF LAW UNDER RULE 52(c)

SAYLOR, C.J.
This is an action brought under the citizen-suit provision of the Endangered Species Act
(“ESA”). Plaintiff Joyce Rowley is a resident of New Bedford, Massachusetts, and a member of
the Buttonwood Park Zoological Society. The City of New Bedford (the “City”) is the
municipality that owns and operates the Buttonwood Park Zoo. The subjects of the lawsuit are
“Ruth” and “Emily,” two Asian elephants at the zoo.
Plaintiff brought this action for declaratory and injunctive relief against the City on
October 8, 2021. She contends the City is harming and harassing the elephants in violation of
the ESA, and seeks, among other things, an injunction permitting her to remove the elephants
from defendant’s care and transfer them to a sanctuary in Tennessee or Georgia. She is
proceeding pro se.
This is plaintiff’s second effort at removing the elephants from the zoo. On September
21, 2017, she filed a complaint in this court seeking declaratory and injunctive relief against the
City. The case involved the same parties and the same legal issues as those involved in the
present action. The case proceeded to a bench trial before United States District Judge William
G. Young, and he entered a final judgment on the merits in favor of the City on September 24,
2019. 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).
Judge Young’s decision, which was affirmed on appeal, has preclusive effect, preventing
plaintiff from re-litigating issues that were raised, or should have been raised, in that proceeding.
Accordingly, the only issues presented here are whether the City has harmed or harassed the
elephants, within the meaning of the ESA, since September 2019.
The Court held a three-day bench trial on those issues in May 2024. At the conclusion of
plaintiff’s evidence, the City moved for a directed verdict in its favor.
Plaintiff’s evidence at the trial was directed in large part to proving that as a general
matter elephants should never be held in captivity in zoos, and that therefore Ruth and Emily
would be better off in a sanctuary. Whatever the merits of that position, that is not what the ESA

requires. Zoos have their flaws, certainly, but they also provide substantial conservation and
educational benefits to the public. Whether elephants should not be held in zoos, or only in
certain types of zoos, or whether zoos should be abolished altogether, are questions that are
properly committed to the legislative and political processes.
Plaintiff also contended that one of the elephants, Ruth, was suffering from certain
physical and other issues as a result of the conditions at the zoo. She did not, however, offer any
expert veterinary or other evidence as to either the existence of those conditions or their cause.
The only substantive question for this Court is to decide, under the ESA, whether the City
complies with generally accepted husbandry practices. Because plaintiff failed to offer any proof
that the City does not, a directed verdict for defendant—or, more accurately, a judgment under
Rule 52(c)—is appropriate.
Accordingly, and for the reasons set forth below, defendant’s motion will be granted.
I. Background
A. Background from Rowley I
On September 21, 2017, plaintiff filed a complaint for declaratory and injunctive relief

against the City of New Bedford. (“Rowley I”).1 As amended, the complaint asserted that the
City was harming and harassing Ruth and Emily 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).2 The court held a three-day bench
trial in March 2019.
1. Findings of Fact in Rowley I
The court in Rowley I examined conditions at the zoo from 1968 until 2019. In doing so,
it made the following relevant findings of fact, and this Court adopts those findings here:

The City of New Bedford owns and operates the Buttonwood Park Zoo, an institution
accredited by the Association of Zoos and Aquariums. The Buttonwood Park Zoo owns two
Asian elephants, Emily and Ruth. Asian elephants are an endangered species.
In April 1968, when she was four years old, the City purchased Emily from the Mendon
Animal Farm, and transferred her to the zoo. Emily was a healthy, young elephant at the time of

1 The docket number for the related case is 17-cv-11809-WGY.
2 The amended complaint also sought a declaratory judgment stating that the City’s treatment of the two
elephants violated section nine of the ESA (Count 7). (Rowley I, Am. Compl. ¶ 134).
the City’s purchase.
Ruth was delivered into the City’s care at approximately 28 years old after being rescued
by the Animal Rescue League of Boston and seized by the United States Department of the
Interior. While she was once owned by Benson’s Animal Farm in New Hampshire, she was

found abandoned in 1986 in a truck on a dump site in Danvers, Massachusetts. A United States
Department of the Interior report from the time she was seized indicates that Ruth suffered from
the following issues, among others: her ear condition was fair, with one hole and ragged edges
on each ear; her skin condition 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); she had partial trunk paralysis; and she was underweight.
At the time of Rowley 1, Emily was 55 years old, and Ruth was approximately 61 years
old. They were among the oldest living Asian elephants in a zoo setting in America. Indeed, the
average life expectancy for Asian elephants in captivity in North America is 44.8 years. Aside
from a brief period from November 1983 to July 1985, Emily at the time of Rowley 1 had resided

at the Buttonwood Park Zoo for 49 years of her 55 years, and Ruth had resided at Buttonwood
Park Zoo for 33 years.
As of September 2019, the court found that the City had supported its zoo with an
adequate budget; had attracted a cadre of dedicated, professional, empathetic, and innovative
zookeepers; and had employed top-notch veterinarians wherever necessary. In addition, the
court found that the pace of change at the zoo was commensurate with the evolution of elephant
husbandry. Hydraulic fences lined the elephant stalls within their barn, allowing the elephants to
move in accordance with zookeepers’ desire without the need for bullhooks. The barn’s concrete
floor was covered with thick sand (which is easier on the elephants’ feet), and sand was banked
up against one wall of each stall so the elephants could lean against the sand banks rather than
kneeling and lying down (which is more difficult for geriatric elephants with aging joints).
Outside, forage was made available not only on the ground but on a raised, lattice-like wooden
structure in order to replicate the elephants’ natural environment and encourage them to exercise

their trunks.
In 2019, the court also considered whether Ruth and Emily engaged in stereotypic
behaviors, or behaviors with no purpose, which can indicate a captive animal’s mental stress.
The court found that while plaintiff suggested that they engaged behaviors such as swaying,
bobbing, and pacing, she failed to prove that those behaviors were stereotypic. Moreover, she
did not prove that the City’s action or inaction caused the behaviors that she described as
stereotypy.
2. Rulings of Law in Rowley I
Based on the evidence presented during the March 2019 bench trial, Judge Young
determined 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.
B. Procedural Background
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).3 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. (Id.).
It further alleges that since the judgment in Rowley I, Ruth has lost “[t]wo of her toe bones in her

left foot” 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).4
The Court held a bench trial in Rowley II on May 13, May 14, and May 22, 2024. At the
close of the trial day on May 22, plaintiff was on the witness stand. Her direct testimony and
cross-examination had been completed; all that remained of her case was an opportunity for
redirect examination (and recross, if necessary). During cross-examination, plaintiff became
increasingly agitated and disputatious. Among other things, she accused a City employee (and
prospective defense witness) of taking a photograph while she was testifying. The Court was
also informed that plaintiff and counsel for the City had engaged in a heated dispute after the

trial was recessed for the day.
The parties planned to hold the fourth day of the bench trial on May 23, 2024. The
anticipated proceedings for May 23 were to conduct the redirect and recross of plaintiff and to

3 Because more than two years had elapsed between the closing of Rowley I (October 4, 2019) and the
filing of Rowley II (October 8, 2021), the matter was not assigned to Judge Young as a related case under Local Rule
40.1(g)(4).
4 Specifically, the amended complaint seeks a judgment (1) declaring that defendant’s treatment of both
elephants violates the Endangered Species Act; (2) enjoining defendant from euthanizing either elephant; (3)
enjoining defendant from continuing to violate the ESA; (4) enjoining defendant from continuing to possess either
elephant; (5) enjoining defendant from transferring either elephant to the Buttonwood Park Zoological society, or to
any other public or private zoo; (6) allowing plaintiff’s veterinarian(s) to inspect both elephants in the barn; (7)
transferring both elephants to plaintiff to be transported to an elephant sanctuary; (8) awarding transport costs to
plaintiff; (9) allowing plaintiff to attend the necropsy and awarding plaintiff either elephant’s remains should either
die at the zoo; and (10) granting any other relief as may be equitable. (Am. Compl. ¶ 84).
begin the defense case. Plaintiff indicated that she intended to rest after her testimony, and
defendant indicated that it would move at that point for a directed verdict. The Court instructed
both parties to be prepared for that likelihood and the possibility that the motion for a directed
verdict would be denied and the defense case would begin.

Instead, at 6:42 a.m. on May 23, plaintiff sent an e-mail to the courtroom deputy stating
the following: “Please let the judge know that I will not attend court today as I do not feel I will
be safe from harassment in his courtroom.” (ECF No. 191, Ex. 1). She also filed a motion for
recusal of the undersigned judge.
At 9:00 a.m. on May 23, defendant appeared for trial with a witness. Plaintiff did not
appear. The Court held a brief colloquy with defense counsel on the record, during which it
denied the motion for recusal. The Court on May 23 also ordered plaintiff to show cause in
writing why the case should not be dismissed with prejudice for lack of prosecution or, in the
alternative, why she should not be deemed to have rested her case without an opportunity for
redirect testimony.

In response to the show-cause order, on May 23 plaintiff filed a second motion for
recusal.5 The Court held a status conference on May 24 with both parties. At that status
conference, the Court determined that for purposes of considering the motion for a directed
verdict, it would disregard the cross-examination of plaintiff and deem that plaintiff had rested
her case as of May 22.6

5 The Court denied that motion on May 24, 2024.
6 Defense counsel also represented to the Court during the status conference that he was able to confirm
with a courtroom security officer on May 22 that the City employee accused by plaintiff of taking a photograph in
the courtroom did not have a cell phone in her possession at that time. He further reported that he accompanied the
City employee to the first floor of the courthouse and watched as she retrieved her cell phone from the officers at the
front desk.
On June 7, 2024, defendant filed a written motion for a directed verdict. The Court set a
deadline of June 21, 2024, for plaintiff’s opposition to the motion. Plaintiff did not file an
opposition, either by the deadline or at any point thereafter.
II. Legal Standards
A. Motion for a Directed Verdict
A motion for a directed verdict in a bench trial is treated as a motion for judgment on

partial findings under Fed. R. Civ. P. 52(c). See Northeast Drilling, Inc. v. Inner Space Servs.,
Inc., 243 F.3d 25, 37 (1st Cir. 2001).7 “If a party has been fully heard on an issue during a
nonjury trial and the court finds against the party on that issue,” Rule 52(c) allows the court to
“enter judgment against the party on a claim or defense that, under the controlling law, can be
maintained or defeated only with a favorable finding on that issue.” Fed. R. Civ. P. 52(c). A
court should enter a judgment under Rule 52(c) only “[w]hen a party has finished presenting
evidence and that evidence is deemed . . . insufficient to sustain the party’s position.” Morales
Feliciano v. Rullan, 378 F.3d 42, 59 (1st Cir. 2004). “In deciding whether to enter judgment on
partial findings under Rule 52(c), the district court is not required to draw any inferences in favor

of the non-moving party; rather, the district court may make findings in accordance with its own
view of the evidence.” Ritchie v. United States, 451 F.3d 1019, 1023 (9th Cir. 2006); see also
Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 963 n.1 (5th Cir. 2016).

7 Here, defendant incorrectly moved for a directed verdict pursuant to Fed. R. Civ. P. 50. (See ECF No. 98,
1). Rule 50 does not apply to bench trials. Instead, Rule 52(c) is the “proper vehicle for rendering judgment.”
Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 963 n.1 (5th Cir. 2016); see also Rego v. ARC Water
Treatment Co. of Pennsylvania, 181 F.3d 396, 401 (3d Cir. 1999) (noting that “Rule 50(a) applies in jury trials and
Rule 52(c) applies in non-jury trials”); Northeast Drilling, Inc. v. Inner Space Servs., Inc., 243 F.3d 25, 37 (1st Cir.
2001) (explaining that “[b]ecause the trial was heard without a jury, [the] motion at the close of [the] case should
have been characterized as a motion for judgment on partial findings under Fed. R. Civ. P. 52(c)” instead of Rule
50).
B. The Endangered Species Act and the Animal Welfare Act
Congress enacted the Endangered Species Act, 16 U.S.C. §§ 1531-1544, 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).
The ESA makes it illegal for a person to “take” any endangered species. 16 U.S.C.
§ 1538(a)(1)(B). The Supreme Court has held 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)). This prohibition 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 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 (deferring to regulation’s interpretation of
“harm”) (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:
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.
The Animal Welfare Act, 7 U.S.C. §§ 2131-2159, sets standards for the humane care and
treatment of “animals intended for use in research facilities or for exhibition purposes or for use
as pets,” among other goals. Id. § 2131. To implement the law’s protections, the Department of
Agriculture (“DOA”) promulgates regulations that set standards for facilities and care of animals
in captivity. See, e.g., 9 C.F.R. § 2.40 (setting standards for veterinary care for animals owned
by exhibitors or dealers); 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”).
In sum, a defendant commits a “taking” of wildlife that violates the ESA if its conduct
“actually kills or injures” an animal. See 50 C.F.R. § 17.3. A defendant also commits a
prohibited “taking” if it “creates the likelihood of injury to wildlife by annoying it to such an
extent as to significantly disrupt normal behavioral patterns” unless the conduct is a generally
accepted animal-husbandry practice that complies with the Animal Welfare Act. See id.
III. Analysis: Findings of Fact and Conclusions of Law
The question in this case is whether the City has harmed or harassed the elephants within
the meaning of the Endangered Species Act since Judge Young’s 2019 decision in Rowley I.
As noted, plaintiff’s evidence at trial focused in large part on whether elephants should be
kept in zoos at all. An expert witness for plaintiff, Dr. Bob Jacobs, testified that “all zoos

provide an impoverished environment for larger mammals such as elephants,” and that “[t]he zoo
environment cannot provide anything resembling the natural environment that elephants need to
thrive.” (Trial Tr. May 14 at 5, 8). Sanctuaries, on the other hand, “provide a much more natural
space.” (Id. at 5). On cross-examination, Dr. Jacobs stated that it was “correct” that “no
zoo . . . could meet the standard that [he] would like to see for elephants” and that “[e]lephants
should not be held in captivity.” (Id. at 20).
The evidence indicates that placing elephants in sanctuaries is not a simple matter. Carol
Buckley, who started two elephant sanctuaries, testified that a successful sanctuary requires large
amounts of land, good climate, gentle topographic variation, and a positive social dynamic
between the resident elephants. (Trial Tr. May 22 at 14-18). For example, she testified that even

though there is enough land in her Georgia sanctuary to support more elephants, she is not
currently planning on expanding because the three current elephants are getting along so well.
(Id. at 23).
Testimony at the trial also suggests that it is difficult to transport elephants to sanctuaries,
or indeed over any long distance. Dr. Erica Lipanovich, a veterinarian who cared for Ruth and
Emily at the Buttonwood Park Zoo from March 2019 until May 2022, testified that preparing
healthy elephants for a four-hour drive could take about a year. (Trial Tr. May 14 at 44). She
testified that elephants that are frail are not good candidates for sanctuaries because the risks of
transporting them are too high. (Id. at 45).
The relevant question in this case, however, is not whether Ruth and Emily would be
better off living in a sanctuary. Rather, it is whether the Buttonwood Park Zoo is harming or
harassing the elephants in violation of the ESA.
The ESA, in conjunction with the Animal Welfare Act, clearly contemplates that

endangered species may be kept in captivity. See 50 C.F.R. § 17.3 (creating an exception from
the definition of “harass” that applies to “captive wildlife”); 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 standard of care 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.
Thus, in order to establish whether the City has harmed or harassed the elephants at the
zoo since 2019, plaintiff would need to show at least one of the following: (1) that there has
been a material change in generally accepted elephant-husbandry practices, (2) that there has

been a material adverse change in the City’s elephant-management program, or (3) that there has
been a material adverse change in the manner in which the City implements its elephant-
management program.
At trial, plaintiff did not present any evidence, expert or otherwise, to establish that
generally accepted elephant-husbandry practices have changed in any way since 2019. Plaintiff
also did not present any evidence, expert or otherwise, to establish that there have been any
changes in the City’s elephant-management program since 2019. Finally, plaintiff did not
present any evidence that there have been any material adverse changes in the manner in which
the City has implemented its elephant-management program since 2019.
Instead, plaintiff herself suggested that Ruth and Emily ought to be transported to an
elephant sanctuary for three primary reasons: (1) Ruth has allegedly lost one or more toe bones
due to conditions at the zoo; (2) Ruth has sores on her body due to conditions at the zoo; and (3)
Ruth is experiencing a condition called “learned helplessness.” (Trial Tr. May 14 at 17). As set

forth below, however, plaintiff failed to provide sufficient evidence to establish any of those
claims.
A. Findings of Fact
1. General Findings Concerning the Elephants
Ruth and Emily are kept in an enclosure that includes a barn, an inner yard with a large
pool, and an 8,000 square-foot outer yard. (Trial Tr. May 13, 138). The barn has two stalls, is
lined with natural substrate, and is cleaned daily by a team of keepers. (Id. at 152). The
elephants’ keepers rely on positive reinforcement and voluntary compliance to care for them.
(Id. at 147-48). Zoo staff members also monitor video footage of the elephant enclosure 24
hours a day to detect emergencies or issues. (Id. at 66).
From at least 2019 to the present, the City has employed a full-time on-site veterinarian at

the Buttonwood Park Zoo. (Id. at 27; Id. May 14, 10). That veterinarian visits Ruth and Emily
at least once per day, every day. (Trial Tr. May 13, 42; Id. May 14, 19). In addition, Ruth
receives various treatments on a daily basis and sees elephant specialists as needed. (Trial Tr.
May 13, 42-43, 93; Id. May 14, 14-16; 35-36).
2. Whether Ruth Has Lost Toe Bones Due to Conditions at the Zoo
Plaintiff first contends that Ruth has lost one or more toe bones due to conditions at the
zoo. She testified that she “observed” that “Ruth began to have a foot issue called
pododermatitis by April 2021.” (Trial Tr. May 22, 56).8 She further testified that around that
time, Ruth began to lose bones in her toes. She alleges that she learned that Ruth was losing toe
bones when she obtained radiographs of Ruth’s feet through a Freedom of Information Act
request. (Id. at 61). According to plaintiff, those radiographs were “self-explanatory” and

“anybody looking at them would make the same conclusion” that Ruth had suffered bone loss.
(Id. at 62). Moreover, she implied in her testimony that the bone loss was caused by an infection
stemming from waste-contaminated soil or, as she noted in her opening statement, either “poor
foot management” or “no foot management” from veterinary staff. (Id. 70-71; Trial Tr. May 13,
8).
Plaintiff failed, however, to prove that Ruth lost any bones in her toes. She is neither a
veterinarian nor a radiologist, and therefore is not qualified to interpret radiographs of an
elephant’s foot. Moreover, three witnesses—two veterinarians who have treated Ruth personally
and one veterinary radiologist who has interpreted Ruth’s radiographs—explained at trial that the
seemingly absent toe bones were simply not captured on certain radiographs due to the

difficulties inherent in conducting imaging tests on large animals. Indeed, one of those
witnesses—Dr. Emily Budas, the current staff veterinarian at the Buttonwood Park Zoo who
cares for Ruth and Emily—testified that Ruth’s toe bones have since “re-appeared” on more
recent radiographs due to the zoo’s implementation of new imaging techniques. (Trial Tr. May
13, 57)
As Dr. Budas stated at trial: “Based on what I see today I do not believe Ruth is missing
any bones in her feet.” (Id. at 56). She also testified that “[b]ones do not grow back,” and “[i]f a

8 According to witness Dr. Emily Budas, the staff veterinarian at the Buttonwood Park Zoo, pododermatitis
can be defined as “inflammation of the foot, specifically of the skin of the foot.” (Trial Tr. May 13, 42, 87).
bone is gone; a bone is gone.” (Id. at 55). When asked, then, why it might have appeared as
though Ruth was missing bones, Dr. Budas explained that she did not “believe the full image of
her foot was obtained at that time.” (Id. at 57). In other words, the bones were present, but
simply “not present in the image.” (Id.). Currently, the zoo uses a new imaging technique that

involves better “positioning of the foot as well as the plate as well as the generator that's used to
take the image.” (Id. at 58). As a result, Dr. Budas agreed that there have been “subsequent
radiographs that do appear the show the bone.” (Id. at 57). Similarly, Dr. Lipanovich testified
that the appearance of bones on radiographs can be “very dependent on radiographic technique
and positioning.” (Trial Tr. May 14, 14, 33). Radiographs can also become “fuzzy” when there
is inflammation in the areas being imaged. (Id. at 14).
Dr. Eric Hostnik is the “primary radiologist for a zoo-focused radiologist
consultation . . . service,” an “associate professor with tenure at Ohio State University 's College
of veterinary medicine,” and the “Editor in Chief for . . . the scientific journal for the American
College of Veterinary Radiology.” He agreed with both Dr. Budas and Dr. Lipanovich. (Trial

Tr. May 22, 51-52). He noted that “it’s very common” for “soft tissue [to] block the view of a
bone” or “impede your ability to see the digits,” especially in areas of the body with
“proliferative tissue.” (Id. at 60, 67, 72). Dr. Hostnik also explained that different imaging
techniques often produce different results. He stated:
If you were to take a radiograph or put a flashlight on your hand and go right at
the palm, you would see one thing projected. If you were to then rotate that
flashlight off to the right or left, your shadow changes, so being able to evaluate
different margins doesn't necessarily mean that a pathology is different, it just
means we're seeing different aspects of it.

(Id. at 87). Dr. Hostnik also highlighted the general difficulties that veterinarians face when
working with animals, testifying that “whether it’s a horse or a dog or an elephant, it’s a real-
time thing, if people’s safety is at risk, a lot of times you take the radiograph and you’re not
sitting critiquing it to the degree we are right now.” (Id. at 69). He noted that imaging
techniques change over time, and it is not surprising that “it would take more than one event to
get a good technique for working with an elephant.” (Id.).

Accordingly, the Court finds that plaintiff failed to demonstrate any bone loss in Ruth’s
toes. Furthermore, and in any event, even assuming such a bone loss occurred, the Court finds
that plaintiff has not established that the bone loss was caused by zoo conditions. Again, she
contends that the loss was caused by an infection stemming from waste-contaminated soil or
inadequate veterinary care. She provided no expert evidence, however, to support those theories
of causation.
To the contrary, Dr. Budas testified that pododermatitis “actually isn't caused by an
infection.” (Trial Tr. May 13, 42). She further explained that she believed that Ruth did not
have an infection because there was “no evidence of pus” and no evidence of an infection in
Ruth’s bloodwork. (Id. at 44). Dr. Lipanovich testified that even the mere presence of bacteria

on a biopsy of Ruth’s “external proliferative tissue” would not indicate any infection, as there is
bacteria that is “normally there” and a “normal part of your skin.” (Trial Tr. May 14, 19).
Instead, both Dr. Budas and Dr. Lipanovich concurred that Ruth’s pododermatitis was likely
caused by her geriatric age, severe arthritis, and pigeon-toed conformation. (Trial Tr. May 13,
73, 98-99; Trial Tr. May 14, 9, 35). Based on Ruth’s characteristics, the chances that she would
develop pododermatitis “were very, very high.” (Trial Tr. May 14, 35).
Finally, Dr. Budas and Dr. Lipanovich testified that the soil in Ruth’s habitat was not
unduly contaminated by waste. Dr. Budas stated: “Ruth eliminates three times a day . . . and I
can assure you that they are always cleaned up in a timely manner.” (Trial Tr. May 13, 46). Dr.
Lipanovich agreed, noting that the staff did “an excellent job of cleaning it out multiple times
throughout the day.” (Trial Tr. May 14, 20).
As to plaintiff’s allegation that Ruth received either poor care or no care at all for her
foot, the Court finds the opposite to be the case. Ruth received consistent and high-quality

veterinary care. Dr. Budas testified: “I am with Ruth every single day and I assess her every
single day that I am on site.” (Trial Tr. May 13, 42). Dr. Lipanovich testified that when she
worked at Buttonwood Park Zoo, she “saw this elephant almost every single day for over a
year . . . sometimes twice daily,” even coming into the zoo on her “day off to evaluate her to
make sure we were staying on top of anything that possibly could develop.” (Trial Tr. May 14,
19). A number of elephant-care specialists also reviewed Ruth’s foot condition, including
Michael McClure, an elephant-foot expert who has worked on “hundreds and hundreds of
elephants.” (Id. at 14-15). Other “elephant expert[s]” who have either cared for Ruth’s feet in
person or consulted with the zoo about Ruth’s feet include Ellen Wiedner, Betsy Stringer, Steve
Myer, James Oosterhuis, and Dennis Schmidt. (Id. at 15-16).

As a result, Ruth appears to have received appropriate therapies, such as carbon-dioxide-
gas therapy and canker-powder therapy, on a daily basis, as well as foot trimming and
cryotherapy. (Trial Tr. May 13, 42-43, 93; Trial Tr. May 14, 35-36). Dr. Lipanovich reported
that “multiple institutions have utilized [these treatments] since we started [them] with Ruth, and
all of them have said that it has been incredibly beneficial for getting these lesions back under
control.” (Trial Tr. May 14, 35).
3. Whether Ruth Has Sores Due to Conditions at the Zoo
Plaintiff next contends that Ruth has sores on her body due to conditions at the zoo.
More specifically, she states that Ruth has “open sore[s] on her face and haunches” as a result of
“dusting” in her own waste. (Trial Tr. May 13, 81; Id. May 22, 64).9
Dr. Budas, however, testified that Ruth’s sores are actually “pressure sores” that she

“gets . . . from when she’s laying down sleeping.” (Trial Tr. May 13, 82). She explained that
“there is not really a way to prevent them,” and they are “equivalent” to the “bed sores” that a
person who is “elderly or overweight” might get from “lay[ing] in bed for a long time.” (Id.).
Dr. Budas further noted that the elephants she treated in Africa as a veterinary student had “open
sores on their face[s]” and “haunches,” too, even though they “were not captive elephants.” (Id.
at 82-83). Plaintiff offered no evidence, expert or otherwise, to support the sores were caused by
a failure to follow appropriate husbandry practices.
4. Whether Ruth Is Experiencing “Learned Helplessness”
Finally, plaintiff contends that Ruth is experiencing a condition called “learned
helplessness.” She alleges that Ruth “stay[s] frozen in a spot for hours at a time” even when she

would prefer to be moving. (Trial Tr. May 22, 55). She acknowledged in her testimony that
“it’s difficult to be able to provide evidence of something that is as nebulous as an elephant
standing still.” (Id. at 52). Nevertheless, she testified: “I have stood for . . . up to five hours in
and around the zoo . . . and have observed Ruth standing still, perfectly still for up to three
hours.” (Id.).

9 According to Dr. Lipanovich, “dusting” is a behavior that occurs when an elephant “take[s] sand and soil
and grab[s] it with their trunk and fling[s] it on their bodies to act as a way to help cool them or prevent them from
getting sun burned.” (Trial Tr. May 14, 22).
Plaintiff suggests that zookeepers might be giving Ruth commands to stay in place. She
testified that Ruth sometimes “appear[s] to be looking for a keeper or someone to signal her.”
(Id. at 55). Alternatively, she proposes that Ruth stays in place because of her “learned
helplessness.”

At trial, Dr. Bob Jacobs, a neuroscientist and former professor at Colorado College,
described learned helplessness as a condition that “happens when an animal, including a human,
is in a situation where they can neither avoid nor escape that situation.” (Trial Tr. May 14, 18).
As a result of the condition, “the animal basically just sits there and takes it . . . and realizes that
there’s no point in fighting . . . or acting out or being aggressive towards caretakers.” (Id.). The
animals become “broken.” (Id.). In fact, Dr. Jacobs contends that “all zoos provide an
impoverished environment for larger mammals such as elephants,” and those impoverished
environments lead to learned helplessness. (Id. at 5) (emphasis added).
Dr. Jacobs is a neuroscientist who studies the mammalian brain. (Id. at 2). He is not a
zoo expert; he has never visited the Buttonwood Park Zoo to examine Ruth; and it is far from

clear whether he has produced any scientifically rigorous studies of animals in “impoverished
environments.” Indeed, he acknowledges that there has been “no direct research” and it is
“practically impossible, for example, to control for genetic variations in these experiments that
look at the effects of enrichment and impoverishment.” (Id. at 15-16). As a result, he essentially
“extrapolate[es] from research on many different species.” (Id. at 16).
Furthermore, as Dr. Lipanovich testified, Ruth is given “free choice” at the zoo, even in
the context of her medical care:
Ruth has a decided opinion, and if she didn't want to participate, she wasn't going
to. She was given free choice, so in all of the treatments that we did, she was
cooperative for and she did really well for to the point that, you know, we got it
mostly resolved.
(Id. at 35). Similarly, Dr. Budas explained:

Everything that the animals do is voluntary so, again, having that positive relationship is
vital. So we ask them to perform behaviors and then if they are in the mood and
compliant then they will do those behaviors for us, whether that's participating in foot
care or shifting for cleaning of the barn, whatever that might be. But ultimately it's all
voluntary on the animals’ part, which is why we keep that reinforced positively.

(Trial Tr. May 13, 148).

Accordingly, even though plaintiff states that “[t]here’s no other explanation for Ruth just
standing there,” she has not proved that Ruth is suffering from a particular mental-health
condition, or that the City’s failure to observe appropriate elephant-husbandry practices caused
the behaviors she associates with that condition.
B. Conclusions of Law
Under the ESA’s implementing regulations, to “harm” an endangered species means
intentionally or negligently to engage in “an act which actually kills or injures wildlife,” and
encompasses habitat modification that “significantly impair[s] essential behavioral patterns,
including breeding, feeding, or sheltering.” 50 C.F.R. § 17.3. Plaintiff has put forward no
evidence that the City has actually injured either of them. It is true that the elephants suffer from
occasional maladies, and that Ruth’s general health has declined (in somewhat predictable ways)
as she has aged. But the plaintiff has not shown that the City has caused any of these conditions.
Under the same regulations, to “harass” an endangered species is to “create[ ] 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.
The City’s actions have not significantly disrupted the elephants’ normal behavioral patterns
beyond merely keeping them in captivity. (Trial Tr. May 13, 2024, 148). But keeping an
endangered species in captivity cannot be a per se violation of the Endangered Species Act,
because the statute’s implementing regulations explicitly allow for it. See 50 C.F.R. § 17.3. As
long as the City complies with generally accepted “[a]nimal husbandry practices that meet or
exceed the minimum standards for facilities and care under the Animal Welfare Act” and
generally accepted “veterinary care,” it cannot be liable under the ESA. Id.

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 conclusion that the care and environment that the City provides the
elephants are consistent with generally accepted animal-husbandry practices. (Trial Tr. May 13,
102-107). The City has provided generally accepted veterinary care for Ruth and Emily that
complies with the Animal Welfare Act, because a qualified professional oversees them, and even
consults with numerous veterinary experts from across the country. See 9 C.F.R. § 2.40.
Plaintiff has provided insufficient evidence to support a finding that the zoo does not comply
with generally accepted animal husbandry practices.
Accordingly, the City has neither harmed nor harassed the elephants within the meaning

of federal law. 50 C.F.R. § 17.3. Plaintiff has therefore failed to prove that the City has
“take[n]” the elephants in violation of the ESA. 16 U.S.C. §§ 1532(19), 1538(a)(1)(B).
IV. Conclusion
For the foregoing reasons, the motion of defendant the City of New Bedford for a
directed verdict, construed as a motion for judgment on partial findings under Fed. R. Civ.
P. 52(c), is GRANTED. The clerk is directed to enter judgment for the City.
So Ordered.

/s/ F. Dennis Saylor IV
F. Dennis Saylor IV
Dated: October 31, 2024 Chief Judge, United States District Court

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10649376. Public record. Not legal advice.