Petition for Writ of Certiorari — Tri-State Zoological Park of Western Maryland, Inc., et al., Petitioners v. People for the Ethical Treatment of Animals, Inc.

No. 20IN THE SUPREME COURT

OF THE UNITED STATES

Tri-State Zoological Park of Western Maryland, Inc.,

Animal Park, Care & Rescue, Inc., and Robert L. Candy

Petitioners,

v.

People for the Ethical Treatment of Animals, Inc.

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

LYNN T. KRAUSE

Counsel of Record

KAGAN, STERN, MARINELLO

& BEARD, LLC

238 West Street

Annapolis, MD 21401

443-994-0403

krause@kaganstern.com

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APPENDIX 1

[Before WILKINSON and KING, Circuit Judges,

and SHEDD, Senior Circuit Judge, Entered

January 29, 2021]

UNPUBLISHED

UNITED STATES COURT OF APPEALSFOR THE

FOURTH CIRCUIT

No. 20-1010

PEOPLE FOR THE ETHICAL TREATMENT OF

ANIMALS, INC.,

Plaintiff - Appellee,

v.

TRI-STATE ZOOLOGICAL PARK OF WESTERN

MARYLAND, INC.; ANIMAL PARK, CARE &

RESCUE, INC.; ROBERT L. CANDY,

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Defendants - Appellants.

Appeal from the United States District Court for

the District of Maryland, at Baltimore. Paula

Xinis, District Judge. (1:17-cv-02148-PX)

Submitted: January 11, 2021

Decided: January 29, 2021

Before WILKINSON and KING, Circuit Judges,

and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Lynn T. Krause, BRADY, FISCHEL AND DAILY,

LLC, Annapolis, Maryland; Nevin L. Young,

Annapolis, Maryland, for Appellants. Adam B.

Abelson, Baltimore, Maryland, Marcos E. Hasbun,

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ZUCKERMAN SPAEDER LLP, Tampa, Florida;

Caitlin

Hawks,

Zeynep

Graves,

PETA

FOUNDATION, Los Angeles, California, for

Appellee.

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

People for the Ethical Treatment of Animals, Inc.

(PETA) filed a complaint againstTri-State Zoological

Park of Western Maryland, Inc., Animal Park, Care

& Rescue, Inc., and Robert L. Candy, seeking

declaratory and injunctive relief in connection with

Defendants’ treatment of two ring-tailed lemurs,

five tigers, and one African lion (collectively, “the

eight animals”). PETA’s two-count complaint

claimed that the conditions under which Defendants

maintained the eight animals constituted an

unlawful taking proscribed by the Endangered

Species Act of 1973 (ESA or the Act) and its

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implementing regulations.1 The district court denied

Defendants’ Fed. R. Civ. P. 12(c) motion for

judgment on the pleadings, concluding that PETA

had standing to bring suit. The court later denied

Defendants’

summary

judgment

motion—

determining that PETA had demonstrated a

sufficient injury to its mission arising from

Defendants’ claimed misconduct and that the relief

PETA sought was available—and granted partial

summary judgment in PETA’s favor. The parties

then proceeded to a bench trial, at which Dr. Kim

Haddad testified as an expert in the area of

veterinary medicine with regard to lions, tigers, and

lemurs. After trial, the district court found that

PETA had organizational standing in the case and

1

The ESA prohibits the “tak[ing]” of any endangered or

threatened species of wildlife within the United States, 16

U.S.C. § 1538(a)(1)(B), and makes it unlawful “for any person

subject to the jurisdiction of the United States” to “possess” an

endangered or threatened species that has been unlawfully

“taken,” id. § 1538(a)(1)(D). The ESA definesthe term “take” as

“to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,

or collector to attempt to engage in any such conduct.” Id. §

1532(19). The ESA allows “any person” to commence a civil suit

on his own behalf “to enjoin any person . . . who is allegedto be

in violation” of the “take” provision of the Act or of a regulation

promulgated underthe Act. Id. § 1540(g)(1)(A).

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found for it on all theories of liability.

On appeal, Defendants challenge the district

court’s standing rulings, arguing that PETA failed

to plead in its complaint and prove at the summary

judgment stage and later at trial that it suffered an

organizational injury. Defendants also argue that

PETA failed toplead in its complaint and prove at

the summary judgment stage and then later at trial

the availability of relief that would redress its

claimed injuries and that a due process violation

resulted from the way in which PETA responded to

their summary judgment motion and proposed

following trial that animals unlawfully taken under

the ESA be transferred to an animal sanctuary.

Finally, Defendants contend that the district court

erred in permitting Dr. Haddad to testify at trial—

after rejecting their summary judgment argument

that her opinion should be struck—regarding the

veterinary care provided at Tri-State. Finding no

reversible error, we affirm.

Although neither party has addressed the

propriety of Defendants’ effort to appeal the district

court’s denial of their summary judgment motion, “it

is well settled that [this court] ‘will not review, under

any standard, the pretrial denial of a motion for

summary judgment after a full trial and final

judgment on the merits.’” Bunn v. Oldendorff

6a

CarriersGmbH & Co. KG, 723 F.3d 454, 460 n.3 (4th

Cir. 2013) (quoting Varghese v. Honeywell Int’l, Inc.,

424 F.3d 411, 421 (4th Cir. 2005)); see Ortiz v.

Jordan, 562 U.S. 180, 183-84 (2011). We find no

reason to deviate from that rule here. Accordingly,

Defendants’ challenges directed at the district

court’s denial of their motion for summary judgment

are not properly before this court and must be

denied.

Next, we review the district court’s standing

rulings de novo. Hill v. Coggins,867 F.3d 499, 505

(4th Cir. 2017); Drager v. PLIVA USA, Inc., 741 F.3d

470, 474 (4th Cir. 2014).

“As the Supreme Court has consistently

emphasized, Article III of the Constitutionlimits the

jurisdiction of federal courts to Cases and

Controversies.” Hutton v. Nat’l Bd. of Exam’rs in

Optometry, Inc., 892 F.3d 613, 619 n.5 (4th Cir. 2018)

(internal quotation marks omitted). “The requirement

that a [p]laintiff possess standing to sue emanates

from that constitutional provision.” Id. (internal

quotation marks omitted).

To possess standing to sue under Article III, a

plaintiff must have “(1) . . . sufferedan injury-in-fact

that was concrete and particularized and either

actual or imminent; (2) there [must have been] a

causal connection between the injury and the

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defendant’s conduct (i.e. traceability); and (3) the

injury [must have been] likely to be redressable by a

favorable judicial decision.” Hutton, 892 F.3d at 61819 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555,

560-61 (1992)).

The burden of sufficiently

establishing these three elementsfalls on the party

invoking federal jurisdiction—here, PETA. Lujan,

504 U.S. at 561; Hutton, 892 F.3d at 619. An

organization like PETA can assert standing based

on two distinct theories. It can assert standing in its

own right to seek judicial relief for injury to itself

and as a representative of its members who have

been harmed. See S. Walk at Broadlands

Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands,

LLC, 713 F.3d 175, 182 (4th Cir. 2013). It is the

former option-referred to as organizational standingthat is at issue here.

In

determining

whether

organizational

standing exists, “a court conducts the same inquiry

as in the case of an individual.” Md. Highways

Contractors Ass’n, Inc. v.Maryland, 933 F.2d 1246,

1250 (4th Cir. 1991). This evaluation, “of course,

depends notupon the merits” of the claims asserted

“but on whether the plaintiff is the proper party to

bring the suit.” White Tail Park, Inc. v. Stroube, 413

F.3d 451, 460 (4th Cir. 2005) (internal citation,

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quotation marks, and brackets omitted).

With respect to an injury-in-fact, “the first

and foremost of standing’s three elements,” Spokeo,

Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (internal

quotation marks and brackets omitted), an

organization that “seek[s] to do no more than

vindicate [its] own value preferences through the

judicial process” cannot establish standing, Sierra

Club v. Morton, 405 U.S. 727, 740 (1972). An

organization like PETA, however, “may suffer an

injury in fact when a defendant’s actions impede

its efforts to carry out its mission.”Lane v. Holder,

703 F.3d 668, 674 (4th Cir. 2012) (citing Havens

Realty Corp. v. Coleman,455 U.S. 363, 379 (1982));

see Warth v. Seldin, 422 U.S. 490, 511 (1975).

In Havens Realty, the Supreme Court held

that an organization dedicated to achieving equal

opportunity in housing had sufficiently alleged

organizational injury and that the district court had

erred in dismissing for lack of standing the

organization’s complaint to sue an apartment

complex based on allegedly unlawful racial steering

practices. 455 U.S. at 379. The organization had

alleged that it “ha[d] been frustrated bydefendants’

racial steering practices in its efforts to assist equal

access to housing through counseling and other

referral services,” and that it had “devote[d]

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significant resources to identify and counteract the

. . . racially discriminatory steering practices.” Id.

(internaluotation marks omitted). The Supreme

Court reasoned that “[i]f, as broadly alleged, [the]

steering practices ha[d] perceptibly impaired [the

organization’s] ability to provide counseling and

referral services for low- and moderate-income

homeseekers, there c[ould] be no question that [it]

had suffered [an] injury in fact” because “[s]uch

concrete and demonstrable injury to the

organization’s activities-with the consequent drain

on the organization’s resources-constitute[d] far

more than simply a setback to the organization’s

abstract social interests.” Id.

Subsequently, in Lane, this court held that an

organization dedicated to promoting the exercise of

the right to keep and bear arms did not sufficiently

allege standing to sue the Attorney General of the

United

States

based

on

an

allegedly

unconstitutional statute restricting interstate

transfers of certain firearms. 703 F.3d at 671, 675.

The organization had claimed that it “ha[d] been

injured because its resources [we]re taxed by

inquiries into the operation and consequences of

interstate handgun transfer provisions.” Id. at 675

(internal quotation marks omitted). This court

rejected the organization’s effort to analogize its

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position to that of the organization in Havens Realty

and reasoned that “[t]his mere expense to [the

organization] d[id] not constitute an injury in fact”

because “[a]lthough a diversion of resources might

harm the organization by reducing the funds

available for other purposes, it results not from any

actions taken by the defendant, but rather from the

organization’s own budgetary choices.” Id. (internal

quotation marks and brackets omitted). This court

further noted that, “[t]o determine that an

organization that decides to spend its money on

educating members, responding to member

inquiries, or undertaking litigation in response to

legislation suffers a cognizable injury would be to

imply standing for organizations with merely

abstract concerns with a subject that could be

affected by an adjudication,” which “would not

comport with the case or controversy requirement of

Article III of the Constitution.” Id. (internal

quotation marks omitted). Post-Havens Realty and

Lane, this court has reaffirmed that a plaintiff has

suffered an organizational injury if the challenged

policy or practice frustrated both its purpose and

caused a drain on its resources. See S. Walk, 713 F.3d

at 183 (distinguishing Havens Realty as finding

organizational injury where “broadly alleged”

impairment of organization’s ability to advance its

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purposes combined with alleged “consequent drain

on the organization’s resources”).

We conclude after review of the allegations in

PETA’s complaint and the proof adduced at trial that

PETA has satisfied the standard set forth in Havens

Realty. As allegedand proved, PETA’s mission is to

protect animals from abuse, neglect, and cruelty.

PETA pursues this mission through several

programs, including public education, cruelty

investigations and research, the rescue of animals,

and protest campaigns. Defendants’ take of animals

at Tri-State protected by the ESA increased animals

subject to abuse and created the misimpression that

the conditions in which the animals were kept were

lawfuland consistent with animal welfare. PETA is

required by its mission to protect and rescueanimals

from abuse and neglect, and, in accordance with this

mission-based requirement, devoted its resources to

submit complaints about Defendants to government

agencies, compile and publish information about

Tri-State’s treatment of its animals, and to

investigate and monitor Defendants.

The

allegations and evidence adduced showed that this

diversion of resources impeded PETA’s efforts to

carry out its mission by reducing its ability to engage

in mission-related campaigns against other zoos. On

the record here, Defendants’ ESA-violative conduct

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“perceptibly impaired” PETA’s ability to carry out its

mission through frustration of that mission and a

consequent drain on its resources. Havens Realty,

455 U.S. at 379. “Such concrete and demonstrable

injury to the organization’s activities . . . constitutes

far more than a simple setback to the organization’s

abstract socialinterests.” Id.; see also S. Walk, 713

F.3d at 183.

Defendants’ arguments on appeal do not

establish to the contrary. Included under the

umbrella of Defendants’ assertion that there was no

injury-in-fact giving rise to PETA’s standing is the

argument that this case is devoid of allegations or

evidence that any member, affiliate, or agent of

PETA suffered any aesthetic or emotional injury in

visiting Tri-State. This assertion misses the point.

Although Defendants correctly note that no

individual person-plaintiffs alleged or proved an

aesthetic injury, that failure has no relevance to the

question here, which is whether the district court

reversibly erred in its rulings that PETAalleged and

proved an injury-in-fact.

Defendants

also

assert

that

PETA

manufactured “its own attempt at standing” by

“choosing a target, spending money and then filing”

the subject lawsuit and that these acts do not

establish an injury-in-fact. Defendants further

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suggest that the district court’s rulings cannot be

squared with Lane and that Havens Realty does not

support a cognizable injury for PETA here. Lane,

however, noted that “[a]n organization may suffer an

injury in fact when a defendant’s actions impede its

efforts to carry out its mission,” such as “in Havens,”

when the defendant’s practices “perceptibly

impaired” a “key component” of the organization’s

mission. 703 F.3d at 674-75 (internal quotation

marks omitted). PETA did not allege or prove that

its injury consisted of the costs associated with the

instant lawsuit,but, rather, satisfied Havens Realty

by alleging and proving that Defendants’ actions

impaired its ability to carry out its mission combined

with a consequent drain on its resources.

Accordingly, we affirm the district court’s rulings

that PETA alleged and proved an injury-in-fact.

Defendants also argue that PETA failed to

allege and prove at trial that the relief itrequested

would redress its claimed injury and that a due

process violation resulted from the way in which

PETA responded to their summary judgment motion

and proposed following trial that animals unlawfully

taken under the ESA be transferred to an animal

sanctuary. Defendants, however, do not present

these claims in accordance with Fed. R. App. P.

28(a)(8)(A) (“[T]he [appellant’s] argument . . . must

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contain . . . appellant’s contentions and the reasons

for them, with citations to the authorities and parts

of the record on which the appellant relies.”). We

therefore deem them abandoned, see EEOC v. Md.

Ins. Admin., 879 F.3d 114, 122 n.10 (4th Cir. 2018);

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d

562, 568 n.7 (4th Cir. 2015), and affirm the district

court’s standing rulings.

Finally, with respect to Dr. Haddad’s trial

testimony, Defendants’ argument that hertestimony

regarding the veterinary care provided at Tri-State

was without foundation and therefore should have

been excluded is also presented without conformity

to Rule 28(a)(8)(A) and thus has been abandoned as

well. Insofar as Defendants are challenging Dr.

Haddad’s credibility as a witness, the district court’s

determination on witness is not reviewable. See

United States v. Saunders, 886 F.2d 56, 60 (4th Cir.

1989).

Accordingly, we affirm the district court’s

judgment. We dispense with oral argument because

the facts and legal contentions are adequately

presented in the materials before this court and

argument would not aid the decisional process.

AFFIRMED

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APPENDIX 2

FILED: January 29, 2021

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 20-1010

(1:17-cv-02148-PX)

PEOPLE FOR THE ETHICAL TREATMENT

OF ANIMALS, INC.

Plaintiff - Appellee

v.

TRI-STATE ZOOLOGICAL PARK OF WESTERN

MARYLAND, INC.;ANIMAL PARK, CARE &

RESCUE, INC.; ROBERT L. CANDY

Defendants - Appellants

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JUDGMENT

In accordance with the decision of this court,

the judgment of the district court is affirmed.

This judgment shall take effect upon issuance

of this court's mandate in accordance with Fed. R.

App. P. 41.

/s/ PATRICIA S. CONNOR, CLERK

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APPENDIX 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

PEOPLE FOR THE ETHICAL TREATMENT OF

ANIMALS, INC.,

Plaintiff,

*

v.

Civil Action

No. 8:17-cv02148-PX

*

TRI-STATE ZOOLOGICAL PARK OF WESTERN

MARYLAND, INC., et al.,

Defendants.

***

MEMORANDUM OPINION

This opinion and order follow a six-day bench

trial brought by People for the Ethical Treatment of

Animals (“PETA”) against Defendants Tri-State

Zoological Park of Western Maryland Inc., Animal

Park, Care & Rescue, Inc., and Robert Candy

(collectively, “Tri-State”), the owners and operators

of a zoological park in Cumberland, Maryland. ECF

No. 26 ¶¶ 12–14. The animals protected under the

Endangered Species Act (ESA)—the lions, tigers,

and lemurs— are the subject of this lawsuit. ECF

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No. 1 ¶¶ 2–3.

Shortly before this lawsuit began, Tri-State

was home to two lemurs, Bandit and Alfredo; five

tigers, Cheyenne, Cayenne, India, Kumar, and

Mowgli; and two lions, Peka and Mbube.

Since 2016, five of the nine animals, more than

half of the protected species, have died at Tri- State.

Alfredo has been transferred to the Maryland Zoo

(JX7 at 3), and only Cheyenne, Mowgli, and Peka

remain alive and at Tri-State.

PETA initiated suit on July 31, 2017, alleging

violations of the Endangered Species Act, 16 U.S.C.

§ 1531 et seq. ECF No. 1. The suit proceeded to

summary judgment and on July 8, 2019, this Court

granted in part and denied in part summary

judgment in PETA’s favor. ECF No. 138.

At trial, PETA argued that Defendants have

violated the ESA by subjecting the protected animals

to harm and harassment. PETA contended that

Defendants have committed a “take” as understood

in the ESA arising from Tri-State’s provision of

unsanitary

living

conditions,

poor

diets,

substandard veterinary care, and inadequate

shelter and enrichment. Trial exposed Tri- State and

Candy’s flagrant and persistent violations of the

ESA. For the following reasons, and based on the

following facts, the Court finds in favor of PETA on

all theories of liability.

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I.

Findings of Fact1

A. General Conditions Affecting the

Protected Species

1.

The Zoo Grounds

The uncontroverted testimony reflects that every

animal at issue suffered under Tri- State’s living

conditions. The zoo is situated on sixteen acres of

what used to be an old campground. Trial Tr. vol 5,

11. Past the ramshackle entrance are a range of

enclosures and buildings that house its

approximately fifty animals. Trial Tr. vol. 5, 21–22;

JX37. These include a gated farm animal enclosure,

a reptile room and a kinkajou room, both situated

1 The evidence presented at trial largely consisted of PETA’s

undercover visits (December 11 and 12, 2014; January 28,

2015; and March 5, 2015) (Trial Tr. vol 1, 53); PETA’s site

inspections conducted after this lawsuit commenced (March 3,

2018 and September 22, 2019) (ECF No. 34; PX84; ECF No.

145); the expert testimony and reports of Dr. Kim Haddad, a

veterinarian with education and training in small primates

and Big Cats, and Mr. Jay Pratte, a specialist in the field of

animal husbandry; records kept by Tri-State; and abundant

video and photographic evidence obtained by PETA during the

course of its many visits to the facility. The Court also admitted

deposition testimony of several witnesses, including Connie

Collins, Stuart Henstock, Christopher Fontes, and Brittany

Peet. On behalf of Tri-State, the Court heard from Robert

Candy, Tri-State’s owner and founder.

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around the corner of a kitchen in which food is

prepared, an aviary across the path from the reptile

room, an approximately six-foot diameter pool for

large alligators, and a group of small primate

enclosures. See generally JX37. And, of course, the

zoo houses separate enclosures for the tigers, lions,

and lemurs.

Trial evidence demonstrated that since PETA

began its investigation, the animals have been

housed in fetid and dystopic conditions. Filth and

feces dominate Tri-State. PETA’s undercover

investigation in 2014 and 2015 documented animal

excrement throughout the zoo grounds—in the

kitchen where animal food is prepared, the room

that houses the reptile exhibits, the grounds

generally, and in each of the protected animals’

enclosures. See generally PX20–24; PX30; PX45–47;

PX74; PX77; see also photos below (documenting

feces and decaying vegetables in kinkajou cages and

the aviary across more than a month).

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Kinkajou cage, PX45 at :53 (12/12/2014)

Kinkajou cage, PX46 at :59 (1/28/2015)

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Kinkajou cage, PX45 at 1:13 (12/12/2014)

Kinkajou cage, PX46 at :51 (1/28/2015)

Aviary, PX76 at :12

(12/12/2014) Aviary, PX47 at :38 (1/28/2015)

Rotting

vegetables

spilled

over

large

receptacles, decaying meat sat in piles outside the

kitchen and in the furnace room under the nearby

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reptile house, and decomposing carcasses were left

for days in the enclosures for the tigers and lions

(collectively “Big Cats”). See generally PX21–22;

PX27; PX73–74; PX77. General filth coated the

kitchen, from the walls and sink to the refrigerator.

PX75; Trial Tr. vol. 2, 101. A trashcan filled with

waste stood uncovered. Id.

Moldy sweet potatoes

PX75 at :14 (12/11/2014)

Uncovered kitchen trashcan

PX75 at :09 (12/11/2014)

Outside the kitchen, piles of donated produce

lay unrefrigerated, many in a state of decay and long

past their expiration dates. PX73; PX19; PX17; Trial

Tr. Vol. 1, 80, 97, 100. Free- roaming cats, chickens,

and ducks took turns scavenging the piles. Id.

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Food stored in piled boxes outside the kitchen, PX17

(3/4/2015); PX 32 (12/11/2014)

In the reptile room, just feet away from the

kitchen, “decaying remnants of fruits and vegetables

were scattered across the floor, and there were []

large smears of feces, presumably from the sulcatas

[tortoises].” PX74 at :00–2:09, 2:27–3:50; Trial Tr.

vol. 1, 78–80. Rotten scraps of vegetables and feces

scattered the marmoset cage, which is stationed in

the reptile room. PX77; Trial Tr. vol. 1, 92. Of the

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rooms near the kitchen, PETA investigator Stuart

Henstock stated that they “smelled horrendous, [ ]

an almost choking smell of feces” and of “rotting

vegetables.” Trial Tr. vol. 1, 79, 89.

Accumulation of feces and rotten scraps of vegetables in

the marmoset cage, located in the reptile room

PX77 at :47, 12/12/2014.

In the indoor tiger enclosures, tufts of fur

coated rusted bars, and carcasses, bones, feathers,

fur, and debris mixed with dirty straw. Trial Tr. vol.

1, 138–39, 144.

Mowgli’s indoor enclosure, PX27 (12/14/14)

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Cheyenne’s indoor enclosure, PX20 (1/28/15)

The tigers’ outdoor enclosures contained piles of

feces, discolored water sources filled with decaying

leaves, and large spots of urine residue accumulated

over time. PX31; Trial Tr. vol. 1, 76; Trial Tr. vol. 4,

34.

Tiger enclosure, PX24 at 1:39 (12/12/14)

Tiger enclosure, PX16 (9/11/16)

Throughout the grounds, free-roaming animals

traipsed between rooms and enclosures. See

generally PX11; PX12; PX19; PX74; PX75; Trial Tr.

vol. 1, 135. Scores of domestic cats, many of whom

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are unvaccinated, sported matted and unkempt fur

along with crusted, watery, or bloody discharge

seeping from their eyes, nose, or ears. JX39, Candy

30(b)(6) Dep. 336; PX12 at 1; Trial Tr. vol. 2, 66–68,

101–102. The cat in the screenshot below, for

example, had “obvious ocular discharge,” according

to Dr. Haddad. Trial Tr. vol. 2, 102.

Cat in kitchen, PX25 at 27 (12/11/14)

Candy and zoo volunteers take no precautions

to minimize the filth or stop the spread of disease.

Tri-State has no areas designated for cleaning that

are standard at zoos and sanctuaries, such as

footbaths and cleaning receptacles. Trial Tr. vol. 4,

10–11. Perhaps PETA investigators Stuart Henstock

and Chris Fontes said it best: that even though they

had visited dozens of zoos and sanctuaries combined,

Tri-State was “the dirtiest” and “worst place” they

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had ever seen. Trial Tr. vol. 1, 101, 149.2

2.

Inadequate Veterinary Care

Tri-State has never provided adequate

veterinary care to its lemurs, tigers, and lions. The

Animal Welfare Act (AWA) governing Tri-State’s

USDA-issued exhibitors license requires that TriState secure an attending veterinarian with speciesspecific training and experience. See 9 C.F.R. §

2.40(a) (“Each dealer or exhibitor shall have an

attending veterinarian who shall provide adequate

veterinary care to its animals in compliance with

this section.”); 9 C.F.R. § 1.1 (defining attending

veterinarian as a person who “has received training

and/or experience in the care and management of the

species being attended”) (emphasis added).

Defendants never came close to complying with this

regulation.

Between 2009 and 2018, Tri-State employed

Dr. Timothy Fox as the attending veterinarian.

JX39, Fox Dep. 8–9. After PETA initiated suit, Dr.

Fox was no longer willing to serve as the zoo’s

veterinarian, and he was replaced with Dr. Gale

Duncan. Neither Dr. Fox nor Dr. Duncan had

acquired any formal or informal training, education,

2 Although Tri-State attempted to clean in preparation of the

2018 and 2019 site visits, the conditions improved only

marginally. See, e.g., PX11 at 18:29; Trial Tr. vol. 2, 105–06.

29a

or experience working with Big Cats or primates

other than the animals at Tri-State. “I’m just a

regular old veterinarian [,] I’m not a specialty in any

of those zoo animals,” Dr. Fox admitted. JX39, Fox

Dep. 28. Dr.

Duncan readily conceded that she did not have

any experience with Big Cats or lemurs apart from

some training in veterinary school. ECF No. 138 at

6. Unsurprisingly, Dr. Fox and Dr. Duncan, in

concert with Candy, utterly failed to implement a

satisfactory program of veterinary care for the lions,

tigers, and lemurs. The AWA provides that “each

exhibitor shall establish and maintain programs of

adequate veterinary care that include . . . the use of

appropriate methods to prevent, control, diagnose,

and treat diseases and injuries . . . ” 9 C.F.R. §

2.40(b)(2). The Program of Veterinary Care (PVC)

must be written, reviewed on an annual basis, and

modified as needed. Trial Tr. vol. 2, 47, 77.

Similarly, as is standard in any medical field,

the provision of medical services must be

documented contemporaneously. Applying here is

the old adage, “if it is not written down, it did not

happen.” PX69 at 52; Trial Tr. vol. 3, 153.

Stunningly, Tri-State maintained only 86 pages

of medical records in connection with Dr. Fox’s

veterinary care for the last decade and for the entire

30a

zoo population.3 PX4. Some of the 86 pages are

invoices or duplicates. Trial Tr. vol. 2, 73–74. Only

121 pages of records are associated with Dr.

Duncan’s care. PX5. This shallow sheaf makes a

mockery of the simple requirement that exhibitors

maintain “documentation for all covered animals

showing that current medical problems and existing

chronic conditions are being addressed, and/or

receiving proper care.” PX52 at 150 (USDA Animal

Welfare Inspection Guide).

Although Tri-State minimizes the significance

of its record-keeping failures, the fact remains that

lack of such documentation detrimentally affects

animal care. As Dr. Haddad explained, Big Cats

especially do not manifest obvious signs of illness

until their conditions are serious, if not terminal.

Trial Tr. vol. 2, 72. Early detection and treatment of

illness depends on recording seemingly trivial

changes in animal behavior and appearance.

Provision of related veterinary care must likewise

receive the same careful documentation to ensure

the animals receive proper and consistent care. Trial

Tr. vol. 4, 7.

Tri-State has also abdicated its responsibility

to provide its animals preventative or palliative

care. Preventative care is fundamental to an

3Although the zoo currently has approximately fifty animals in

its care, it had “three times that much back in 2010.” Trial Tr.

vol. 5, 22.

31a

adequate veterinary plan because “it [is] much easier

to prevent disease than it is to treat it once [disease

has] manifested itself. The . . . sooner you intervene

in any kind of medical condition or illness, the much

higher the likelihood of a successful outcome.” Trial

Tr. vol. 2, 53. Preventative care requires, at a

minimum, routine physical examination, blood tests,

fecal examinations, and immunizations. Trial Tr.

vol. 2, 54–56. Tri-State failed to provide any of it.

As to routine examinations, Tri-State records

reflect little to no routine care for the animals. PX2

at 11–12. In 2014, Dr. Fox logged one visit to the zoo,

and did not return for eleven months. Id. In 2015, he

visited just twice. Id. Dr. Fox then waited an entire

year to return and only did so for a focused

evaluation of a terminally-ill Mbube in 2016. Id.;

Trial Tr. vol. 2, 78–84. Another year and a half

passed with no visits to evaluate any of the fifty-plus

animals at Tri-State. PX2 at 11–12. In 2018, Dr.

Duncan visited for the first time, id., and Cayenne’s

death at Dr. Duncan’s hands followed soon after.

ECF No. 138 at 12. Even accepting Candy’s

representations that he discussed with Dr. Fox and

Dr. Duncan the animals’ care as needed, the

consistent lack of in-person evaluations shows

clearly that the provision of veterinary care

remained grossly inadequate.

As to routine examinations, Tri-State records

reflect little to no routine care for the animals. PX2

32a

at 11–12. In 2014, Dr. Fox logged one visit to the zoo,

and did not return for eleven months. Id. In 2015, he

visited just twice. Id. Dr. Fox then waited an entire

year to return and only did so for a focused

evaluation of a terminally-ill Mbube in 2016. Id.;

Trial Tr. vol. 2, 78–84. Another year and a half

passed with no visits to evaluate any of the fifty-plus

animals at Tri-State. PX2 at 11–12. In 2018, Dr.

Duncan visited for the first time, id., and Cayenne’s

death at Dr. Duncan’s hands followed soon after.

ECF No. 138 at 12. Even accepting Candy’s

representations that he discussed with Dr. Fox and

Dr. Duncan the animals’ care as needed, the

consistent lack of in-person evaluations shows

clearly that the provision of veterinary care

remained grossly inadequate.

As a more concrete example, no record exists

that any of the Big Cats received routine

vaccinations for common and highly communicable

diseases like rabies, panleukopenia, calicivirus,

herpesvirus, as well as vaccines for distemper and

feline leukemia virus, which are commonly

administered to high-risk Big Cats. PX69 at 32;

Trial Tr. vol. 2, 61–64. As grounds for not giving

basic preventative vaccinations, Dr. Fox claimed

“self-preservation…[g]iving a tiger a shot, that’s

difficult” and “I don’t believe they are required to

have any.” JX39, Fox Dep. 76. No record exists of

routine fecal or blood tests performed on any of the

animals at issue.

33a

When the animals became sick, Tri-State

utterly failed to provide adequate and timely care. 9

C.F.R. § 2.40(b)(2) requires the maintenance of

programs of care that include the availability of

emergency, weekend, and holiday medical

assistance when needed. In addition, palliative

treatment and pain management for serious

illnesses is a basic standard of care that should be

offered even if the cause of the underlying symptoms

is unknown. See PX69 at 13. Failure to do so may

exacerbate a condition and interfere with an

animal’s ability to engage in species-typical

behavior. Id. Yet all the animals at issue have

suffered from longstanding, chronic conditions for

which veterinary care was always too little and far

too late. Tri-State’s “pattern of waiting until animals

are very, very ill before either bringing it to the

attention of the veterinarian or until the

veterinarian actually comes out to look at the

animals” has, according to PETA’s experts,

contributed to long and painful deaths of five

endangered species. Trial Tr. vol. 2, 30.4

4

Defendants violated generally accepted standards of care

even after some of the animals at issue died. Performing a

necropsy is a basic standard of care, especially on an animal

protected under the ESA. Trial Tr. vol. 2, 136. Necropsies

provide a definitive diagnosis for cause of death and help the

zoo understand the cause and prevent it from affecting other

animals. Trial Tr. vol. 2, 150. Yet Defendants failed to perform

necropsies on Mbube and Bandit, even though both may have

34a

3.

Lack of Enrichment

Overall the Big Cats and lemurs at TriState have lived in a bacteria-ridden wasteland, and

in stark contrast to their natural habitats. General

animal husbandry practices in the industry require

that any exhibitor who chooses to keep captive such

animals must provide adequate shelter and

enrichment that resembles their natural habitat.

Candy and Tri-State made no meaningful effort to

even come close to industry standards. To illustrate

the harm that Defendants have visited -- and

continue to visit -- on the animals, the following

section addresses each species separately.

a.

Ring-Tailed Lemurs (Bandit

and Alfredo)

Ring-tailed lemurs come from Madagascar, a

tropical and lush island country in Africa. PX70 at

59. Lemurs naturally are social and highly

developed. They travel in packs of seven to as many

as thirty and enjoy complex social structures. Id. at

72. Accordingly, basic animal husbandry standards

require that lemurs in captivity should be housed in

groups of at least four to seven. Id. at 72–73; Trial

Tr. vol. 4, 92–93. Forcing a lemur to live a solitary

died from communicable diseases that could have infected their

peer species or other animals at Tri-State.

35a

existence, as was done to Bandit, visits permanent

psychological and physical injury on a species born

to engage in constant interaction with his kind. Trial

Tr. vol. 2, 147–48; Trial Tr. vol. 4, 93.

The Madagascar habitat is complex and varied,

such that lemurs have evolved to respond to and

interact with its complex surroundings. PX70 at 59.

For example, foraging, exploring, marking, and

grooming are natural species-specific behavior

developed in conjunction with their environment.

Lemur enclosure, PX12 at 12 (3/3/18)

Exhibitors who choose to care for lemurs must

endeavor to replicate their natural habitat so that

the animals may replicate their species-specific

36a

behaviors—which is to say, so they can simply be

lemurs.

At Tri-State, the lemur enclosure, while

sufficiently large, was barren and at odds with the

lemurs’ natural habitat. PX13; PX12 at 12; Trial Tr.

vol. 4, 95–96. Defendants also never developed any

real enrichment plan for the lemurs. Rather,

Defendants’ “enrichment” plan consisted of a single

written page with four nondescript bullet points

under “activities,” and no goals or appropriate list of

usable items. PX2 at 20; Trial Tr. vol. 4, 94. The

“plan” never comported with generally accepted

husbandry practices, and no evidence suggests that

it was ever designed to provide the lemurs any

opportunity to engage in the vast array of complex

and diverse behaviors known to its species. Cf. PX70

at 102–07 (multi-page list from a small facility

outlining dozens of items and opportunities to offer

lemurs to elicit a wide-range of species typical

behavior). Moreover, in the decade since the “plan”

was created, it has never been updated.

In practice, too, Defendants failed its

enrichment obligations to its lemurs. Animal

husbandry standards call for complex enclosures

with “horizontal platforms, horizontal bars, tree

branches, hanging tires, plastic chains, and nest

boxes,” PX69 at 7, along with a dynamic variety of

sensory objects. See PX70 at 102. Yet at Tri-State,

the enclosure was bare, with only a few dirty, old

toys that hung in the enclosure for years. Trial Tr.

37a

vol. 4, 95; See PX30 at :50, JX19 at :44, PX13, PX11

at 6:35 (each depicting the same children’s toy

hanging in the lemurs’ enclosure on December 11,

2014; January 28, 2015; September 16, 2015; and

March 3, 2018, respectively). Moreover, the toys

were often hazardous or unsanitary to the point of

serving as disease carriers. Trial Tr. vol. 4, 97.

The Court credits the testimony of PETA’s

animal husbandry expert, Mr. Jay Pratte, whose

over 25 years of training, education, and experience

aided this Court in its fact-finding mission. PX70 at

1. As Pratte opines, Defendants exhibited a stunning

ignorance as to how to provide the lemurs an

environment remotely appropriate to their species.

Pratte found that Defendants did not have “any

process, information, research done…into how

[to]…alleviate these [] problems, let alone that they

were even aware that they were a problem to begin

with.” Trial Tr. vol. 4, 99.

Rather than being provided enrichment, the

lemurs experienced a daily onslaught of

environmental horribles. Lemurs naturally are

“olfactory” animals. They engage in scent marking

and communication. Indeed, smelling is “inherent to

their communication, to how they interact with one

another, to detecting potential threats or resources

in the environment.” Trial Tr. vol. 4, 100. Smells of

dung and urine are not only “inherently irritating

and stressful” to the lemurs, but also “obscure their

ability to understand what’s happening in the world

38a

around them, and so [] directly impacts their ability

to exhibit normal species-typic behavior.” Trial Tr.

vol. 4, 100. In fact, exposure to such offending smells

can cause lemurs physical pain and permanent

damage to their mucous membranes. Trial Tr. vol. 4,

100.

At Tri-State, the lemurs were surrounded by

filth that undoubtedly created a significant

impediment to their ability to communicate. In their

own enclosures stood feces and bird waste. Trial Tr.

vol. 4, 89–90. Just feet away, the potbelly pig

enclosure was piled with foul-smelling pig feces.

Trial Tr. vol. 1, 67; PX30 at 4:52–5:30. Directly

behind them was another fecal- ridden enclosure

housing two barking dogs, PX30 at 3:26; Trial Tr.

vol. 1, 66, or more aptly put, “a direct predator ten

feet away that is vocalizing” and thus presenting a

“constant source of distress.” Trial Tr. vol. 4, 85–87;

JX19.

Moreover, the lemur enclosure’s indoor section

gave little real shelter from the elements. Lemurs

come from a tropical climate, and therefore do not

have insulating coats to maintain internal body

temperatures when exposed to the cold. PX70 at 61.

Accordingly, for exhibitors who choose to house

lemurs, the Association of Zoos and Aquariums

(“AZA”) guidelines advise that lemurs not be

subjected to temperatures below 45 degrees for

longer than four hours, and that they should always

have access to adequate supplemental heat. Trial

39a

Tr. vol. 2, 140; PX69 at 9. Exposure to such

temperatures negatively affects lemurs’ health,

which can lead to hypotension, suppressed appetite,

and increased vulnerability to disease. Trial Tr. vol.

2,144.PX 70 at 61.

Cumberland in the winter is decidedly not like

Madagascar. Snow falls and temperatures dip below

freezing several months of the year. JX19; Trial Tr.

vol. 4, 86. In 2015 alone, the animals at Tri-State

were exposed to temperatures below 45 degrees for

four consecutive hours for 149 days. JX17. The

lemurs had little refuge from this cold. For

“insulation,” Candy provided two electric heaters

and one heat lamp stationed below just one portion

of the enclosure. PX70 at 61; Trial Tr. vol. 5, 225–26.

Candy would monitor the temperature not by

thermometer, but by whether the drinking water in

the enclosure had frozen. JX39, Candy Dep. 151. No

credible evidence exists that the heat source

protected the lemurs from prolonged exposure to cold

temperatures that are directly at odds with the

climate of their African homeland.

b.

Lions (Mbube and Peka)

The lions live in a similarly dissonant

environment at Tri-State. Although lions come from

far warmer regions than Cumberland, Maryland, at

Tri-State they are forced to withstand temperature

extremes without proper provision. The lion

40a

enclosures allow the cats to travel freely between an

indoor and outdoor area in their respective

enclosures, DX1 at 7–8, but neither area offers

remotely sufficient protection from Maryland

temperatures.

The

indoor

enclosures

are

uninsulated and unheated. Trial Tr. vol. 4, 41, 45;

JX39, Candy Dep. Tr. at 133–35. Outdoors, the lions

have little shelter from the snow, sleet, wind, or

freezing rain.

Exposing Big Cats to inappropriately cold

temperatures can lead to hypothermia, dehydration,

and damage to the cats’ pads and mucous

membranes. PX70 at 9. Big Cats must have access

to heated or cooled areas when ambient temperature

falls below 30 degrees Fahrenheit, adjusted for

windchill, or rises above 85 degrees Fahrenheit;

greater caution must be with elderly, infant, and

disabled Big Cats. PX121 at 18 (Global Federation

of Animal Sanctuary (“GFAS”) standards); JX17. For

the Big Cats and at Tri-State, Candy monitors the

temperature in the Cat enclosures by just “feeling

it.” JX39, Candy Dep. Tr. at 135.

The summer months are equally brutal on the

cats. A few sparse trees and a single wall provide

inadequate shade, especially on days when the

temperatures creep into the 80s and 90s. Compare

DX1 at 33 with Trial Tr. vol. 4, 25. As a result, the

Cats are at risk for overheating, dehydration, heat

41a

sickness, and stroke. PX70 at 9.5

As for enrichment needs, lions are a highly

social species who travel in prides of as many as 40

lions. They enjoy a complex social structure in which

together they stalk, hunt, play, and rear young.

PX70 at 22; PX69 at 38. Solitude is extremely

stressful for lions and disrupts their natural social

behaviors; PETA’s experts opine that keeping a lion

in solitude does not meet commonly accepted

zoological practices. PX69 at 38 (Dr. Haddad); PX70

at 23 (Mr. Pratte).

Yet at Tri-State, Peka has lived alone in her

enclosure since 2011. Trial Tr. vol. 5, 94. Prior to his

death, Mbube also spent most of his life in solitude.

Id. Even though Mbube and Peka lived at Tri-State

together for several years, Defendants were never

able to house them in the same enclosure. Id.

The outdoor areas for the two lions included

nothing to engage them. No enrichment plan existed

for the lions because, according to Candy, the Big

Cats “make their own fun.” JX39, Candy Dep. 366.

Mbube had one ball. Trial Tr. vol. 4, 40. Peka’s balls

are punctured and dirty, as is her old, stuffed teddy

bear. PX84 at 57:22–1:05:00; Trial Tr. vol. 4, 76–80.

5 The tigers suffer from the same exposure to the elements. The

tigers must retreat into wooden uninsulated holding areas that

have gaps in the wood and brick, and which are hotter than the

ambient temperature in the summer and unheated in the

winter. Trial Tr. vol. 4, 45; JX39, Candy Dep. Tr. at 119–20;

PX70 at 36.

42a

Rather than providing meaningful enrichment,

these random, dirty toys were dangerous and

unsanitary. T rial Tr. vol. 4, 79. As Mr. Pratte aptly

noted, a lion forced to live in solitude with a single

ball for company is tantamount to confining a

human in a single room with a single book for years

on end. Trial Tr. vol. 4, 40. “That’s all you get. That’s

the only choice you have provided to you” if you are

a lion at Tri-State. Id.

Peka’s enclosure, PX85 at 115 (9/22/19)

c. Tigers (Cheyenne, Mowgli,

Cayenne, Kumar, and India)

Tigers, in contrast to the lions, are generally

solitary animals who should not be housed together.

Trial Tr. vol. 4, 63; PX70 at 52. But Tri-State,

inexplicably, housed three sibling tigers together

since they were cubs, and until each met their

untimely deaths. When they were alive, the two

43a

sisters, India and Cheyenne, as well as brother

Kumar, were all sexually active and noncontracepted. PX69 at 18. Veterinary records reflect

evidence of mating activity between India and her

brother, and in direct violation of generally accepted

animal husbandry practices. PX5 at 118. The tiger

siblings’ forced cohabitation ran contrary to their

basic and natural instincts, which manifested in

obvious signs of stress such as overt conflict and

stereotypic pacing, as well as an imbalance in

feeding. Trial Tr. vol. 4, 64–66; PX70 at 52. Kumar,

the brother, feasted, while the sisters went without.

At their deaths, each sister showed signs of poor

nutrition. Trial Tr. vol. 2, 85–86; PX70 at 52–53;

JX39, Woolard Dep. 258.

As for enrichment, the tigers lived in a fetid

cesspool. The tigers’ den was previously summer

camp concrete swimming pool, and has since been

repurposed by Candy to hold the tigers in captivity.

With little grass or foliage, the tigers lived for years

in conditions bearing little resemblance to their

natural habitat. PX16, Trial Tr. vol. 4, 21–22. Due to

the barren enclosure, they were given little

opportunity to do what tigers do—conceal, hunt,

prowl, stalk, or rest. PX 70 at 30; Trial Tr. vol. 4, 21–

22, 150. Moreover, because the pool sinks below

ground, the tigers were confronted constantly with

visitors peering into the exhibit from above. Trial Tr.

vol. 4, 21. Such placement violates generally

accepted husbandry practices because it induces

44a

constant fear of threats without means to escape or

hide. Id.

Tiger outdoor enclosure, PX33 (12/11/2014)

Tiger outdoor enclosure, PX24 (12/12/2014)

Like the lions, Tri-State gave the tigers nothing

remotely resembling adequate enrichment. Rather,

they had bowling balls for play that were never

changed or cleaned and were broken and jagged in

places. PX16; Trial Tr. vol. 4, 76; PX70 at 30–31.

Lack of adequate enrichment for Big Cats can cause

45a

frustration and distress, which can, in turn,

manifest as stress, hypertension, respiratory and

cardiac distress, suppression of the immune system,

atrophy of the hippocampus, myopathy, injury, and

ultimately death. PX70 at 55–56; PX69 at 17. Such

a barren environment fails to “stimulate normal

species-typical behaviors in any meaningful way.”

Trial Tr. vol. 4, 40. Cf. PX70 at 30 (noting that zoos

meeting industry standards would include for tigers

visual barriers affording privacy, varied substrates

for marking and scratching, barrier to weather, and

ledges and platforms for resting and vigilance).

4.

Inadequate and Unhealthy

Food

The food at Tri-State is commensurate with its

other deficiencies. Tri-State feeds its Big Cats

carcasses donated by hunters or delivered as

roadkill. Trial Tr. vol. 2, 88, 95. The USDA

discourages use of roadkill as food; however, if

roadkill is used, it must not be left out more than 12

hours or the risk of spoilage materially increases.

PX58 at 36 (2017 USDA Animal Care Policy

Manual); Trial Tr. vol. 2, 96. Tri-State maintains no

record of the freshness or source of roadkill nor does

it employ any reliable method of evaluating the

roadkill for disease or contamination. Trial Tr. vol.

2, 96, 101; Cf. PX 58 at 36–37 (manual requiring that

roadkill be evaluated for signs of disease, chemicals,

46a

and other issues). Although Candy attests to

knowing when roadkill is fresh, his methods are

rudimentary at best. Trial Tr. vol. 5, 40 (explaining

that if the dead animal’s “legs are sticking straight

up in the air[,] [i]t’s the sun dial effect and so we

don’t take those”).

Candy has also admitted to allowing carcasses

to remain in the Big Cats’ enclosures for up to three

days, or six times as long as recommended by the

USDA. JX39, Candy 30(b)(6) Dep. 169 (stating that

on at least one occasion, Mbube consumed a deer

carcass over “more than three days” and

subsequently stating that “[i]t’s usually only for a

couple of days we’ll leave a carcass sitting there.”).

Notably, the Defendants’ repeated defiance of USDA

guidelines presents not only loss in nutritional value

but also places the Big Cats at risk of “serious

[gastrointestinal] diseases” including sepsis, from

which India succumbed. Trial Tr. vol. 2, 96–101.

Nor does Tri-State employ generally accepted

standards in handling frozen meats fed to the Big

Cats. According to the USDA, “the thawing process

is crucial to the product’s final quality … [i]ncorrect

thawing increases the potential for nutrient loss,

lipid peroxidation

47a

(rancidity), microbial buildup, and loss of

palatability.” PX57 at 10 (2001 USDA Manual on

Handing Frozen/ Thawed Meat and Prey Items Fed

to Captive Exotic Animals). Meats must be thawed

under refrigeration,” “never…at room temperature”

and not “in standing water,” in order to maintain

freshness and nutritional integrity. Id. at 36–37.

Robust evidence demonstrates that Candy

defies these standards. In 2014 and again in 2018,

PETA representatives documented piles of grocery

store meat, some expired, left to thaw in a heated

room under the reptile exhibit while domestic cats

foraged freely atop the packages. Trial Tr. vol. 2, 86–

87, 107–11; PX11 at 22:00–22:35. Although Candy

at trial maintained that such meats were not fed to

the Big Cats, he testified otherwise in his deposition

and to the PETA representatives. JX39, Candy Dep.

258–59 (stating that some of the meat stored in the

furnace room under the reptile exhibit goes to the

Big Cats). The Court credits that the Big Cats were

indeed exposed to such rotting, putrid meats.

48a

Donated food in furnace room, PX11 at 22:09 (left) and

22:31 (right) (3/3/2018)

Critically, Candy and Tri-State persisted in

feeding the Big Cats dangerous spoiled food and

ignored the ready availability of “[a] number of

commercially prepared diets…appropriate for the

varying needs for exotic or wild felids.” PX58 at 36

(USDA Animal Care Policy Manual). Nor did TriState ever enlist the assistance of a trained

veterinarian, preferably in consultation with a

49a

nutritionist, to make sure the Big Cats were given a

safe and balanced food supply. Cf. id. Tri-State

maintains no records of written diets, or the use of

supplements, but does have a record of feeding their

Big Cats vastly outsized amounts of processed meats

and roadkill, which also controverts husbandry

standards. In short, the Big Cats were not provided

“basic nutritional needs,” Trial Tr. vol. 2, 88, 93–95,

the absence of which “result[s] in skeletal, structural

damage, neurologic problems, or other potentially

irreversible health problems including death.” PX58

at 36.

Fresh water, too, is scarce for the tigers.

Records show that the pools in the outdoor

enclosures are chronically filthy. PX24 at 6:30–7:05;

PX33; Trial Tr. vol. 1, 166. Water in the indoor

enclosures is similarly dirty and confined to small

dog bowls. See, e.g., PX28. Tigers tend to defecate in

the pools they sip from and failure to regularly clean

the water sources “expose them to a variety of

enteric pathogens and put them at risk of disease.”

PX69 at 20.

Unsurprisingly, no one at Tri-State tests the

water supply in the tigers’ enclosure. See JX39,

Candy Dep. 168 (“Q. Is [the water in the tigers’ pool]

tested at all? A. No.”).

50a

Tiger drinks from feces-lined pool, PX 24 at 6:50 and 7:00

(12/12/2014)

The lemur’s diet, like those of the Big Cats, was

also deficient. Lemurs should eat “[a]ssorted fruits

and vegetables, mazuri leafeater primate biscuits, .

. . a grain/seed mix.” PX69 at 14. They should not eat

foods high in sugar and starch, which “can

contribute to diarrhea, obesity, dental decay, and

diabetes.” Id. However, at Tri-State, Bandit and

Alfredo were regularly fed grapes, gummy bears,

51a

and baked goods. See, e.g., JX39, Candy Dep. 215,

393–94 (discussing treating the lemurs with baked

goods, such as cupcakes, every day); JX 39, Candy

30(b)(6) Dep. 371. No evidence demonstrated that

Defendants knew or cared about feeding the lemurs

properly.

B.

Deaths at Tri-State

In just over three years, five of the nine ESA

protected animals at Tri-State have died early and

tragic deaths. The Court incorporates its

determinations at the summary judgment stage

regarding Cayenne’s death, which corroborate

Defendants’ other ESA violations, but will not repeat

those facts here. However, the deaths of the other

four animals remain critical to understanding why

Defendants have so flagrantly violated the ESA. The

Court, therefore, summarizes its findings of fact as

to each animal in order of their deaths.

1.

Mbube, the Lion

Mbube (also known as “Bu”) was born March

15, 2005, lived most of his life in solitude, and was

euthanized on December 15, 2016. At the time of his

death, Bu was only 11 years old, well short of a

captive lion’s average lifespan of 16 to 18 years old.

PX1 at 9; Trial Tr. vol. 2, 161. Although the Court

does not know exactly what killed Bu, that is in part

52a

because Tri-State chose not to perform a necropsy on

him. The uncontroverted evidence, however, reveals

that Bu met a slow and painful demise without any

real veterinary care.

On August 2, 2016, Candy first noted that Bu’s

mane was “darkening [in] color” and thinning. Bu

was also “eating less.” PX1 at 13. As of that date,

Bu had lost so much weight that Candy could see his

“bare hips protruding more than normal” and noted

Bu experienced “watering from the eyes.” PX1 at 17.

Candy did not seek any veterinary help for Bu.

Bu’s condition persisted. So later in August,

Candy called Dr. Fox. Dr. Fox never examined Bu in

person, and instead gave his own personal

prescription of testosterone to Candy, who then

administered it to the lion. Trial Tr. vol. 5, 209; PX1

at 13, 17; JX39, Fox Dep. 306; PX10 at 82. Not

surprisingly, Bu’s condition worsened.

53a

Bu, healthy, PX35

Bu on September 11, 2016, JX34

Based on a review of the above right-hand

photo, taken on or around September 11, 2016, Dr.

Haddad opined that Bu was emaciated. Trial Tr. vol.

2, 170. “You can see very prominent pelvic bones. His

femur is sticking out. You can see his vertebra along

his spine. You can see his ribcage.” Trial Tr. vol. 2,

169. Again, Dr. Fox prescribed an antibiotic,

Clindamycin, to Bu without having first examined

the lion. Trial Tr. vol. 5, 67; PX1 at 13.

54a

Another

month

passed

without

any

improvement in Bu’s condition. Defendants’

dereliction as to Bu led to the USDA citing Tri-State

and Candy for failure to provide the lion adequate

veterinary care. PX10 at 82. As the USDA report

notes, Bu “is not in good health or body condition. He

appears thin and the pelvic bones are prominent.

His coat is rough and has turned a dark brown. And

the mane has thinned, as would be seen on a oneyear old lion. Thereis also a watery discharge around

the lion’s eyes.” Id.6

On October 11, 2016, a couple days after the

USDA visit—and more than two months after

Candy observed Bu in dire physical straits—Dr. Fox

finally examined Bu, PX3 at 10, and performed blood

tests two days later. Id.; PX4 at 25. Although Dr. Fox

speculated that Bu may be suffering from

hypothyroidism, Addison’s disease, or a pituitary

tumor, his speculations were plainly off-base. JX39,

Fox Dep. 72, 180; 305 PX1 at 14. As Dr. Haddad

noted, not only are such conditions extremely rare in

Big Cats, the test results did not support Dr. Fox’s

tentative diagnoses. Trial Tr. vol. 2, 172–75. Rather,

according to Dr. Haddad, the blood test, combined

with the physical condition of Mbube, signaled

anemia, which could be caused by other diseases or

conditions. Trial Tr. vol. 2, 174. Without further

6 In fact, the USDA has cited Tri-State for dozens of violations,

some of which resulted in a 45-day suspension of the zoo’s

license. See PX10; JX8.

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tests (which were never performed), Bu’s condition

could not be definitively diagnosed. Trial Tr. vol. 2,

175; see also PX69 at 60 (“When test results like this

occur, the generally accepted practice is to perform

additional diagnostic testing to get an actual

diagnosis, and then treat the underlying disease.”).

Two more months passed. Bu continued to

worsen. By December, he could not stand or walk

properly, and was not eating or drinking. PX1 at 15.

Bu was also falling over, “causing numerous cuts

[and] abrasions (largest bleed from tail).” Id.; PX69

at 62. Yet Tri-State and Candy did nothing to treat

Bu’s medical condition or make him comfortable

with palliative care. Trial Tr. vol. 2, 177. Bu was

euthanized two days later on December 15, 2016.

PX1 at 15.

Although Candy and Dr. Fox lamented the

“mystery” of Bu’s condition, Defendants declined to

perform a necropsy on Bu, which would have

provided important evidence regarding his cause of

death.

2.

Bandit, the Lemur

Bandit was born August 18, 2005, lived most of

his life alone and died on January 15, 2018. PX1 at

1. The scant medical records reveal that Bandit

never received any preventative veterinary care,

such as regular check-ups, vaccinations, or routine

tests. Records from 2006 reflect that he received one

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fecal test. PX1 at 2.

Bandit, however, suffered from a protracted

respiratory infection for nearly two years, from 2016

till his death in January 2018. See Trial Tr. vol. 5,

83–85; PX1 at 3–6 (Candy writing “congestion” and

“still concern with breathing, making a gurgling

sound, no drainage from eyes, nor sinuses); PX4 at

40 (record of prescriptions given to Bandit); PX4 at

39 (record from hospital noting “shallow breathing”

as the reason for the initial January 15, 2018 visit).

Although Candy says otherwise, no medical record

supports that Bandit received any examinations

until the day of his death. Rather, the records more

clearly reflect that Dr. Fox prescribed Bandit a

series of medications, again without examining the

animal, as was evidently custom at Tri-State.

Compare PX1 at 3 and PX4 at 40 (noting

prescriptions) with JX39, Fox Dep. 281 (“Q: But you

don’t have any record of why you would have

dispensed it? A: No, it may have been in one of those

conversations he came in and asked questions and

we said to try this to see if it improved.”).7

On January 14, 2018, Bandit was first observed

“bleeding from genital area” where he had “torn skin

and bites.” PX1 at 4. Candy took Bandit to Dr. Fox

7 Bandit also experienced wide fluctuations in his weight over

a short period of time, from three pounds to as much as six.

PX4 at 40; PX1 at 3. On the day he died, Bandit weighed 4.1

pounds. PX4 at 38. According to Dr. Haddad, “[t]his degree of

weight loss is suggestive of an undiagnosed and untreated

underlying disease condition.” PX69 at 12.

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the next day, who documented “torn prepuce,

damage to penis tip.” PX4 at 38. In layperson’s

terms, Bandit had ripped off his own penis. JX39,

Fox Dep. 289–90, 375–76. On the same visit, Dr. Fox

took x- rays of Bandit, and diagnosed Bandit with

disc disease on his vertebra. PX4 at 83–85, 38. It

was at this same visit that Bandit died. JX11 at 15.

Defendants now assert, with no medical support,

that Bandit died from “cancer.” PX1 at 1; JX11 at 15

(Defendants’ response to interrogatories: “He died of

cancer during a visit to the veterinarian…The tumor

was a degenerative tissue disease affecting the

mouth and sinus cavities and was not operable.”); Cf.

Trial Tr. vol. 2, 126–27 (Dr. Haddad noting that, of

the evidence provided, none points to cancer). And

again, Defendants chose not to perform a necropsy

on Bandit, even though Candy has kept Bandit’s

body, wrapped in a trash bag, in a freezer on zoo

grounds and for reasons not altogether clear to the

Court. JX11 at 5; Trial Tr. vol. 2, 136, 150. The Court

does not credit that Bandit died of “cancer.”

The Court does credit, however, that at the time

of Bandit’s death, he likely was in “a lot of pain” and

hypothermic. JX39, Fox Dep. at 260–62. In fact,

evidence shows Bandit was suffering from untreated

pain stemming from his unresolved respiratory

infection. PX4 at 39. However, like all the other

protected animals who died long deaths at Tri-State,

no record evidence reflects Bandit having received

any palliative care. PX69 at 13. It is also beyond

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dispute that Bandit exhibited signs of significant

distress. Both Dr. Haddad and Mr. Pratte opine that

Bandit’s ripping at his penis represented a longterm condition due to chronic stress and anxiety. See

Trial Tr. vol. 2, 137 (Dr. Haddad) (“self-mutilation is

a well-known cause or presentation of result of

chronic stress and anxiety… [s]o it’s most likely that

he did this to himself, and I would say my suspicion

would be that it was due to stress and anxiety”);

Trial Tr. vol. 2, 138 (Dr. Haddad) (“I did not see

anything to suggest that there was a medical

problem that caused him to in this one instance bite

at his genitals. So there’s definitely an underlying

most likely psychological problem. Again, stress,

anxiety would be my conclusion as what caused him

to self-mutilate himself.”); Trial Tr. vol. 4, 101 (Mr.

Pratte) (“I think that Dr. Haddad was correct with a

high probability that this was behavioral.”). Because

Bandit suffered no underlying medical condition to

explain his mutilated genitals, and in combination

with the deplorable conditions in which Bandit lived

every day—isolation or near isolation, stinky filth,

predators nearby—the Court credits PETA’s

experts’ conclusion that Bandit’s self-mutilation was

in “response to chronic distress.” Trial Tr. vol. 4, 102.

3.

Kumar, the Tiger

Kumar was born at Tri-State on March 24,

2007, along with his siblings India and Cayenne.

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PX1 at 38. Cheyenne, who remains at Tri-State, is

their mother. Trial Tr. vol. 5, 100. Kumar died on

July 7, 2019, at 12 years old, well short of the

average life span of tigers, who live into their teens

and twenties in captivity. PX6 at 1; Trial Tr. vol. 2,

161.

Kumar’s necropsy revealed that Kumar died of

a spinal infarct, or stroke of the spine. It is a rare

condition and cannot be attributable to Defendants’

acts or omissions. Trial Tr. vol. 2, 208–09. However,

the other findings on the necropsy, in concert with

the record evidence submitted at trial, show clearly

that Kumar died a long, painful death resulting from

his years of captivity in a fetid, concrete swimming

pool.

On June 27, 2019, Candy noted that Kumar

“was down” in an area where the cats usually

defecated. PX1 at 53. Two hours later, Kumar had

still not moved. Id. Candy notified Dr. Fox’s

replacement, Dr. Duncan, who evaluated Kumar

and gave him steroids, by injection, although the

course of treatment was not medically indicated. Id.

At that point, Kumar could not stand or lift his head

normally; he leaned on the platform for support and

had been incapacitated for eight hours. PX1 at 53;

PX5 at 106.

The next morning, Candy noted that Kumar

had dragged himself roughly 30 feet across his

enclosure; he had also chewed on both wood and

meat. PX1 at 53. In the days to follow, Kumar’s

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condition continued to deteriorate. He had difficulty

raising his head and could not get up. Id. at 54–55.

Then, he had to be hand-fed. Id. at 55. On July 1,

2017, Kumar was given without explanation,

another steroid shot. Id. at 56. He could not stand

and he could not eat. Candy had to syringe blended

food and water directly into his mouth. Id. Kumar’s

conditionremained the same for seven more days, till

his death on July 7, 2019. Id. at 57. For the ten days

Kumar was down, he received no meaningful care.

Although Dr. Duncan recommended on her first visit

on June 27, 2019 that Kumar be euthanized if he did

not improve, Candy and Tri-State never gave the

tiger anything to manage his pain and obvious

distress. PX5 at 106. Five days later, on July 2, 2019,

Dr. Duncan again noted that Kumar “remains

completely unable to rise” and “strongly

recommended euthanasia” to put Kumar out of his

pain and suffering. PX5 at 104. The “humane thing

to do,” Dr. Haddad opined, would have been to

euthanize Kumar as Dr. Duncan recommended.

Trial Tr. vol. 2, 211. Candy chose instead to let

Kumar suffer.

Alternatively, “[a]t the very minimum,” Kumar

“should have been given something for pain.” Trial

Tr. vol. 2, 210. Candy did not. PX5 at 104.8 On July

8

See also Trial Tr. vol. 2, 212 (“Q: And do you see any recommendation

by Dr. Duncan in her entries at this point in time, July 2, 2009,

recommending palliative care, pain meds, anything, something to make

him more comfortable? A: No. Unfortunately, no” “Q: Just one last

question. Pain meds for a tiger, I mean, are they expensive? A: They

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7, ten days after first being found down and

immobile and seven days after being unable to eat

without food being syringed into his mouth, Kumar

died.

The other results of Kumar’s necropsy bespeak

the horribly painful way in which he died.

Kumar’s mouth was riddled with ulcers, cuts,

and other injuries at the time of his death. Large

portions of two canine teeth were missing, exposing

the raw pulp. PX6 at 2, 10. One canine tooth had

punctured Kumar’s mandible, creating a deep,

penetrating wound. Trial Tr. vol. 2, 194. His gums

were heavily inflamed, and, deep sores lined his

mouth. PX6 at 2, 10; Trial Tr. vol. 2, 191–97. The

ulcers, broken teeth, wounds, and inflamed gums

were not only chronic, but consistently painful. Trial

Tr. vol. 2, 191–97.

don't have to be. You can—aspirin can be given to cats. That’s pretty

cheap. They are injectable. There's a whole variety of medications that

could be tried. So there is no excuse to not give pain medication.”).

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Necropsy photo of Kumar, PX6 at 10

Kumar also had open and painful ulcers and

lesions on each of his paw pads and the side of his

hind legs. PX6 at 6. The ulcers and lesions were

consistent with walking and laying on concrete his

whole life and then becoming infected through

exposure to the filth and feces in his enclosures.

Trial Tr. vol. 2, 197–200. As Dr. Haddad noted,

Kumar’s ulcers presented as having developed over

time, Trial Tr. vol. 3, 142. The skin from the padding

under Kumar’s toes was also “gone…falling

off…unhealthy.” Trial Tr. vol. 3, 156.

At the time of death, painful ulcers also lined

Kumar’s stomach, which was empty but for some

grass and wood. PX6 at 6; Trial Tr. vol. 2, 204–07.

Kumar’s colon was distended by firm feces composed

predominantly of large mats of fur, and there was a

two-centimeter long tear and hemorrhaging in the

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membrane of his abdominal cavity. Id. Dr. Haddad

opined that given the state of Kumar’s numerous

infections, administering steroids was not

recommended, and without also prescribing

medication to protect Kumar’s stomach, the steroids

quite likely contributed to his severe stomach

condition. Trial Tr. vol. 2, 204–07.

4.

India, the Tiger

India was born March 24, 2007 and died August

14, 2019, just over a month after her brother Kumar

and at an age significantly younger than the average

life expectancy for tigers held in captivity. PX1 at 41;

PX7 at 1. Prior to her death, she did not receive any

routine examinations or preventative veterinary

care.

India died of sepsis and myocarditis (enlarged

heart). PX7 at 3. Sepsis is a severe systemic bacterial

infection that tigers simply do not contract in

captivity. Trial Tr. vol. 3, 9, 28; PX69 at 104. Sepsis

ravaged India’s body so intensely that pus-filled

pockets had formed in her heart, tongue, and

diaphragm. PX7 at 3; Trial Tr. vol. 3, 27. The

pathologist report notes that the sepsis was likely

due to an untreated or poorly treated bacterial

infection and that the myocarditis was in turn the

result of the sepsis. PX7 at 3. Dr. Haddad opines that

India’s sepsis was likely brought about by exposure

to contaminated food or water and perpetuated by

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poor sanitary conditions and a lack of preventative

care. Trial Tr. vol. 3, 10–11.

India’s suffering was great, needless, and

ignored. In the month before her death, she ate

hardly anything; at the time of her death, her

intestinal tract was completely empty, and she was

pale and icteric. PX7 at 3. Icterus is either caused by

liver disease or the result of a prolonged period of

anorexia, the latter of which was the likely culprit.

PX69 at 104. Additionally, the pus-filled pockets in

her heart and diaphragm made her every breath

painful.

Despite these symptoms, Tri-State and Candy

ignored India’s serious condition.

Although she had not eaten much during July,

Candy summoned no veterinary assistance. By the

time Dr. Duncan saw India in the beginning on

August 10, 2019, the cat was already sick. That day

alone, she had not moved, ate, or drank, and,

atypically, had allowed Candy to enter her pen. PX7

at 3; PX5 at 118. Indisputably, India was gravely ill.

Trial Tr. vol. 3, 19.

Blood tests on India revealed that she was

suffering from a severe infection9 necessitating

immediate aggressive, broad spectrum antibiotic

Dr. Duncan offered a potential diagnosis of pyometra, an

infection of uterus, on August 10, 2019, PX5 at 118, which

according to Dr. Haddad was a reasonable hypothesis that

needed to be further explored and ruled out, but Defendants

took no such action.

9

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therapy, as well as fluid therapy and pain

medication. PX5 at 119; PX69 at 102; Trial Tr. vol.

3, 21. Defendants, however, did nothing for three

more days. PX5 at 115–119. India’s condition

deteriorated rapidly, and on August 12 and 13, after

India had stopped eating and eliminating her

bowels, Dr. Duncan urged immediate transfer to a

facility that could conduct further diagnostics and

life-saving surgery. PX5 at 115. Candy declined—

even when Dr. Duncan stated that India “will likely

die without a referral.” Id.

Not only did Defendants neglect to treat India’s

infections, they also did nothing to make her

comfortable. For over a month, India ate little to

nothing as a virulent infection ravaged her body.

Her heart was enlarged, which is “considered

incredibly painful. It’s like having a heart attack.”

Trial Tr. vol. 3, 20. The diaphragm was similarly

infected and filled with pus— “so every time she took

a breath, she was in pain.” Id. India received no

palliative care. Not even aspirin. Id.

Defendants’ abject neglect of India was not

confined to her last month. Throughout her life, flies

feasted on India’s ears. PX1 at 44 (Candy noting

“[t]ips of ears raw. prob due to flies”); PX1 at 43

(2017 medical record stating “continue to treat ears

for scratches/ flies”); Trial Tr. vol. 1, 166 (2018 Zoo

visitor describing tiger’s ears covered in flies and

dripping blood).

Defendants offered India minimal treatment

66a

for her ears (sprays and cleaning) but did not take

steps to rectify the source of the problem (likely,

sanitation issues), even though Candy noted that

the problem was reoccurring. PX1 at 43–44. Ear

conditions like this, according to Dr. Haddad, are

entirely preventable through proper sanitation and

treatment. Trial Tr. vol. 3, 31. Remarkably, India’s

ears had been eaten so badly and for so long that the

veterinarian who performed her necropsy believed

that her ears had been “surgically truncated.” PX7 at

4. No record evidence suggests India had undergone

such surgery. Instead, India’s “ear tips were so

chronically eaten away by flies that it appeared to

the pathologist as though someone had actually cut

off some of that tissue.” Trial Tr. vol. 3, 28.

C.

The Three Living Protected

Animals Currently at TriState

1.

Peka, the Lion

Peka, born April 21, 2011, came to the zoo when

she was two days old. PX1 at 23. Since then, she has

lived in solitary confinement, in a barren enclosure

devoid of meaningful enrichment, completely

divorced from her natural pride habitat. PX69 at 37–

38. Peka, as a female lion, is particularly social.

PX69 at 38. PETA’s experts agree that Peka’s

solitary confinement produces a constant source of

67a

stress and negatively impacts her physical and

psychological health—conditions magnified by little

to no enrichment. PX69 at 38–41. Peka’s stress is

evident from a well-worn path on the perimeter of

her enclosure. PX69 at 41. Despite having a sizeable

plot of land to roam, Peka has paced back and forth

and worn the grass down to the dirt. Id.

Stereotypic pacing is a generally accepted sign

of stress in Big Cats and should be addressed

promptly. PX70 at 10. No evidence exists that

Defendants have done anything to rectify Peka’s

stress, or even that they have recognized that she is

in distress.

It is undisputed that Peka also suffers from an

abnormal gait yet has never been examined or

treated for it. PX70 at 16; Trial Tr. vol. 2, 180; PX69

at 51. The abnormal gait likely causes Peka

discomfort and pain and puts her at risk of further

joint problems such as degenerative joint disease.

Trial Tr. vol. 3, 134; PX70 at 16; PX69 at 51. But

because Peka has received no regular veterinary

care and was taken from her mother immediately

after her birth, Defendants’ chronic inattention has

put Peka in a black box as to her health status. PX69

at 46–47; Trial Tr. vol. 2, 178–80.

2.

Cheyenne, the Tiger

Cheyenne was born March 2003, and like Peka,

her health remains a mystery because Defendants

68a

have provided her no health care. PX1 at 45. She has

lost all three cubs, Cayenne, Kumar, and India. And

yet even after their terrible deaths, Defendants have

not performed any laboratory testing, nutritional

assessment, or other physical examination to protect

Cheyenne from a similar fate. PX69 at 109. She has

also not been tested for feline viral diseases, nor has

she received any of the recommended feline

vaccines. Id. However, Cheyenne remains in the

same deplorable conditions as the other four dead

Big Cats.

3.

Mowgli, the White

Tiger

Mowgli is a white tiger, born July 31, 2009 and

acquired by Tri-State shortly after. PX1 at 34.

Mowgli has suffered for many years and continues

to suffer from a reoccurring skin condition. PX1 at

35 (medical form from 2014, 2015, 2016, and 2017

stating that skin condition is an “annual concern”);

JX39, Candy Dep. Tr. at 296 (testifying that they

treat Mowgli’s skin condition every year).

Defendants speculate that Mowgli has either rain

rot or ringworm. PX1 at 35–36; Trial Tr. vol. 5, 97

(“We had that tested with a skin scrapping and some

hair tissue, and I was told it was either rain rot or

ringworm”). Despite Defendants’ belief that these

two conditions are the same, Trial Tr. vol. 5, 98, they

are markedly different. Ringworm is a fungal

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infection with a range of treatments. PX70 at 42.

Rain rot is a bacterial infection, requiring a

completely different medical course of treatment. Id.

A definitive diagnosis is easily obtained through a

skin biopsy. Defendants have not obtained the

biopsy and nothing in the record suggests their

disinclination will change in the future. Trial Tr.

vol. 3, 33–34; PX70 at 42.

Mowgli’s skin condition manifests itself in red,

itchy hotspots and large patches of lost fur. JX20.

The condition creates a risk of additional infections

as the loss of fur allows bacteria—plentiful in

Mowgli’s unsanitary enclosure—to enter his skin

and proliferate, and the constant rubbing of his skin

across the deteriorating wood in his enclosure drives

bacteria further into his lesions. Trial Tr. vol. 3, 32,

35. In addition, because Mowgli is a white tiger, he

suffers from an already compromised immune

system, making him especially susceptible to

disease, and thus, especially vulnerable to

Defendants’ inadequate care. PX69 at 20.

The Court credits that Mowgli’s skin condition

has been caused and exacerbated by Defendants’

dereliction. Trial Tr. vol. 4, 35–36; Trial Tr. vol. 3,

36. His enclosures are uninsulated, damp, rarely

cleaned, and filled with feces and rotting carcasses.

See PX27. He is fed contaminated food and is

constantly exposed to diseases from humans, freeroaming cats, and other animals. Defendants have

not taken any meaningful steps to change Mowgli’s

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environment since this litigation began almost three

years ago.

Of the screenshot on the left, Dr. Haddad opined, “Where

we see the pink, those are patches of hair loss. So

alopecia…[i]t’s a hard to see here, but it is moist. So he’s

got a secondary bacterial infection happening already.

. . he’s continually rubbing his body against this plywood

wall because it's extremely itchy. He's very uncomfortable.

And by doing that, he's continuing to basically drive

bacteria into his skin, which is going tocreate an even

worse bacterial infection.” Trial Tr. vol. 3, 35.

Mowgli, JX20 at :04 (1/28/2015)

Mowgli, PX85 at 95 (9/22/2019)

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Mowgli is also severely overweight. See righthand photo above (taken Sept. 22, 2019). His body

condition score is 7 on a scale of 1 through 9, with 9

being morbidly obese. PX69 at 106. He is flabby and

untoned, also reflecting muscle loss. Id. Like the

other protected animals at Tri-State, nothing is

known about Mowgli’s medical history. As a white

tiger, Mowgli is immune-compromised and thus

susceptible to diseases, and despite his suffering for

years with an obvious skin condition, Defendants

have produced no record evidence that Mowgli has

ever had a routine examination by a veterinarian or

received basic vaccinations. PX69 at 107.

D.

The Lone Escapee: Alfredo,

the Lemur

Alfredo’s birthday is unknown (though Candy

guesses he is nine years old), and he was acquired by

Defendants on June 11, 2012. PX1 at 7; JX7 at 1. He

shared an enclosure with Bandit for five and a half

years, before Bandit’s death on January 15, 2018.

Alfredo was then transferred to the Maryland Zoo on

March 1, 2018, by agreement. JX7 at 3. Thus, even

though Alfredo is not currently at Tri-State, the

Court must reach whether he had been subjected to

a take in so far as Defendants may seek to return

Alfredo to Tri-State.

The Maryland Zoo, prior to receiving Alfredo,

asked Candy for medical records so that they could

72a

plan for his stay. JX7 at 5. Candy responded by

email, “He is pretty easy. No medical form as he has

never been sick nor needed any vet care while at our

zoo.” Id. Indeed, no medical records for Alfredo exist

for his entire six years at Tri-State. Clearly, Alfredo

had undergone no preventative care at Tri-State—

despite being housed in a barren enclosure

surrounded by olfactory (urine, feces, decaying

leaves) and auditory (dog barking) stressors.

Candy’s assumption raises the obvious question

posed by Dr. Haddad: How do they know Alfredo’s

never been sick, if they’ve never examined him?

Trial Tr. vol. 2, 155.

By contrast, Alfredo’s first month at the

Maryland Zoo generated 19 pages of veterinary

records. JX6 at 1–19. Alfredo’s “first couple of weeks

[at the Maryland Zoo]” provided “more care than he

received…for his entire life [] at Tri-State.” Trial Tr.

vol. 2, 157.

II.

Standard of Review

The Endangered Species Act (“ESA”) protects

covered animals, which include lions, tigers, and

lemurs, from an unlawful taking. 16 U.S.C. §

1538(a)(1)(B); 50 C.F.R. §§ 17.11, 17.21(c), 17.31(a).

The ESA also prohibits possession of unlawfully

taken lions, tigers, and lemurs. 16 U.S.C. §

1538(a)(1)(D).

73a

To “take” a species means to “harass, harm,

pursue, hunt, shoot, wound, kill, trap, capture, or

collect, or attempt to engage in any such conduct.”

16 U.S.C. § 1532(19). A “take” must be construed in

the “‘broadest possible manner’” to provide

maximum protection under the Act. Babbitt v. Sweet

Home Chapter of Communities for a Great Or., 515

U.S. 687, 704 (1995) (quoting S. Rep. No. 93-307, at

7 (1973), reprinted in 1973 U.S.C.C.A.N. 2989,

2995).

One manner in which an animal is subject to a

take under the ESA is if the animal is harassed. To

“harass” a covered animal means to intentionally or

negligently “create[] the likelihood of injury to

wildlife by annoying it to such an extent as to

significantly disrupt normal behavioral patterns.” 50

C.F.R. § 17.3. Pertinent to this matter, inadequate

housing and care of lemurs and tigers may

constitute “harassment” as defined under the ESA.

Kuehl v. Sellner, 161 F. Supp. 3d 678 (N.D. Iowa

2016), aff’d, 887 F.3d 845 (8th Cir. 2018).

An animal is also “taken” if he is harmed. Harm

“means an act which actually kills or injures

wildlife.” 50 C.F.R. § 17.3. The ESA also prohibits

attempted harm, and as such, manifests that the

statute is “designed to include claims of future

injury.” Animal Welfare Inst. v. Beech Ridge Energy

LLC, 675 F. Supp. 2d 540, 563 (D. Md. 2009),

judgment amended, No. 09- 1519 (RWT), 2010 WL

11484179 (D. Md. Jan. 26, 2010); see also People for

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Ethical Treatment of Animals, Inc. v. Miami

Seaquarium, 879 F.3d 1142, 1150 (11th Cir.),

adhered to on denial of reh’g sub nom. People for the

Ethical Treatment of Animals, Inc. v. Miami

Seaquarium, 905 F.3d 1307 (11th Cir. 2018) (reading

“harm” to also include a threat of serious harm).

The Court recognizes that the interpretation of

the ESA as to the degree of injury or potential injury

necessary to constitute harassment or harm is scant

and in disharmony. In Graham v. San Antonio

Zoological Soc’y, for example, the court determined

that harm or harassment under the ESA requires

“more than any minor injury or harm in the literal

sense” but “comes short of requiring a ‘grave threat.’”

261 F. Supp. 3d 711, 743 (W.D. Tex. 2017).

However, at least one other court has required

proof of “threat of serious harm,” although not

limited just to “deadly or potentially deadly harm.”

Miami Seaquarium, 879 F.3d at 1150. This Court

need not wade into this debate because, as more

fully explained below, the evidence overwhelmingly

demonstrates that every protected animal has been

harassed, harmed, or both in a most grievous fashion

at Tri-State.

III.

Analysis

A.

Standing

As a preliminary matter, the Court addresses

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PETA’s standing to bring this suit. At trial,

Defendants argued that PETA had not suffered a

sufficiently concrete and particularized injury to

confer standing. Based on the record evidence,

however, the Court finds that PETA indisputably

has standing.

PETA as an organization may establish what is

known as organizational standing on its own behalf.

Equal Rights Ctr. v. Equity Residential, 798 F. Supp.

2d 707, 719 (D. Md. 2011). Organizational standing

is conferred where the defendants’ misconduct

causes injury to the organization by frustrating the

organizational mission, thus requiring the

organization to divert resources in response. Id. at

720; Havens Realty Corp. v. Coleman, 455 U.S. 363,

379 (1982). The record evidence at trial

demonstrates that PETA’s mission has been

frustrated through its protracted involvement in

attempting to prevent the abuse of protected species

and correct the misperception that Tri-State

properly cares for the same. Compare Trial Tr. vol.

4, 181–82 (Brittany Peet, Director of the Captive

Animal Law Enforcement Division of PETA, noting

that PETA’s mission requires it to protect and rescue

animals from conditions of abuse and neglect) and

id. at 183 (noting that Defendants’ actions have

impaired this mission) with People for the Ethical

Treatment of Animals, Inc. v. Miami Seaquarium,

189 F. Supp. 3d 1327, 1338 (S.D. Fla. 2016), aff’d, 879

F.3d 1142, 1146 n.5 (11th Cir. 2018), adhered to on

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denial of reh’g, No. 16-14814-BB, 2018 WL 4903081

(11th Cir. Oct. 9, 2018) (finding that the alleged

“take” of an animal is in “direct conflict with PETA’s

mission of protecting animals” and therefore

evidence in favor of satisfying the “injury in fact”

element of the standing analysis); Compare Trial Tr.

vol. 4, 183–87 (Peet citing examples of how

Defendants deceptively hold themselves out to be a

sanctuary,

thereby

creating

the

public

misperception that their animal welfare standards

are acceptable, if not laudable) with Organic

Consumers Assoc. v. Sanderson Farms, Inc., 284 F.

Supp. 3d 1005, 1011 (N.D. Cal. 2018) (finding

standing for organizations that promote organic

consumption in suit against company that

deceptively labeled products as “natural”).

The record evidence also establishes that PETA

has diverted significant resources in response to TriState’s actions. Trial Tr. vol. 4, 188–214 (Peet

testifying that since 2006, PETA has complained to

the USDA and other regulatory agencies, monitored

inspection records, raised awareness of Defendants’

actions through media, and filed lawsuits—all of

which occupy a significant amount of time and

resources). The Court thus finds that PETA has

standing to bring this suit.

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B.

Defendants Have Subjected

the Protected Animals to a

Take

The dead animals at Tri-State share

frighteningly similar experiences that, in retrospect,

foreshadow their early deaths. All lived in squalid

conditions, languished with no enrichment, failed to

receive preventative care, were evaluated by a

veterinarian only when on the brink of death, were

misdiagnosed, and received no pain management to

ease their suffering. The remaining animals live in

the same conditions as did their predecessors, only

they are lucky to have survived thus far. The Court

finds that each of the protected animals has been

subjected to a take under the ESA, as addressed by

species below.

1.

The Lions

The Court finds that Tri-State’s deplorable

conditions have harassed Peka and Mbube. Each

has lived in isolation and were given no “social

interactions [that] are integral to the well- being of

lions.” PX70 at 22. For years, neither Bu or Peka had

any chance to engage in a wide range of normal

social behaviors, such as grooming, stalking,

hunting, and play. PX69 at 38. Their enclosures are

barren. They are exposed to harsh temperatures

with little reprieve. A well- worn path in the

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enclosure reflects that the stress of such an

environment resulted in repetitive pacing. PX69 at

41. Peka, the only living lion, is in indefinite

isolation. She lives, in short, wholly contrary to how

nature intended. The creation and perpetuation of

drastic conditions has fosterd the likelihood of

serious injury to Peka “by annoying it to such an

extent as to significantly disrupt normal behavioral

patterns.” 50 C.F.R. § 17.3.

The Court further finds that Defendants’

failure to diagnose and treat Peka’s gait abnormality

constitutes harassment under the ESA. Peka’s

longstanding condition likely causes her chronic pain

and interferes with species-typical behaviors,

including walking, roaming, and scratching. Trial

Tr. vol. 2, 180; PX69 at 51. Peka’s gait abnormality

is obvious to Defendants,

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yet nothing has been done to treat Peka—ever—

despite the availability of simple diagnostic tools

such as an x-ray. Trial Tr. vol. 2, 181–83. Refusing

to treat Peka has likely exacerbated her condition in

such a manner that significantly interferes with her

normal species behavior. Thus, Defendants have

subjected Peka to a take under the ESA.

Defendants have likewise taken Bu. For Bu’s

entire life, Defendants provided him no veterinary

care. See supra Section I.B.1. At the end of his life,

he suffered for months before Defendants even

notified

a

singular,

patently

unqualified

veterinarian. By this point, Bu was starving. He was

emaciated. He had received so little attention that

the USDA required that Defendants provide Bu

adequate veterinary care under penalties of losing

their exhibitor license. Defendants anemic attempts

to comply with the USDA are reflected in the results.

Nearing death, Bu was at one point so weak that he

was constantly falling over, cutting and bruising his

own body. See supra Section I.B.1. It is without

question that Defendants have harmed Mbube, to

the point of a painful death, and in violation of the

ESA.10

10 Defendants also harassed Bu. Failing to provide veterinary

care for months—to a point where Bu lay weak, injured, and

emaciated—significantly disrupted Bu’s normal behavior

patterns of eating, walking, grooming, and play.

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2.

The Tigers

The Court next finds that Defendants provision

of squalid living conditions harassed the tigers. The

tigers’ concrete dens, in which they have been

confined for their entire lives, defy generally

accepted husbandry practices. The record evidence

shows the swimming pool den as a dirty, dilapidated

pen. The water in the outdoor enclosures is similarly

filthy, static, and filled with feces. See supra Section

I.A.3.c. The water in the indoor enclosures, too, is

dirty and sits in uncleaned bowls. Id. Failure to clean

routinely the animals’ enclosures squarely

disregards industry standards. See PX93 at 13

(Tiger Care Manual from the AZA stating, under

“cleaning and sanitation,” that “dirt and grass

substrates in outdoor enclosures should be spotcleaned daily. Hard surface enclosures, both inside

and out, should be cleaned daily and disinfected

routinely”); see also Trial Tr. vol. 4, 34. The filthy

state of the tiger’s enclosures is shocking but not

surprising—no protocol or schedule for cleaning and

sanitation of the tigers’ enclosures exists at TriState. PX69 at 19.

Tri-State’s lack of sanitation for the tigers “puts

them at risk of bacterial infection as well as other

diseases that could be spread due to the attraction of

rodents and insects to the feces and food waste.”

PX69 at 21. This risk is not just hypothetical—at

least two of the tigers (India and Mowgli) contracted

diseases (sepsis and ringworm or rain rot) consistent

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with unhygienic conditions. Poor sanitation with a

track record of causing infection and death creates

an ongoing and serious threat of injury for the tigers.

According to AZA standards, tiger enclosures

should be designed with a variety of vegetation,

water sources, trees, and natural substrates to offer

them the chance to exhibit natural behaviors. PX93

at 12. Exposure to concrete should be minimal, and

they should be provided with a complex and

changing enrichment. PX69 at 16. The tigers’

enclosures at Tri-State stands in direct contrast to

these standards. It is, in short, a concrete jungle. See

supra Section I.A.3.c. As a result, the barren

enclosures and lack of enrichment deprive the tigers

of their ability to “engage in their natural behaviors

such as stalking through brush or grasses,

scratching on trees or deadfall, [and] exploring

different vantage points on platforms.” PX69 at 17.

Further, the “lack of enrichment leads to boredom

and the development of abnormal behaviors such as

pacing, excessive grooming, and other potentially

self-injurious behaviors.” PX69 at 17. The enclosures

are also deficient in that their lack of insulation and

adequate cooling and shade puts the tigers at risk of

hypothermia, dehydration, and damage to the cats’

pads and mucous membranes, as well as

overheating, dehydration, heat sickness, and stroke.

PX70 at 9, 36. Overall, the tigers’ enclosures are so

far removed from their natural habits and from

accepted husbandry practices that they significantly

disrupt a multitude of typical tiger behaviors and

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put the tigers at a high likelihood of injury. As such,

they constitute “harassment” of all the tigers (dead

and alive) and violate the ESA.

As to Kumar, the manner of his death

indisputably demonstrates that Defendants harmed

him. His necropsy reflects that he suffered for

months before his death, from broken, pulp- exposed

teeth, ulcerated gums, and a punctured lip. PX6 at

2, 10; Trial Tr. vol. 2, 191–97. The condition of his

mouth was undoubtedly painful, such that it

“affected [his] ability and desire to eat,” one of his

most basic functions, as well as his ability to groom

himself. Trial Tr. vol. 2, 191–97. Similarly, Kumar’s

paws and hind leg were pocked with ulcers most

likely caused by the filthy concrete on which Kumar

had dragged his body while Defendants left him to

suffer after his spinal stroke. PX6 at 6; Trial Tr. vol.

2, 197–200. Defendants’ complete failure to treat

Kumar’s mouth and paws, while leaving him to

languish in filthy surroundings, caused injury to

Kumar and disrupted his normal behaviors such

that he was both harmed and harassed in violation

of the ESA.

The lack of veterinary care during the days

leading up to Kumar’s death also injured Kumar and

significantly disrupted his normal behaviors, such

that it constitutes both harm and harassment under

the ESA. Kumar was “down” for ten days. He did

not eat. He had to drag his body across the enclosure.

Yet he received no adequate evaluation, treatment,

or pain management, which unnecessarily

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prolonged whatever illnesses he endured. See supra

Section I.B.3. His health was worsened, in fact, by

the decision to treat him with steroids, without any

medical reason to do so and without medication to

protect his stomach. Trial Tr. vol. 2, 204–07.

His necropsy reveals stomach ulcers, a

distended colon, and hemorrhaging in the

membrane around his abdominal cavity—all painful

injuries that were likely a direct cause of inadequate

veterinary care. See supra Section I.B.3. Defendants’

take of Kumar is beyond any doubt to this Court.

India, too, was harassed and harmed directly

by Defendants. India died of sepsis, an infection of

colossal proportions not seen in cats in captivity.

Trial Tr. vol. 3, 28 (Dr. Haddad) (“Sepsis doesn’t

happen in zoos. Tigers don’t die of sepsis. This is just

unbelievable to me.”). For more than a month,

Defendants allowed the virulent infection to ravage

India. See supra Section I.B.4. She barely ate or

moved yet was given no care. Id. In fact, Candy

expressly refused to secure medical treatment—

even when Dr. Duncan told him that failure to do so

would lead to her death. PX5 at 115. And, while

opting

to

ignore

treatment,

Defendants

simultaneously failed to provide her with anything

to ease her severe pain. India’s myocarditis and pusfilled pockets in her heart and diaphragm meant she

experienced daily pain “similar to a heart attack”

and that occurred “every time she took a breath.”

Trial Tr. vol. 3, 20. And at the time of her death,

India’s ears had been so mangled by flies that the

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veterinarian

who

performed

the necropsy

mistakenly believed her ears had been surgically

truncated. See supra Section I.B.3. Unquestionably

Defendants are directly responsible for India’s

death. Their violation of the ESA is patent.

Defendants have thus subjected India to a take

under the ESA.

Although Mowgli is thankfully alive, it is the

result of good fortune and in spite of Defendants’

lack of care. Mowgli is obese. His muscles are flaccid.

He has suffered for years with a skin infection that

can easily be diagnosed, but has yet to be, and which

is likely easily treated, but has not been. See supra

Section I.B.5. Video evidence shows Mowgli in

obvious discomfort as he rubs his coat continuously

across deteriorating wood in his damp enclosure. Id.

As he is a white tiger, his caretakers must be ever

more vigilant to avoid disease and infection. Trial

Tr. vol. 4, 35. Yet he has lived, for years, in the same

environment as did Kumar and India, two victims of

obvious painful infections. Defendants have injured

Mowgli and as such, have harassed and harmed him

in violation of the ESA.

3.

Lemurs

Defendants subjected Bandit and Alfredo to an

onslaught of environmental assaults that harassed

and harmed them. Bandit lived largely in isolation

and contrary to his normal species behavior. PX70 at

72–73; Trial Tr. vol 4, 92–93. He, and later with

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Alfredo, were deprived of any real opportunity to act

as lemurs do. PX70 at 59. In a stark environment,

Bandit and Alfredo could not forage, explore, mark,

or engage in other normal behaviors. PX69 at 7.

Defendants further harassed the lemurs by

surrounding them with filth and a natural predator.

See supra Section I.A.3.a. Smells of lingering urine

and feces disrupted their olfactory communication

and their ability to scent-mark and put them at high

risk of physical pain and permanent physical

damage to their mucous membranes. Id. Defendants

also failed to protect the lemurs from the elements

for nearly half of calendar year 2015. Id. Exposure

to such temperature visits harm on lemurs’ health,

including hypotension, suppressed appetite, and

increased vulnerability to disease. Trial Tr. vol. 2,

144; PX70 at 61.

The lemurs’ isolating, barren, freezing, dirty,

stress-inducing enclosure essentially stripped

Bandit and Alfredo of almost of all their natural

behaviors, creating a high likelihood of both

psychological and physical injury. PX69 at 8; see

supra Section I.A.3.a. As such, Defendants harassed

both Bandit and Alfredo in violation of the ESA.

To be sure, Bandit’s life and death provides the

best evidence as to Defendants’ ESA violations with

regard to the lemurs. Bandit suffered for months

with a poorly treated respiratory infection. His

weight fluctuated significantly. See supra Section

I.B.2. Toward the end of his life, and for no medical

physical reason, Bandit bit, picked, and tore at his

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own penis. Id. Bandit’s death, in subfreezing

temperatures and for reasons not fully known,

bespeak his hard life at Tri-State.

The Court finds that Defendants’ chronic lack

of care to Bandit harmed him. The Court further

finds that Bandit’s self-mutilation was mostly likely

the result of significant distress that was the natural

byproduct of his living at Tri-State. See id.; Trial Tr.

vol 2, 137–138. Because Defendants confined Bandit

to an environment that disrupted his normal

behaviors leading to his self-mutilation, and because

they then failed to monitor, treat, and alleviate those

life-threatening and ultimately fatal injuries, they

have both harmed and harassed Bandit in violation

of the ESA.

As for Alfredo’s future, based on the totality of

the evidence, if he were returned to Tri- State, he

would be once again subjected to the same

deplorable conditions that caused him to be harassed

in the first instance. Nothing in the record suggests

that Alfredo would withstand Tri- State any better

than Bandit did. By contrast, Alfredo’s current

placement at the Maryland Zoo provides him a

welcome reprieve.

In sum, the Court finds that Defendants have

unlawfully “taken” or continue to “take” all animals

at issue—Cayenne, Mbube, Bandit, Kumar, India,

Mowgli, Peka, Alfredo, and Cheyenne—in violation

of the Endangered Species Act. Therefore, the Court

finds in favor of PETA on all theories of liability.

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IV.

Relief

Pursuant to the Declaratory Judgment Act, 28

U.S.C. § 2201 and the ESA, the Court will enter by

separate order a declaration that Defendants have

violated the ESA by unlawfully taking nine federally

protected animals, and continue to violate the ESA

by unlawfully taking the remaining Big Cats and by

continuing to possess the Big Cats who have been

unlawfully taken. The Court further will enjoin

Defendants, pursuant to 16 U.S.C. § 1540(g), from

continuing to violate the ESA with respect to the

animals at issue; permanently enjoin Defendants

from owning or possessing any endangered or

threatened species; and terminate Defendants’

ownership and possessory rights in the animals at

issue. Finally, the Court will order that Defendants

must immediately transfer ownership and custody

of the surviving animals to The Wild Animal

Sanctuary (TWAS).

On December 10, 2019, Defendants moved to

stay relief pending appeal. ECF No. 178. They argue

that injunctive relief would cause Defendants

irreparable harm and that a substantial likelihood

exists that they will prevail on appeal. The Court

flatly disagrees that based on this record, and all

prior rulings, Defendants are likely to succeed on

appeal. Moreover, the Court does not credit that

Defendants will suffer irreparable harm. In fact, the

record bears out quite the opposite: Defendants’

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protracted and flagrant violations of the ESA render

it likely that the remaining protected animals will

be irreparably harmed were the Court to stay its

order pending appeal.

Finally, the public interest, which the Court

must consider, counsels in favor of denying

Defendants’ requested stay. See Hilton v.

Braunskill, 481 U.S. 770, 776 (1987). Regarding

enforcement of the ESA as a matter of public

interest, “Congress has spoken in the plainest of

words, making it abundantly clear that the balance

has been struck in favor of affording endangered

species the highest of priorities.” Salix v. U.S, Forest

Service, 995 F. Supp. 2d 1148, 1155 (D. Mont. 2014),

aff’d sum nom Cottonwood Envtl. Law Ctr. v. U.S.

Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (quoting

TVA v. Hill, 437 U.S. 153, 194 (1978)). The Court

finds that the public interest is best served by

ensuring that the remaining protected animals are

not forced to endure life at Tri-State any further.

Defendants’ motion for stay (ECF No. 178) is

therefore DENIED.

A separate order follows.

_/S/Paula Xinis_______

United States District Judge

Date: 12/26/2019

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APPENDIX 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

–Northern Division–

PEOPLE FOR THE ETHICAL

TREATMENTOF ANIMALS, INC.,

Plaintiff

–v–

TRI-STATE ZOOLOGICAL PARK OF

WESTERN MARYLAND, INC., et al.,

Defendants.

Civil Action No. 8:17-cv-2148-PX

ORDER

As explained more fully in the Court’s

Memorandum Opinion, having considered the

evidence presented to this Court during a six-day

bench trial in November 2019 and the Parties’ briefs,

regarding Plaintiff’s requested relief, pursuant to 28

U.S.C. § 2201, 16 U.S.C. § 1540(g), and this Court’s

90a

equitable powers, it is this 26 th day of December,

2019, by the United States District Court for the

District of Maryland, ORDERED that:

1.

Defendants

have

violated

the

Endangered Species Act (the “ESA”), 16 U.S.C. §§

1531-1544, and its implementing regulations by

unlawfully taking two federally protected lemurs,

five federally protected tigers, and two federally

protected lions at Defendants’ facility in

Cumberland, Maryland, and continue to violate the

ESA and its implementing regulations by unlawfully

taking two federally protected tigers, Mowgli and

Cheyenne, and one federally protected lion, Peka, 16

U.S.C. § 1538(a)(1)(B), (G); 50 C.F.R. §§ 17.11(h),

17.21(c), 17.31(a), 17.40(r);

2.

Defendants

have

violated

and

continue to violate the ESA and its implementing

regulations by continuing to possess two tigers,

Mowgli and Cheyenne, and one lion, Peka, that were

unlawfully taken, 16 U.S.C. § 1538(a)(1)(D), (G); 50

C.F.R. §§ 17.11(h), 17.21(d), 17.31(a), 17.40(r);

3.

Defendants

are

enjoined

from

continuing to violate the ESA and its implementing

regulations, including the prohibitions on taking a

listed species and possessing a listed species that

has been unlawfully taken;

4.

Defendants, their officers, agents,

servants, employees, and any other persons who are

in active concert or participation therewith are

enjoined from owning, acquiring, or possessing any

91a

endangered or threatened species of animals;

5.

Plaintiff’s proposed placement of the

tigers Mowgli and Cheyenne and the lion Peka (“the

Big Cats”) with The Wild Animal Sanctuary

(“TWAS”) is APPROVED with the consent of the

Defendants, without waiver of or prejudice to

Defendants’ rights in terms of seeking relief through

post judgment motion, appeal, or seeking a stay of

such relief pending appeal, and without any

concession by Defendants as to wrongdoing or

liability. The Defendants shall cooperate with the

Plaintiff and TWAS to effect the transfer of the Big

Cats.

6.

The Defendants shall comply with

reasonable requests by PETA and TWAS for

information about the Big Cats deemed necessary to

determine the Big Cats’ fitness for transportation to

TWAS.

7.

Within thirty (30) calendar days before

the Big Cats are to be transferred, Defendants shall

allow access by veterinarian(s) selected by Plaintiff

to conduct visual inspections of the Big Cats and

execute Certificates of Veterinary Inspection

required for their transport to TWAS.

8.

Defendants shall not administer any

sedation drug to the Big Cats within ten (10)

calendar days before the transfer of the Big Cats,

unless required for a medical or public safety

emergency. In the event Defendants administer or

cause a third-party to administer any sedation to the

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Big Cats, Defendants shall notify Plaintiff within

twenty-four (24) hours of such administration of a

sedation drug.

9.

Defendants shall provide Plaintiff and

TWAS, their vehicles, equipment and agents, full

access to the Big Cats and entry into their

enclosures, and to all facility egress points in order

the effect the safe transfer and loading of the Big

Cats.

10.

Defendants shall comply with any and

all reasonable instructions from Plaintiff and TWAS

to effect the safe transfer and loading of the Big

Cats, and Defendants shall not harass Plaintiff or

TWAS, interfere with the transfer of the Big Cats, or

otherwise create any dangerous condition or hostile

environment.

11.

The transfer and transport of the Big

Cats shall be subject to Plaintiff’s verification that

the Big Cats are in sufficient good health and

physical condition to be transferred and transported

to TWAS based upon the professional judgment of

veterinarian(s) selected by Plaintiff.

12.

Defendants shall cooperate with

Plaintiff and TWAS, including executing all

documents, including but not limited to a USDA

APHIS 7020 Form, to effect the transfer and

transport of the Big Cats to TWAS.

13.

Defendants

shall

not

“dart,”

anesthetize or otherwise take any measures to

immobilize the Big Cats, but the Plaintiff and TWAS

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are expressly authorized to do so, provided such

procedures comply with generally accepted animal

husbandry standards, the Animal Welfare Act, the

Endangered Species Act, and all other applicable

laws, and are performed under the supervision of a

licensed veterinarian(s) chosen by the Plaintiff.

14.

To mitigate the risk of aspiration after the Big

Cats are sedated, Defendants shall withhold all food

from the Big Cats, including removing all remnants

of food material from the Big Cat’s enclosures and

holding areas beginning at 7:00 am the day before

the scheduled day of the Big Cats’ transfer and

transport. Defendants shall provide the Big Cats

with clean, potable water at all times prior to the

transfer.

15.

The Plaintiff, TWAS, and Defendants

shall bring no more persons onto the property than

are necessary to efficiently effectuate the transfer

and transport of the Big Cats. To ensure the safety

of the public and those involved in the transfer and

transport of the Big Cats, the property of the

Defendants shall be closed to the public during the

transfer and transport of the Big Cats onto TWAS’s

transport vehicle(s). Although the Defendant’s

property shall be closed to the public during the Big

Cats’ transfer and transport, the transfer shall take

place during the week (and not weekends) between

8:00 am and 5:00 pm so that the parties may, if

necessary, contact the Court to resolve any dispute

that may arise during the course of the transfer.

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16.

No video recording, audio recording, or

photography shall be allowed while Plaintiffs and

TWAS are at Defendant’s facility for the transfer.

17.

No sooner than ten (10) calendar days

and no later than 45 calendar days from the date of

this Order, the parties are ordered to facilitate and

effect the physical transfer of the Big Cats as set

forth herein, based upon the availability of Plaintiff

and TWAS for such transfer and transport. This

time period may be extended, by up to 30 calendar

days by the mutual agreement of all parties, or if

necessary by Order of the Court.The Parties having

agreed that the relief set forth in this Order is to

constitute full relief and is a full and final judgment,

other than matters properly categorized as postjudgment proceedings, such as claims for costs, fees,

or post-judgment enforcement.

18.

The Plaintiff has warranted and

represented that TWAS is aware that the Big Cats

may be subject to lis pendens in this case and that

TWAS has agreed to take the cats subject to lis

pendens.

19.

The Defendants have filed a pro forma

Motion to Stay execution of any relief in this case

until the resolution of an appeal to the Fourth

Circuit. The motion (ECF No. 178) is hereby denied

and absent a compelling change of circumstance or

mutual agreement of the parties, any further

motions to stay the relief ordered herein will

likewise be denied.

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20.

No later than sixty (60) calendar days

following the filing of this ORDER, the Parties are

to provide a joint status report to this Court

regarding the transport of the Big Cats to TWAS.

21.

The Court retains jurisdiction over this

matter to the extent necessary to enforce this Order

and effectuate the relief ordered herein, and to

award reasonable attorney and expert witness fees,

and costs of litigation, pursuant to 16 U.S.C. §

1540(g)(4).

22.

By consenting to the form of relief set

forth within this Order, no party has waived any

rights that may apply either post-judgment or upon

appeal.

23.

The Court will enter a separate

judgment under Rule 58.

12/26/2019

Date

/S/Paula Xinis___

Paula Xinis

United States

District Judge