Judge Dismisses 9 Years of Litigation for Elephants for Lack of Standing

U.S. District Court Judge Emmett G. Sullivan has ruled that a former employee of a circus and an animal welfare organization, Animal Protection Institute, lack standing to challenge the abusive treatment of elephants held by the circus. 

The case was originally filed on July 11, 2000. A non-jury trial was held from February 4, 2009 to March 18, 2009, during which time the "Court heard testimony from approximately thirty fact and expert witnesses and reviewed and admitted hundreds of documents into the evidentiary record."  After all that, the judge decided last week that the plaintiffs, former employee of FEI, Tom Rider and API, lacked standing required by Article III of the U.S. Constitution and dismissed the case. 

Michelle Pardo, attorney for the circus, described the ruling as a "victory for the elephants".  A victory for the circus industry certainly. The defense attorneys managed to drag out the litigation for more than 9 long years, fending off a challenge to the industry’s exploitation and abuse of these highly intelligent animals. It is a "victory for the elephants" only if this case is seen as part of the effort that will eventually end the use and abuse of elephants in circuses. Go here for more on the few laws regulating use and treatment of animals in circuses.

The Elephants

The defendant, Feld Entertainment, Inc., owns Ringling Bros. and Barnum & Bailey ("Ringling Bros.") traveling circus with "fifty-four (54) Asian elephants, the largest group of captive Asian elephants in the United States…. A number of FEI’s Asian elephants perform in circus shows and travel with three circus units. …In addition to the traveling shows, FEI also maintains Asian elephants at its Center for Elephant Conservation ("CEC") in central Florida, and at the Two Tails Ranch in Williston, Florida ("Williston Ranch").  Those facilities are not open to the public. It is at these facilities that elephants are bred or used for research." The elephants are also taken to these facilities for what the judge called "retirement". Twenty-two (22) Asian elephants have been bred and born in captivity.

The allegations in this case focused, however, on only 7 of Ringling Bros.’ Asian elephants. Plaintiff Tom Rider worked for the Ringling Bros. circus on one of the circus’s traveling units, the Blue Unit, from June 1997 to November 1999. "Initially employed as a ‘barn helper,’ and later as a ‘barn man,’ Rider was responsible for cleaning up after the elephants, providing them with food and water, and watching over them while he was on duty." Rider said that he "developed a strong personal attachment to many of the Ringling Bros. elephants."

"Seven of the elephants with whom Rider worked on the Blue Unit are still in FEI’s possession: Karen, Nicole, Lutzi, Zina, Mysore, Susan, and Jewell…. Karen and Nicole still perform on the circus’s Blue Unit, while Lutzi, Jewell, Susan, Mysore, and Zina are at the CEC. …. According to FEI, Lutzi, Jewell, Susan, Mysore, and Zina are retired from circus performing, and will never again be exhibited by FEI in the circus. … All seven of the elephants at issue in this case are adults; the oldest, Mysore, is approximately sixty-three (63) years old, and the youngest, Nicole, is approximately thirty-four (34) years old."

The Endangered Species Act

Plaintiffs brought this action alleging that FEI’s use of bullhooks and prolonged periods of chaining with respect to its circus elephants violate the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq.  "The ESA has three stated purposes: (1) to provide a means for conserving the ecosystems of endangered and threatened species; (2) to provide a program for the conservation of endangered and threatened species; and (3) to implement the United States’ agreement to certain international treaties and conventions." 16 U.S.C. § 1531(b).

The Convention on the International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), July 1, 1975, 27 U.S.T. 1087, is an international agreement among governments which regulates international trade in species listed on any of its three appendices. Asian elephants are listed on CITES Appendix I, the Convention’s highest level of protection. All commercial trade is prohibited because these animals face an immediate threat of extinction.

The Asian elephant was listed as an "endangered species" pursuant to Section 4 of the ESA by the United States Fish and Wildlife Service, Department of Interior, on June 14, 1976. 41 Fed. Reg. 24062, 24066 (June 14, 1976).

Section 9 of the ESA prohibits the "take" of any endangered species. 16 U.S.C.§ 1538(a)(1)(B).

Rider and API contend that FEI "takes" the Asian elephants in its possession in violation of Section 9 of the ESA by "harming," "harassing," and "wounding" the elephants. Specifically, plaintiffs allege that defendant’s employees "take" the elephants by routinely hitting them with bullhooks to train, handle, "correct," and "discipline" the animals, and by chaining them on hard surfaces for many hours each day, and for even longer durations while the elephants are transported on train cars from one location to the next. § 1538(a)(1)(B).

The term "take" is broadly defined under the ESA to mean "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 U.S.C. § 1532(19). The Fish & Wildlife Service has additionally defined "harm" to include any act that "actually kills or injures wildlife," including actions that "significantly impair[] essential behavioral patterns." 50 C.F.R. § 17.3.

"Harass" under the ESA means: an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. This definition, when applied to captive wildlife, does not include generally accepted:

(1) Animal husbandry practices that meet or exceed the minimum standards for facilities and care under the Animal Welfare Act,

(2) Breeding procedures, or

(3) Provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely to result in injury to the wildlife. 50 C.F.R. § 17.3.

The term "wound" is not defined in the ESA or its implementing regulations.

Section 10(a)(1) of the ESA requires that whenever anyone, including a corporation, seeks to engage in an activity that is otherwise prohibited by Section 9, such as a taking, it must first obtain a permit from the FWS authorizing that activity. §1539(a)(1). The applicant must describe the facilities where the animals are being used, displayed and maintained; the experience of the animal handlers; the "taking" that will occur; and the reasons such a "take" is justified – i.e., a demonstration that the taking will "enhance the propagation or survival" of the species. 50 C.F.R. §§ 17.22(v)-(vii); 16 U.S.C. § 1539(a)(1)(A). In the event that the FWS decides to grant a permit, the agency’s findings – i.e., that the permit (1) was "applied for in good faith, (2) if granted and exercised will not operate to the disadvantage of such endangered species, and (3) will be consistent with the purposes and policy" of the Act – must be published in the Federal Register. 16 U.S.C. § 1539(d). Finally, the FWS must find that the animals are being "maintained" under humane and healthful conditions. See 50 C.F.R. § 13.41 ("Any live wildlife possessed under a [FWS] permit must be maintained under humane and healthful conditions."). FEI has no FWS permit for the 7 elephants involved in this case.

"The bullhook is an approximately two and a half to three-foot long rod made of wood or fiberglass, with a metal hook and a metal point on its end. … (think fireplace poker). Earlier in this litigation, plaintiffs also claimed that FEI’s practice of ‘weaning’ or ‘forcibly separating’ baby elephant calves from their mothers at an earlier age then would happen in the wild is an unlawful ‘take’ in violation of the ESA. On August 23, 2007, however, the Court granted partial summary judgment for defendant, holding that plaintiffs could not seek relief with respect to defendant’s captive-born elephants because FEI’s captive-born elephants are held pursuant to a valid permit issued by the Fish and Wildlife Service, and only that agency can bring an enforcement action concerning such a permit. See ASPCA v. Ringling Bros., 502 F. Supp. 2d 103 (D.D.C. 2007). As a result of that ruling, plaintiffs have withdrawn their ‘weaning’ claim."

Plaintiffs said that the use of the bullhook "wounds," "harms," and "harasses" the elephants in violation of the ESA’s "take" prohibition because "it causes physical, psychological, and behavioral injuries to the elephants, and also significantly impairs and disrupts the elephants’ essential and normal behavioral patterns, including their ability to move freely without being hit, their ability to explore their surroundings, and their ability to socialize with other elephants. … Plaintiffs also contend that defendant’s practice of chaining the elephants ‘harms,’ ‘harasses,’ and ‘wounds’ the elephants in many ways, such as by contributing to serious foot, leg, joint, and other injuries and diseases, as well as significantly impairing and disrupting their essential and normal behavior patterns, including their need to walk, their need to turn around and to explore their surroundings, and their need to socialize with other elephants."

The judge never decided whether FEI had committed an unlawful "taking" by its abuse of the elephants.  

Instead, Judge Sullivan found that Rider failed to prove he had suffered an aesthetic or emotional injury traceable to the defendant, FEI. Rider was found to have no basis for standing to bring this suit. The judge decided API also had no standing, no " ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."