The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiffs American Society for the Prevention of Cruelty to Animals, Animal Welfare Institute, The Fund for Animals, Tom Rider, and Animal Protection Institute*fn1 have filed a lawsuit under the Endangered Species Act ("ESA" or "Act"), 16 U.S.C. § 1531 et seq., against Ringling Brothers and Barnum & Bailey Circus and Feld Entertainment, Inc. ("FEI")*fn2 for "taking" Asian elephants in violation of the ESA. Pending before the Court is defendant's Motion for Summary Judgment. Upon consideration of the motion, response and reply thereto, applicable law, and the entire record, the Court grants in part and denies in part defendant's motion. The Court grants summary judgment to defendant as to the elephants subject to a captive-bred wildlife permit and denies summary judgment as to the elephants for which defendant claims a "pre-Act" exemption.
Plaintiffs allege that FEI routinely beats elephants, chains them for long periods of time, hits them with sharp bull hooks, breaks baby elephants with force to make them submissive, and forcibly removes baby elephants from their mothers before they are weaned. Compl. ¶ 1. Plaintiffs claim that this conduct violates the take provision of the ESA, see 16 U.S.C. § 1538.
On September 5, 2006, defendant FEI filed a motion for summary judgment arguing that plaintiffs' claim that FEI is "taking" Asian elephants in violation of section 9(a)(1)(B) of the ESA, 16 U.S.C. § 1538(a)(1)(B), fails as a matter of law for two reasons. FEI argues that all of the elephants at issue in this lawsuit either (1) fall under the "pre-Act" species exemption to the ESA, see 16 U.S.C. § 1538(b)(1); 50 C.F.R. 17.4; or (2) were bred in captivity in the United States and are subject to a valid captive-bred wildlife ("CBW") permit issued by the United States Fish and Wildlife Service ("FWS").
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F. 3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); George v. Leavitt, 407 F.3d 405, 410 (D.C. Cir. 2005). "A dispute is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Colbert v. Potter, 471 F.3d 158, 164 (D.C. Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "[S]ubstantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248.
Ordinarily, summary judgment is "proper only after the plaintiff has been given adequate time for discovery." First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988). As a general rule, "decision by summary judgment is disfavored when additional development of facts might illuminate the issues of law requiring decision." Nixon v. Freeman, 670 F.2d 346, 362 (D.C. Cir. 1982). Rule 56(f) of the Federal Rules of Civil Procedure provides a mechanism for a party opposing a motion for summary judgment to indicate that they have not had adequate discovery to be able to respond to the motion. Rule 56(f) states that
Should it appear from the affidavits of a party opposing the motion [for summary judgment] that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
Fed. R. Civ. P. 56(f). "[T]he purpose of Rule 56(f) is to prevent 'railroading' the non-moving party through a premature motion for summary judgment before the non-moving party has had the opportunity to make full discovery." Dickens v. Whole Foods Mkt. Group, Inc., 2003 U.S. Dist. LEXIS 11791, at *7 n.5 (D.D.C. Mar. 18, 2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986)). Insufficient time or opportunity to engage in discovery is sufficient cause to defer decision on a summary judgment motion. Khan v. Parsons Global Servs., Ltd., 428 F.3d 1079, 1087 (D.C. Cir. 2005). A party making a Rule 56(f) request, however, "must 'state concretely' why additional discovery is needed to oppose a motion for summary judgment." Messina v. Krakower, 439 F.3d 755, 762 (D.C. Cir. 2006) (quoting Strang v. United States Arms Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir. 1989)); see also Byrd v. United States EPA, 174 F.3d 239, 248 (D.C. Cir. 1999) (finding that a party seeking further discovery under Rule 56(f) has to state "what facts he intended to discover that would create a triable issue and why he could not produce them in opposition to the motion"). Conclusory allegations without any supporting facts are not sufficient to justify additional discovery. Messina, 439 F.3d at 762.
Plaintiffs allege that defendant is "taking" Asian elephants in violation of Section 9 of the Endangered Species Act. See 16 U.S.C. § 1538. Section 9 of the Act makes it unlawful, with certain exceptions, for any person subject to the jurisdiction of the United States to "take" any endangered species of fish or wildlife "within the United States or the territorial sea of the United States." 16 U.S.C. § 1538(a)(1)(B). To "take" an endangered species means to "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). FWS regulations further define "harass" as used in the definition of "take" in Section 9 to mean "an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering." 50 C.F.R. § 17.3. When applied to "captive wildlife," the definition of "harass" does not include
(1) "[a]nimal husbandry procedures that meet or exceed the minimum standards for facilities and care under the Animal Welfare Act"; (2) "[b]reeding procedures"; and (3) "[p]rovisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely to result in injury to the wildlife." Id. The term "harm" as used in Section 9(a)(1)(B) of the Act means "an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it ...