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American Society for the Prevention of Cruelty to Animals v. Feld Entertainment

December 30, 2009


The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge


Plaintiff Tom Rider was formerly employed by Defendant Feld Entertainment, Inc. ("FEI"), where he worked with several of defendant's Asian elephants in defendant's Ringling Bros. and Barnum & Bailey ("Ringling Bros.") traveling circus. Plaintiff Animal Protection Institute ("API") is a non-profit organization which conducts advocacy and public policy campaigns focused on animals in entertainment. Plaintiffs brought this action against FEI, alleging that FEI's use of bullhooks and prolonged periods of chaining with respect to its circus elephants violates the Endangered Species Act ("ESA"), 16 U.S.C. § 1531, et seq. The Court presided over a non-jury trial 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 the trial concluded, and at the Court's direction, each party submitted Proposed Findings of Fact and Conclusions of Law.

Closing arguments were held on July 14, 2009. Based on all of the evidence presented, the relevant law, and the entire record developed over nine years of litigation in this matter, and for the reasons stated herein, the Court makes the following findings of fact and conclusions of law.

Consistent with these findings and conclusions, and because the plaintiffs have failed to establish the standing required by Article III of the United States Constitution, the Court will enter judgment in favor of defendant.


A. The Parties

Defendant FEI is a corporation organized under the laws of the State of Delaware. See Defendant's Proposed Findings of Fact and Conclusions of Law ("Def.'s Prop. FOF") at ¶ 11.*fn1

FEI or its predecessor entities have produced and presented a live circus show under the "Ringling Bros." or similar name for 139 years, and elephants have been included in those shows since 1872. Id. at ¶ 12. FEI currently owns fifty-four (54) Asian elephants, the largest group of captive Asian elephants in the United States. Id. at ¶¶ 24, 27. A number of FEI's Asian elephants perform in circus shows and travel with three circus units. Id. at ¶ 28. 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"). Id. Those facilities are not open to the public. Id. FEI's elephants are sent to the CEC or the Williston Ranch for breeding, research, and retirement. Id. at ¶ 28. Since 1992, through FEI's breeding program, twenty-two (22) Asian elephants have been bred and born in captivity.

Id. at ¶ 29.

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. See Plaintiffs' Proposed Findings of Fact ("Pls.' Prop. FOF") at ¶ 3. 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. Id. As discussed below, see infra Part I.C., plaintiffs' complaint in this case alleges that during the nearly two and a half years that Rider worked on the Blue Unit, he developed a strong personal attachment to many of the Ringling Bros. elephants. See Complaint (Docket Entry ("DE") 1) (Sept. 26, 2003) ("Compl.") at ¶ 18.

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.*fn2 Pls.' Prop. FOF at ¶ 9. Karen and Nicole still perform on the circus's Blue Unit, while Lutzi, Jewell, Susan, Mysore, and Zina are at the CEC. Pls.' Prop. FOF at ¶ 12; Def.'s Prop. FOF at ¶¶ 48, 49. 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. Def.'s Prop. FOF at ¶ 49. 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. Id. at ¶ 25.

Plaintiff API is a non-profit organization formed in 1968 and based in Sacramento, California. Pls.' Prop. FOF at ¶ 67. API has four campaign areas, one of which focuses on animals in entertainment. Id. API also works on international wildlife trade, exotic pets, and trapping and fur issues. Id. API's work related to circus animals includes (a) public education and advocacy; (b) legislative efforts; and (c) regulatory work. Id. at ¶ 68. API has approximately 40,000 members and supporters. Id. at ¶ 74.

B. Plaintiffs' Claims

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. See Plaintiffs' Second Amended Pre-Trial Statement ("Pls.' Pretrial St.") at 1 (citing 16 U.S.C. § 1532(19) (providing definition of "take")). Specifically, plaintiffs allege that defendant's employees "take" the elephants by routinely hitting them with bullhooks*fn3 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.*fn4 Id. at 1-2.

Plaintiffs maintain 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. See Pls.' Pretrial St. at 11. 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. Id. at 7.

C. Procedural History

This litigation is in its ninth year.*fn5 The original complaint in this action was docketed as Civil Action Number 00-1641, and was filed on July 11, 2000, on behalf of, among others, the American Society for the Prevention of Cruelty to Animals ("ASPCA"), Animal Welfare Institute ("AWI"), and Fund for Animals ("FFA"), as well as certain plaintiffs who were later dismissed, namely the Performing Animal Welfare Society ("PAWS"), Pat Derby, Edward Stewart, and Glenn Ewell. See Def.'s Prop. FOF at ¶ 18. Plaintiffs filed a Second Amended Complaint on April 10, 2001.

On June 29, 2001, the Court dismissed the Second Amended Complaint on the grounds that plaintiffs lacked standing to sue. See Mem. Op. & Order, Civ. No. 00-1641 (DE 20) (June 29, 2001) ("June 29, 2001 Decision"). With regard to Rider, the Court found that Rider had "failed to demonstrate sufficient injury-in-fact," because "he ha[d] not alleged a presently suffered aesthetic injury[.]" Id. at 6, 9 (finding that like the plaintiff in Animal Legal Defense Fund v. Espy, 23 F.3d 496 (D.C. Cir. 1994), whose alleged injury based on exposure to animals being inhumanely treated in her research field was found to be insufficient to support standing where she had been away from the research field for six years and therefore had not suffered the aesthetic injury during that time, Rider had been away from the circus for two years and during that time had not been exposed to the alleged mistreatment). The Court also found that Rider's contention that he wished to return to elephant training was a "speculative and uncertain claim . . . not sufficient to support the requirement that the plaintiff's aesthetic injury, if not presently suffered, be imminently threatened." June 29, 2001 Decision at 6.

The Court also dismissed the case as to the organizational plaintiffs, who alleged that they suffered informational and economic injury as a result of defendant's failure to apply for a permit prior to "taking" the elephants. See id. at 10-11 (discussing organizational plaintiffs' argument that if defendant applied for a permit, plaintiffs would receive all of the information they require through the public notice and comment period provided by the Section 10 process).

The Court recognized that under this Circuit's precedent, an informational or economic injury "may be sufficient to support standing to a person adversely affected or aggrieved by an agency action (or inaction)." Id. at 11 (citing Animal Legal Def. Fund v. Espy ("ALDF II"), 29 F.3d 720, 724 (D.C. Cir. 1994)). The Court found, however, that the cases in which informational injury was sufficient to support standing were limited to suits brought against the agency whose failure to enforce the regulation at issue caused the plaintiff's injury. See June 29, 2001 Decision at 12 (citing ALDF II, 29 F.3d at 724; Humane Soc'y v. Babbitt, 46 F.3d 93, 101 (D.C. Cir. 1995); Fla.

Audubon Soc'y v. Bentsen, 94 F.3d 658, 664-65 (D.C. Cir. 1996); Fed. Election Comm'n v. Akins, 524 U.S. 11 (1998); Pub. Citizen v. Dep't of Justice, 491 U.S. 440 (1989)). Accordingly, because plaintiffs' injury "was not caused by defendant, but rather by a third party's interpretation of the applicable statute[,]" the Court held that the organizational plaintiffs lacked standing and dismissed them from the case. See June 29, 2001 Decision at 12.

On February 4, 2003, the U.S. Court of Appeals for the District of Columbia Circuit reversed that decision. See ASPCA v. Ringling Bros., 317 F.3d 334 (D.C. Cir. 2003). As discussed in detail below, see infra Part II.C., the Court of Appeals held that, assuming the truth of the allegations in the Second Amended Complaint, Mr. Rider had standing to sue. Id. at 336, 338. The Court of Appeals did not reach the question of whether the organizational plaintiffs had standing independent of Rider's claims. Id. at 338 ("Rider's allegations are sufficient to withstand a motion to dismiss for lack of standing. We therefore do not decide whether the other plaintiffs have standing because each of them is seeking relief identical to what Rider seeks.").

On September 26, 2003, ASPCA, AWI, FFA and Rider filed another complaint against FEI, which was docketed as Civil Action Number 03-2006. On November 25, 2003, the original action, Civil Action Number 00-1641, was dismissed without prejudice. Since that time, this action has proceeded as a single civil action under Civil Action Number 03-2006. On February 23, 2006, API was added as a plaintiff to this action pursuant to plaintiffs' Supplemental Complaint ("Supp. Compl."). See Order (DE 60) (February 23, 2006).

In their complaint, plaintiffs sought an order: (1) declaring that FEI's treatment of its elephants violates the ESA and that statute's implementing regulations; (2) enjoining FEI from continuing to violate the ESA and that statute's implementing regulations with respect to the elephants in its possession; (3) enjoining FEI from purchasing, receiving, transporting in interstate commerce, harming, harassing, and "taking" endangered elephants; (4) enjoining FEI from beating, wounding and injuring endangered elephants, forcibly separating baby elephants from their mothers, and keeping elephants on chains for most of the day, unless and until FEI obtains a permit to do so from the Fish and Wildlife Service ("FWS") pursuant to the procedural and substantive requirements of Section 10 of the ESA; (5) directing FEI to forfeit possession of the endangered elephants in its possession; (6) awarding plaintiffs their reasonable attorney's fees and costs for this action; and (7) granting plaintiffs such other and further relief as may be just and proper.*fn6 See Compl. at 21-22.

On August 23, 2007, following several years of extensive discovery, this Court granted in part and denied in part a motion for summary judgment for FEI. See ASPCA v. Ringling Bros., 502F. Supp. 2d 103 (D.D.C. 2007) ("August 23, 2007 Decision"). In its motion, FEI argued that an exemption from certain provisions of the ESA for animals held in captivity prior to the date the animal was listed as an endangered species under the ESA also applied to the ESA's "take" prohibition. As a result, FEI argued that the thirty-four (34) elephants that FEI had owned prior to the date that the Asian elephant was listed as an endangered species (so-called "pre-Act" elephants) were exempt from the "take" prohibition. The Court rejected that argument, finding that the "pre-Act" exemption did not apply to the "take" prohibition. Id. at 108, 110.

The Court did, however, grant summary judgment for FEI as to twenty-one (21) elephants for which FEI held a valid "captive-bred wildlife" ("CBW") permit from the FWS. Id. at 113. As the Court explained in its opinion, FWS adopted the CBW registration regulation in 1979, and exempted animals born in captivity and held pursuant to a valid CBW permit from the "taking" prohibition of the ESA. Id. at 110-11 (citing 50 C.F.R. § 17.21(g); 44 Fed. Reg. 54002, 54007 (Sept. 17, 1979)). Accordingly, because the ESA's "take" prohibition did not apply to animals held pursuant to a CBW permit, the Court determined that it lacked jurisdiction to decide plaintiffs' claims as to those elephants for which FEI had a CBW permit. See August 23, 2007 Decision at 111-12 (explaining that only the Secretary of the Interior can bring actions for violations of a permit issued by FWS).

On October 25, 2007, the Court granted in part defendant's motion for reconsideration of the August 23, 2007 Decision, agreeing with FEI that because the Court of Appeals had determined that Rider's standing to sue was premised on (i) his alleged "'strong personal attachment to the elephants'" with whom he had worked, and (ii) his alleged "'suffer[ing] from the mistreatment of the elephants to which he became emotionally attached during his tenure at Ringling Bros.,'" plaintiffs' standing was limited to the "pre-Act" elephants with whom Rider had worked.*fn7 ASPCA v. Ringling Bros., 246 F.R.D. 39, 42 (D.D.C. 2007) ("October 25, 2007 Decision") (quoting Ringling Bros., 317 F.3d at 335, 338).

Following the summary judgment ruling, the motion for reconsideration, and additional discovery, a non-jury trial on plaintiffs' claims commenced on February 4, 2009, and concluded on March 18, 2009. At various points during the trial, in response to certain evidence and arguments, the Court ordered the parties to file expedited briefs on several issues, including (1) the scope of the statutory or regulatory authority, if any, of any federal agency with respect to Asian elephants in captivity in American circuses, and how any such authority has been exercised with respect to the "take" allegations plaintiffs have made in this case, see 2-6-09 p.m. at 69:1-75:11; and (2) the organizational plaintiffs' Article III standing, see Minute Order (Feb. 19, 2009). Following the trial, and after the parties' post-trial pleadings were filed with the Court, final closing arguments were held on July 14, 2009. The case was thereafter taken under advisement.


A. The Endangered Species Act

The effective date of the ESA, 16 U.S.C. § 1531 et seq., as originally enacted by the United States Congress, was December 28, 1973. Pub. L. No. 93-205, 87 Stat. 884, 903 (Dec. 28, 1973). 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 aims generally to ensure that international trade in specimens of wild plants and animals does not threaten their survival. The United States Senate gave its advice and consent to CITES on August 3, 1973, and the President of the United States ratified CITES on September 13, 1973. Id. CITES entered into force on July 1, 1975. Id.

Appendix I to CITES lists certain species of animals and plants that are "threatened with extinction." CITES, Art. II.1. The Asian elephant was listed on Appendix I to CITES at the time that the Convention took effect on July 1, 1975. See CITES, Appendix I (listing elephas maximus).*fn8 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).

1. Section 9 of the ESA - The "Take" Prohibition

Section 9 of the ESA prohibits the "take" of any endangered species. 16 U.S.C. § 1538(a)(1)(B). The term "take" is broadly defined 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 FWS 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.

As the Supreme Court has observed, the term "take" is defined in the statute "in the broadest possible manner to include every conceivable way in which a person can 'take' or attempt to 'take' any fish or wildlife.'" Babbitt v. Sweet Home Chapter of Cmtys. for a Greater Or., 515 U.S. 687, 704 (1995) (quoting S. Rep. No. 93-307, at 7 (1973)). There is no requirement that the harm to the species be intentional, and both direct and indirect harm can constitute unlawful "takes" of a listed species. See, e.g., id. at 704-07 (holding that actions that destroy the habitat of an endangered species can "take" the species).

Once the court finds that there is an unlawful "take" of an endangered species, it must craft an appropriate remedy to halt the conduct that constitutes the "take." See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194-95 (1978) (rejecting any role for the courts "to strike a balance of equities" because "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").

2. Section 10 of the ESA - The Permit Process

Section 10(a)(1) of the ESA requires that whenever a "person" -- defined to include a corporation, 16 U.S.C. § 1532(13) -- seeks to engage in an activity that is otherwise prohibited by Section 9, it must first obtain a permit from the FWS authorizing that activity. Id. § 1539(a)(1).

To apply for a permit the applicant must provide and verify specific information, including, inter alia, a description of 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).

Under Section 10(c), all of this application information "shall be available to the public as a matter of public record at every stage of the proceeding." 16 U.S.C. § 1539(c). In addition, notice of the application must be published in the Federal Register -- at which time the agency must invite the submission "from interested parties, within thirty days after the date of the notice, of written data, views, or arguments with respect to the application." Id. The U.S. Court of Appeals for the District of Columbia Circuit has held that these affirmative disclosure requirements are mandatory, as is reflected by the plain words of the statute. See Gerber v. Norton,294 F.3d 173, 179-82 (D.C. Cir. 2002). Further, 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.").

3. Section 11 of the ESA - The Citizen-Suit Provision

The ESA includes a citizen-suit provision, which provides that:

(1) Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf -

(A) to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any provision of this Act or regulation issued under the authority thereof; or

(C) against the Secretary where there is alleged a failure of the Secretary to perform any act or duty under [Section 1533] which is not discretionary with the Secretary.

16 U.S.C. § 1540(g)(1). As the Supreme Court noted in Bennett v. Spear, 520 U.S. 154, 164-65 (1997), the ESA's citizen suit provision is "an authorization of remarkable breadth when compared with the language Congress ordinarily uses."

B. Article III Standing

Article III of the United States Constitution limits the federal judiciary's jurisdiction to "cases" or "controversies." See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-81 (2000). As the Supreme Court has said, "the core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citing Allen v. Wright, 468 U.S. 737, 751 (1984)).

Article III's case or controversy (i.e., standing) requirement has three elements: (1) injury in fact; (2) causation; and (3) redressability. See Laidlaw, 528 U.S. at 180-81 (citing Lujan, 504 U.S. at 560-61) ("[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an '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."). Plaintiffs, as the parties seeking to invoke federal jurisdiction, bear the burden of establishing standing, see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 103- 04 (1998), and must establish such standing "separately for each form of relief sought[,]" see Laidlaw, 528 U.S. at 185 (internal citations omitted).

C. ASPCA v. Ringling Bros., 317 F.3d 334 (D.C. Cir. 2003)

As discussed supra, Part I.C., in 2001, this Court granted defendant's motion to dismiss, holding that Rider and the organizational plaintiffs had failed to establish Article III standing. See June 29, 2001 Decision. The Court of Appeals reversed this Court's decision with respect to Rider's standing.*fn9 See generally Ringling Bros., 317 F.3d 334. Emphasizing repeatedly that its decision was based solely on the pleadings and that it was required to assume the truth of Rider's claims, the Court of Appeals held that:

Based upon [Rider's] desire to visit the elephants (which we must assume might include attending a performance of the circus), his experience with the elephants, his alleged ability to recognize the effects of mistreatment, and what an injunction would accomplish, Rider's allegations are sufficient to withstand a motion to dismiss for lack of standing.

Id. at 338. In fact, in addition to the language just quoted, the Court of Appeals noted the pleading standard at least four more times in its five-page opinion. See id. at 336 ("At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice because courts assume plaintiffs can back up their general claims with specifics at trial."

(internal quotation marks omitted)); id. at 337 ("Given the posture of the case, we must assume the truth of the claims."); id. at 338 ("These factors, coupled with the lesser standard required to show standing on a motion to dismiss, distinguish this case from [Humane Society v.] Babbitt.); id. ("If Rider wins the case, we must assume - because the case is at the pleading stage - that his injury will be resolved.").

The Court of Appeals found that, assuming the allegations in the complaint were true, Rider had established a sufficient "injury-in-fact" to satisfy the first element of the standing requirement because "Rider alleged a strong personal attachment to the elephants[,]" and "stated a desire to visit the elephants, making his injury present or imminent[.]" Id. at 337-38. The court found that the second element of Article III standing, causation, was easily demonstrated because "[i]t is unquestioned that Ringling Bros.'s alleged actions - inhumane treatment of the elephants - are the source of the aesthetic injuries that Rider alleges." Id. at 338.

As for the third element, redressability, the Court of Appeals referenced the two forms of relief that Rider was seeking at that time: (i) an injunction halting Ringling Bros.' mistreatment of the elephants in violation of the ESA; and (ii) an order directing the defendant to forfeit possession of the elephants. The Court of Appeals then concluded that "[i]f Rider wins the case, we must assume - because the case is at the pleading stage - that his injury will be resolved." Id.

The court explained:

Although the complaint does not come right out and say that an end to mistreatment will bring about a change in the elephants' behavior, this is a fair inference. It may also be inferred that if Rider wins, the elephants will no longer exhibit the physical effects of mistreatment. Rider then will be able to attend the circus without any aesthetic injury. It follows that Rider has alleged enough to show that his injuries will likely be redressed if he is successful on the merits.



As discussed supra, Part I.B., Plaintiffs Rider and API bring this suit pursuant to the citizen-suit provision of the ESA, alleging that FEI's use of the bullhook and chains on the Asian elephants in its circus performances "harms," "harasses," and "wounds" the elephants, and that those "takes" of the elephants, absent a Section 10 permit - which FEI does not have - are in violation of Section 9 of the ESA.*fn10 In its defense, FEI argues, among other things, that plaintiffs lack the standing required to pursue these claims. Based on the following findings of fact and conclusions of law,*fn11 the Court concludes that plaintiffs have failed to prove the standing required by Article III of the United States Constitution. This Court therefore lacks jurisdiction over plaintiffs' claims. Because the Court concludes that plaintiffs lack standing, the Court does not - and indeed cannot - reach the merits of plaintiffs' allegations that FEI "takes" its elephants in violation of Section 9 of the ESA. Accordingly, for the reasons set forth below, judgment will be entered for the defendant.

A. Rider Does Not Have Article III Standing

The allegations taken as true and relied upon by the Court of Appeals to establish Rider's standing were that: (1) Rider formed a "strong, personal attachment" to the elephants, Ringling Bros., 317 F.3d at 335, 337; (2) Rider left his job at Ringling Bros. because of the mistreatment of the elephants, id. at 335; (3) Rider "would like to work with the elephants again and would attempt to do so if the elephants were relocated[,]" id.; (4) Rider would like to visit the elephants, but cannot do so without being injured from seeing the animals and detecting their mistreatment, which he can discern without actually observing the mistreatment, id. at 337; and (5) if Rider's relief is granted, the elephants will no longer exhibit the physical effects of mistreatment, and thus Rider will be able to attend the circus and see the elephants without injury, id. at 338. It is these "general factual allegations," therefore, that Rider was required to "back up . . . with specifics at trial," in order to satisfy the requirements of Article III. Id. at 336 (citing Lujan, 504 U.S. at 561). Unfortunately for ...

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