ASPCA to Pay Ringling Brothers $9.3 Million

 Feld Entertainment, Inc. is the owner of Ringling Brothers and Barnum and Bailey Circus.  On December 20, 2012 Feld announced that it has reached a settlement of its claims against the American Society for the Prevention of Cruelty to Animals (ASPCA) for attorneys fees in the amount of $9.3 million. Feld’s claims arose from its defense of a lawsuit which had been filed  against Feld over 12 years ago by the ASPCA, an individual named Tom Rider, and several other animal protection organizations.  According to its press release, Feld's settlement is effective only with regard to the ASPCA.  Feld asserts that it will continue to pursue claims for litigation abuse and RICO against the other plaintiffs in the underlying action, including Rider as well as the Humane Society of the United States, the Fund for Animals, and the Animal Welfare Institute.

 The underlying lawsuit alleged that Feld's use of elephants in its Ringling Brothers circus performances and its treatment of those elephants constituted an unlawful taking under the Endangered Species Act. Feld was ultimately successful in the lawsuit, but claimed to  have incurred over $20 million in attorneys fees. In addition to seeking attorneys fees in the underlying action, Feld had separately filed a RICO action against the plaintiffs claiming that the various animal rights organizations, including the ASPCA, had made payments to Rider for his testimony which constituted bribery of a witness. 

The underlying lawsuit was initially filed in 2000.  The lawsuit was based upon the Endangered Species Act (the "ESA"). Asian elephants of the type used by Feld in its circus performances are a protected species under the ESA.  Feld has a permit under the ESA to possess and exhibit elephants under the ESA, but the plaintiffs claimed that Feld mistreated the elephants by using bullhooks to train and control them and by using chains to restrain the elephants. Since the ESA defines "taking" of a protected species to include, among other matters, harassing, harming or wounding protected animals, the plaintiffs argued that this alleged mistreatment in captivity constituted a "taking" under the ESA.   If this claim have eventually been upheld on the merits, as a practical matter it would have extended the ESA to any instance of alleged animal abuse of captive animals involving a protected species.

The individual plaintiff Tom Rider had been a barn helper for Feld for several years and had helped feed and clean up after the elephants. Rider had also worked as an elephant attendant for several other circuses before and after working for Feld.  In the complaint Rider alleged that (i) he had a strong personal attachment to the elephants, (ii) he left his job with Feld specifically because of the mistreatment of the elephants, (iii) he would have liked to work with these elephants again if those elephants were relocated and not abused and (iv) that he suffered aesthetic and emotional distress injury because of his knowledge of the manner in which the elephants were mistreated. 

The Federal District Court initially dismissed the underlying lawsuit on grounds that the plaintiffs lacked standing to bring an action against Feld under the ESA.  However, the Appellate Court  subsequently ruled that Mr. Rider's specific claims based upon his alleged personal relationship with these particular elephants constituted a claim of an actual injury in fact that, if true, might constitute the basis for standing under the ESA.  The Appellate Court did not rule on whether the animal rights groups had standing and sent the matter back to the District Court in 2003.  The lawsuit again became active, and  extensive discovery was conducted by all the parties over a period of 5 years. In addition several different animal rights groups came and went as plaintiffs, although Mr. Rider continued to be featured as the primary individual plaintiff.

During this period Mr. Rider was, according to the pleadings and the Court's findings, in effect unemployed and supported by the various animal rights groups who provided him with "grants" to engage in animal rights advocacy. Feld claimed that these payments were simply payments to Rider to act as a witness and constituted unlawful bribery of a witness. Feld also claimed that Rider's testimony changed over time as he continued to be supported by the animal rights groups.  The District Court ultimately found that the various animal-rights groups paid Mr. Ryder approximately $200,000 over a six-year period primarily for the purpose of keeping him available as a witness. 

In 2009, a court trial was held. The District Court Judge  not only found that Mr. Rider had been paid by the various animal rights groups and was essentially a paid witness, but also found that his allegations in support of his claim for standing lacked any credibility. Rather than support a claim of a personal and emotional attachment to the elephants, the evidence showed that (i) Mr. Rider had difficulty even remembering the names of the elephants or identifying them from pictures, (ii)  actively disliked at least one elephant which he referred to as a "bitch" and a " killer elephant"[1],  (iii) had continued to use bullhooks on other elephants at other circuses after having allegedly quit Feld because of his distress at seeing those instruments used and  (iv) did not complain about the treatment of elephants until after being paid by animal rights groups to do so.  Mr. Rider's claim for standing arose only because of his claim of a personal relationship with the elephants and his alleged aesthetic injury and accompanying emotional distress.  In its findings of fact the Court specifically stated that Mr. Rider had been repeatedly impeached, and had been "pulverized" under cross examination. Since Mr. Rider's factual assertions in support of his claim for standing were not substantiated, the Court held that Mr. Rider did not have standing to sue Feld under the ESA. 

By the time of the trial, most of the animal rights groups had dropped their claims of standing to sue Feld directly under the ESA.  However the plaintiff  Animal Protection Institute (API) argued at the trial that it had standing to sue under the ESA. API's theory was that it had "informational standing" because the ESA permit process required the applicant ("Feld) to disclose certain information in its application for a permit to possess and exhibit the elephants.  API's theory in effect was that Feld did not disclose its intent to "take" the animals by harassing, harming or wounding them in its permit application and that API had a right to sue Feld under the ESA to force Feld to disclose the information which API claimed was required in the permit application. The Court rejected this argument as too remote to grant standing, particularly since the purpose of the ESA is not to provide information about "takings" but rather to prohibit them except in very limited circumstances. 

API also attempted to claim that it had standing under what is referred to as the "Havens Doctrine"  because Feld's alleged unlawful conduct under the ESA undermined its advocacy and educational purposes "by contributing to the public misimpression" that use of bullhooks and chains are lawful and humane practices.   The court rejected the argument that an advocacy organization's abstract concern with a subject by itself would somehow give rise to standing in the absence of a concrete and demonstrable injury.

The court found in favor of  Feld on all counts because the plaintiffs lacked standing to sue under the ESA (the trial court’s opinion is published at American Society for the Prevention of Cruelty to Animals v. Feld Entertainment, Inc. (2009) 677 F.Supp.2d 55.  The plaintiffs filed a second appeal of the trial court's findings.  That appeal was denied in 2011  (the appellate court's opinion is published at American Society for the Prevention of Cruelty to Animals v. Feld Entertainment Inc. (2011) 659 F.3d 13).

Feld did not prevail on the merits in the underlying lawsuit. The lawsuit was dismissed solely based upon procedural grounds because the plaintiffs were found to lack standing. Therefore the issue of whether alleged mistreatment of a protected species while in captivity under a valid ESA permit constitutes a violation of the ESA remains an open question. The Courts' rulings do have some benefit to the zoo and aquarium industry because the rulings on standing greatly restrict the ability of animal rights groups to bring actions under the ESA directly.  However the appellate court's initial finding in 2003 that an individual plaintiff might have standing under the right facts leaves the door open. It is still possible that a Court might decide that mistreatment or mishandling of a protected species in a zoo or aquarium constitutes a prohibited "taking" under the ESA.

This case is remarkable not for the legal issues addressed but rather for the incredibly poor judgment shown by the plaintiffs and the incredible amount of money and resources which were expended in litigating the case. At the end of the day, the court’s ruling did not even reach the substance of the allegations made by the plaintiffs. Instead the court's ruling was based entirely on procedural determination that these particular plaintiffs lacked standing to sue under the ESA (but leaving open the door for other plaintiffs with better facts) .  In the meantime, the plaintiffs and the defendants spent tens of millions of dollars in attorneys fees and costs over the course of 12 years.

Feld and its Ringling Brothers circuses received some negative publicity (which likely was part of the plaintiffs' goal).  However the ASPCA and the other animal rights advocates involved were in effect found by the Court to have engaged in serious litigation misconduct. These “bad acts” by the plaintiffs are not only part of the reason that Feld was successful in the underlying lawsuit, but are no doubt also the reason that the ASPCA agreed to pay such a large settlement. This $10 million settlement will likely have a significant adverse impact on the ASPCA's ability to pursue its legitimate goals over the next few years.  And while Feld and its counsel may feel somewhat vindicated by this recent settlement, this pyrrhic victory was not worth the cost incurred in dollars, resources or time.

 

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[1] This perspective is not surprising in an animal handler familiar with elephants. Despite the love of elephants by the general public and the anthropomorphism of elephants because of their physical appearance, elephants are one of the more dangerous animals in public displays and are responsible for many injuries and deaths to zoo personnel.

Zoo Funding Measures and Election Laws

Many zoos and aquariums are funded in whole or in part with public monies. Historically those funds have been provided from the general fund of local governmental entities. In recent years the availability of public funding has decreased. In response, supporters of zoos and aquariums in many areas have sponsored supplemental taxes specifically intended to support their local zoo.  Typically these special taxes are either a supplemental real estate assessment or a supplemental sales tax.  Implementation of these supplemental taxes generally requires a ballot measure.

It is important for zoo operators and promoters to bear in mind the exact legal structure of their organization and its affiliates when seeking such supplemental funding. As a general principle, public monies and public resources cannot be used to influence the results of elections. Separately public resources generally cannot be used for purposes such as political fund-raising and campaigning. Without careful consideration of its organizational structure and the ownership of its assets, a zoo or aquarium risks running afoul of election and campaign finance laws by supporting or otherwise becoming involved in these sorts of ballot measures.

Recently, Measure A1 in Oakland California was on the ballot for the purpose of imposing a supplemental real estate assessment to benefit the Oakland Zoo (sadly it appears that Measure A1 did not pass). The East Bay Zoological Society is a private nonprofit organization which runs the Oakland Zoo under a contract with the City of Oakland. Even though the Zoological Society is a private nonprofit organization, it has been accused of violating several different campaign finance laws in connection with its support of Measure A1.

The Zoological Society posted numerous signs supporting Measure A1 at the Zoo. However the Zoo is located on public property owned by the City of Oakland.   The Oakland City Attorney’s office asserted that placing signs in support of Measure A1 at the Zoo facilities was a violation of campaign finance laws which prohibit the use of public property to influence an election.  The City required the Zoo to remove those signs.

The Zoological Society has also been accused of several other separate campaign law violations.  The Zoological Society formed a pro Measure A1 action committee and listed the Zoo offices (located at the Zoo) as the headquarters of that action committee.  Campaign finance laws prohibit political campaigning on public property.  For example an incumbent candidate cannot use their legislative offices as a location for campaign activities.  The Zoological Society has been accused of violating campaign finance laws by locating its action committee headquarters at the Zoo.

In addition to legislative restrictions, the Oakland Zoological Society was accused of violating the terms of its contract with the City of Oakland.  That contract contains restrictions which prohibit the Zoological Society from using its  property for political purposes including political fundraising and campaigning. Separately, the contract prohibits the Zoological Society from using any City funds to finance political campaigns.   If the Zoological Society did not segregate funds received from the City, and could not document the specific source of the funds used to support Measure A1, the commingling of City and non-City funds arguably taints all Zoo funds. 

The accusations which have been leveled against the Oakland Zoological Society in connection with Measure A1 are unfortunate. The Zoological Society was acting in good faith and not in a secretive or deceptive manner in its support of this Measure.   It is a separate non-profit organization and its actions do not intuitively appear improper.   

Violation of the contractual restrictions contained in its agreements with the City of Oakland in this context are not that troubling by themselves   The Zoological Society's actions in support of Measure A1 probably did not violate the underlying spirit of the contractual restriction on use of City derived funds for political campaigning.  To the extent that these actions were a technical violation of its contract, the issue could be resolved by a simple agreement between the City and the Zoological Society.   The City of Oakland would be unlikely to impose any material sanctions on the Zoological Society.  

The Zoological Society operates the Zoo for the City of Oakland on a management contract basis and not a leased basis.   Other zoos located on public lands lease the property and operate a zoo independently.  Generally speaking leases are less likely to contain these sorts of contractual restrictions.   In this instance, the Oakland Zoo was more restricted than other facilities because of these additional contractual restrictions. 

The election law claims are of greater concern because0 even technical violations of election laws can have more serious consequences.  In addition to the adverse publicity from accusations of campaign finance laws, regulatory agencies can assess fines and other penalties for violation of campaign finance laws. Even more problematic if Measure A1 had passed these allegations could have provided a basis for anti –tax groups (or anti-zoo groups) to challenge the validity of the supplemental tax. 

At the time Measure A1 was under consideration, the Oakland Zoo was under attack by local groups which opposed a Zoo expansion program.   The alleged campaign law violations were reported to the City of Oakland by one of the anti-expansion groups.  This kind of special scrutiny for zoos and aquariums is not unusual.  In today’s environment any action by a zoo or aquarium may be subject to potential scrutiny by animal rights groups.   Any matter involving special taxes is also likely to be scrutinized by anti-tax groups.  Care should always be taken even if no particular opposition is on the horizon, but an organization that is already being challenged by an activist group should be mindful that any action they take will be subject to extra scrutiny.

Zoos and aquariums need to be mindful of these sorts of contractual and legislative restrictions on public fundraising activities. These organizations need to be aware of both their own internal structure as well as applicable restrictions. Best practices for a zoo contemplating support for a local tax initiative should include formation of an affiliated but legally separate fund-raising arm not directly controlled by the organization which operates the zoo. Zoo donors can contribute directly to the related entity to fund support measures.  Good planning and foresight could have eliminated some, if not all, of the problems that occurred in connection with Measure A1.

In Defense of Animals Files Lawsuit Against National Park Service Over Deer Culling Program

On October 25, 2012 a lawsuit was filed in the United States District Court for the District of Columbia to enjoin the National Park Service from implementing a deer culling program in Rock Creek Park.   This lawsuit is not focused on the zoo and aquarium industry but if successful could have a significant impact on new zoo and aquarium construction and expansion.

 Rock Creek Park is located in the heart of Washington DC.   The Park covers approximately three square miles and consists of a mix of urban natural area and public park facilities.  The National Park Service determined that the deer population in Rock Creek Park needed to be reduced. Several alternatives were considered. Ultimately, the National Park Service decided upon a deer culling program which would eliminate approximately 3/4 of the deer population in the Park.

 Several local residents who lived near the Park joined with In Defense Of Animals (IDA) to file this action seeking to enjoin the National Park service from going forward with the culling program.  IDA is an animal rights organization located in San Rafael California which seeks to prevent the mistreatment, torture and killing of animals.  IDA is particularly known for its opposition to elephant habitats in zoos.

 The lawsuit included three separate causes of action. The first cause of action is based upon an assertion that the deer culling program violates the Rock Creek Park Enabling Act which formed the Park. The second cause of action is based upon an assertion that the program violates the legislation which created the National Park Service. Both of these causes of action are based on generic language contained in the two statutes which speaks of preserving, to the extent possible, wildlife in parks. It is unlikely that these claims based upon generic language in the enabling statutes will be found to have merit.

 The third cause of action is based on the claim that the program violates the National Environmental Policy Act (NEPA). Under NEPA, any major federal action which affects the quality of the human environment must be preceded by an environmental impact statement. Generally speaking an environmental impact statement is a document which describes and summarizes all of the environmental impacts of any proposed action.   The purpose of an environmental impact statement is to allow for consideration of environmental impacts and consideration of possible mitigating measures.  Typically environmental impact statements are prepared in connection with construction and other activities which cause physical impacts on the environment.

 In this case, the plaintiffs have argued that the killing of deer in the Park would cause the plaintiffs “great anxiety and distress” and that the individual plaintiffs would suffer “aesthetic injuries” which might prevent them from being able to enjoy the Park in the future.  In effect, the plaintiffs are claiming that an environmental impact statement should consider the individual plaintiffs’ emotional distress injuries that they would suffer as a result of their knowledge that the deer had been killed.

 This third cause of action is an extreme extension of an environmental impact statement and is unlikely to prevail. If the plaintiffs are successful in this third cause of action, however, it could have a significant impact on new construction related to zoos and aquariums.   While NEPA is limited to actions taken by agencies of the federal government, many states have their own versions of environmental legislation which require some form of environmental impact statement.   Some of these statutes such as California’s Environmental Quality Act require an environmental impact statement for any project which has the potential to impact the environment and included private projects.  In addition to its possible impact on government funded zoo or aquarium construction this proposed expansion of the doctrine of the environmental impact statement could affect privately funded projects as well.

 Construction of new zoos and aquariums or significant additions to existing zoos and aquariums can trigger the requirement for some form of environmental impact statement or report.  If these sorts of claims of emotional distress become a factor which needs to be addressed in an environmental impact statement, that would have an impact on future zoo and aquarium construction projects.   Some activists take extreme views that zoos and aquariums are the equivalent of prisons and that the housing of wildlife in the zoos and aquariums is a form of torture and imprisonment. Those persons who believe that zoos and aquariums wrongfully imprison and torture animals could make the same argument that the construction or expansion of a zoo causes them emotional distress because of their knowledge of what they consider to be pending mistreatment of animals.   If environmental impact statements must consider the psychological effect and possible emotional distress suffered by persons who know the purpose of the construction, it could provide a basis for extreme animal rights groups to oppose zoo and aquarium construction projects.

 These extreme views would need to be given consideration in environmental impact statements related to zoo and aquarium construction, and arguments could then be made by zoo opponents that measures should be put in place to mitigate these psychological concerns.  Additional requirements of this type could increase the cost of zoo or aquarium construction projects.  These sorts of additional requirements could also provide a basis to delay projects while animal-rights activists litigate the adequacy the consideration of the psychological effects and the adequacy of proposed mitigation measures.

Our Friends at PETA

This is not strictly a legal issue, but PETA recently sought to have a memorial placed on a public roadway in Orange County for fish. On October 11, a truck carrying several thousand pounds of live fish for sale at a local market and consumption crashed. Although many of the fish were preserved and taken onto the market, many of the fish died on the site. A local member of PETA happened to pass by and see the fish scattered around the highway. In response, PETA sent a written request to the city of Irvine asking for the placement of the sign at the crash site “In memory of hundreds of fish who suffered and died at the spot”. The purpose of the proposed memorial sign, according to PETA, was to remind people that fish feel pain to.   PETA felt that this should be considered analogous to a roadside memorial for human fatalities since the fish died in an auto accident.

 

This instance serves as a reminder that while PETA focuses its publicity efforts on animals which can be anthropomorphized, its real goals are directed toward a different agenda.  PETA’s efforts to create empathy for warm and fuzzy creatures is generally simply a publicity front for its real efforts. In opposing PITA and similar groups it can be useful to highlight instances such as this. While the general public may sympathetic to some of PETA’s publicity efforts, these sorts of actions can be used to remind the public of PETA’s broader agenda.

The Purpose of the Zoo and Aquarium Law Blog

The art of displaying live animals, fish and other creatures has existed in one form or another for many years. Some of the earliest predecessors of today’s zoos and aquariums were displays maintained by ancient Egyptians and Chinese emperors thousands of years ago.  European royalty displayed oddities in menageries hundreds of years ago.  The earliest predecessor of the modern zoo was the London Zoological Garden opened in about 1825. The first modern zoo in the United States was The Bronx Zoo which opened in New York in about 1900. 

 

The earliest zoos were government sponsored exhibitions.  In more recent years zoos and aquariums have become businesses. In most cases these businesses are operated as nonprofits but in some instances they are also operated as successful (and in some cases not so successful) for-profit businesses.

 

Historically zoos and aquariums have been lightly regulated as an industry. Those regulations which existed tended to be in the areas of animal husbandry, and were derived from considerations of agricultural enterprises.   Zoos and aquariums were also subject to certain import-export requirements, laws governing endangered species and laws generally relating to public safety.  Little if any consideration was given to the actual operation of zoos and aquariums themselves. Even today the operation of zoos and aquariums is governed more by policies and procedures derived from accrediting organizations such as the Association of Zoos and Aquariums than by statutes and regulations imposed by governmental authorities.

 

In recent years there have been more and better organized efforts to advocate legal regulation of animal safety, animal comfort and the governance of the manner in which zoos and aquariums are operated.  These efforts are likely to continue, and as a result the level of regulation of zoos and aquariums is likely to increase as time passes.

 

Because of the increase in the amount of law governing animals (and animal rights) in the past 20 years, we have seen the start of publications regarding animal law. Several of the nation’s law schools have begun publishing law reviews specifically focused on animal rights. To date however these law reviews and publications have all focused on animal law from the perspective of animal rights. There has been little in the way of publications and organized academic legal thought from the perspective of the zoo and aquarium industry. In addition to publishing law reviews, law schools have begun teaching classes on animal rights, and creating programs revolving around animal rights and regulation of activities regarding animals.

 

The first and probably most prominent animal-rights law review is the Animal Law Journal, which was created at Lewis and Clark Law School in Portland Oregon in or about 2002. In addition to publishing a regular law review, the law faculty at Lewis and Clark Law School also wrote the first academic treatise for law students in connection with animal law.  Animal Law In a Nutshell was published by West publications in 2011.[1]  The animal law program at Lewis and Clark law school has been affiliated with the Animal Legal Defense Fund since its inception and its focus is on animal rights. Recently in or about 2008 Lewis and Clark law school formalized its affiliation with the Animal Legal Defense Fund with the joint formation of The Center for Animal Law Studies.

 

In addition to publications from Lewis and Clark law school, Michigan State University began an animal-rights law program in or about 2005. Pennsylvania law school briefly published an animal rights Journal from approximately 2006-2009. Stanford Law School recently began the publication of an animal-rights Journal in 2010. All of these publications have been from the perspective of animal rights and protecting animals against abuse. None have focused on the rights or interests of zoos and aquariums.

 

In addition to academic treatises from legitimate academic institutions, there have been fringe groups which have been formed to pursue animal rights agendas such as the Nonhuman Rights Project located in Coral Springs Florida. The Nonhuman Rights Project advocates for personhood and direct legal rights for animals.  The views of the Nonhuman Rights Project are so extreme that in PETA's recent failed lawsuit against Sea world, when the Nonhuman Rights Project sought to intervene in the lawsuit and sought to present its views of the rights which should be provided to Orcas, even PETA objected to their participation.

 

The perspective brought by these organizations and their focus on animal rights and interests of animals has not been without benefits. No one can disagree that there have been beneficial improvements in the treatment of animals as a result of the publicity brought by these organizations. New standards governing space of animal enclosures and the design of enclosures has resulted in the improved animal health, better education and outreach by zoos and aquariums, better viewing by visitors to zoos and aquariums and other improvements. However the one-sided approach and the focus solely on animal rights that these organizations and publications present are not generally beneficial to the zoo and aquarium industry. The organized resistance and opposition to the zoo and aquarium industry is increasing.

 

The purpose of this blog is to provide a discussion of legal issues involving zoos and aquariums from the viewpoint of the zoo and aquarium industry. In addition to topics on animal rights, this blog will discuss other issues of legal significance to zoos such as land use issues, the more stringent application of ADA and public access requirements to zoos and aquariums, and the unique employee safety issues that can arise under OSHA and liability for escaped animals. 

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[1] The Nutshell Series is a series of legal treatises intended for law students as a quick guide to a particular legal topic.