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United States Court of Appeals for the District of Columbia Circuit
September 12, 2011, Argued; October 28, 2011, Decided
No. 10-7007 Consolidated with 10-7021
[*17] [**83] Tatel, Circuit Judge: Feld Entertainment, Inc., owns the country's largest collection of endangered Asian elephants, some of whom travel and perform with its famed Ringling Brothers and Barnum & Bailey Circus. In this case, a former barn helper with Ringling Brothers and an organization dedicated to fighting exploitation of animals allege that not all is well under the big top. Specifically, they claim that Feld's use of two techniques for controlling the elephants—bullhooks and chains—harms the animals in violation of the Endangered Species Act. But the district [***2] court never reached the merits of this claim because, following a lengthy bench trial, it found that plaintiffs had failed to establish Article III standing. For the reasons set forth in this opinion, we agree.
] The Endangered Species Act of 1973 (ESA) requires the Secretary of the Interior to identify species that are "endangered" or "threatened." 16 U.S.C. § 1533(a)(1). Section 9 makes it unlawful to "take" any endangered species within the United States, or to "possess, sell, deliver, carry, transport, or ship, by any means whatsoever" any endangered species "taken" in violation of the Act. 16 U.S.C. § 1538(a)(1)(B), (D). The Act defines "take" to mean "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). Pursuant to ESA section 10, the Secretary may issue a permit for a take otherwise prohibited by section 9, provided that he first gives public notice and an opportunity to comment on the permit application, as well as makes certain findings regarding the impact of the permitted activities. 16 U.S.C. § 1539.
This case involves two techniques Feld uses to handle its Asian elephants. First, [***3] its handlers guide and control the elephants with an instrument known as a bullhook, a two- to three-foot rod with a metal point and hook mounted on one end. Second, Feld tethers its Asian elephants with chains when the animals are not performing and when they are traveling by train. Plaintiffs maintain that these two practices "harm," "wound," and "harass" the elephants within the meaning of ESA section 9, and therefore qualify as a "take" which Feld cannot continue without obtaining a section 10 permit.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
659 F.3d 13 *; 398 U.S. App. D.C. 79 **; 2011 U.S. App. LEXIS 21889 ***; 73 ERC (BNA) 1577
AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, ET AL., APPELLANTS v. FELD ENTERTAINMENT, INC., APPELLEE
Subsequent History: Motion granted by, in part, Motion denied by, in part, Costs and fees proceeding at Animal Welfare Inst. v. Feld Entm't, Inc., 2013 U.S. Dist. LEXIS 68522 (D.D.C., Mar. 29, 2013)
Prior History: [***1] Appeals from the United States District Court for the District of Columbia. (No. 1:03-CV-02006).
ASPCA v. Feld Entm't, Inc., 677 F. Supp. 2d 55, 2009 U.S. Dist. LEXIS 121394 (D.D.C., 2009)
elephants, district court, bullhooks, chains, practices, animals, circus, advocacy, mistreatment, establish standing, injury in fact, resources, allegations, attachment, credibility, quotation, organizational, impression, housing, mission, permit application, public education, clear error, marks, endangered species, standing to sue, pleading stage, disclosure, endangered, emotional
Environmental Law, Natural Resources & Public Lands, Endangered Species Act, Permits, Takings, Civil Procedure, Justiciability, Standing, Injury in Fact, Constitutional Law, Case or Controversy, Elements, Appeals, Standards of Review, Clearly Erroneous Review, General Overview, De Novo Review, Questions of Fact & Law, Burdens of Proof, Enforcement, Citizen Suits, Exemptions, Third Party Standing, Particular Parties