ASPCA v. Feld Entm't, Inc.

ASPCA v. Feld Entm't, Inc.

Opinion

 [*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.

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